R. v. Hughes, 2011 NUCA 03

In the Court of Appeal of Nunavut Citation: R. v. Hughes, 2011 NUCA 03 Date: 20110520 Docket: 01-11-002 CAP Registry: Iqaluit Between: Her Majesty the Queen Appellant - and - Dean Hughes Respondent _______________________________________________________ The Court: The Honourable Madam Justice Louise Anne Charbonneau The Honourable Mr. Justice Frans Slatter The Honourable Madam Justice Myra Bielby _______________________________________________________ Memorandum of Judgment Delivered from the Bench Appeal from the Sentence by The Honourable Mr. Justice R.P. Foisy

Dated the 25th day of January, 2011 (Docket: 01-09-46) _______________________________________________________ Memorandum of Judgment Delivered from the Bench _______________________________________________________ Slatter J.A. (for the Court): [1] This is a Crown appeal from a sentence for aggravated assault and assault causing bodily harm. [2] The two complainants had assaulted the respondent’s family. He decided to seek revenge, and engaged the assistance of others,including his co-accused. They went to the home of the first complainant and assaulted him. They returned later and assaulted him asecond time.

They then forced the first complainant to assist them in gaining entry to the home of the second complainant, and when thefirst complainant tried to flee they beat him for a third time. The first complainant suffered serious injuries, to the point that he had to beflown to Iqaluit for further treatment, and then to Ottawa for reconstructive surgery on his face. [3] The respondent and others then gained entry to the home of the second complainant, and assaulted him as well.

The secondcomplainant also suffered serious injuries, including a loss of consciousness. [4] The Crown proposed a sentence of between 18 and 24 months. (The co-accused had earlier pled guilty, but only to one offenceinvolving one victim, and had been given a sentence of two years less a day, with 18 months credit for 13.5 months of pre-trial custody.)The Defence proposed a sentence of one day in jail plus probation. The Defence noted that the respondent had been released from pre-trial custody on strict conditions. For the first eight months he was confined to his house 23 hours a day.

For another eight months hewas confined to his house 20 hours a day, but permitted to go hunting with his father. [5] The sentencing judge accepted that the range proposed by the Crown was appropriate.

A fair reading of his reasons is that hewas imposing a nominal 18 month sentence, but giving 12 months credit for 16 months of restrictive bail conditions, resulting in a net sixmonth sentence on the sixth count of aggravated assault, plus 3 months concurrent on the fifth count of assault causing bodily harm,followed by 18 months probation. [6] The Crown appeals on the basis that the sentence is demonstrably unfit, that it is not proportional to the sentence given to the co-accused, and that excessive credit was given for the pre-trial bail conditions.

Sentencing decisions attract considerable deference: R. v.C.A.M., (SCC), [1996] 1 S.C.R. 500 at paras 89-90; R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163 at para. 14. Absentan error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should onlyintervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. [7] The range put forward by the Crown was accepted by the sentencing judge, and does not reflect any reviewable error.

Themitigating factors to be applied within that range are an early guilty plea, the absence of any prior record, remorse, and youthfulness (therespondent was aged 20 at the time of the offences). The trial judge accepted the opinion of the Elders and the Presentence Report thatthe respondent was at low risk to reoffend.

The Elders noted that the respondent assisted others in their small community of Arctic Bay,and they did not want him removed. [8] The aggravating factors are that the assaults were premeditated, they were vigilante assaults motivated by revenge, there weremultiple assaults and multiple victims, the assaults were carried out by groups on individual victims, the respondent was the instigator ofthe assaults, the assaults took place in dwelling houses, and the injuries were very serious.

[ 9 ] In our view the sentence is demonstrably unfit. The number of serious aggravating factors calls for a sentence at the upper end of the range. The sentencing judge under-emphasized those factors, and over-emphasized the mitigating factors. Parity with the co-accused is also relevant. While the co-accused had a minor record, this is outweighed by the fact that the respondent was the instigator of the violence, and was convicted of two offences involving two victims. [ 10 ] It is within the discretion of a trial judge to give credit for onerous bail conditions.

In this case, the credit given was very generous (12 months credit for 16 months on interim release). We note that this offence does not engage the amendments to s. 719 of the Criminal Code that limit the ability to give credit for pre-trial custody. The sentencing judge mentioned 12 months of house arrest, whereas the strictest conditions were only in place for eight months. The sentencing judge was given limited information on how much time the respondent spent hunting.

In all the circumstances, the credit given was excessive. [ 11 ] In the circumstances, given the range put forward by the Crown, an appropriate point to commence the sentencing analysis was 24 months. Even giving generous credit for the pre-trial conditions, a sentence of six months was demonstrably unfit given the aggravating factors and the principle of parity. The appeal is allowed and a sentence of 12 months is imposed on count 6. The concurrent three month sentence on count 5, the probation order, the DNA order, and the firearms order will remain unchanged.

Appeal heard on May 17, 2011 Memorandum filed at Iqaluit, Nunavut this 20 day of May, 2011 “Frans Slatter” Slatter J.A. Appearances: L. Lane for the Appellant S. Cowan for the Respondent