R. v. Leonard, 2018 NLSC 92

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Leonard , 2018 NLSC 92 Date : April 25, 2018 Docket : 201701G3350 Her Majesty The Queen v. Robert Leonard Before: Justice Robert P. Stack Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: April 3, 2018

Summary: The offender was convicted on one count each of common assault and mischief involving his intimate partner. He was given a suspended sentence and placed on probation for one year. No DNA order was made but firearms and other weapons prohibitions were imposed for ten years. Appearances:

Jennifer Colford Appearing on behalf of the Crown Mark Gruchy Appearing on behalf of the Offender Authorities Cited: CASES CONSIDERED: R. v. House, 2012 NLCA 41; R. v. Elsharawy, (NL CA), [1997] 156 Nfld. & P.E.I.R. 297,36 W.C.B. (2d) 215 (Nfld. C.A.); R. v. Aymont, 2008 ABPC 285. STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46. REASONS FOR JUDGMENT STACK, J.: INTRODUCTION [1] Following a finding of guilt at trial, the offender, Robert Leonard, is to be sentenced on one count of common assaultcommitted against his girlfriend, Tamara Jordan, as well as one count of mischief.

He was acquitted on a single count of assault with aweapon. [2] Pursuant to the Criminal Code, R.S.C. 1985, c. C-46 (the Criminal Code), sentences for common assault range from aconditional discharge to a sentence of incarceration. Because the circumstances of each assault differ, sentencing is largely dependent onthe facts of the case. I will now explain the sentence that the offender will receive after taking into account the sentencing principlesestablished in the Criminal Code. facts [3] The offences occurred on the evening of November 14, 2014.

The offender and the victim had been in an intimaterelationship for approximately one year. Theirs was an “on again – off again” relationship, especially after the offender was the victim ofa random stabbing while they were on George Street one evening. [4] The offender testified that he is not presently working because of mental health issues that have arisen since the stabbingincident. He described the stabbing itself and the physical injuries he suffered and the mental issues that arose thereafter.

He testified thathe has been diagnosed with post-traumatic stress disorder (“PTSD”), depression, social anxiety disorder and general anxiety. He has hadsuicidal ideations. He was hospitalized as a result of his mental health issues, including one time for two months. [5] Earlier on the evening in question, Ms. Jordan and the offender went to a shed party with friends where she and the offenderhad a verbal “altercation”. The offender went home; the victim went to another house. By text communication with the offender, thevictim told him to leave “her” home. He refused.

At approximately 8:30 the next morning she returned to the home. Upon entering, shesaw that an ornament in the front hall had been broken. This made her angry. She went to the master bedroom where the offender wassitting on the bed in his undershorts. She told him to “get the f*** out of my house”. He refused and was yelling and screaming at her. [6] Ms. Jordan testified that she then went into the living room. The offender followed. He was yelling and screaming. She kepttelling him to leave. While they were in the living room, the offender placed two hands on her neck.

It did not last long and she couldcontinue to breathe. The offender followed her into the bedroom and pinned her to the bed with one hand to the back of her neck. Thislasted for between three and five seconds. [7] Ms. Jordan testified that when she walked through the house with the police she noticed: a. An ornament in the front hall was broken; b. In the master bedroom: i. There were marks on the wall beside the bed; ii. The curtain rod was broken; iii. The curtains and sheets had been slashed;

c. In the basement, all the food from the deep freeze had been thrown on the floor; d. Some of her clothes had been thrown outside on the grass; e. The TV in her son’s bedroom was wet and muddy; and f. Her coat was in the bathroom sink covered in mousse or gel. [ 8 ] I found as facts that each of the two instances when the offender had hands on the victim’s neck were fleeting (she testified that they each lasted for three to five seconds) and minor (she testified that she had no difficulty breathing either time).

The offender was therefore convicted on the one count of common assault. [ 9 ] The offender admitted to causing damage to the property of Ms. Jordan. She conceded that the value of such damage was less than $5000. The offender was therefore convicted of mischief. [ 10 ] At the trial, Ms. Jordan admitted that she wrote a letter to the Crown asking them to drop the charges. She wrote that she had only wanted to have the offender escorted from the home. She wished for him to obtain counselling for the after effects of the random stabbing. THE PRE-SENTENCE REPORT [ 11 ] Mr. Leonard is 40 years old.

He resides with his parents. He has recently reestablished contact with his nine year old daughter who lives in another province. [ 12 ] The offender reports that he has not seen his psychiatrist or occupational therapist since the fall of last year. He feels that there has been a significant improvement in his mental health and that he no longer needs medical intervention to treat his anxiety, depression and PTSD. [ 13 ] Although in the Pre-Sentence Report Mr.

Leonard acknowledged the offences for which he is being sentenced, he offered little more than to say that he wants the matters dealt with so that he can move on with his life. I note here that at the sentencing hearing Mr. Leonard expressed the same perspective. He said to the Court that he is “sorry for all of this”, and that he wants to move on and get his life back to where it was before. law and analysis [ 14 ] Submissions on sentencing by Crown counsel and counsel for Mr. Leonard were brief. In essence, the Crown seeks a suspended sentence with probation for one year.

The defence, on the other hand, seeks a conditional discharge with probation for one year. [ 15 ] In sentencing Mr. Leonard, pursuant to

section 718.2 (a)(ii) of the Criminal Code , I must take into account that he assaulted his romantic partner. Vulnerable persons, including women in domestic relationships, should be protected from violence and other harms inflicted by their partners. Their vulnerability arises by virtue of the closeness and trust involved in relationships – people do not expect to be assaulted by those they know and trust. Consequently, an assault in such circumstances is an aggravating factor for sentencing purposes. [ 16 ] Ms. Jordan did not provide a Victim Impact Statement despite being offered the opportunity to do so.

Her attitude towards the offender may have been best described at the trial where she testified that she sought to have the charges dropped because at the time of the event she just wanted him out of the house. Her true desire was for him to get counselling for the after effects of the stabbing. [ 17 ] That Mr. Leonard pleaded not guilty to the offences is not an aggravating factor. He was entitled to require the Crown to prove the charges against him beyond a reasonable doubt.

This is particularly so where the most serious charge against him was dismissed at the conclusion of the trial. [ 18 ] The primary mitigating factor in this case is that Mr. Leonard has no previous record. [ 19 ] Overall, I must take into account that Mr. Leonard is 40 years old. He has had no previous involvement with the law. He was subject to a serious and senseless violent assault that has left him with PTSD and otherwise troubled. The charges were not laid at the behest of Ms. Jordan – in fact she sought to have them withdrawn. [ 20 ] I also take into account that Mr.

Leonard was released on conditions that involved a curfew since his arrest almost three and a half years ago.

I am advised that there has been one minor breach of that condition. [ 21 ] The criteria for granting a conditional discharge are enumerated in section 730(1) of the Criminal Code : 730(1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2). [ 22 ] Where a conditional discharge is granted, a finding of guilt is made but no conviction is registered.

What makes it different from an absolute discharge is that a probation order of one to three years must be imposed. A conditional discharge stays on an offender’s criminal record for three years after the completion of the probation order . As with an absolute discharge, the offender does not have to apply for a pardon for the discharge to be removed from his record.

[23] Like a conditional discharge, a suspended sentence involves an offender following conditions in a probation order for a periodof one to three years. The main difference between a conditional discharge and a suspended sentence is that an offender who has asuspended sentence imposed has a conviction registered against him. This means that the offender who gets a suspended sentence willhave a criminal record and will have to apply for a pardon to have the conviction removed from his record. [24] The factors for granting a conditional discharge were considered by the Court of Appeal in R. v. House, 2012 NLCA 41.

InHouse, the accused was convicted of the offences of assault and unlawful entry. The assault involved the accused grabbing the victimand placing him in a “headlock.” The Court of Appeal concluded that a conditional discharge with probation was an appropriatesentence for both offences. In House, the Court of Appeal said: Whether a conditional discharge is appropriate in these circumstances requires a consideration of whether such a disposition would be inthe best interests of the accused and not contrary to the public interest. These factors were discussed in R. v.

Elsharawy (1997), (NL CA), 156 Nfld. & P.E.I.R. 297 (NLCA): For the court to exercise its discretion to grant a discharge under s. 730 of the Criminal Code, the court must consider that that type ofdisposition is: (

i) in the best interests of the accused; and (ii) not contrary to the public interest. The first condition presupposes that theaccused is a person of good character, usually without previous conviction or discharge, that he does not require personal deterrence orrehabilitation and that a criminal conviction may have significant adverse repercussions.

The second condition involves a considerationof the principle of general deterrence with attention being paid to the gravity of the offence, its incidence in the community, publicattitudes toward it and public confidence in the effective enforcement of the criminal law [authorities omitted]. [25] As discussed by the Court of Appeal in R. v. Elsharawy, (NL CA), [1997] 156 Nfld. & P.E.I.R. 297, 36W.C.B. (2d) 215 (Nfld. C.A.), the first condition, whether a conditional discharge is in the best interests of Mr.

Leonard, presupposesthat the he is a person of good character, ordinarily with no previous criminal convictions or discharges. This criterion is satisfied in thiscase. As to the need for personal deterrence or rehabilitation, I note that Mr. Leonard was on release, with conditions, prior to his trial. He has mostly been compliant with the terms of release, particularly the requirement to keep the peace and be of good behaviour, foralmost four years. Given the nature of the offence and Mr. Leonard’s conduct since the offences were committed, specific deterrenceand rehabilitation are not matters of serious concern.

Finally, regarding adverse repercussions from a criminal conviction, Mr. Leonardis now a 40 year-old man who had been addressing his mental health concerns arising from the assault upon him. He is attempting toreturn to a productive life, including further schooling, employment and a renewed relationship with his daughter. A criminal record,where such is unnecessary for purposes of protection of the public, may result in roadblocks in terms of this development. Such a resultis to be avoided provided that Mr.

Leonard is otherwise a proper candidate for a conditional discharge. [26] The second condition that must be satisfied under

section 730 of the Criminal Code is that a conditional discharge would not becontrary to the public interest. This involves a consideration of “the principle of general deterrence with attention being paid to thegravity of the offence, its incidence in the community, public attitudes toward it and public confidence in the effective enforcement of thecriminal law” (Elsharawy at paragraph 20). A conditional discharge for the offence of mischief in the particular circumstances of thiscase would not derogate from the principle of general deterrence such that Mr.

Leonard should be denied a conditional discharge. [27] The same does not hold true with respect to the offence of common assault, however. The principle reason mitigating againstgranting a conditional discharge in these circumstances is that the assault was committed against Mr. Leonard’s domestic partner.Although the assault was relatively minor in nature, it must have been terrifying for the victim. At the trial she testified that she felt safereturning to her home that morning because the offender had never before been physically violent.

It is the breach of the sanctity ofphysical safety in one’s home that is behind

section 718.2(a)(ii) of the Criminal Code. Domestic violence is a serious societal problemand is rightly viewed with disapprobation. I certainly have sympathy for the offender and the circumstance in which he finds himself.Nevertheless, the public interest in eliminating or reducing domestic violence through the principles of denunciation and deterrencewould not be well served by a conditional discharge in this case. [28] Mr. Leonard still has a ways to go in addressing the underlying causes of his criminal behaviour.

Even though he has takensteps towards addressing his own mental health needs, I am not aware that he has sought any domestic violence or anger managementcounselling (thus distinguishing this case from R. v. Aymont, 2008 ABPC 285). Also, the circumstances of the offences committed inHouse were less serious than what occurred here. Being placed in a headlock is less traumatizing than having your domestic partnerplace his hands around your throat, as fleeting as the assault may have been. [29] Furthermore, I am not certain that Mr. Leonard has demonstrated true insight into his criminal behaviour.

His remorse seemsmore directed at the circumstances in which he finds himself rather than the harm he caused to his victim. His real concern is that he gethis life back on track. Although that is a laudable goal, without true insight into what he did I cannot find that he views this matter asanything more than a significant inconvenience. [30] Nevertheless, I find that a period of incarceration is not required in these circumstances. I am therefore satisfied to accede to theCrown’s request for a suspended sentence. Accordingly, sentence is hereby suspended in relation to each of the offences committed byMr.

Leonard and he is placed on probation for a period of twelve months. [31] The conditions of probation are: a. Keep the peace and be of good behaviour; b. Report to a probation officer within two weeks of this decision and then thereafter as required by the probation officer or his or herdesignate; c. Notify the Court or probation officer in advance of any change in name or address, and promptly notify the Court or probationofficer of any changes in employment or occupation; d. Participate in all counseling or treatment sessions or programs relating to domestic violence or anger management as arranged by the

probation officer and strictly abide by all directions and arrangements as specified by the probation officer; e. Not have any contact, directly or indirectly, with Tamara Jordan; and f. Appear before the Court when required to do so by the Court. [ 32 ] Pursuant to

section 487.04 of the Criminal Code , assault is a secondary designated offence in respect of an order for samples to be taken for forensic DNA analysis. By

section 487.051(3), such an order is discretionary. The factors to be considered are: (1) the offender’s criminal record; (2) whether he has previously been found not guilty as the result of a mental disorder for a designated offence; (3) the circumstances surrounding the commission of the offence; and (4) the impact such an order would have on the offender’s privacy and security of the person. The first two factors do not apply here. The assault, although domestic in nature, was fleeting and minor.

Consequently, the impact such an order would have on the offender’s privacy and security of the person would be disproportionate to his circumstances and would not be in society’s best interests. Therefore, I do not order the taking of DNA samples in this case. [ 33 ] By virtue of section 110(1) (

a) of the Criminal Code , I may prohibit the offender from possessing firearms and other related items where violence was used against the victim. That is, I shall, in addition to any other punishment that may be imposed for the offence, consider whether it is desirable, in the interests of the safety of the person or of any other person, to make an order prohibiting the offender from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things.

Given the domestic nature of the offences and the fact that Mr. Leonard has failed to exhibit true insight into them, pursuant to section 110(2) I order such a prohibition for ten years following Mr. Leonard’s conviction. Despite, section 110(2.1) of the Criminal Code and the fact that the victim was the offender’s intimate partner, the circumstances of this case and this offender do not warrant a life time prohibition. [ 34 ] Pursuant to section 737(2) (b)(ii) of the Criminal Code , victim fine surcharges are imposed in the amount of $200 for each of the two offences.

The Offender shall have one year to pay. _________________________ Robert P. Stack Justice