R. v. Donnelly, 2010 BCSC 1786

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Donnelly, 2010 BCSC 1786 Date: 20101213 Docket: 56643-6 Registry: Chilliwack Regina v. Brandon Edward Donnelly Before: The Honourable Mr. Justice Joyce On appeal from: Provincial Court of British Columbia, July 2, 2010 ( R. v. Donnelly, Abbotsford Registry, Docket: 70627-4KC) Reasons for Judgment Counsel for the Appellant: K.R. Beatch Counsel for the Respondent: K.C. Jansen Place and Date of Hearing: Chilliwack, B.C. October 25 and 27, 2010 Place and Date of Judgment: Chilliwack, B.C.

December 13, 2010 INTRODUCTION [ 1 ] On October 27, 2010, I allowed this sentence appeal, set aside the sentence and imposed a sentence of one day in addition to the time that the appellant had served on the sentence imposed on him, to be followed by a period of probation of one year. I indicated that I would provide written reasons for my decision in due course. These are those reasons. BACKGROUND [ 2 ] The appellant was charged with one count of assault causing bodily harm against his spouse and one count of common assault against his young child. The offences occurred on February 2, 2009.

The Crown proceeded summarily. On July 2, 2010, the appellant pleaded guilty to both offences. The learned Provincial Court judge imposed a sentence of nine months’ incarceration for the offence of assault causing bodily harm and a concurrent sentence of one week for the offence of common assault. He declined to order that the sentences be served in the community under a conditional sentence order. The learned sentencing judge also imposed a term of probation of three years.

CIRCUMSTANCES OF THE OFFENCES AND NATURE OF THE INJURIES [ 3 ] The circumstances surrounding the offences are briefly as follows. [ 4 ] The appellant and his spouse were out together at a local pub where they were drinking and dancing. At one point the appellant danced with another woman. The victim became jealous of the appellant dancing with another woman and left. The appellant followed her home, where an argument ensued. The parties’ two children were in the house at the time. The argument then became physical and, at one point, the appellant pushed the victim to the floor or they fell to the floor.

The appellant was holding the victim down. At some point the victim bit the appellant in the inner thigh. According to defence submissions at the sentencing hearing, at that point the appellant “saw red” and struck the victim in the face a number of times with his elbow. Defence counsel conceded that whatever led to the blows to the face the force was clearly excessive and caused considerable damage. [ 5 ] At one point during the altercation, the parties’ young child heard his mother screaming for help and tried to come to her aid.

The appellant pushed him away and the boy fell, resulting in a bruise to his knee. [ 6 ] The victim eventually was able to free herself and she and the two children went upstairs, then fled onto the roof of the house. While they were on the roof the elder child fell from the roof resulting in a broken arm and injury to his feet. The appellant was

not charged in relation to that particular incident. [ 7 ] The victim sustained significant injuries to her face as a result of the assault, although fortunately they were not long-lasting. She suffered a dislocated jaw, multiple bruises including bruising around both eyes, and lacerations in the inside of her mouth, apparently caused by her own teeth. The victim also suffered some bruising and scrapes to other parts of her body, although some of those injuries may have resulted from the fact that, at some point during the course of the altercation, she fell down some stairs.

The Crown did not take the position that the fall down the stairs formed part of the assault. [ 8 ] The sentencing judge described the victim’s injuries at para. 3 of his reasons as follows: 3 While the victim did not suffer any long-lasting physical injuries, it is quite plain that she was brutalized and traumatized. The photos establish that the beating she endured, while brief, was vicious. POSITIONS OF THE PARTIES AT SENTENCING [ 9 ] At sentencing, the Crown sought a sentence of incarceration of between nine and 14 months, followed by a lengthy period of probation.

The Crown recognized that the appellant was truly remorseful, accepted responsibility for his offending and that specific deterrence was already achieved by the fact that the appellant “has received the worst kind of reminder about the consequences to actions, the fact that he once had a family and now does not, as a result of this incident”. [ 10 ] The defence sought a conditional sentence of between nine and 12 months. In support of that submission, defence counsel outlined the following circumstances relating to the offender: (

a) he was 37 years old and had no criminal record; (

b) he was qualified in a trade and had worked at that trade consistently; (

c) he had complied with his maintenance obligations since the breakdown of his marriage; (

d) he had significant roots in the community and respect of friends and neighbours; (

e) he had suffered considerable stigma in the community already; (

f) he recognized the effect that his misuse of alcohol had on his conduct and had taken steps on his own to obtain professional help to deal with that issue; (

g) he had taken and completed a course in anger management; (

h) he was, at all times, cooperative with the police; (

i) he had been on bail without incident since his release on February 3, 2009; (

j) he pleaded guilty at the first opportunity once the precise nature of the charges had been resolved; (

k) he was remorseful; and (

l) there was no suggestion of a pattern of abusive conduct towards his spouse and this event, while not minimized, appeared to be an aberrant act. THE SENTENCING JUDGE’S REASONS [ 11 ] The learned sentencing judge noted at the outset of his Reasons that he was required to give consideration to a conditional sentence. After noting that the charge, which had originally been one of aggravated assault, was reduced to one of assault causing bodily harm, he noted that the Crown elected to proceed summarily, as a result of which, the maximum sentence was 18 months.

He then stated at para. 1: 1 What is of importance of this is really twofold: Firstly, the defendant has always acknowledged his guilty, but the delay towards that plea has been ongoing negotiations between counsel. As well, with this agreement, given the type of information before the court, part of the consideration in sentencing is an evaluation of a conditional sentence . [Emphasis added.] [ 12 ] The sentencing judge then reviewed the circumstances of the offences and the nature of the injuries sustained by the victim.

He then turned to the circumstances of the offender at paras. 4 and 6, and said: 5 The defendant is remorseful. Indeed, he has taken it upon himself not to take any steps towards access. He acknowledges that over time perhaps the damage he’s caused, especially to that of his relationship with his sons, will one day perhaps cure and become part of their lives again. He has acknowledged his responsibility for his behaviour by this guilty plea.

As I noted earlier, it was not at the earliest opportunity, but he situation delaying the plea was to ensure the best possible position of the defendant is presented to the court. I note both counsel are well-seasoned and their interest in the proper administration of justice is fairly and properly presented to the court. 6 The defendant is 37 years old. This is the first time he has been before the court. He is a resourceful man, employed in the

electrical business. He is committed to paying his maintenance obligations and is prepared to meet his financial responsibilities from the division of the family assets and debts. Substance abuse has been place under control. He has abstained since the incident. As well, he has sought personal counselling, including anger management and other addiction counselling services. He appears to have rehabilitation well in hand. He furthermore appears to fully appreciate the damage he has caused to the lives of others. Of course, there is his marriage which has now ended.

He has lost the love, trust and affection of his children. While the older is not his biological child he was, fall all purposes, his father. Neither child acknowledges him as their parent. He will have much to do to restore that loss of parental bond. Evidently, they otherwise had a very positive relationship. He was intimately bound in their respective lives through hockey, fishing and sports. Their loss, regrettably, is not only his but the children’s as well.

Additionally, there is the loss of the goodwill and connection that he had to his community. [ 13 ] The sentencing judge then dealt with the issue of a conditional sentence at para. 7, as follows: 7 A conditional sentence requires that I reflect upon whether he could be considered a threat to that community. By his rehabilitative efforts, lack of breaches of any orders since his release and his otherwise positive background, I am not of the view that he would pose any such threat.

As to whether it can be said that a sentence in the community is appropriate and not contrary to the sentencing principles, that is a different matter. The authorities are quite variable in their conclusions. Much of it is fact-driven and the circumstances are quite different in each. As I consider this file, of the aggravating circumstances, it is the brutality of this attack which is critically examined. As well, the fact that the children became part of and were exposed to the extreme violence adds another layer to the abhorrence of the attack. Domestic violence has no place in our society.

What goes on behind closed doors is the subject of careful scrutiny where the lives and safety of spouses and children are put at risk. While I am certain the defendant’s personal deterrence is satisfied, the aspect of denunciation is heightened along with general deterrence in this sentencing hearing. [ 14 ] Without further analysis or discussion, the learned sentencing judge imposed a sentence of nine month’s incarceration, to be followed by a term of probation of three years, as well as a five-year firearms prohibition and a DNA order.

ISSUES Did the learned sentencing judge err in principle in not properly considering a Conditional Sentence Order? [ 15 ] The appellant submits that the learned trial judge erred in principle by failing to undertake any analysis to support his conclusion that a conditional sentence could not meet the principles of sentencing.

The appellant submits that the sentencing judge simply stated that the principles of denunciation and general deterrence were heightened in an offence of this nature, a proposition with which defence counsel expressly agreed during her submissions, and then jumped to the conclusion that a conditional sentence could not satisfy those principles without considering why. [ 16 ] The appellant submits that the case law recognizes that even in cases where the principles of denunciation and general deterrence have primary importance, a conditional sentence that is crafted with appropriate conditions may be able to meet those principles.

The appellant submits that by failing to consider whether an appropriately crafted conditional sentence, with strict conditions, could meet the objectives of denunciation and general deterrence in the present case, the sentence judge fell into error. [ 17 ]

Section 742.1 of the Criminal Code , which provides for the possibility of a conditional sentence of imprisonment in certain circumstances, reads as follows: 742.1 If a person is convicted of an offence, other than a serious personal injury offence as defined in

section 752, a terrorism offence or a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more or an offence punishable by a minimum term of imprisonment, and the court imposes a sentence of imprisonment of less than two years and is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the offender’s compliance with the conditions imposed under

section 742.3. [ 18 ] As the Crown proceeded summarily with regard to these offences they are not within the categories of offences that are excluded from consideration of a conditional sentence by s. 742.1 . Further, the maximum sentence for assault causing bodily harm, where the Crown proceeds summarily, is 18 months. Since the sentencing judge found that the appellant would not be a threat to the community if he were to serve a conditional sentence in the community, the remaining issue was whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing. [ 19 ]

Section 718 of the Criminal Code sets out the fundamental purpose and principles of sentencing as follows: 718 The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders;

(

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [ 20 ] As the sentencing judge recognized, of the foregoing principles, the only ones that required serious consideration were denunciation and general deterrence. [ 21 ] In the leading case of R. v. Proulx , 2000 SCC 5 (CanLII) , [2000] 1 S.C.R. 61 ( Proulx ), the point was made that a conditional sentence is available in principle for all offences in which the statutory prerequisites are satisfied.

At para. 90, Lamer C.J.C. said that: 90 ... [I]t would be an error in principle not to consider the possibility of a conditional sentence seriously when the statutory prerequisites are met. Failure to advert to the possibility of a conditional sentence in reasons for sentence where there are reasonable grounds for finding that the first three statutory [page111] prerequisites have been met may well constitute reversible error. [ 22 ] With regard to the denunciatory potential of a conditional sentence, Chief Justice Lamer observed at para. 102: 102 ...

Incarceration will usually provide more denunciation than a conditional sentence, as a conditional sentence is generally a more lenient sentence than a jail term of equivalent duration. That said, a conditional sentence can still provide a significant amount of denunciation.

This is particularly so when onerous conditions are imposed and the duration of the conditional sentence is extended beyond the duration of the jail sentence that would ordinarily have been imposed in the circumstances. [ 23 ] And, with regard to deterrence, Chief Justice Lamer said at para. 107 107 ... [A] conditional sentence can provide significant deterrence if sufficiently punitive conditions are imposed and the public is made aware of the severity of these sentences.

There is also the possibility of deterrence through the use of community service orders, including those in which the offender may be obliged to speak to members of the community about the evils of the particular criminal conduct in which he or she engaged, assuming the offender were amenable to such a condition. Nevertheless, there may be circumstances in which the need for deterrence will warrant incarceration.

This will depend in part on whether the offence is one in which the effects of incarceration are likely to have a real deterrent effect, as well as on the circumstances of the community in which the offences were committed. [ 24 ] In R. v. Koop and Stoneman 2008 BCCA 140 the Court of Appeal set aside sentences of incarceration for two offenders who had committed two robberies and imposed conditional sentences in their place. Tysoe J.A., for the Court, held that the sentencing judge had erred in failing to explain why the principles of deterrence and denunciation precluded conditional sentences.

At paras. 12 - 14, he said: 12 On this appeal, both of the appellants’ counsel rely on R. v. Sorensen , 2006 MBCA 38 , and say that the sentencing judge erred by failing to explain why a conditional sentence could not adequately address the factors of deterrence and denunciation.

Crown counsel concedes that the sentencing judge erred in putting emphasis on the fact that the appellants might still have problems which required attention to achieve full rehabilitation, and thereby undervalued the definitive steps that they took to separate themselves from their past lifestyles and steps they have taken to integrate themselves into the community. 13 In my opinion, the sentencing judge did err as conceded by Crown counsel and failed to give sufficient weight to the factor of rehabilitation.

The sentencing judge failed to explain why the principles of deterrence and denunciation, together with the circumstances of the robberies, precluded a conditional sentence or, put another way, she failed to consider the principle of rehabilitation when giving effect to these other principles. 14 The principles of deterrence and denunciation are important principles to consider when sentencing a person who has committed robbery, and they will usually prevail over other considerations and result in a prison sentence.

However, these principles should not be considered to the exclusion of the principle of rehabilitation. A conditional sentence can satisfy the objectives of deterrence and denunciation, and there will be cases where the interests of rehabilitation of the offender will outweigh the additional deterrence and denunciation accomplished by a prison sentence. [ 25 ] In R. v. Sorenson , supra , the Court of Appeal stated at para. 10: 10 Deterrence and denunciation must be balanced with rehabilitation.

Not only did the sentencing judge overemphasize the factor of deterrence, but he did not explain why an appropriately structured conditional sentence could not provide sufficient denunciation and deterrence. Failure to explain why incarceration is more able to meet the objectives of denunciation and deterrence than a conditional sentence can constitute an error in principle. See R. v. Duchominsky (M.) (2003), 170 Man.R. (2d) 270, 2003 MBCA 19 . The Supreme Court has told us that an appropriately structured conditional sentence can satisfy the objectives of deterrence and denunciation. See R. v.

Proulx , [2000] 1 S.C.R. 61, 2000 SCC 5 . [ 26 ] In the present case, the sentencing judge correctly observed that in cases of spousal assault the principles of denunciation and deterrence are heightened.

While it is my view, with respect, that he could have done more in his Reasons to explain why only a sentence of incarceration could adequately address the principles of denunciation and general deterrence in this particular case, I am not persuaded that his conclusion was wrong. [ 27 ] The sentencing judge referred specifically to the aggravating factors that have to be taken into account in determining whether a sentence to be served in the community would adequately denounce the offender’s conduct and deter others from committing similar offences, to the extent that is possible through the sentencing process.

Those aggravating factors are: (1) the fact that the appellant assaulted his wife in her home; (2) the fact that the assault caused serious harm to her; and

(3) the fact that the assault was committed in the presence of the parties’ two young children. [ 28 ] Spousal assault is a very serious matter, and a sentence for a serious spousal assault must impress upon the offender and others the abhorrence with which society ought to view violence committed a person’s home. All persons have a right to feel safe within their home, from their spouses as well as from strangers.

If it is to act as a deterrent to others, the sentence for a serious spousal assault must impress upon others who might be inclined to engage in similar conduct that, if they are convicted, they will receive a punishment that is more than simply a partial denial of one’s liberty. [ 29 ] In this regard, I would adopt what was said in R. v. Chirimar , 2007 ONCJ 385 ( Chirimar ), a case relied on by the defence in connection with the appropriate length of the sentence. In that case, the defence also urged a conditional sentence.

After referring to Proulx with regard to when conditional sentences might be available, Trotter J. said at para. 39: 39 It is also important to observe that, merely because conditional sentences are capable , at a general level, of satisfying the principles of denunciation and general deterrence, this does not mean that they are appropriate in every case in which they might be available. Much depends upon the circumstances of the case. As the Chief Justice further explained in Regina v.

Proulx, supra , at para. 106: The amount of denunciation provided by a conditional sentence will be heavily dependent on the circumstances of the offender, the nature of the conditions imposed, and the community in which the sentence is to be served. As a general matter, the more serious the offence and the greater the need for denunciation, the longer and more onerous the conditional sentence should be.

However, there may be certain circumstances in which the need for denunciation is so pressing that incarceration will be the only suitable way in which to express society’s condemnation of the offender’s conduct . [Emphasis added in case cited.] 40 There are features of domestic violence that distinguish it from other types of violence. When the level of violence is serious, these features militate against a community-based sanction. Most profoundly, it is the experience of the courts that domestic violence almost always occurs in the home, beyond the vigilance of the public.

In a public place, there is the possibility of assistance being rendered to a victim, or the police being called. These opportunities are diminished in the family home. The family home can be a place where bullying and aggression may occur, uninterrupted, and in isolation. While a conditional sentence is capable of sending a denunciatory message when punitive conditions, such as house arrest, are imposed (see Regina v.

Proulx, supra ), the denunciatory message associated with a house arrest condition may be distorted when an offender sentenced for serious domestic violence is allowed to serve his sentence at home. Of course, this is not to say that cases of domestic violence can never be met with non-custodial dispositions, including conditional sentences. The authorities, starting with Proulx , suggest otherwise. [ 30 ] This was not a minor assault. It did not consist of a single slap or a single punch.

While it was not a prolonged attack, the appellant used his elbows to smash the head and face of his wife, causing significant physical injury to her.

It must have been an extremely traumatic event for the two children who were in the house and powerless to do anything to help their mother. [ 31 ] The fact that there was not a pattern of abuse in this case of which this assault was the last round, is a factor that certainly goes to the gravity of the offence and the length of sentence but is does not mean, in my view, that it makes it an appropriate case for a conditional sentence. [ 32 ] It is my view that conditional sentence in this case would not adequately address the principles of denunciation and general deterrence.

A conditional sentence that would enable the offender to carry on with his daily life, going to work, watching his television, sleeping at home, subject perhaps to a curfew forcing him to remain in his home during the evening and night-time hours, would not, in my view, send the message that spousal assaults are considered serious. Even a condition akin to house arrest would not, in my view, serve as an adequate deterrent. [ 33 ] In my view, this case demanded a sentence that informs others that if a spouse allows a domestic dispute to develop into physical violence, that spouse will face serious consequences.

I believe that a sentence of incarceration was appropriate. Was the sentence unfit? [ 34 ] While I have concluded that a sentence of incarceration was appropriate in the circumstances of this case, I am of the view that the sentence of incarceration that was imposed was well outside the appropriate range and that, in all of the circumstances, it was not a fit sentence. [ 35 ] In Chirimar , the offender pleaded guilty to two counts of assault causing bodily harm against his spouse. The first offence covered a three-day period, during which the offender hit his wife in the face three to four times, leaving bruises.

The other count related to a later incident when the offender slapped his wife in the face and various parts of her body on three or four occasions. The violence that the accused inflicted on his wife left bruises and abrasions all over her body. There was a long history of spousal abuse by the offender. The offender was a young man with no prior criminal record. He had taken counselling, including anger management prior to sentencing.

He received a sentence of six months in prison. [ 36 ] The sentencing judge discussed the issue of sentencing for spousal assaults at paras. 16 - 18: 16 Courts have long struggled with the issue of how to sentence those who inflict violence in a domestic setting. In Ontario, a five- person panel of the Court of Appeal addressed the issue in Regina v. Inwood (1989), 1989 CanLII 263 (ON CA) , 48 C.C.C. (3d) 173 (Ont. C.A.). The case involved a single incident of assault by Mr. Inwood on his wife causing bodily harm and an assault by Mr. Inwood on his infant son.

The assault on his wife, which was of short duration, resulted in tenderness to her head, a bump on and swelling to the nose, a swollen and cut lip, and a bruise to her inner upper arm. The accused received a 30-day sentence for the assault on his son and a suspended sentence for the assault causing bodily harm to his wife. The Crown appealed the sentence imposed for assault causing bodily harm. The Court of Appeal dismissed the appeal. Writing for the Court, Chief Justice Howland said at p. 181:

This court has acted on the principle that where there is a serious offence involving violence to the person, then general and individual deterrence must be the paramount considerations in sentencing in order to protect the public. In my opinion, this principle is applicable not only to violence between strangers but also to domestic violence. Domestic assaults are not private matters, and spouses are entitled to protection from violence just as strangers are.

This does not mean in every instance of domestic violence a custodial sentence should be imposed, but that it should be normal where significant bodily harm has been inflicted, in order to repudiate and denounce such conduct.

I am pointing out later that battered wives, where there are persistent or prolonged assaults, may require special consideration in determining the appropriate punishment . [Emphasis added in case cited.] 17 The Court held that the trial judge erred in not imposing a custodial sentence for Inwood’s assault on his wife and that a sentence of three months’ imprisonment with a lengthy term of probation was warranted.

However, the Court declined to incarcerate the accused given the passage of time. 18 The principles discussed in Inwood are equally applicable today. [ 37 ] The sentencing judge further addressed the quantum of sentence at paras. 32 - 33: 32 While appellate courts have clearly articulated the relevant principles of sentencing for cases like this, the issue of the appropriate quantum of sentence is less certain. In Regina v.

Inwood , supra , the Court of Appeal held that a sentence of three months’ imprisonment would have been a fit sentence for the single incident of short duration that resulted in bodily harm to the victim. The Court suggested that cases of prolonged or systematic abuse should be treated more severely. No case has been brought to my attention, nor have I been able to find a case, that suggests that Inwood is not still authoritative. Using Inwood as a base-line, a sentence of much greater length is appropriate in the circumstances. In very measured submissions, Mr.

DiMuzzio, an experienced Assistant Crown Attorney, submitted that a sentence of six to eight months’ imprisonment would be appropriate. I would have thought that a slightly higher range might be more appropriate for the type of offending and the injuries present in this case. Nevertheless, in this case, I am prepared to defer to Mr. DiMuzzio’s submissions. 33 Taking into account the mitigating factors mentioned above, in addition to the fact that Mr.

Chirimar has spent 10 days in pre- trial custody (which I credit on the customary two for one basis), it is my view that a sentence of six months’ imprisonment is warranted in this case. A lesser sentence would not sufficiently emphasize the relevant objectives of sentencing. Had Mr. Chirimar not engaged in counselling and community service, I would have imposed a more severe sentence. [ 38 ] The effective sentence in Chirimar was, therefore, one approaching seven months. The seriousness of the assaults, particularly the first assault, in Chirimar is similar to that in the present case.

However, a significant aggravating factor in Chirimar was the lengthy history of spousal abuse, which is not present in this case. [ 39 ] The assault in Inwood , while described by the court as serious, appears to have caused less serious injury than the assault in the present case. [ 40 ] At the sentencing hearing, the Crown referred to a number of cases in addition to Chirimar : In R. v. Thompson , [1990] N.S.J. No. 269 (C.A.) , the offender was pleaded guilty to assault causing bodily harm against his common-law spouse. At trial he was sentenced to 90 days intermittent, plus two years’ probation.

On appeal, the sentence was increased to nine months’ imprisonment. The attack on the spouse in that case was more severe than here. The court in that case remarked that the victim was viciously beaten to the point that her face was nearly unrecognizable. [ 41 ] In R. v. Stokes , [1991] B.C.J. No. 3585 (C.A.) ( Stokes) the offender received a sentence of one year in prison, in addition to seven months pre-sentencing custody, followed by three years probation for assault causing bodily harm upon his common-law spouse. The circumstances in Stokes were far more egregious than in the present case.

There, the offender had a history of abusing his partner. During an argument, he proceeded to “punish” the complainant by “breaking” her, something that he admitted he had been planning for some two years. There was, therefore, an element of pre-meditation. The assault involved severe blows to the body of the complainant over several hours, punctuated by a few minutes of respite after which the assault would continue. [ 42 ] R. v. Bonneteau , 1994 ABCA 327 (CanLII) , [1994] A.J.

No. 726, (C.A.) ( Bonneteau) is an Alberta judgment in which the offender pleaded guilty to one count of assault simpliciter , and two counts of assault causing bodily harm. The first assault occurred when the respondent kicked and punched the complainant in the face and chest, bruising her in the process. On the second occasion, the respondent struck the victim with a beer mug, causing her a contusion on her nose and a black eye. As a result of punches and kicks inflicted on the victim on the third occasion, she suffered a severely swollen and black eye, a sore nose and a swollen knee which caused her to limp.

The offender received sentences of 15 days, 45 days and 90 days respectively, to be served concurrently and intermittently. On appeal, the sentences were increased to sentences of six months, six months and twelve months less one day, all to be served consecutively, for a total sentence of two years less one day. Bonneteau involved multiple assaults of greater seriousness than in the present case. [ 43 ] In R. v. Friginette , [1994] B.C.J. No. 3087 (C.A.) ( Friginette ) , the offender pleaded guilty to assault causing bodily harm and uttering a threat towards his common-law spouse.

He struck the complainant, punched her in the face, slapped her, grabbed her by the throat, bit her, verbally abused her and made threats for one to two hours. She had a bruised eye. The second offence consisted of a telephone threat to kill her if she called the police one more time and sent him to jail. The offender was sentenced to six months for the assault causing bodily harm and two months, consecutive, on the threatening count. The offender’s appeal was dismissed.

The circumstances in Friginette are, in my view, quite similar to those in the present case except that in Friginette the assaults continued over a longer period of time. [ 44 ] In my view, the cases relied on by the Crown, with the exception of Friginette , have elements that do not exist in the present case and make them more egregious, including more serious injuries, assaults over a prolonged period of time, or a history of prior abuse. [ 45 ] In this case, the appellant’s conduct is inexcusable and cannot be trivialized.

On the other hand, this event appears to have been an isolated incident on the part of the appellant. He is truly remorseful. He has undertaken a number of steps to deal with issues that

may have contributed to his conduct and appears committed to continue with those steps. A period of probation will assist in that regard. A jail sentence serves to underscore the seriousness of this offence to the appellant and hopefully to others.

When I consider all the circumstances, the aggravating factors as well as those in mitigation, the seriousness of this offence, the maximum sentence available and the authorities to which I have been referred, I believe that a sentence of nine months is excessive and that a fit sentence would have been a period of incarceration of six months. [ 46 ] By the time this appeal had been heard, the appellant had served nearly four months of his sentence. If he had received a sentence of six months he would have very nearly reached his statutory release date.

For that reason, I concluded that, having set aside the nine month sentence, the appropriate actual sentence to substitute for it, given the time he had spent in prison, was one day in jail. Effectively, this is the same as a six month sentence. [ 47 ] I am further of the view that a period of probation of three years was excessive in all the circumstances in order to ensure, so far as is possible, the appellant’s rehabilitation, which is the focus of probation. By the time he was sentenced, the appellant had already taken a number of positive steps towards rehabilitation.

The sentencing judge considered that “[h]e appears to have rehabilitation well in hand”. In my view, a period of probation with the same conditions as those imposed by the sentencing judge will provide what is required for any additional rehabilitative steps. The terms of the probation order will be the same as those imposed in the court before. [ 48 ] The firearms prohibition and the DNA order will remain as made. “B.M. Joyce J.”