Her Majesty the Queen - v. -, 2014 SKPC 155

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 155 Date: August 7, 2014 Information: 24539907 Location: Canora _____________________________________________________________________________ Between: Her Majesty the Queen - and - Theresa Chabun Appearing: A. Wyatt For the Crown F. Fischer For the Accused JUDGMENT P.R. KOSKIE , J

[ 1 ] This is a very unusual case on a number of fronts. The Defendant is a 61-year-old divorced mother of two with no previous criminal involvement. Prior to the Defendant developing a brain tumour, she would have been described as a pillar of the community in that she was a bank manager for 32 years and thereafter, worked for an insurance agency. [ 2 ] She pled guilty to a charge under section 348(1)(

b) of breaking and entering a dwelling house and committing the indictable offence of assault and to one count of uttering a threat to cause death contrary to

section 264.1(1) (

a) of the Criminal Code . These are very serious charges. [ 3 ] The victim of the assault and death threat was the Defendant’s 83-year-old mother who was not seriously injured in the assault. She escaped from her home with a few scratches and bruising. However, she is emotionally shaken as a result of the assault by her daughter. [ 4 ] A sentencing hearing was held and the facts are not in dispute. The Defendant went to her mother’s home to discuss her mother’s request of her grandson to do some errands for her.

The Defendant wanted to discuss and limit her mother`s requests, which in the Defendant`s view were unrelenting and unreasonable. She did not want her sons to be subjected to the same treatment she had received from her mother in the past and wished to protect them from this pattern of behaviour. [ 5 ] It is clear that by the time the Defendant arrived at her mother’s home, she was overtaken by anger and rage. She attempted to enter the house through the back door but it was locked. The Defendant’s mother made it clear she did not want the Defendant to come in.

The Defendant then took a snow shovel and broke the front window. However, she entered through the unlocked front door of the residence and not the front window. [ 6 ] The Defendant was intent on and attempted to choke her mother to death. A scuffle ensued but the Defendant`s mother was able to scratch, bite and push off the Defendant and escape to the neighbour’s with minor scratches and bruising. [ 7 ] The Defendant self-reported the incident and waited for the police to arrive and arrest her. [ 8 ] The Defendant admitted that after her mother pushed her off, she went to the drawer for a knife.

However, the knife was not used in the attack or assault. [ 9 ] In her statement to the police, the Defendant continued to maintain her anger and intention to kill her mother. She also relayed this to the psychiatrist who assessed her shortly thereafter. It is clear, though, that by the time the Defendant was at the Psychiatric Centre, she had become somewhat contradictory in her intent: while she maintained that she still wished to harm her mother, she requested a restraining order to ensure that she would stay away and not cause her harm. [ 10 ] The Defendant testified at her sentencing hearing.

She said that after spending some time in the North Battleford Psychiatric Centre and receiving counselling and information and watching a film on anger, a light bulb went off and she understood how misguided her anger and intention were. [ 11 ] In fact, Crown counsel cross-examined the Defendant vigorously and the Defendant was unshaken. She stated she came to understand that holding onto her anger would give her mother power over her and she would not allow that to happen again. Further, she was genuinely remorseful for her actions and the effect they had on her mother.

The Defendant was confident it would not be a problem in the future. [ 12 ] I am confident that the Defendant’s assessment is correct that she truly understands how misguided her anger and actions were and that she is no danger to anyone, including her mother. [ 13 ] The Defendant’s mother filed a claim for restitution for the cost to repair her front window in the amount of $945.00 and a victim impact statement where she indicated that she stayed in her home for two weeks after the attack as a result of how she looked.

She was scratched on her forehead and had a bruised cheek and neck and had her hair pulled. She said it will bother her when her daughter gets out of jail as she will be scared of her daughter and what might happen upon her release. She did not attend the sentencing hearing. The Law [ 14 ] The sections of the Criminal Code relevant to sentencing are: 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. . . . 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender . . . (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; . . . (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders . . . 348.1 If a person is convicted of an offence under

section 98 or 98.1, subsection 279(2) or

section 343, 346 or 348 in relation to a dwelling-house, the court imposing the sentence on the person shall consider as an aggravating circumstance the fact that the dwelling- house was occupied at the time of the commission of the offence and that the person, in committing the offence, (

a) knew that or was reckless as to whether the dwelling-house was occupied; and (

b) used violence or threats of violence to a person or property. Sentencing Principles

Section 718(

a) and (b): Denunciation and Deterrence

[ 15 ] All the case law filed directs that I must keep these considerations in mind when sentencing and that they must be primary considerations. In R. v. Pelly , [1] R. v. Payne [2] and, more recently, R. v. Debigare , [3] our Court of Appeal clearly directs me to not lose sight of the seriousness of this offence. Clearly, to address this factor, incarceration is warranted in this case.

Section 718 (c): separate offenders from society where necessary [ 16 ] There is nothing in the facts before me that would indicate it is necessary to separate the Defendant from society. Ms. Chabun is a 61-year-old lady who has no prior record. There are no addictions issues involving alcohol or drugs. She is not a danger to the community in general.

Section 718(d): Assist in rehabilitating offenders [ 17 ] It is clear from the sentencing hearing that the Defendant has gained a lot of insight into her anger issues with her mother. Further, counselling will assist the Defendant in her knowledge and give her more tools to deal with these issues. Incarceration would not assist in her rehabilitation.

Section 718(e): Provide reparations for harm done to victims or to the community and

Section 718(f): Promote a sense of responsibility in offenders and acknowledgement of the harm done to victims or to the community . [ 18 ] I have reviewed the victim impact statement in detail and the actual injuries to the victim which were a scratched forehead, bruised cheek and neck. These injuries resulted in the victim not going out of her home for a period of two weeks. She also indicated that she will be scared when her daughter is released and it continues to bother her. I can appreciate that these feelings will take awhile to get over, if ever.

Section 718.1: A Sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender [ 19 ] The Defendant is entirely responsible for her actions. Both the moral culpability and the gravity of this offence are high when assessing

section 718.1 in that life imprisonment is the maximum sentence for this offence.

Section 718.2(a): A Sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. Mitigating factors [ 20 ] The defendant is 61 years old and has no criminal record. She self-reported the incident and waited for the police to arrive to arrest her. She gave a full and detailed statement immediately. She entered a guilty plea as soon as possible. She has expressed remorse for her actions, an understanding of the nature of her anger and has apologized for her actions. [ 21 ] Unlike Mr.

McQuinn in the Debigare case, the victim in this case knew her attacker. The Defendant was unarmed, was not masked and the attack resulted in no serious injuries. The evidence of the victim is that when she left the house she may have caught the glimpse of a knife but, while the Defendant admitted that she got a knife as her mother was escaping, there is no suggestion that the

Defendant threatened her mother with it. There is no doubt that the Defendant’s intention was very violent but I do not find the knife to be a significant factor in this case. This distinguishes this case from a number of Court of Appeal cases filed herein, namely, Pelly , Payne, Morash, [4] Lemaigre, [5] Montgrand [6] and Fraser [7] where a machete or weapon was actually used. Aggravating factors [ 22 ] The Defendant’s declared intention that she wished to kill her 83-year-old mother is an aggravating factor.

The Defendant hung onto this intention for some time after the incident and until she received counselling and came to better understand her anger. [ 23 ] A further aggravating factor is that the Defendant did not stop on her own accord but the victim had to escape. Further, the victim is 83 years old. [ 24 ] Midway through paragraph 24 of his decision in Debigare , Mr. Justice Caldwell stated, ....Moreover, in the context of specific gravity, I did not reconsider as aggravating the general elements of the offence under s. 348(1)(

b) as aggravated under s. 348.1. By this I mean that the general fact that the home's occupants were subjected to armed attackers who threatened and meted out violence and property damage is neither aggravating nor mitigating in and of itself. These facts, in general terms, are either elements of the s. 348(1)(

b) offence itself or have already been considered as aggravating circumstances under s. 348.1. Finally, while the fear experienced by the victims of this crime is palpable from a reading of their victim impact statements and is not to be diminished in any way, s. 348.1 and the paradigm of a home invasion largely take this fear into account under the general gravity of the offence. In other words, callous as it may seem, the quality of the fear invoked in this case is not itself so grave as to further aggravate the already serious gravity of the offence.

Analysis [ 25 ] The Crown has filed a number of cases indicating the seriousness of the charges. It is their position that a four year sentence of incarceration is appropriate having regard to the aggravating factors of

section 348.1 and the case law they have filed. [ 26 ] The Defence position is that an effective sentence of eight to eleven months incarceration is appropriate, with some probation thereafter. [ 27 ] It is clear by law this is a home invasion as set out in paragraph 24 of R. v. Campeau . [8] The Defendant entered the dwelling house, knowing it was occupied and there was actual violence used against the Defendant’s mother. Given these circumstances, the Court of Appeal directs that denunciation and deterrence are to be the p rimary considerations in a sentencing of this nature. [ 28 ] In the Queen v.

Pelly at paragraph 57, our Court of Appeal wrote: It must be clear to all that crimes of this nature strike at the very core of a peaceful and safe society, violate the security of the home, and often result in lasting physical and psychological injury. They are terrifying crimes, and it is imperative they be treated with the utmost seriousness in the interest of preserving public safety and upholding public confidence in the administration of justice.

So, all should know that the courts of this province, in step with those of others, will come down hard on violent crimes entailing “home invasions” in order to protect the public from the invasiveness and violence associated with them. [ 29 ] Further, R v. Payne at paragraph 22 , the Court stated: At the same time, it is my respectful view that the trial judge nonetheless failed to give sufficient weight to the aggravating factors that did exist in this case. As was pointed out in Pelly , a central purpose of s. 348.1 is to recognize the peculiar vulnerability of victims who

are subject to violence or threats of violence in their homes, when they’re out of sight by passers-by and often unable to summon help . . . [ 30 ] The Crown filed cases such as Pelly and Payne only to indicate how serious the Court is to take these matters and as such, I will not spend time distinguishing them factually. I do note that the factual circumstances in each of the cases filed by the Crown were much more severe and involved more serious assaults, lengthy criminal records, use of weapons, breaches of court orders or on-going addictions, anger and mental health issues. [ 31 ] The real issue before me is one of parity for this offence pursuant to

section 718.2 (

b) of the Criminal Code . [ 32 ] The most relevant cases are the most recent cases from our Court of Appeal - R. v. Debigare and R. v. Deforest [9] and R v. Allen [10] , a decision of Madam Justice Gunn from the Court of Queen’s Bench. [ 33 ] In Deforest , the accused phoned and then drove to his former common-law partner’s place to check on their 2-year-old daughter. The accused banged on the door and yelled at his former partner to let him in but she refused. The accused gained entry by crawling through a window and overcoming the former common-law partner’s resistance.

Upon gaining entry, the accused choked his former common-law partner and demanded to know where their daughter was. The commotion woke their daughter and after calming her down, the ex-common law partner told the accused to leave. He grabbed her, pushed her to the ground, and kicked her in the genital area. The former partner suffered scratches and abrasions to her face and blood from her genital area and was unable to sit down without pain for approximately five days. [ 34 ] The case went to trial and the accused denied both the allegations and that he had attended at his former common law’s residence at all.

The trial judge did not accept his evidence and sentenced him to three years` incarceration. The Court of Appeal upheld the sentence. The Court held that clearly this was a home invasion and indicated that the trial judge was correct in placing emphasis on the accused’s actions and criminal record and that it was a reasonable to infer that the accused continued to have anger issues. [ 35 ] In the case at bar, the Defendant does not have any previous criminal record and although her intentions were serious, the actual assault and injuries are less severe than what occurred in the Deforest case.

Further, it is clear that the length of time involved in the invasion and assault in this case would have been much shorter having regard to the time it would have taken to deal with the infant child in Deforest . Finally, Mr. Deforest continued to have ongoing anger and alcohol issues. [ 36 ] In Debigare , Mr. Debigare and his girlfriend, Ms. Schachtel, along with a friend, Mr. McQuinn, were at a bar and intoxicated. Miss Schachtel, who was angry at her ex-boyfriend, enlisted Mr. Debigare and Mr. McQuinn to attend at the ex-boyfriend’s home and assault him. During the home invasion, Mr.

Debigare wielded a sledgehammer. He used it on the ex-boyfriend’s dog and broke some property in the mobile home. Mr. McQuinn was masked and waved a utility knife at a number of occupants in order that they stay seated. Mr. Debigare beat Ms. Schachtel`s ex-boyfriend with his fists and finally, Miss Schachtel punched and hit the ex-boyfriend’s new girlfriend who was eight months pregnant at the time. [ 37 ] It is interesting to note that Mr. Debigare had no prior convictions, was severely remorseful and cooperative and had attended alcohol treatment after the event.

He had never been unemployed and held a certificate as a carpenter. Mr. McQuinn also had no prior convictions, was cooperative and remorseful and gainfully employed in the oil industry. [ 38 ] The Court held in the Debigare judgment that suspended sentences were not proportional to the gravity of the offense and moral culpability of the offenders. The Court directed that

section 348.1 will always place sentencing objectives of denunciation and deterrence and protection of the public at the foremost when a judge is fashioning a sentence of this nature. [ 39 ] However, there were several aggravating factors in Debigare which are not present in the case at bar. The main differences are: • Debigare and McQuinn did not know anyone in the home they were invading; • McQuinn masked himself; • Debigare severely injured a dog that was defending the home; and • Miss Schachtel assaulted a pregnant occupant and threatened retribution if they reported the matter to the police.

[ 40 ] There are similarities. In both the cases the assaults themselves were brief and resulted in fairly minor injuries, aside from the dog. [ 41 ] Additionally, while deterrence is to be placed at the forefront, the Court of Appeal held that the sentencing judge in Debigare was correct to emphasize rehabilitation and that both Mr. Debigare and Mr. McQuinn had made genuine efforts after the offence to ensure they would not commit crimes in the future. In addition, although the sentences were referred to as lenient, it was chiefly because neither Mr. Debigare nor Mr.

McQuinn had prior criminal records of any kind. The Appeal Court ultimately handed down 18 month and 12 month sentences respectively, along with 18 months probation. Ms. Schachtel received 2 years less a day and 3 years probation. [ 42 ] In Allen , Mr. Allen, along with two other armed men, forcibly entered a home and found the girlfriend of the person they were looking for along with her baby. As soon as Mr. Allen realized there was a baby in the house, he began making efforts to get his colleagues to leave. Mr.

Allen was a calming influence and helped get both men to leave but not before one had checked the house and the other had threatened to kill the boyfriend. Mr. Allen provided a full statement indicating he was unaware they were going to this home to beat up an individual but admitting that he did follow them into the home. [ 43 ] Mr. Allen moved away from the area and had exemplary behaviour after the commission of the offence. He maintained employment, went to school and reported as required.

The Crown took a lenient position in that case suggesting that a conditional sentence would have been appropriate, if available, and suggested a shorter period of incarceration with a lengthier probation period. The Crown did not take similar position in this case. [ 44 ] Madam Justice Gunn held that an appropriate sentence must include incarceration to address denunciation, deterrence and parity issues.

She held that a period of 8 months incarceration followed by a period of 18 months probation were appropriate in the circumstances. [ 45 ] The very nature of a home invasion is emotionally traumatic for the victim and it is more so in this case because it was the Defendant’s intention to kill her mother. This case is particularly difficult because the Defendant’s assault and the resulting damage inflicted are minor but the Defendant’s admitted intention, which she continued to hold for some time after the arrest, was most serious. [ 46 ] The brain injury was not relied on by the Defendant in this case.

Both the Defendant’s son and the Defendant herself feel it did not play a

part in this unusual event. I only mention that, as a result of the reports filed from the North Battleford Psychiatric Centre, I believe it should be followed up upon her release to ensure it does not impact her in the future. [ 47 ] Clearly, the Defendant has more culpability than the accused in Allen but like Allen and Debigare , leniency is warranted. In Debigare at paragraph 41 , Mr. Justice Caldwell stated: I want to make it perfectly clear that in varying these sentences in this way I am not suggesting the sentences now imposed are standard sentences to be followed in offences under s. 348(1)(

b) which might be characterised as home invasions. The varied sentences are, in my opinion, lenient sentences where the leniency was called for chiefly by reason that none of the respondents had a criminal record prior to their commission of this offence. [ 48 ] This is an exceptional case. The Defendant has no criminal record. The assault resulted in minor injuries. The Defendant accepted responsibility immediately and called the police on herself. She gave a statement and pled guilty at the earliest opportunity. However, her declared intention and threat were very serious.

The nature of this offence, her actions and admitted intention require incarceration. [ 49 ] Balancing these factors is a difficult task. The Defendant, unlike Mr. McQuinn, was not masked or carrying a weapon but had a more serious intention. The Defendant is not a danger to society but parity, denunciation and deterrence require some incarceration.

[ 50 ] Therefore, I sentence the Defendant to a period of 12 months incarceration less time served. The Defendant has served 86 days on remand and, following the principles set out by the Supreme Court in both Summers [11] and Carvery, [12] I am giving her credit at time-and-a-half in the amount of 129 days. This leaves a further period of incarceration of 236 days. [ 51 ] In addition, I am placing her on probation for a period of 3 years, the terms of which are as follows: 1. She shall keep the peace and be of good behaviour. 2. She shall appear before the court when required to do so by the court. 3.

She shall notify her probation officer in advance of any change of name, or address, and promptly notify her probation officer of any change of employment or occupation. 4. She shall report to a probation officer within seven days of her release from custody and thereafter as directed by her probation officer. 5. She shall attend, participate in and complete any counselling or programming for anger management as directed by her probation officer. 6. She shall attend, participate in and complete any counselling or programming which may include mental health counselling as directed by her probation officer. 7.

She shall have no contact directly or indirectly with Margaret Adshead except through a member of the Law Society. [ 52 ] Finally, there will be a mandatory ten year firearms prohibition pursuant to s.109, a DNA order pursuant to s. 487.051 and a victim surcharge pursuant to s.737 with one year to pay. ________________________________________ P.R. Koskie, J