R. v. Nicholson, 2020 NLSC 41

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Nicholson , 2020 NLSC 41 Date : March 6, 2020 Docket : 201801G6149 Her Majesty The Queen v. Rocky Jed Nicholson Before: Justice Rosalie McGrath Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: February 7 and March 6, 2020

Summary: The Offender was sentenced for break and enter into a home and committing an indictable offence therein, disguise with intent, aggravated assault and assault with a weapon. After considering the Pre-Sentence Report and the Offender’s indigenous background, the Court imposed a sentence of six years incarceration. Appearances: Richard L. Deveau Appearing on behalf of the Crown John A. Hartery Appearing on behalf of the Accused Authorities Cited:

CASES CONSIDERED: R. v. Nicholson, 2019 NLSC 152; R. v. Gladue, (SCC), [1999] 1 S.C.R. 688; R. v. Ipeelee,2012 SCC 13; R. v. Barron (2013), 336 Nfld. & P.E.I.R. 237, 1043 A.P.R. 237 (NL Prov. Ct.); R. v. King (2013), 336 Nfld. & P.E.I.R.255, 1043 A.P.R. 255 (NL Prov. Ct.); R. v. Healey (2018), 147 W.C.B. (2d) 418, N.J. No. 127 (NL Prov. Ct.); R. v. Lasaga (2005), 68W.C.B. (2d) 203, N.J. No. 398 (NL Prov. Ct.); R. v. Lewis, 2012 NLCA 11; R. v. Manuel, 2010 NLTD(G) 177; R. v. White, 2019 NLPC318A00216; R. v. Squires, 2012 NLCA 20; R. v. Bennett (2014), 347 Nfld. & P.E.I.R. 73, 1080 A.P.R. 73 (NL Prov. Ct.); R. v.

Samson,2018 NLSC 198; R. v. Canning, 2017 NLTD(G) 8; R. v. Barry, 2016 NLTD(G) 103; R. v. Hutchings, 2012 NLCA 2 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT McGrath, J.: INTRODUCTION [1] On August 13, 2019, Rocky Jed Nicholson was convicted of the following four counts as set forth in an Indictment filed onSeptember 5, 2018: Count No. 1: That he did break and enter into a certain place to wit: a dwelling house situate at 346 Neck Road, Victoria and commit therein anindictable offence, contrary to section 348(1)(

b) of the Criminal Code; Count No. 2: That he did wound, maim, disfigure, or endanger the life of Justin Traverse thereby committing

an act of aggravated assault contrary tosection 268(1) of the Criminal Code; Count No. 3: That he did, in committing an assault against Mitchell Drodge, use a weapon to wit: a baseball bat, contrary to

section 267(

a) of theCriminal Code; Count No. 4: That he did, with intent to commit an indictable offence, have his face masked contrary to section 351(2) of the Criminal Code. [2] With respect to the offence of break and enter and committing an indictable offence therein, section 348(1)(

d) of the CriminalCode, R.S.C. 1985, c.

C-46 (“Criminal Code”) provides that, if the offence is committed in relation to a dwelling house, an offender isliable to imprisonment for life. [3] The maximum term of imprisonment for the offence of committing an aggravated assault is fourteen years pursuant to section268(2) of the Criminal Code, while the maximum term of imprisonment for assault with a weapon is ten years. [4] Finally, the maximum term of imprisonment for an offender having his face masked with intent to commit an indictableoffence is ten years. [5] Following conviction, a date for sentencing was scheduled but later postponed to allow sufficient time for the completion of aPre-Sentence Report with a Gladue perspective.

The sentencing hearing was ultimately held on February 7, 2020, at which time I hadthe benefit of case authorities, oral submissions from counsel and the Pre-Sentence Report. I also heard directly from Mr. Nicholson. Not surprisingly, no victim impact statements were filed with the Court as both victims had testified reluctantly at trial. I am nowprepared to give my decision on sentencing.

circumstances of the offences [ 6 ] The facts upon which Mr. Nicholson was convicted are set out in a written decision filed as R. v. Nicholson , 2019 NLSC 152 . In that decision, I found that Mr. Nicholson had formed a common intention with another accused, Paul Hanlon, to carry out an unlawful purpose and to assist each other therein, pursuant to section 21(2) of the Criminal Code . While the evidence upon which the findings of guilt were based are set out in detail in the decision, the following is a general

summary of the facts giving rise to the convictions. [ 7 ] The incident occurred on the night of September 3, 2017 when Mr. Nicholson, Mr. Hanlon and a third person drove together to the duplex in which Mr. Drodge resided. Someone beat in the door while Mr. Traverse and Mr. Drodge were watching television in the living room. Both Mr. Hanlon and Mr. Nicholson, who were wearing masks, entered the premises with baseball bats in hand. They began swinging, striking both Mr. Traverse and Mr. Drodge numerous times. The third person did not enter. Throughout the course of the attack, Mr.

Drodge was also struck in the shin with what appeared to be a knife. He also received a cut to the back of his head. [ 8 ] However, as Mr. Traverse and Mr. Drodge were both young men and in good physical condition, they were able to fend off the attackers. They eventually turned the table by retrieving the bats and fighting off the assailants. This resulted in both Mr. Nicholson and Mr. Hanlon leaving the home. Both the victims and the assailants were treated at hospital for their injuries. [ 9 ] Emergency room records entered at trial indicate that Mr.

Drodge presented with lacerations to his lower leg, which required suturing, and contusions to his back. Mr. Traverse’s emergency department records indicate that his injuries included a laceration to his ear and a puncture wound to his knee. His injuries also required sutures. CIRCUMSTANCES OF THE OFFENDER [ 10 ] Mr. Nicholson is a 58-year-old resident of Freshwater, Conception Bay North, Newfoundland and Labrador. The Pre-Sentence Report indicates that he spent most of his youth and early adult life in British Columbia. He met his current spouse approximately 15 years ago.

She has two children from a previous relationship, who are now 17 and 22 years old. Mr. Nicholson has been a father to these children. Mr. Nicholson has two prior marriages from which he has three children. He has frequent contact with one of his daughters but reports little contact with the other two children. [ 11 ] The Pre-Sentence Report indicates that Mr. Nicholson’s current wife is supportive of Mr. Nicholson. She was present at his side during both the trial and sentencing hearing. [ 12 ] While Mr.

Nicholson currently has a stable family, he had an upbringing that could only be described as horrendous. [ 13 ] Mr. Nicholson is one of four children born to a mother of Irish descent and a father of Cree descent on his grandmother’s side originating from Alberta. Mr. Nicholson recalled a childhood marred by his father’s substance abuse issues, violence and criminal lifestyle. [ 14 ] The author of the Pre-Sentence Report notes that Mr. Nicholson recounted incidents where he, his siblings and his mother suffered sexual and emotional abuse at the hands of his father.

The authorities intervened on several occasions, resulting in jail time for his father. As a result, Mr. Nicholson occasionally spent time with both sets of grandparents. He described these experiences as positive. [ 15 ] Mr. Nicholson’s parents eventually separated and he then lived on and off with each parent. However, he reported to the author of the Pre-Sentence Report that the abuse from his father continued. His father was a heroin dealer who often tested his drugs on his son, resulting in Mr. Nicholson becoming addicted to heroin at a young age. Mr.

Nicholson also reported that his father would use him as a drug mule. He also recalled many incidents of sexual abuse by his father and his father’s associates, to whom his father would prostitute him. [ 16 ] Mr. Nicholson reported that he shot and killed his father in self-defence when he was 18-years-old. Following his father’s death, he assumed a role in his father’s drug business, becoming an active daily heroin user himself. However, he commenced counselling during a prison term, was prescribed Methadone and no longer uses drugs. [ 17 ] Due to Mr.

Nicholson’s involvement in illegal drugs, he was convicted of offences in British Columbia in his early adulthood, the details of which are dealt with later in this decision. [ 18 ] During one of these prison terms, Mr. Nicholson was referred to a behavioral therapist who spoke with the social worker who completed the Pre-Sentence Report. That therapist described Mr. Nicholson’s case as one of the worst traumas of her career. Mr. Nicholson recounted to her his many years of physical and sexual abuse at the hands of his father and his father’s associates. [ 19 ] The therapist recounted the difficult work Mr.

Nicholson completed during his therapy. She noted that, even after being released from prison, Mr. Nicholson kept in touch and updated her on his progress. She expressed surprise at the current conviction as she did not believe this was consistent with Mr. Nicholson’s current life. [ 20 ] In fact, the Pre-Sentence Report indicates that Mr. Nicholson has been living a productive life with his family since moving to this Province. He has been actively involved in both work and community life. [ 21 ] While Mr.

Nicholson left school at grade eight, he completed a general equivalency diploma during a prior term of incarceration. He has been a part of the workforce for the past 15 years, having been employed as a seasonal laborer, tire technician and more recently as a heavy equipment operator. In addition to that employment, he has been self-employed doing mechanical work in a garage on his property, mostly for seniors and low income families. He also started a stained glass venture. [ 22 ] The author of the Pre-Sentence Report also notes that Mr.

Nicholson spoke to her at length of his aboriginal background and its effect on his past and present life. He is a registered Métis, having received his recognized status from the Chief of the Alouette River

Band in British Columbia in the late 1990’s or early 2000’s. Mr. Nicholson reported that this Band has since amalgamated with a larger band. [ 23 ] Mr. Nicholson also had occasion to experience life on the Nazko Reserve in British Columbia where he lived on and off with a woman with whom his father had been involved. This woman was part of the Carrier Nation and lived a traditional lifestyle. When he would run away to her home on the reserve, Mr. Nicholson would take

part in the traditional ways of hunting and gathering as well as preparing foods. Mr. Nicholson reported that he is fluent in the Carrier traditional language and can speak two other native languages. [ 24 ] Mr. Nicholson says that he has incorporated native cultural traditions into his daily family and community life since moving to this Province, including having sweat lodges and engaging in native carving. He hunts and fishes, sharing with elders and family who have very little. [ 25 ] Even though Mr.

Nicholson has been on remand since August 13, 2019, he has continued to incorporate these aboriginal traditions. He has been a regular attendee at an indigenous group at Her Majesty’s Penitentiary that meets weekly. The session begins with a smudging ceremony and is guided by a Talking Circle and open dialogue. He recently took

part in a sweat lodge. Mr. Nicholson has also attended the Adult Children of Alcoholics group while on remand. CROWN POSITION ON SENTENCING [ 26 ] Crown counsel proposed that a custodial sentence be imposed on Mr. Nicholson for a global period of eight years, broken down as follows: • Break and enter and committing an indictable offence therein contrary to section 348(1) (

b) of the Criminal Code – six (6) years; • Aggravated assault contrary to section 268(1) of the Criminal Code – three (3) years; • Assault with a weapon contrary to

section 267 (

a) of the Criminal Code – eighteen (18) months; • Being masked with intent to commit an indicatable offence contrary to section 351(2) of the Criminal Code – one (1) year. [ 27 ] Crown counsel submitted that the sentences for the two most serious offences, break and enter and committing an indictable offence therein and aggravated assault, should be treated as consecutive sentences. However, taking into account the principle of totality, he suggests that the three-year sentence for aggravated assault be reduced to two years.

The Crown submitted that the offences of assault with a weapon and being masked with intent to commit an indictable offence should then be served concurrently to achieve a global fit and appropriate sentence of eight years. [ 28 ] The Crown also asked that the Court impose a DNA order, a

section 109 lifetime firearms prohibition order and an order under

section 743.21 that Mr. Nicholson have no contact with Mr. Drodge or Mr. Traverse during his sentence. [ 29 ] With respect to credit for remand time, Mr. Nicholson served 10 days remand after he was initially arrested, 181 days in remand from August 13, 2019 to February 7, 2020 and a further 28 days to March 6, 2020 for a total of 219 days. Giving credit for time on remand at the rate of 1.5 days for each day served, that would entitle Mr. Nicholson to 328.5 days credit to March 6, 2020.

DEFENCE POSITION ON SENTENCING [ 30 ] Counsel for the Offender’s position is that the appropriate range for a global sentence is three and one-half years. In respect of sentences for the individual offences, counsel for the Offender submits that the following are appropriate sentences: • Break and enter and committing an indictable offence therein contrary to section 348(1) (

b) of the Criminal Code – 3.5 years; • Aggravated assault contrary to section 268(1) of the Criminal Code – six (6) months; • Assault with a weapon contrary to

section 267 (

a) of the Criminal Code – four (4) months; • Having his face masked with intent to commit an indictable offence contrary to section 351(2) of the Criminal Code – four (4) months; [ 31 ] Counsel for the Offender submits that all sentences should be served concurrently as they arise out of one single criminal adventure. As a result, there is no need to apply the principle of totality to the overall sentence. [ 32 ] Counsel for the Offender agrees with the ancillary orders and credit for remand. analysis Sentencing Principles [ 33 ] The starting point in determining a fit and appropriate sentence is to take into account the statutory sentencing principles set out in the Criminal Code . The

preamble to

section 718 states that the fundamental purposes of sentencing are the protection of society and the contribution of sentencing, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions. [ 34 ] Sentencing objectives set out in

section 718 include the following:

a) Denunciation of unlawful conduct and harm done to victims or to the community that is caused by unlawful conduct;

b) General and specific deterrence;

c) The separation of offenders from society, where necessary;

d) Rehabilitation for offenders;

e) Reparation for harm done to victims or to the community; and

f) The promotion of a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community. [35] Other fundamental principles of sentencing are set forth in sections 718.1 and 718.2. In particular,

section 718.1 provides thatthe sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Section 718.2also sets out a number of factors that I must take into account as either aggravating or mitigating, relating to the offence or the offender. That

section also articulates the parity principle that a like sentence ought to be imposed on similar offenders for similar offencescommitted in similar circumstances. [36] In the case of sentencing for multiple offences, I must also consider whether the sentences to be imposed should be servedconcurrently or consecutively, having regard to whether or not any of the offences relate to a single criminal adventure. Having madethat determination, I must also consider and apply the principle of totality to ensure a combined sentence for any remaining consecutivesentences is not unduly long or harsh. [37]

Section 718.2(

e) of the Criminal Code is also of particular importance in sentencing. That

section provides as follows: 718.2 Other sentencing principles - A court that imposes a sentence shall also take into consideration the following principles: … (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. [38] The Supreme Court of Canada had occasion to consider how courts should pay particular attention to the circumstances ofaboriginal offenders in R. v. Gladue, (1999), (SCC), 1 S.C.R. 688 and later in R. v. Ipeelee, 2012 SCC 13, [2012] 1S.C.R. 433 (S.C.C.).

At paragraphs 56 to 87 of Ipeelee, LeBel, J., for the majority, explained what a judge must consider whensentencing an aboriginal offender. In particular, he stressed the importance of obtaining a Gladue-specific Pre-Sentence Report atparagraph 59: The Court held, therefore, that s. 718.2(

e) of the Code is a remedial provision designed to ameliorate the serious problem ofoverrepresentation of Aboriginal people in Canadian prisons, and to encourage sentencing judges to have recourse to a restorativeapproach to sentencing (Gladue, [1991] 1 S.C.R. 6880 at para. 93). It does more than affirm existing principles of sentencing; it callsupon judges to use a different method of analysis in determining a fit sentence for Aboriginal offenders (Gladue at para. 37). Whensentencing an Aboriginal offender, a judge must consider: (

a) the unique systemic or background factors which may have played a

part in bringing the particular Aboriginal offender before thecourts; and (

b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender becauseof his or her particular Aboriginal heritage or connection (Gladue, at para. 66). Judges may take judicial notice of the broad systemic andbackground factors affecting Aboriginal people generally, but additional case-specific information will have to come from counsel andfrom the pre-sentence report (Gladue, at paras. 83-84). [39] I will now consider the relevant sentencing principles and objectives in determining what is a fit and appropriate sentence.

Sentencing Case Authorities [40] The Crown relies upon the following case authorities from this Province in support of its position that home invasions whereviolence is used generally attract a custodial sentence of between six to ten years. [41] In R. v. Barron (2013), 336 Nfld. & P.E.I.R. 237, 1043 A.P.R. 237 (N.L. Prov. Ct.), Provincial Court Judge Mennie (as she thenwas) imposed concurrent terms of imprisonment of four years for robbery, one year for disguise with intent and 120 days’ imprisonmentfor the offence of carrying a weapon.

In doing so, she recognized that the sentence range for home invasion is generally between fiveand eight years. Nevertheless, she took into account the offender’s age of 23 years and the fact that he had a three-year-old child. Whilehe had a large number of prior convictions as an adult and youth, none of these prior convictions were for serious offences. As well,while Mr.

Barron entered the home of the victim with a machete and knife, the weapons were used as a threat with no actual violenceinvolved in the robbery. [42] The sentencing judge also took in account several mitigating factors, including the offender’s guilty plea, the fact that he wascooperative with the police, and that the home invasion was rather short in duration. The offender was of borderline intelligence andsuffered from addictions issues. He also had significant family support and an employer who was willing to continue his employment. [43] In the companion Provincial Court decision of R. v.

King (2013), 336 Nfld. & P.E.I.R. 255, 1043 A.P.R. 255 (N.L. Prov. Ct.),the court sentenced Mr. King, the co-accomplice of Mr. Barron, to concurrent periods of imprisonment of (

i) five years for the offence ofrobbery; (ii) one year for the offence of disguise with intent; and (iii) 120 days for the offence of carrying a weapon. The offender had

an extensive criminal record for property offences and breaches of court orders. However, he pled guilty and showed remorse. As well, there was no actual violence associated with the home invasion. Judge Mennie also took into account the fact that Mr. King was 30 years old with cognitive challenges and a drug addiction. [ 44 ] In another decision of the Newfoundland and Labrador Provincial Court, R. v. Healey (2018), 147 W.C.B. (2d) 418 , N.J. No. 127 (N.L. Prov.

Ct.), Judge Gorman sentenced the offender to a global sentence of six and one half years for robbery with a weapon, break and enter, and disguise with intent to commit an indictable offence. The offender committed the break and enter by kicking in the front door of a residence while his face was concealed. The offender also had a loaded firearm. [ 45 ] In Healey , the offender was a 23-year-old male with no record. While a loaded firearm was used in connection with the offence the victim suffered no physical injuries. The offender, as was the case with Barron , had a drug addiction.

He pled guilty, showing remorse and empathy for the victim. [ 46 ] Before applying the principles of totality and parity, Judge Gorman would have imposed sentences of eight years imprisonment for the robbery, eight years imprisonment for the break and enter and one-year imprisonment for disguise with intent. The terms of imprisonment for the robbery and break and entry would have been imposed concurrently while the sentence for disguise with intent would have been consecutive. However, Judge Gorman was satisfied that a nine-year sentence was unduly harsh and would have reduced it to seven years.

In the end, as Mr. Healey’s co-accused had been sentenced to five years imprisonment for the same offences, he reduced the custodial sentence to a total period of five years. [ 47 ] Counsel for the Offender notes that Judge Gorman emphasized the offender’s high degree of moral culpability because a loaded firearm was involved; a circumstance that is not present here. However, the Crown notes that Mr. Nicholson and Mr. Hanlon entered the home with baseball bats, thereby increasing the odds that the consequences of their actions would be fatal. [ 48 ] In R. v. Lasaga (2005), 68 W.C.B. (2d) 203 , N.J. No. 398 (N.L.

Prov. Ct.) another decision of Judge Gorman, the accused was sentenced to eight years imprisonment for committing a home invasion while masked. The accused and his co-accomplice had targeted the elderly victim, entering his home with a hammer and pliers. They punched the victim in the head twice, knocking him unconscious and then stole cash. [ 49 ] The offender in that case was a 55-year-old male with a prior criminal record, including a conviction for the offence of forcible confinement. However, this record was dated. The accused had an unfortunate upbringing and was abused as a child.

The most significant mitigating factors taken into consideration were the guilty plea and the offender’s limited criminal record. [ 50 ] Provincial Court Judge Gorman found that sentences for home invasion were in the seven to ten year range. If violence was involved, the sentence should be at the upper end of the range. [ 51 ] In the Newfoundland and Labrador Court of Appeal decision in R. v. Lewis , 2012 NLCA 11 , the Court of Appeal held that an eight-year term of imprisonment for a forceful break and enter into a dwelling house and committing violence against its occupants was not demonstrably unfit.

The offender and three others had entered the home of a couple and terrorized them during the course of the home robbery. The female victim had an armed handgun put to her head and was threatened with death. At the same time, her husband was attacked by one of the other intruders who was wielding a claw hammer. He was beaten on his head and upper body and seriously injured. [ 52 ] Mr. Lewis was not one of the persons who actually entered the home, nor did he personally inflict injuries on the victims. However, he was a party to the offence by enabling the robbery and assault to take place.

On appeal of sentence, the Court of Appeal upheld the eight-year term of imprisonment noting Mr. Lewis’ lengthy criminal record, including crimes of violence. Mr. Lewis knew that his companions were armed and dangerous and crazy enough to commit acts of violence. Mitigating factors included the fact that the offender did not actually engage in acts of violence and showed remorse before the Court. Further, he did not profit from the crime. [ 53 ] The Crown also relies upon the decision of Whalen, C.J. (then Whalen, J.) in R. v.

Manuel , 2010 NLTD(G) 177, in which the range of sentencing for home invasions where assaults and robberies are intertwined was identified as being between six and ten years imprisonment. [ 54 ] In Manuel , the offender pled guilty to break and enter into a home, assault with a weapon and robbery. The offender was 28 years old with no criminal record. While his entry into crime was driven by his use of drugs he was a strong candidate for rehabilitation. Further, he expressed regret and remorse over his behavior and the harm done to his victim.

Whalen, C.J. endorsed the joint submission of six and one half years as a global sentence. [ 55 ] Crown counsel also provided the Court with a decision from the Provincial Court of Newfoundland and Labrador in R. v. White , 2019 NLPC 1318 A00216 in which Judge Gorman reviewed the range of sentencing for the offence of aggravated assault noting the wide range of sentences for that offence. He noted that the Newfoundland and Labrador Court of Appeal, in R. v.

Squires , 2012 NLCA 20 , found that, in the context of sentencing for the offence of assault causing bodily harm, two factors necessarily need to be considered: i.e. the seriousness of the risk of injury arising from the assault and the seriousness of the consequences of the assault (paragraph 44 of Squires ).

Provincial Court Judge Gorman referred to decisions from courts in this Province in which terms of imprisonment were anywhere from 18 months to six years imprisonment. [ 56 ] Judge Gorman imposed a sentence of two years for the offence of aggravated assault where no actual injury was suffered by the victim but her life was endangered. [ 57 ] For his part, counsel for the Offender referred to case law from this jurisdiction suggesting that the range of global sentences for these types of offences is anywhere between three and a half to five years imprisonment. [ 58 ] In particular, counsel for the Offender has provided me with a decision of Provincial Court Judge Gorman in the case of R. v.

Bennett (2014), 347 Nfld. & P.E.I.R. 73, 1080 A.P.R. 73 (N.L. Prov. Ct.) , in which an offender was sentenced to three years

imprisonment for robbery, breach of undertaking, possession of stolen goods, being disguised with intent and possession of a weapon for the purpose of committing an offence. It is notable that this offender was a co-offender with Mr. Barron and Mr. King, referred to in the above case law

summary. In those cases, sentences of four years and five years, respectively, were imposed for the same offences. However, the circumstances differed in that Mr. Bennett did not actively participate in the act of robbery. He waited at the door and shared equally in the proceeds of crime. Mr. Bennett also had the benefit of being a youthful offender with a marijuana dependency and difficulties with prescription medications. [ 59 ] Provincial Court Judge Gorman reviewed case law dealing with similar offences and found that the appropriate sentence for the robbery offence was a period of five years imprisonment.

Considering the other offences, some of which were concurrent and some consecutive, he found that the imposition of a global sentence of five years and one-and-one-half months imprisonment would have been appropriate. However, the Crown sought a significantly lower sentence. As a result, Judge Gorman concluded that a total period of three years imprisonment must be imposed. [ 60 ] Counsel for the Offender also made reference to a decision of Justice Burrage of this Court in R. v. Samson , 2018 NLSC 198 .

In that case, a 34-year-old offender was sentenced to concurrent sentences of four years and two months imprisonment for robbery conducted during a home invasion; three years for break and enter; and sixteen months for assault with a weapon. He was also sentenced to one month consecutive imprisonment for breach of probation. [ 61 ] In that case, the offender had entered a home in the early morning hours and assaulted the resident with a crowbar. He proceeded to steal in excess of $2,000.00.

Justice Burrage was satisfied that the facts of the case met the criteria for a home invasion and that the offences of robbery and assault took place in that context. [ 62 ] Mr. Samson had been diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) and was waitlisted for Narcotics Anonymous and Anger Management programs. He had an eight-year dependency on OxyContin but had been able to begin the Methadone Maintenance program. The more recent convictions corresponded with the period of time in which he had a relapse from his drug rehabilitation. While he had a criminal record, it had an 11-year gap.

Further, his prior convictions were less serious than the charges for which he was being sentenced. [ 63 ] Counsel for the Offender also referred to a 2017 decision of Justice Goulding of this Court in R. v. Canning , 2017 NLTD(G) 8 in which an offender and others entered the home of a 56-year-old victim who lived alone and used a wheelchair. The offender used duct tape to confine the victim to the wheelchair while another accused struck the victim above the head and face several times, causing lacerations requiring stitches. Another accused pointed a pellet handgun at the victim’s face and “pistol whipped” him.

In that case, the offender was a 19-year-old male who had pled guilty and was remorseful. He had no prior criminal record and his prospects for rehabilitation were positive. He was sentenced to four and a half years on the robbery offence, 18 months on the confinement offence and 18 months on the disguise with intent offence, all to be served concurrently. [ 64 ] Counsel for the Offender also relied upon a decision of Justice Stack of this Court in R. v.

Barry , 2016 NLTD(G) 103 in which the offender pled guilty and was sentenced for the offences of robbery, disguise with intent, and breaches of probation and recognizance. The offender came into the home of the victim and stole his wallet. The complainant was asleep on the couch when he heard the other accused, who was known to him, knock at the door.

The offender punched the complainant in the face after he entered the home. [ 65 ] The offender was 30 years old with an addiction to drugs and alcohol, accounting for over 50 prior criminal convictions, almost half of which were for breaches of recognizances and probation orders. [ 66 ] Mitigating factors included the offender’s guilty plea, expression of remorse and the fact that he had taken steps to address his drug dependency. Justice Stack also took into account that the co-offender was sentenced to just over two years and four months for the robbery.

While the role of the co-offender was less serious and her criminal record less extensive, Justice Stack held that the sentence for Mr. Barry of six years sought by the Crown could not be reconciled with the lesser sentence imposed on the co-offender. As a result, he found that an appropriate sentence was incarceration for four and one-half years.

The period of incarceration for disguise with intent was 12 months, to be served concurrently. [ 67 ] I am satisfied, based upon a review of the case law presented to me and the submissions of counsel, that sentences for violent home invasions in this Province generally fall within the range of six to ten years incarceration.

While I have been referred to cases in which sentences of three to five years have been imposed, these were cases in which either the circumstances of the offence or offender were significantly different. [ 68 ] In Bennett , the involvement of the offender was on a much lesser scale and was reduced to make it in line with a sentence given to a co-accused. Barry also involved a reduction for parity. In Barron and King , there was no actual physical violence. The offender in Canning also did not personally participate in the infliction of injuries.

In most of these cases, including Samson , the offenders were youthful and suffering from drug addictions. [ 69 ] Of course, I note also that I am not bound by precedent in respect of imposing a sentence and must exercise my discretion according to established principles, taking into account any aggravating and mitigating circumstances as well as the particular circumstances of the offence and the offender. Consideration of Factors and Circumstances [ 70 ] The Crown’s position on sentencing is that there are no identifiable mitigating factors but numerous aggravating factors.

The Crown refers to the aggravating factors set out below. [ 71 ] Crown counsel provided the Court with Mr. Nicholson’s criminal record noting that it is not lengthy and somewhat dated. However, the serious nature of the charges on which he was convicted is concerning. [ 72 ] The criminal record dates back to 1982, starting with a conviction for driving while impaired; a 1989 conviction for assault; a

1995 conviction for cultivation of narcotics and possession of a unregistered restricted weapon; 1999 convictions for arson with disregard for human life and three charges of arson causing damage to property. The most recent conviction in 2001 was the most serious; namely, a conviction for manslaughter for which Mr. Nicholson was sentenced to four years imprisonment. [ 73 ] The Crown says that the serious nature of the offences for which convictions were entered indicates that Mr. Nicholson had been involved in a life of crime, countering the notion that he was an unwilling victim of Mr. Hanlon in respect of the charges for which he is now being sentenced. [ 74 ] The Crown also refers to

section 348.1 of the Criminal Code which requires a court, in imposing a sentence on a person convicted of break and enter, to consider the fact that a dwelling house was occupied as an aggravating factor in certain cases. In particular,

section 348.1 reads as follows: 348.1 Aggravating circumstance — home invasion 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. [ 75 ] It is evident from my findings on conviction that Mr. Nicholson knew or was reckless as to whether the dwelling house was occupied. He and Mr. Hanlon used violence against both Mr. Traverse and Mr. Drodge, causing them both injury. This is clearly an aggravating factor. [ 76 ] The Crown further notes that the injuries suffered by the victims were significant. Those injuries arose from the use of weapons, namely baseball bats, and in all likelihood a knife.

The significant violence and use of weapons highlights the need to focus on denunciation and specific and general deterrence as sentencing goals. The Crown submits that if these victims had not been strong young men, Mr. Nicholson may have been facing another charge of manslaughter. [ 77 ] For his part, counsel for the Offender notes the work Mr. Nicholson has done towards rehabilitation and the fact that he has not had any criminal convictions in the past 15 to 16 years. He also refers to Mr.

Nicholson’s strong family support and involvement in community life. [ 78 ] For its part, the Crown acknowledges that rehabilitation is an important principle in sentencing. However, it says it must take a second seat to the principles of denunciation, deterrence and the protection of the public. [ 79 ] I agree that citizens have a right to expect that they will be secure and free from violence within the safety of their own homes.

As such, denunciation and deterrence, both general and specific, must play a significant role in the imposition of sentences for such offences. [ 80 ] However, that is not to say that the objective of rehabilitation plays no role. On the contrary, I have given a great deal of consideration to this sentencing objective. Mr. Nicholson has taken great strides towards rehabilitation during his prior periods of incarceration, as evidenced by the report of his former counsellor. The report of his intensive counselling sessions and his continuing follow-up with his former counsellor is compelling.

He also underwent drug rehabilitation, reporting that he is now drug free. [ 81 ] However, while Mr. Nicholson professes that he has been rehabilitated, it troubles me that he is again before a court having committed a significant, violent offence, fifteen or sixteen years after getting out of prison and with strong family support. While Mr. Nicholson took his rehabilitative efforts seriously when he was previously in custody, it appears he has further work to do to fully rehabilitate himself to ensure that he does not pose a threat to the public. [ 82 ] Counsel for the Offender also points to Mr.

Nicholson’s expressions of remorse for his actions. In his statement to the Court during his sentencing hearing, and through his Pre-Sentence Report, Mr. Nicholson indicated regret for his actions. However, at the same time, he made statements that attempted to justify his actions by placing blame on the victims and his co-accomplice. These statements, in some respects, contradicted sworn evidence he had given at trial. As I explained to Mr.

Nicholson at the sentencing hearing, in considering the circumstances of the offence for the purpose of sentencing, it is the factual findings from the trial upon which I place reliance. [ 83 ] The qualifications in his statement to the Court, which are also reflected in the Pre-Sentence Report, indicates a continuing minimization by Mr. Nicholson of his involvement in what was a serious and violent home invasion. There was no true expression of remorse for the harm done to both victims. [ 84 ] I have, however, considered Mr. Nicholson’s statement that he regretted his actions.

I believe him when he says that he understands that his actions were wrong and that he did not mean for anyone to get hurt. [ 85 ] Further, as indicated in the decision on conviction, I have considered that Mr. Nicholson was the lesser of the two aggressors

and actively intervened to remove Mr. Hanlon from the home. [ 86 ] I also commend Mr. Nicholson for his efforts, most recently while on remand, to partake in indigenous healing techniques that were available to him from his own prior personal experience and those offered at Her Majesty’s Penitentiary. I encourage him to continue to avail of counselling, indigenous cultural traditions and indigenous group meetings so that he can heal the wounds of his past and develop strategies to ensure he does not reoffend. [ 87 ] As Mr.

Nicholson is an indigenous person, I must also consider how his indigenous background and experiences as an aboriginal person have impacted on his personal circumstances. As noted above,

section 718.2 (

e) of the Criminal Code specifically directs me to consider alternatives other than prison. [ 88 ] However, for offences involving violent home invasions, a period of incarceration must be imposed. Both counsel agree. In this case, Mr. Nicholson and Mr. Hanlon completed a planned and pre-meditated forceful entry into a victim’s home. They entered the home while masked and carrying baseball bats as weapons. Once inside the home, they proceeded to violently assault the occupants with weapons that had the potential to cause serious bodily injury or death. It was lucky for not only the victims but also for Mr.

Nicholson that Mr. Drodge and Mr. Traverse were young men in good physical condition. Otherwise, I agree with the Crown that Mr. Nicholson could have been facing a much more serious charge. [ 89 ] As a prison sentence must be imposed, it is unfortunate that the Pre-Sentence Report contains such an extensive focus on sentencing options that do not include incarceration. Counsel for the Offender did indicate to the Court that he had discussed this with Mr. Nicholson prior to his sentencing hearing. [ 90 ] I have, however, considered the statements in the Pre-Sentence Report indicating that Mr.

Nicholson is a person with an aboriginal background who grew up in harrowing circumstances involving both sexual and physical abuse. The horrific circumstances of his youth have no doubt led him down a path that saw him before the courts at a young age. I must also recognize the systemic discrimination and over-incarceration of aboriginals in our society that may have impacted upon his life. [ 91 ] While a non-custodial sentence cannot be imposed, in accordance with the guidance from the Supreme Court of Canada in Gladue and Ipeelee , I will consider Mr.

Nicholson’s background and circumstances, including his experience as an aboriginal person, when determining the length of the sentence for these offences. These circumstances may justify a lower sentence than one I would otherwise have imposed.

The ability to impose a lower sentence was acknowledged by Crown counsel who said he would have suggested an overall sentence of ten years if it had not been for the impact of the Offender’s aboriginal status and background. [ 92 ] However, as noted at paragraph 79 of Gladue , the more serious and violent the offence, the more likely it is as a practical reality that the length of imprisonment for aboriginals and non-aboriginals will often be the same or similar. [ 93 ] Overall, in determining a fit and appropriate sentence, I agree with the Crown that there is a predominance of aggravating circumstances, namely: (

i) Mr. Nicholson’s dated but serious criminal record, including convictions for manslaughter, arson and possession of a prohibited weapon; (ii) the planned and pre-meditated nature of the home invasion in which the occupants were present; and (iii) the use of weapons and force that actually caused injuries and had the potential to inflict life-threatening injuries.

Further, while the lack of a guilty plea is not an aggravating factor, it also differentiates this case from those presented to me at the lower end of the range in which a guilty plea was a significant mitigating factor. [ 94 ] Mitigating against those factors are Mr. Nicholson’s efforts toward rehabilitation, his strong support network and his apology for his actions, even if not a full acknowledgement of responsibility. [ 95 ] Had it not been for my consideration of Mr.

Nicholson’s personal circumstances, including the impact of the abuse suffered during his childhood and his aboriginal background, I would have imposed a custodial sentence of seven years for the offence of break and enter and committing an indictable offence therein.

However, taking those factors into account, I find that a fit and appropriate sentence for break and enter and committing an indictable offence in a dwelling home, in the circumstances applicable to this offence and this offender, is a period of six years of incarceration. [ 96 ] After sentencing submissions on February 7, 2020 but prior to the date scheduled for the decision on March 6, 2020, Mr. Nicholson’s co-offender, Paul Hanlon, pled guilty and was sentenced for similar offences as well as an unrelated offence.

I therefore asked counsel for additional submissions on the issue of parity, i.e. that similar sentences should be imposed on similar offenders for similar offences in similar circumstances. The Crown acknowledges the offences were the same but differentiates the offenders and their circumstances. [ 97 ] Mr. Hanlon received an overall sentence of seven years; six years globally for the same offences as Mr. Nicholson and one year consecutive for the unrelated offence. This sentence was accepted as a joint submission on sentencing.

While the offences were the same, I am cognizant of the fact that joint submissions attract different considerations, including the fact that they are often the result of a quid pro quo reached between Crown and Defence. [ 98 ] In the case of Mr. Hanlon, he pled guilty to some but not all of the unrelated charges and there was a concern the victims would not testify. [ 99 ] Further, Mr. Hanlon’s guilty plea meant significant savings in court time and expense as he had elected trial by judge and jury. [ 100 ] The Crown also noted that the guilty plea was an acceptance by Mr. Hanlon of responsibility.

He also apologized to the Court without placing blame on the victims. [ 101 ] Further, Mr. Hanlon’s criminal record, while similar in number of offences and more recent, did not include such serious and violent offences as those previously committed by Mr. Nicholson.

[ 102 ] As a result, even absent the considerations that differentiate a joint submission on sentence from another judicial decision on sentencing, the Crown suggests that the sentence it proposes respects the principle of parity. [ 103 ] For his part, counsel for the Offender says that Mr. Nicholson should receive less than the six-year sentence imposed on Mr. Hanlon. Mr. Nicholson had less moral culpability since he left the house, taking Mr. Hanlon with him. As well, while Mr. Nicholson did not plead guilty, this should not be held against him as he had a right to a trial. Further, he notes that Mr.

Nicholson’s Pre-Sentence Report detailing his upbringing and aboriginal background should be taken into account as circumstances justifying a lower sentence than Mr. Hanlon. [ 104 ] Having considered submissions of counsel, I am satisfied that there is no reason to depart from the decision to impose a six-year custodial sentence that I had determined was appropriate for the offence of break and enter and committing an indictable offence therein. Even absent the fact that Mr. Hanlon was sentenced on a joint submission, I note that Mr. Hanlon had the benefit of a guilty plea and a less serious criminal record.

These circumstances are somewhat offset by his more serious involvement in the violence and planning of the crime. On the other hand, Mr. Nicholson is receiving the benefit of the imposition of a somewhat lower sentence because of his personal circumstances and background as well as his efforts during the course of the home invasion to extradite himself and Mr. Hanlon. As noted in Gladue , the more serious the offence, the closer the sentence of an aboriginal person will be to that of a non-aboriginal.

I am therefore satisfied that the principle of parity has been met. [ 105 ] I must now consider the sentence for the other offences. The Crown submitted that the appropriate sentence for the offence of aggravated assault should be three years, to be served consecutively with the offence for break and enter and committing an indictable offence therein. Sentences for the other offences (ie., eighteen months for assault with a weapon and one year for disguise with intent) would be served concurrently to the break and enter. [ 106 ] I cannot agree with this submission for the following reason.

While the durations suggested are generally within the range of fit and appropriate sentences, I do not agree that the sentence for aggravated assault should be served consecutively. [ 107 ] While the Newfoundland and Labrador Court of Appeal decision in R. v.

Hutchings , 2012 NLCA 2 , at paragraph 20 , provides that sentences for multiple offences arrived at in the initial sentencing step should presumptively be imposed consecutively, the second step is to consider whether some or all of the offences are so related that they should be considered as constituting a single criminal adventure (paragraph 21 of Hutchings ).

If offences are considered to constitute a single criminal adventure, they are generally made concurrent to the heaviest sentence arising from the single criminal adventure. [ 108 ] In this case, the offences of aggravated assault, assault with a weapon and disguise with intent all arise out of the same criminal adventure in which Mr. Nicholson and Mr. Hanlon carried out their common purpose to commit a violent home invasion. In fact, sentences for break and enter and assaults committed in the course thereof were ordered to be served concurrently in all cases submitted to me.

All sentences should, in fact, be served concurrently. [ 109 ] As all offences relate to a single criminal adventure, there is no reason for me to apply the third and final step in the context of sentencing for multiple offences, that being a consideration of the application of the totality principle to ensure that the overall sentence is not unduly long or harsh.

DISPOSITION [ 110 ] For Count No. 1, break and enter into a dwelling house and committing an indictable offence therein, the offender is sentenced to six years imprisonment. [ 111 ] For Count No. 2, aggravated assault, the offender is sentenced to two years imprisonment. [ 112 ] For Count No. 3, assault with a weapon, the offender is sentenced to eighteen months imprisonment. [ 113 ] For Count No. 4, disguise with intent to commit an indictable offence, the offender is sentenced to one year imprisonment. [ 114 ] As the offences for Counts 1 through 4 form part of a single criminal adventure, I order that the sentences for Counts 2, 3 and 4 be served concurrent to the sentence for Count 1.

The overall global sentence is therefore six years imprisonment. [ 115 ] Section 109(1) (

a) of the Criminal Code requires that this Court prohibit an offender from possessing firearms and other related items if the person has been convicted of an indictable offence in the commission of which violence against a person was used, threatened or attempted. As this criteria has been met, I order that Mr. Nicholson is prohibited from possessing any firearm, crossbow, restricted weapon, ammunition and explosive substance for life. A prohibition order must be for a lifetime duration as this is not the first firearms prohibition order for this offender. [ 116 ] Aggravated assault and assault with a weapon are primary designated offences within the meaning of

section 487.04 of the Criminal Code . I therefore order that Mr. Nicholson provide samples of bodily substances reasonably required for the purpose of forensic DNA analysis, in accordance with

section 487.051(1) of the Criminal Code . [ 117 ] I order that Mr. Nicholson have no contact with either Mitchell Drodge or Justin Traverse for the duration of his sentence pursuant to

section 743.21 of the Criminal Code . [ 118 ] Mr. Nicholson shall be given credit for time spent in remand at the rate of 1.5 days credit per date of remand, resulting in a credit of 328.5 days to March 6, 2020.

_____________________________ Rosalie McGrath Justice