R. v. King, 2018 NLSC 36

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. King , 2018 NLSC 36 Date : February 19, 2018 Docket : 201701G3359 Her Majesty The Queen v. Jason King Before: Justice Donald H. Burrage Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: January 29, 2018 February 7, 2018

Summary: Prior to taking pre-trial custody into account, the offender would have been sentenced to six years’ imprisonment for aggravated assault and (taking totality into account), two years concurrent for breach of probation. He was given credit at a rate of 1.5 days for each day in pre-sentence custody, leaving a sentence to be served of 1,152 days. In a public place the offender repeatedly slashed at his victim’s face with a box cutter in an effort to disfigure her. The offender and his victim had been in a prior relationship. The victim was seriously injured, physically and psychologically, as a result.

It took the intervention of others to stop the attack. The offender was on probation at the time and had a prior record for crimes of violence, which included domestic violence. Appearances:

Erin E. Matthews Appearing on behalf of the Crown Shelley A. Senior Appearing on behalf of the Accused John D. Brooks, Q.C. Appearing as amicus curiae Authorities Cited: CASES CONSIDERED: R. v. Lundrigan, 2012 NLCA 43; R. v. Cluney, 2013 NLCA 46; R. v. A. (K.J.) (1988), (NLCA), 69 Nfld. & P.E.I.R. 99, 211 A.P.R. 99 (Nfld. (C.A.)); R. v. Okemahwasin, 2015 SKPC 71; R. v. Ralph, 2007 NLTD 42; R. v.Squires, 2012 NLCA 20; R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500; R. v. Safarzadeh-Markhali, 2016 SCC 14; R. v.Summers, 2014 SCC 26; R. v. Evans, 1997 ABCA 165; R. v. DeNiro, 2015 NLTD(G) 55; R. v.

Mitchell, 2005 NLTD 80; R. v. Whitten,2006 NLTD 34; R. v. Ryan, 2006 NLTD 167; R. v. O’Flaherty, 2016 NLPC 1314A00670; R. v. Anderson, 2017 NLPC 1716A00959; R.v. Foley, 2017 NLTD(G) 86; R. v. Cox, 2010 NLTD(G)149; R. v. Murphy, 2011 NLCA 16; R. v. Khawaja, 2012 SCC 69 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT Burrage, J.: INTRODUCTION [1] On 29 January 2018 Jason King pled guilty, and based on an Agreed Statement of Facts, was convicted of a single count ofaggravated assault on Laura Whalen, contrary to section 268(1)[1] of the Criminal Code, R.S.C. 1985, c.

C-46 and a single count ofbreach of probation, contrary to

section 733.1(1) of the Criminal Code. In turn, the Crown withdrew charges of attempted murder and ofassault. [2] On 7 February 2018, submissions were received regarding an appropriate sentence. The maximum sentence for aggravatedassault is 14 years, reflecting the seriousness of this crime. [3] The Crown argues that an appropriate sentence is six to seven years’ imprisonment for aggravated assault and two months’imprisonment for breach of probation, to be served consecutively. In addition, the Crown points to the mandatory requirement for aDNA Order and firearms’ prohibition for life (as Mr.

King has a previous lifetime firearms’ prohibition). [4] Finally, the Crown accepts that Mr. King should receive a credit of 1.5 days for each day spent in pre-sentence custody. [5] The defence argues that an appropriate sentence should be in the order of 4.5 years and agrees that Mr. King should receive acredit of 1.5 days for each day while in pre-sentence custody. Once this credit is taken into consideration, the defence submits that Mr.King would have 22 months left to serve for aggravated assault and 2 months plus a day, consecutive, for the breach of probation, for atotal sentence of two years and one day.

According to the defence, Mr. King wants his time to be federal so that he might avail of federalprogramming for anger management. the circumstances of the offence [6] As noted, the conviction of Mr. King proceeded on an Agreed Statement of Facts, as signed and acknowledged by him on 29January 2018. These facts were read into the record by the Crown, as follows: On June 11th, 2015 Jason King was placed on a probation order for a period of three (3) years following his guilty plea to one count ofassault (s.266) and two counts of damage to property (s.430(4)) in relation to Laura Whelan.

This order contained conditions that hekeep the peace and be of good behavior and have no contact or communication in any manner, whether directly or indirectly, with LauraWhalen and remain away from any place that she resides, works or attends school. Despite the no contact provision contained in the Probation Order, Laura Whalen and Jason King continued to have an on again, off again relationship until the evening of March 28th, 2016. On this date, Whalen and King were at his residence when they began to argueover some contacts that King observed in Whalen’s phone.

This argument continued into the porch area of the residence, as Whalenwished to go home, however King took her phone, which was then dropped on the floor and damaged. King then proceeded to drive

Whalen home and advised her that he would pay for the phone ($800) if she did not contact the police, as King was still bound by a probation order to have no contact with Whalen at this time. After dropping Whalen off at her residence, King then received a phone call from Whalen from the same phone that was said to be broken, again asking if he would replace her phone, to which he agreed, and Whalen then stated that she would not contact the police if he did so. Sometime later, King then called Whalen back and advised that he would not be paying for the phone and that he wanted her to never contact him again.

The following morning, March 29 th , 2016, Whalen attended King’s place of employment, which was the Dollarama in Bay Roberts, in order to confront King about paying for her damaged phone. She located King in an aisle stocking shelves and again asked him if he was going to pay for her phone, to which King said he would not and Whalen replied “very good then” and turned to walk away. King then threw Whalen to the floor and began slashing at here face with a box cutter that he had on his person for work. This attack continued until a male customer tackled King, allowing others to assist Whalen to leave the area.

King then went to the stock room with another employee, who then went with him outside while he waited for police to arrive. He was arrested by Cst. Babineau at approximately 10:55 am without incident. Under caution stated that he snapped as he had enough of Whalen harassing him at work. Cst. Babineau was also given the box cutter used in the assault by one of King’s co-workers, Katrina Hutchings. Whalen was taken to the hospital in Carbonear where she received medical treatment.

Her wounds consisted of multiple lacerations to her face, including a 10 cm laceration to the right side of her face and an 18 cm laceration on the left. She also sustained a 3 cm laceration on right pinky finger and an 8 cm laceration to her wrist. Whalen was released from hospital on April 2 nd , 2016. She continues to suffer from reduced mobility in her right hand/arm due to her injuries and has scarring on both sides of her face and right wrist. Shortly after his arrest on March 29, 2016, King provided an audio/video caution statement to Cst.

Barker of the RCMP, in which he admitted to his actions against Whalen and advised that he did so as he was driven into a rage. King also admitted that he slashed at Whalen’s face as he wanted to disfigure her, as he felt that she placed a great deal of value in her appearance.

King has been in custody by consent since his arrest on March 29 th , 2016. [ 7 ] I will have more to say about the circumstances of the offence in the analysis to follow. principles of sentencing [ 8 ] The Court’s decision on a just and appropriate sentence must be guided by the principles codified in sections 718 to 718.2 of the Criminal Code . [ 9 ]

Section 718 provides that the fundamental purpose of sentencing is to protect society and 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 having one or more of the objectives set forth in that section.

These objectives are to denounce unlawful conduct and the harm done to victims, or to the community that is caused by unlawful conduct; deter the offender and other persons from committing offences; separate offenders from society, where necessary; assist in rehabilitating offenders; provide reparations for harm done to victims, or to the community; and promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims, or to the community. [ 10 ]

Section 718.1 of the Criminal Code sets out that the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. It is an expression of the principle that a fit sentence is one that takes into account the circumstances of the offence(

s) and of the offender ( R. v. Lundrigan , 2012 NLCA 43 ). [ 11 ] Proportionality is central to the sentencing process, as a sentence which properly respects this principle will at the same time ensure that the secondary goals of denunciation, restraint, promotion of justice for victims, and the maintenance of public confidence in the administration of justice are met. The principle of proportionality applies to sentencing for all criminal offences ( R. v. Cluney , 2013 NLCA 46 ), including aggravated assault. [ 12 ]

Section 718.2 of the Criminal Code provides that a sentence should be increased, or reduced, to account for any relevant aggravating or mitigating circumstances relating to the offence, or the offender. [ 13 ] Pursuant to subsection 718.2 (

d) of the Criminal Code , incarceration is used as a last resort, where less restrictive sanctions are not appropriate. Pursuant to subsection 718.2(

e) of the Criminal Code , all non-custodial sentences should be considered provided they are reasonable and consistent with the harm caused, with particular attention to the circumstances of aboriginal offenders. The atkins’ factors

[14] In R. v. A. (K.J.) (1988), (NL CA), 69 Nfld. & P.E.I.R. 99, 211 A.P.R. 99 (Nfld. (C.A.)), Goodridge, C. J.identified a number of factors as guidelines to be considered when sentencing for assault. These have become known as the “Atkinsfactors”.

While Atkins dealt with sexual assault, the enumerated factors are applicable to all forms of assault, including aggravatedassault. [15] The factors are: 1) the extent of the assault...; 2) the degree of violence or force used; 3) the impact of the crime upon the victim, the family of the victim and the offender; 4) the degree of trust involved; 5) public abhorrence to the type of crime involved; 6) the attitude of the offender to what he has done and his plea; 7) the biological and psychiatric factors that lead to the commission of the offence; 8) the need for specific and general deterrence; 9) the prospect of successful rehabilitation; 10) the antecedents and age of the offender; 11) the time spent in custody prior to trial; and 12) sentences imposed by other courts in Newfoundland and elsewhere in Canada. [16] The list is inclusive, not exclusive.

As such, other factors may arise, depending on the circumstances of the case. 1) The Extent of the Assault [17] Eight photographs of the victim, Laura Whalen, were tendered by the Crown at the sentencing hearing, all taken on the date ofthe attack, 29 March 2016. They graphically reveal multiple lacerations to Ms. Whalen’s face, including a 10 cm laceration to the rightside of her face and an 18 cm laceration on the left. Ms. Whalen also sustained a 3 cm laceration to her right pinky finger and an 8 cmlaceration to her wrist. While not immediately life threatening, Ms.

Whalen’s injuries have left her with scarring to both sides of her faceand her right wrist, as well as reduced mobility in her right hand and arm. 2) The Degree of Violence or Force Used [18] Mr. King’s actions were not pre-meditated and he was in possession of the box cutter as part of his work at Dollarama. [19] That said, the attack upon Ms. Whalen can only be described as both vicious and senseless. She was walking away from Mr.King when he was “driven into a rage”. Mr. King was the aggressor, from start to finish and the attack did not end until a male customerintervened, tackling Mr.

King and allowing others to assist Ms. Whalen in her escape. In doing so, this person may well have saved Ms.Whalen from more grievous injury. One can only speculate on what might have been the tragic outcome without this intervention. [20] Ms. Whalen’s injuries were not caused by a single blow, but by repeated slashing with the box cutter. The fact that a weaponwas used also heightens the seriousness of the assault. [21] If the situation could be worse, Mr. King told the police that he intentionally slashed at Ms.

Whalen’s face in an attempt todisfigure her, as in his view, she placed a great deal of value in her appearance. The intentional disfigurement of another human being isan act that a civilized society can only regard as abhorrent. This admission serves to increase Mr. King’s moral culpability. 3) The Impact of the Crime Upon the Victim [22] In this case a victim impact statement was provided to the Court from Mr. King’s victim, Ms.

Whalen, in accordance withsection 722 of the Criminal Code. [23] Victim impact statements assist the sentencing process by bringing home to the offender the consequences of his or herbehaviour and alerting the Court to the very real damage done to the victims and community as a whole. Victim impact statements thusassist the Court in crafting sentences which acknowledge the harm done to the community and promote a sense of responsibility in theoffender (R. v. Okemahwasin, 2015 SKPC 71, at para. 15). [24] At the same time, vengeance has no role in the sentencing process.

Such statements must not seek to compensate grief throughthe imposition of a harsh sentence (R. v. Ralph, 2007 NLTD 42, at para. 19). [25] In her statement, Ms. Whalen described not only the physical consequences of the attack, her scarring, the surgeries, ongoing

pain and lack of mobility, but the devastating psychological impact, her loss of sleep, nervousness, stress and fear. In her words, “Mybody has never been the same since the attack. I often find myself being depressed and becoming brought back to that dreadful day.” [26] It should be noted, as well, that Ms. Whalen was not the only victim of Mr. King’s attack. While no victim impact statementswere provided, I am prepared to take notice that there were others in Dollarama who bore witness to the horrific scene. There was at aminimum the male customer who intervened, as well as others who assisted Ms. Whalen in leaving the area. 4) The Degree of Trust Involved [27]

Section 718.2(a)(ii) of the Criminal Code provides that “evidence that the offender, in committing [an] offence, abused theoffenders spouse or common-law partner” shall “be deemed to be an aggravating circumstance”. [28] In R. v. Squires, 2012 NLCA 20 our Court of Appeal spoke to the rationale underlying this section, noting that regardless of itsstrict application, it is always open for a trial judge to “take the parties’ relationship into account for purposes of determining anappropriate sentence (at para. 34). [29] On 11 June 2015, Mr.

King was placed on probation for a period of three years, following his guilty plea to one count ofassaulting Ms. Whalen and two counts of damage to her property. In addition to the standard requirement to keep the peace and be ofgood behaviour, Mr. King was to have no contact with Ms. Whalen. [30] Despite this condition, Mr. King continued to have what is described in the Agreed Statement of Facts as an “on again, offagain” relationship with Ms. Whalen. During the course of that relationship, the attack in the Dollarama was the second time Mr. Kingassaulted Ms.

Whalen, although this time the consequences were far more serious. 5) Public Abhorrence to the Type of Crime Involved [31] In a fit of rage Mr. King attacked Ms. Whalen with a box cutter, slashing at her face in an attempt to disfigure her. This is acrime that deeply shocks and offends the community. The public abhorrence of such behavior is understandably very high. 6) The Attitude of the Offender to What he has Done and his Plea [32] Mr. King accepted responsibility for his actions by entering a guilty plea. This obviated the need for Ms.

Whalen to testify, aswell as those who witnessed the assault in the Dollarama, thus saving all involved the trauma of doing so. The guilty plea also saved theexpenditure of judicial resources. I accept this plea as a mitigating factor on sentencing. [33] At the sentencing hearing Mr. King was given the last word. He expressed thanks to his legal counsel for her tolerance andapologized to Ms. Whalen, as well as those attending the Dollarama on that fateful day. I accept Mr.

King’s apology as sincerely givenand that he is now remorseful for his actions. 7) The Biological and Psychiatric Factors that Led to the Commission of the Offence [34] Apart from Mr. King’s acknowledged inability to control his temper there is no evidence of biological or psychiatric factorsthat led to this offence. There is no evidence that alcohol or drugs were involved in its commission. 8) The Need for Specific and General Deterrence [35] The crime committed by Mr. King calls for denunciation and general deterrence. His actions are not to be tolerated by thecommunity, or the courts. In R. v.

M. (C.A.), (SCC), [1996] 1 S.C.R. 500, Lamer, C.J. wrote (at para 81): 81. … The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particularoffender's conduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender'sconduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law. … [36] Mr.

King’s actions were abhorrent and an appropriate sentence must serve to express society’s condemnation of his behaviorand to deter others who might be like minded. [37] At the same time, specific deterrence must not be ignored. Mr. King has a prior criminal record which includes crimes ofviolence, including domestic assaults. Clearly there is also a need for a sentence which might serve to deter him from such conduct inthe future. 9) The Prospect of Successful Rehabilitation [38] To his credit, Mr. King has displayed some insight into his behavior and the need to control his temper.

As such, he hasrequested federal jail time so as to avail of anger management programming offered at the federal level. He is clearly a candidate forsuch treatment, as his troubles with the law seem to emanate from his inability to control his temper. Given his acknowledgement, I amsatisfied that there are reasonable prospects for rehabilitation. Therefore, any sentence imposed must be such as to provide Mr. Kingwith this opportunity. 10) The Antecedents and Age of the Offender [39] Mr. King has a criminal record which includes crimes of domestic violence.

He was twice convicted for assault causing bodilyharm, arising from incidents which occurred on 7 February 2005 and 10 July 2005. He has two prior convictions for assault, arisingfrom incidents on 14 September 2006 and 7 June 2015. He also has two convictions for mischief relating to property, arising from 7

June 2015. [ 40 ] Finally, Mr. King has a conviction for uttering threats, arising from 27 February 2004, and three breaches of probation arising from the foregoing convictions. [ 41 ] Mr. King is 48 years old and hails from Lewisporte, NL. He reports no difficulty with his childhood and was raised by loving parents with what his counsel described as “old fashioned values”. Reportedly, he did not drink, or do drugs, and had excellent grades in school. [ 42 ] After graduating high school he moved to Corner Brook, where he completed the Travel and Tourism program at the NL Career Academy.

He was in a common law relationship for 15 years, and from that relationship, in 1990, a daughter was born. After the relationship ended in 2004, Mr. King lost contact with his daughter. This lack of involvement is a source of grief for him. [ 43 ] In 2005, Mr. King entered into what his counsel described as a “tumultuous relationship” with another lady. Mr. King’s two convictions in 2005 for assault causing bodily harm were the result. For the second of these he was sentenced to jail for 14 months. [ 44 ] In 2006, Mr. King returned to Lewisporte, where he purchased the family home.

It was here, on 14 September 2006, that he assaulted his sister. He was placed on probation and received a four-month conditional sentence. [ 45 ] Mr. King was unhappy in Lewisporte and in 2010 relocated to Spaniard’s Bay, where he purchased a house. [ 46 ] Mr. King has been productively employed most of his adult life. Once in Spaniard’s Bay, he first began work at Powell’s Supermarket, and commencing in May 2012, at the Dollarama store in Bay Roberts, the site of his attack on Ms. Whalen. [ 47 ] Mr. King’s counsel explained that her client met Ms.

Whalen thorough online dating and the two had an on again, off again, relationship. By way of background to the events at the Dollarama, counsel offered that on prior occasions, in his efforts to terminate the relationship, Mr. King was forced to call the RCMP. [ 48 ] On 7 June 2015, after the two had resumed contact, there was an altercation in which Mr. King broke Ms. Whalen’s car windshield with a shovel. This resulted in the two mischief relating to property convictions and a conviction for assault upon Ms. Whalen. For the assault, Mr.

King received a conditional sentence of three months and was placed on probation for three years with the condition that he not contact Ms. Whalen. [ 49 ] After a three-week hiatus in their relationship, on the morning of 27 March 2016, Ms. Whalen contacted Mr. King. He relented and the two got together that evening. From this point, the events of 28 March 2016 leading to the assault the following day, are documented in the Agreed Statement of Facts. [ 50 ] Mr. King’s counsel offered by way of background that Mr. King was fearful when Ms.

Whalen approached him at work and that he had previously taken measures, with the assistance of staff, to hide from her when she showed up. [ 51 ] When Ms. Whalen arrived at Dollarama on 29 March 2016, Mr. King was going about his business stocking shelves with his box cutter in his back pocket. After she confronted him regarding alleged damage to her cell phone he “snapped” with tragic consequences. [ 52 ] Let me be clear. The foregoing account may provide some context to the events of 29 March 2016, but in no shape or form does it provide a justification for Mr.

King’s behavior. (In fairness, in providing the narrative his counsel conceded as much). Ms. Whalen is not on trial here and I would reject any suggestion that she bears any responsibility for what transpired. 11) The Time in Custody Prior to Trial [ 53 ] The Supreme Court of Canada observed in R. v. Safarzadeh-Markhali , 2016 SCC 14 , citing its earlier decision in R. v. Summers , 2014 SCC 26 , that a credit of one day for every day of pre-trial custody will “almost never” put the person on equal footing with those denied bail (at paragraph 1).

Time spent in pre-trial custody does not count for the purposes of parole eligibility, earned remission and statutory release. [ 54 ] For this reason, I accept counsels’ submission that Mr. King receive a credit of 1.5 days for each day spent in pre-sentence custody. [ 55 ] Mr. King has been in custody on remand since his arrest on 29 March 2016. The total time on remand up to and including today’s date, 19 February 2018, is 692 days. Applying a factor of 1.5 days for each day in pre-sentence custody, Mr.

King is entitled to a credit of 1,038 days. 12) Sentences Imposed by Other Courts in Newfoundland and Elsewhere in Canada [ 56 ] Subsection 718.2 (

b) of the Criminal Code expresses the principle of parity, that a sentence should be similar to sentences imposed on similar offenders for similar offences in similar circumstances. In other words, the principle that like cases should be decided alike. [ 57 ] To this end, both the Crown and defence provided me with various sentencing authorities in support of their respective positions on an appropriate disposition in this case. I have reviewed all of these authorities, including other cases cited within the authorities provided, and find the following to be of the greatest assistance in this case. • In R. v.

Evans , 1997 ABCA 165 , Evans entered a plea guilty to aggravated assault and break and enter. He used a screwdriver to force his way into the victim’s apartment and in the presence of her six-year-old child, struck her in the face with a steak knife, penetrating her cheek and tongue. While the child begged him to stop Evans repeatedly called his victim a “slut, a tramp and a whore”,

telling her that he was going to make her bleed and that she would die. While the injuries were not life threatening, the victim sustained scarring and permanent numbness to the right side of her face. The psychological and emotional impact on her and her children was devastating. Evans and his victim had previously cohabitated and at the time of the offence Evans was attempting to convince his victim to resume cohabitation. Evans had five previous convictions, which included a prior assault, and uttering threats on his victim and assault and mischief to property committed against his previous spouse.

While expressing concern with the trial judge’s finding that the guidelines respecting domestic violence did not apply in this case, the Court of Appeal upheld the sentence of five years, taking into account pre-trial custody, which elevated the sentence to 6 or 6.5 years. The Court observed that 6 or 6.5 years “falls within the range of sentences which are appropriate for this offence although no means at the top of that range” (at para. 13). In dissent, Justice Mason would have imposed a sentence of 8 to 9 years before credit for pre-sentence custody. • In R. v.

DeNiro , 2015 NLTD(G) 55 after four days of drinking DeNiro suddenly “snapped” when his wife told him they did not have passports and therefore could not book a holiday. He brutally assaulted her in the kitchen of their home and the assault continued as his victim fled outside. She spent six days in the hospital recovering from her injuries. These included a broken jaw bone which was wired shut and required surgery, multiple facial bone fractures, a large laceration on her chin that required stitches, three broken fingers and bruising on her face, chest and shoulders.

DeNiro and his victim were in a marital relationship. DeNiro was 44 years old and had an extensive criminal record which included seven convictions for uttering threats and five convictions for resisting arrest and assault of a police officer. Faour, J. imposed a custodial sentence of 36 months for the charge of aggravated assault. • In R. v. Mitchell , 2005 NLTD 80 , following an evening drinking Mitchell attacked an 84-year old man from behind while he was walking home. He put his arm around the victim’s neck and hit him several times in the head with a piece of asphalt.

He left his victim bleeding profusely on the sidewalk. The victim sustained extensive degloving of his forehead, a broken nose, his right eye was swollen shut and his facial and chin areas were severely bruised. He required surgery to repair the damage, but continued to suffer from side effects, including paralysis of the top of his head and pain in his ears, head and eye, as well as psychological trauma. Mitchell pled guilty and was remorseful. He was 46 years old at the time of sentencing, with a criminal record, which according to the trial judge, was not lengthy or extensive.

He had two impaired driving offences in 1988 and 1994 and an assault conviction in 2003, for which he received a suspended sentence. Mitchell was on probation at the time of the attack. Goulding, J. sentenced Mitchell to six years’ imprisonment for aggravated assault and two months concurrent for breach of probation. • In R. v. Whitten , 2006 NLTD 34 during a brawl outside a bar Whitten stabbed his victim 13 times with a folding pocketknife, causing life threatening wounds.

While the victim was the instigator in a fight with Whitten’s friend, Whitten’s actions in stabbing the victim, while he lay in a protective “turtle” position on the ground, went far beyond what was justifiable. Whitten was 22 years old at the time of sentencing with some 58 prior convictions as a youth, including assault and assault with a weapon and nine convictions as an adult, which included break and enter and escaping lawful custody. Adams, J. sentenced Whitten to five years’ imprisonment for aggravated assault. • In R. v.

Ryan , 2006 NLTD 167 following a trial Ryan was convicted of two counts of aggravated assault. Ryan was at a bar when he was subject to unprovoked shoving and punching by S. He responded by pulling out a utility knife, stabbing S. in the lower stomach and wounding him in the arm. The stabbing caused a small perforation to S.’s bowel which necessitated corrective surgery. Ryan then used the knife to ward off others, including an off duty police officer, K. In the process of his attempting to break up the confrontation K was cut on his finger and stabbed in the lower back.

The wound to his back missed major organs and was not life- threatening. Ryan was in his early 20’s and had strong family support. He also had an extensive criminal record with some 51 prior convictions, including crimes of violence. O’Regan, J. noted that a double stabbing in a public place, frequented by hundreds of people on a given evening was such as to attract public condemnation. Ryan was sentenced to six years’ imprisonment, concurrent, for each charge of aggravated assault. • In R. v.

O’Flaherty , 2016 NLPC 1314 A00670, O’Flaherty and her victim were involved in an intimate relationship at the time of the aggravated assault. O’Flaherty bought a knife to the victim’s residence to retaliate for his having injured her hand. She slashed him across the throat, leaving him with a long scar. The cut was 3-1/2 inches long and took 13 sutures to close. O’Flaherty was convicted of aggravated assault following a trial. O’Flaherty was 50 years of age with four prior convictions, three of which were for theft.

Following a review of previous decisions involving the use of knives, a sentence of four years was imposed for the aggravated assault charge. Gorman, J. found that there was a broad range of sentences, with 3-6 years dominating. • In R. v. Anderson , 2017 NLPC 1716 A00959 Anderson assaulted his common law spouse by striking her in the head. Anticipating a further assault she took a knife with her as she went upstairs. Anderson came upstairs and struck her again. She responded by poking

him with the knife. Anderson then took the knife from her and stabbed her in the back. Anderson had a criminal record spanning ten years, which included assault with a weapon, assault causing bodily harm, assault (2), forcible confinement and uttering threats. Considering his prior record and the breach of trust arising from his spousal relationship, he was sentenced to four years for aggravated assault. From this sentence Anderson received credit for time served while on remand. • In R. v. Foley , 2017 NLTD(G) 86, two brothers engaged in what started out as a consensual fight.

However, Foley pulled out a knife and slashed, or stabbed, the victim numerous times. The victim suffered serious injuries including a slash across both cheeks and the bridge of his nose, cuts to his left lower neck, his left shoulder area, both front and back, on this sides and under his left arm. He lost one-third of his blood and would have died but for timely medical treatment. Foley was 48 years old with a significant criminal history spanning three decades, which included a conviction for assault and a conviction for assault with a weapon. Foley was convicted following a trial and was not remorseful.

Handrigan, J. sentenced Foley to four years’ imprisonment on the aggravated assault charge, from which he then deducted time served while on remand. [ 58 ] When viewed against the foregoing case law I observe that in this case, a weapon was used and the attack did not end until the intervention of others. This was not a single stabbing such as that in Evans , Ryan , O’Flaherty and Anderson . It took place in a public place where the attack was witnessed by others, as was the case in Ryan . The assault did not start out as a consensual fight as was the case in Whitten and Ryan . Rather, Ms.

Whalen, who was walking away from Mr. King at the time of the attack was a defenceless and innocent victim, not unlike the elderly man in Mitchell . Like the cases of Evans , DeNiro , Whitten , Ryan and Foley , Mr. King had a related criminal record. He entered a plea of guilty as did the offenders in Evans and Mitchell . [ 59 ] Based on the foregoing, I am satisfied that the authorities support a sentence for aggravated assault in this case in the 5 to 6.5 year range.

DISPOSITION Aggravated Assault [ 60 ] In reaching an appropriate sentence for aggravating assault, I have taken into consideration as mitigating factors Mr. King’s guilty plea and expression of remorse. [ 61 ] As aggravating factors, I have considered the fact that a weapon (box cutter) was used in the assault. I have also considered as aggravating, Mr. King’s criminal record, which includes crimes of domestic violence, the fact Mr. King was under probation at the time of this offence, and his statement that he intentionally set out to disfigure Ms.

Whalen. [ 62 ] Unlike some of the cases to which I was referred, there is no suggestion that Mr. King’s attack was premeditated. The box cutter was in his possession lawfully as part of his employment at the Dollarama. Nor was his attack on Ms. Whalen commensurate with the commission of another offence, such as a home invasion, break and enter, or forcible confinement. [ 63 ] Nevertheless, the attack upon Ms. Whalen, in broad daylight while shoppers in the Dollarama went about their business, was as senseless and vicious as it was shocking. In his admission to police Mr.

King stated that he set out to deliberately disfigure Ms. Whalen as she valued her appearance. To this end, in a fit of rage, he repeatedly slashed at her face with a box cutter. The attack only ended when a male customer intervened, allowing others to assist Ms. Whalen in her escape. This is not a case of a single stabbing and we do not know what would have happened had it not been for the intervention of others. Nevertheless, Ms. Whalen was seriously injured both physically and mentally.

Physically she has been left with scarring to both sides of her face and her right wrist, as well as reduced mobility in her right hand and arm. Psychologically she continues to suffer from loss of sleep, nervousness, stress and fear. [ 64 ] An appropriate sentence for this crime must emphasize both denunciation and general deterrence. Such behavior is shocking to the community and the sentence must serve to deter not only Mr. King, but others who might be like minded. At the same time, Mr. King’s prospects for rehabilitation must not be ignored. [ 65 ] That Mr.

King has problems with anger management is beyond question, as amply shown by his prior criminal record and the charges before me. There is a frank recognition of this fact by Mr. King, as evidenced by his desire to avail of federal programming in this area. While general deterrence and denunciation must remain the primary sentencing objectives for the crime Mr. King committed, I am satisfied that he remains a candidate for rehabilitation. He has led a productive life to date and through his guilty plea and apology has shown some insight into his behavior.

While a just sentence must reflect society’s abhorrence of his behavior and others who might be like-minded, it must not be so crushing as to rob him of the prospect of rehabilitation. Clearly, a federal term of imprisonment is in order, one which will enable him to obtain the treatment he seeks and needs. [ 66 ] Taking the foregoing into consideration, as well as the principles of sentencing and Atkins ’ factors discussed above, I am satisfied that an appropriate sentence for aggravated assault in this case is six (6) years’ imprisonment, from which Mr. King is to receive

credit for his pre-sentence custody. Breach of Probation [ 67 ] Handrigan, J. observed in R. v. Cox , 2010 NLTD(G)149 (at para 7): 7. Breach of probation is a hybrid offence, punishable by indictment or

summary conviction under

section 733.1 (1) of the Criminal Code , as the Crown elects. Where, as in this case, the Crown proceeds by indictment, the accused is "...liable to imprisonment for a term not exceeding two years" if found guilty. In R. v. Timmons 4 , Embree, P.C.J. described breach of probation as an "offence against the administration of justice"; he characterized it as a "serious offence" and said that "...sentences for breach of court orders [must]...encourage and continue to encourage respect for those orders" 5 . [ 68 ] At the time of the assault and during his encounter with Ms. Whalen the evenings prior, Mr.

King was subject to a probation order which obliged him to abstain from contacting Ms. Whalen and to keep the peace and be of good behavior. [ 69 ] In R. v. Murphy , 2011 NLCA 16 our Court of Appeal observed that breach of a court order will generally result in the imposition of a consecutive sentence and the range is generally between one to three months’ imprisonment, or up to six months where the Crown proceeds by way of indictment, as it did here. [ 70 ] Mr. King has three prior convictions for breach of probation, the most recent being in 2007 for which he was sentenced to one day in jail.

Both the Crown and the defence suggested that an appropriate sentence for the breach of probation in this instance would be two months’ imprisonment, to be served consecutively. I agree. Totality [ 71 ] In R. v. Khawaja , 2012 SCC 69 (at para. 125 ) the Supreme Court of Canada observed that the totality principle of sentencing “requires that the cumulative sentence rendered for multiple offences not exceed the overall culpability of the offender.” [ 72 ] In this case the total sentence to be imposed before taking into account Mr. King’s pre-sentence custody is six (6) years and two (2) months.

Is this sentence unduly long or harsh in the sense that it is disproportionate to the offence and degree of responsibility of the offender (see Hutchings ). Taking into consideration the factors enumerated in Hutchings [2] , I am satisfied that an overall sentence of 6 years’ imprisonment is appropriate. Accordingly, the sentence for breach of probation will be concurrent to that for aggravated assault. [ 73 ] But for Mr. King’s pre-sentence custody, I would have imposed a total sentence of six (6) years, or 2,190 days. Taking into account Mr.

King’s pre-sentence custody, a credit of 1,038 days, leaves him with a sentence to be served of 1,152 days. A warrant of committal will enter accordingly. DNA [ 74 ] Aggravated assault is a “primary designated offence” under

section 487.04 (a)(

i) of the Criminal Code . This requires a DNA order. [ 75 ] Therefore, an Order in Form 5.03 will issue directing the taking of the number of samples of bodily substances from Jason King that is reasonably required for the purpose of forensic DNA analysis, by means of the investigative procedure described in

section 487.06(1). Firearms’ Prohibition [ 76 ] Pursuant to

section 109 of the Criminal Code , I prohibit Jason King from possessing any firearm, or prohibited or restricted firearm, crossbow restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance and any prohibited firearm, restricted firearm, prohibited firearm, prohibited device and prohibited ammunition from today for life. Victim Fine Surcharge [ 77 ] Finally, there will be a victim fine surcharge of $200 for each offence. The court officer will provide Mr. King with a notice in accordance with section 737(8) of the Criminal Code . _____________________________ Donald H.

Burrage Justice [1] Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.