R. v. Noftall, 2022 NLSC 169

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Noftall , 2022 NLSC 169 Date : November 24, 2022 Docket : 202101G6334 HIS Majesty The KING v. Brandon Noftall Before: Justice Katherine O'Brien Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: October 21, 2022

Summary: This is a sentencing decision. The 26-year-old offender fatally stabbed his step-father in the course of a physical altercation. The Court sentenced him to five and a half years of imprisonment for manslaughter ( Criminal Code , s. 236 ) and thirty days of imprisonment, consecutive, for breach of a release order ( Criminal Code , s. 145 (5) (a)), less credit for time served. The Court also ordered a mandatory firearms prohibition and DNA order, and waived the Victim Fine Surcharge. Appearances: Kathleen O'Reilly and Dana E. Sullivan Appearing on behalf of the Crown

Jason A. Edwards and Candace G. Summers Appearing on behalf of the Offender Authorities Cited: CASES CONSIDERED: R. v. Friesen, 2020 SCC 9; R. v. Parranto, 2021 SCC 46; R. v. Matthews (1997), (NLSC), 159 Nfld. & P.E.I.R. 228, 37 W.C.B. (2d) 283; R. v. Morris, 2006 NLTD 178; R. v. Larche, 2013 MBPC 54; R. v. Gladue, (SCC), [1999] 1 S.C.R. 688; R. v. Henry, 2002 NSCA 33; R. v Makpah, 2015 NUCJ 34; R. v. Onalik, 2022 NLSC 137; R. v.Ash, 2017 NLTD(G) 139; R. v. Rasberry, 2018 ABCA 128 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46; Prisons and Reformatories Act, R.S.C. 1985, c.

P-20 REASONS FOR JUDGMENT O'Brien, J: OVERVIEW: [1] Brandon Noftall stabbed his step-father, Robert Noftall, four times in the course of a physical altercation. Robert Noftall diedas a result. Brandon Noftall was charged with second degree murder but ultimately pleaded guilty to the included offence ofmanslaughter (Criminal Code, R.S.C. 1985, c. C-46, s. 236). He also pleaded guilty to failing to keep the peace and be of good behavioras required by a release order by which he was bound at the time (Criminal Code, s. 145 (5)(a)). [2] I have to decide the appropriate sentence for Mr. Noftall.

Crown counsel submitted that the sentence should be seven to eightyears of imprisonment. Defence counsel submitted that it should be four to six years. They agreed on the appropriate ancillary orders andthe credit that Mr. Noftall should receive for his time in pre-sentence custody. They also agreed that 30 days imprisonment was anappropriate sentence for the breach of the release order. [3] No sentence can bring Robert Noftall back to his family or end their grief. A fair, fit and principled sentence is one thatpunishes the crime that Mr.

Noftall has committed in a way that is proportionate both to the seriousness of what he has done wrong andto the degree of his responsibility. [4] I have decided that a fair, fit and proportionate sentence is five and a half years of imprisonment for manslaughter, less timeserved, and thirty days imprisonment for breach of the release order, to be served consecutively. I will explain why. SENTENCING OBJECTIVES [5] Determining an appropriate sentence starts with the principles of s. 718 of the Criminal Code.

The sentence must contribute torespect for the law and the maintenance of a just, peaceful, and safe society. It should meet one or more of the following objectives:denunciation, deterrence, separation of offenders from society (where necessary), rehabilitation, reparation, and general promotion of asense of responsibility in offenders and an acknowledgement of the harm done to victims and to the community. [6] The goal in every case is a fair, fit and principled sanction. Proportionality is the organizing principle in reaching this goal.

Asentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (R. v. Friesen, 2020 SCC 9,at para. 30; R. v. Parranto, 2021 SCC 46, at para. 10). [7] It is important to consider the offender’s personal circumstances including family and social background, alternatives toincarceration (where they are available and appropriate), and any factors that mitigate or aggravate the offences.

The sentencing sectionsof the Criminal Code have as their primary focus the protection of the public, which is best achieved by crafting a sentence that fits boththe offence and the offender. [8] While each case and each offender is unique, a fit sentence should be similar to sentences imposed on similar offenders forsimilar offences committed in similar circumstances. This is known as the principle of parity. To arrive at a sentence that is in paritywith other sentences, courts look at comparable sentencing decisions.

The principle of parity is secondary to the principle ofproportionality, but the two are not at odds with each other. This is because parity assists courts in fixing a proportionate sentence(Friesen, at para. 31; Parranto, at para. 11). The circumstances of Robert Noftall’s Death [9] Counsel filed an agreed statement of facts to inform me about the circumstances of the offence. I will review the mostimportant parts.

[ 10 ] In the early morning hours of December 18, 2020, Brandon Noftall and his mother, Melinda Noftall, began arguing about money at their home in Renews. Earlier that evening, Brandon Noftall had e-transferred some money to his mother’s bank account for her to withdraw because he had lost his bank card. Brandon Noftall demanded that she give him the cash immediately because he was about to leave for St. John’s. She responded that she did not have that amount of cash on her. The argument was obviously a heated one because Ms.

Noftall barricaded herself in her bedroom by sliding a dresser in front of the door. [ 11 ] Brandon Noftall forced his way into her bedroom and grabbed her purse. Ms. Noftall responded by striking him on the face. He then struck her and the two began physically fighting. The fight ended with Brandon Noftall putting his mother in a headlock and throwing her to the ground. He then retreated to his bedroom. [ 12 ] Ms. Noftall called out to Robert Noftall for help. Robert Noftall was angry and went into Brandon Noftall’s room where the two started a physical altercation. Ms.

Noftall stayed outside of the bedroom and could not see exactly what was happening inside. As a result, the report of what happened in the bedroom largely came from Brandon Noftall. [ 13 ] When Robert Noftall entered the bedroom, the two men began wrestling. The scene was chaotic. Ms. Noftall screamed at her husband from outside the room to “hit Brandon and knock him out”. Robert Noftall stood in the doorway of the bedroom, blocking Brandon Noftall’s path. Brandon Noftall felt in danger, trapped and cornered. He hauled out a pocket knife to get Robert Noftall out of his way.

He said he was leaving and wanted his money. He told Robert Noftall to let him leave. Robert Noftall responded that Brandon Noftall owed his parents money. [ 14 ] Brandon Noftall started swinging the knife as a threat, saying, “Get the fuck out of my way”, “Give me my fucking money and let me go.” At some point around this time, Ms. Noftall heard Robert Noftall say, “Brandon, you don’t want to do this.” [ 15 ] Brandon Noftall believes that around this time, Robert Noftall hauled out his own pocket knife, although such a knife was never located.

Robert Noftall started making sudden movements and Brandon Noftall was scared because he thought he was trapped and in danger. From his perspective, it was fight or flight and he could not flee. Robert Noftall moved to jump to the side of Brandon Noftall, and Brandon stabbed him in the stomach. Robert then ran out of the room. [ 16 ] Ms. Noftall recalled Robert Noftall running into their bedroom saying “give me my knife” and grabbing a knife that was on their bedroom dresser. This knife, referred to as a “Damascus knife”, had a medium sized blade, serrated along part of one edge, and a very sharp tip.

Once he had the knife, Ms. Noftall said Robert Noftall went toward Brandon who was running toward the front door. This differs from Brandon’s report which was that Robert Noftall returned to his bedroom with the knife. The agreed statement of facts does not address this discrepancy. However, the agreed statement of facts focusses on Brandon Noftall’s report of what happened next and I understand I am being asked to sentence him based on those agreed facts. [ 17 ] Robert Noftall returned to Brandon Noftall’s bedroom with the Damascus knife and the two began to wrestle again.

Brandon Noftall stabbed Robert Noftall blindly several times until Robert Noftall let him go and left the bedroom. Brandon Noftall fled from the house and hid. He was frightened and thought that Robert Noftall was coming to kill him. [ 18 ] Robert Noftall was not able to leave the house. He had collapsed near the top of the basement stairs, bleeding. In his confused state, he raised the knife towards Ms. Noftall, but she was able to hit it out of his hand.

She kept pressure on his wounds and called for help. [ 19 ] When Brandon Noftall realized that his father was not following him out, he knew something was wrong. He returned to the house. When he realized how badly injured Robert Noftall was, he was upset. He apologized and told his father that he loved him and that he did not mean to hurt him. [ 20 ] Brandon Noftall sought help. Ultimately, he and Ms. Noftall put Robert in their truck and started driving toward St. John’s. Ms. Noftall drove and Brandon performed CPR on Robert and tried to stop the bleeding.

Sadly, Robert Noftall died en route. [ 21 ] Robert Noftall had been stabbed four times. One stab wound was to the heart and another punctured a lung. Either of these wounds could have caused his death. Less seriously, one wound caused a superficial cut to the liver and another injured a thigh. Brandon Noftall’s Circumstances [ 22 ] A Pre-Sentence Report was filed to inform me of Mr. Noftall’s circumstances. [ 23 ] Mr. Noftall is 28 years old and was 26 years old at the time of the offences. Mr. Noftall never met his biological father.

Robert Noftall and Melinda Noftall began their relationship when Brandon was three years old and Brandon considered Robert as his father. The couple subsequently had four other children. The two youngest were taken from their care by Children, Seniors and Social Development (CSSD). Brandon Noftall shared a close relationship with the other two and had been in regular contact with them prior to his incarceration for these charges. [ 24 ] Mr. Noftall had a traumatic childhood. His parents were drug users. The family lived in poverty and food was frequently scarce.

His parents often used any extra income to “party” and feed their opioid addictions. Mr. Noftall was repeatedly exposed to extreme domestic violence between his parents, and he often tried to intervene between the two. CSSD was extensively involved with the family. [ 25 ] Both Melinda and Robert Noftall were repeatedly involved with the criminal justice system and both served multiple terms of incarceration and community supervision.

As a result of the difficult situation at home, Brandon Noftall spent a significant amount of his childhood and teen years in the care of his maternal grandparents, both of whom have now passed away. [ 26 ] Mr. Noftall saw his father “shooting up” for the first time when he was approximately 10 years old. He started using drugs himself when he was about 13 years old - first marihuana and then 3,4-methylenedioxy-methamphetamine (MDMA). He escalated to

other drugs, cocaine and opiates, and he began using intravenously when he was still a teenager. [ 27 ] When he was 22 years old, Mr. Noftall began a significant relationship with a woman who had children, whom he considers as his own. That relationship ended a short time after he was incarcerated for these offences. [ 28 ] Although he was under a release order at the time of this offence, Mr. Noftall did not have a criminal record. He has since been convicted and sentenced for assault ( Criminal Code , s. 266 (a)) and failure to comply with a release order ( Criminal Code , s. 145(5) (a)).

While remanded in custody, Mr. Noftall has also been convicted under the Prisons and Reformatories Act , R.S.C. 1985, c. P-20 for failure to comply, contraband, abusive language towards staff, threatening and refusing placement. [ 29 ] Mr. Noftall quit school in grade 10. He subsequently completed further high school courses and hopes to finish his grade 12 education while incarcerated. He has worked in several different industries but has not had any long-term employment. He has relied primarily on income support for the majority of his adult life.

He acknowledges that he often resorted to illegal activities to support himself and to sustain his addictions. [ 30 ] Since being incarcerated, Mr. Noftall has participated in available mental health and addictions programming. His addictions counsellor confirmed that he has completed one addictions program and has expressed interest in upcoming programming. Mr. Noftall is motivated to address his substance abuse issues. [ 31 ] The adult probation officer who completed the Pre-Sentence Report administered the Level of Service/Case Management Inventory on Mr. Noftall.

She reported that this was to determine the degree of risk that Mr. Noftall presents to the community and the characteristics that contribute to such risk, some of which may be addressed through various kinds of intervention or treatment. Mr. Noftall was assessed to be a very high risk to become involved in further criminal activities. [ 32 ] Mr. Noftall expressed his remorse in court. He spoke emotionally about how the events of that night will haunt him for the rest of his life. He said he never considered Robert Noftall as anything other than his dad and he loved him. He expressed how sorry he is.

He acknowledged that he cannot change what happened; he can only work toward a better future. The impact on Robert Noftall’s family [ 33 ] Robert Noftall’s niece, Tina Moores, read a victim impact statement on behalf of herself and four other members of the family. It was emotional and deeply impressed upon me the family’s pain and loss. It also reminded me of the future that Robert Noftall has been denied. He has a grandson whom he will never know and nieces and nephews whose milestones he will not be there to celebrate. The family is finding strength in each other.

They are thankful that they did not have to endure a trial but state that no apology can give them back what they have lost. Comparable Sentencing Decisions [ 34 ] Both Crown and defence counsel provided me with a number of sentencing decisions for manslaughter. They include a range of sentences from 18 months to 9 years of imprisonment. Generally, the sentencing range for manslaughter is even broader than that, including conditional sentence orders on the lower end and terms of imprisonment of 15 years or more on the higher end.

The range is broad because the circumstances of the offence can vary widely. [ 35 ] All manslaughters involve an unlawful act that causes death. In all cases the offender did not intend to kill the victim. The extent of the offender’s moral blameworthiness is always a key consideration on sentencing. Moral blameworthiness is heavily influenced by the nature of the unlawful act.

Courts often place the unlawful act on a spectrum from “near accident” to “near murder”, with acts closer to “near murder” being punished more severely. [ 36 ] In assessing the nature of the unlawful act, courts consider factors such as: a. The degree of planning or deliberation b. The degree of violence used c. The amount of time over which the unlawful act took place d. Whether a weapon was used, with firearm use generally considered to be the most serious e. Whether there was any element of provocation or defensive action f.

The degree of chance involved in the resulting death [ 37 ] Courts also regularly consider other factors, such as: a. Whether the offender left the scene or stayed to offer help b. Whether the offender took responsibility, particularly at an early stage c. Whether the offender was remorseful d. Whether the offender cooperated with police e. Whether the offender was under a court order at the time f. The criminal record of the offender, including whether there is a history of violent crime

g. Whether the offender had a history of being abused by the victim h. Other personal circumstances of the offender [38] Some of the cases that counsel filed were outside of the range of sentence they were recommending and readily distinguishedfrom that of Mr. Noftall. Others were based on joint submissions for sentence or were a sentence for “time served”.

Although these typesof cases help inform me about the range and relevant considerations for sentence, they are not as helpful as cases in which the sentencingjudge had to determine the appropriate sentence with precision. [39] Two cases filed by the Crown in which offenders received eight year prison sentences (R. v. Matthews (1997), (NL SC), 159 Nfld. & P.E.I.R. 228, 37 W.C.B. (2d) 283 and R. v. Morris, 2006 NLTD 178) were not good comparators.

Both ofthese cases involved firearms and the unlawful acts were close to the “near murder” end of the spectrum. [40] Although none of the cases was a direct comparator for Mr. Noftall’s circumstances, these are the ones that I found mosthelpful: a. R. v. Larche, 2013 MBPC 54: The 22-year-old offender and his brother (the victim) were intoxicated and fighting. Their mothertried to intervene but the victim pushed her away and advanced toward the offender. The offender grabbed a knife from the dishrack andquickly stabbed his brother twice. He immediately tried to help his brother.

He was remorseful and pleaded guilty. He had no priorrecord and no disciplinary incidents during his one year of pre-sentence detention. Of concern to the judge was that the offender had nottaken any steps to seek help for alcohol abuse or anger management. He was Indigenous and so the judge considered his Indigenousbackground as required by R. v. Gladue, (SCC), [1999] 1 S.C.R. 688, although she found the Gladue factors present tobe limited. Mr. Larche was sentenced to four years of imprisonment less credit for time served. b. R. v.

Henry, 2002 NSCA 33: A 31-year-old offender sucker-punched the victim, who fell and hit his head. The resulting blunt forcetrauma caused his death. The offender had earlier seen the victim hit a woman and he had physically intervened. That interaction hadconcluded prior to this one. The sentencing judge decided upon a two year conditional sentence plus probation. This was overturned onappeal. The appeal court found that the sentencing judge erred by placing too much emphasis on the offender’s lack of intention toseriously harm the victim and his lack of criminal record.

The sentencing judge had given too little regard to principles of denunciationand deterrence. The offender’s cowardly method of attack on a smaller, drunk victim was aggravating and increased the offender’s moralblameworthiness. The appeal court substituted a sentence of four years of imprisonment less credit for time served. c. R. v Makpah, 2015 NUCJ 34: The 26-year-old offender and the victim were at a gathering and both were under the influence ofalcohol. The victim started acting out physically and was the initial aggressor. The offender got a knife in an effort to dissuade the victimfrom his actions.

He ended up stabbing the unarmed victim four times. The offender had no prior record and was Indigenous. The judgeassessed the offender’s moral blameworthiness as high, despite the fact that he characterized the manslaughter as one of excessive self-defence. Mr. Makpah was sentenced to four years of imprisonment less credit for time served. d. R. v. Onalik, 2022 NLSC 137: An 18-year-old Indigenous offender was drinking heavily at home with other family members. Afight broke out between him and the victim, who was his uncle. The victim struck first but no one recalled what the fight was about.

Theoffender brought the victim to the ground and began kicking him in the face and stomping on his head. He was shoeless. While thevictim was lying face down, the offender started smashing the victim’s face in to the ground. The victim was not conscious. The offenderoffered no help to the victim although he ultimately pleaded guilty and was remorseful. He had no prior criminal record. Due to thesevere level of violence and the continuation of the beating while the victim was on the ground, the judge placed the act nearer to themiddle of the scale of near accident to near murder.

The Gladue factors were significant. Mr. Onalik was sentenced to five years ofimprisonment less credit for time served. e. R. v. Ash, 2017 NLTD(G) 139: The offender was found guilty as a party to the offence of manslaughter. The principal offender hadplanned to rob the victim of drugs. Although Ms. Ash did not participate in the planning, she participated in carrying out the robbery bythrowing an electric can opener at the victim, wrapping her arms around his neck as he was fighting the principal offender, and byclosing and locking an exterior door.

She later covered the windows to prevent anyone from seeing inside. Drugs were stolen from thevictim as he lay dying from knife wounds. Ms. Ash was later found in possession of some of those drugs. Ms. Ash had a lengthy criminalrecord but no history of violence. She was on probation at the time. She was remorseful and cooperated with the police. She was drugaddicted. The judge considered her prospects for rehabilitation to be very good. The judge assessed her degree of moral blameworthinessand culpability as mid to high but not as great as that of the principle offender.

The judge suggested that she would have given Ms. Ash ahigher sentence but considering that the principal offender had received a 7.5 year sentence, she sentenced Ms. Ash to 5.5 years ofincarceration less credit for time served. f. R. v. Rasberry, 2018 ABCA 128: The offender and the victim were at the offender’s home after a night of drinking. The offendersuggested the victim leave. The victim then pushed the offender against a counter and threatened to rape him and then his wife. Theoffender responded by grabbing a knife. In the ensuing struggle, the offender stabbed the victim 23 times with three knives.

Thesentencing judge considered it mitigating that the offender had been provoked but concluded that it was not a case of near self-defence.He sentenced the offender to seven years of imprisonment. The sentence was upheld on appeal. Aggravating and mitigating factors [41] There are a number of aggravating factors related to the offence that I must consider. [42] First, Mr. Noftall started the violence. He was not the only aggressor that night but he started the chain of events when heforced his way into his mother’s bedroom. She hit him first, but his response was disproportionate.

To his credit, he retreated to hisbedroom but, unfortunately, the fuse had been lit and Robert Noftall followed him in and the violence continued. [43] Brandon Noftall then escalated the violence when he drew a knife. Introducing a knife to a physical fight substantiallyincreases the risk that someone will be seriously injured. His use of the knife is an aggravating factor.

[ 44 ] Although the events unfolded over a short period amidst the chaos of a fight, Brandon Noftall stabbed Robert Noftall four times, including three times in the torso. This level of violence and brutality is aggravating. Stabbing someone in the torso substantially increases the risk of grievous or mortal injury. [ 45 ] It is aggravating that the violence was committed in the home and against a family member. The significant impact that this crime has had on Mr. Noftall’s family is also aggravating. Finally, it is aggravating that Mr.

Noftall was on a release order at the time and that he has been assessed at a high risk to reoffend. [ 46 ] There are also a number of mitigating factors. [ 47 ] First, there were elements of provocation and near self-defence in the altercation. Mr. Noftall had ended his fight with his mother and was alone in his bedroom when Robert Noftall came in, aggressively, while being egged on by his wife to “knock Brandon out”. Brandon Noftall wanted to leave but Robert blocked his path.

When Robert got the Damascus knife and came back toward Brandon, the level of violence and risk escalated again. [ 48 ] These circumstances of the offence do not excuse Brandon Noftall. His response was unreasonable and disproportionate. It does not amount to self-defence. However, his moral culpability is lowered because he was not the only aggressor. Although his actions that night started in anger, by the time of the stabbings, he was also driven by fear. [ 49 ] Mr. Noftall’s return to the house and his efforts to save his father’s life are also mitigating circumstances. At that point, he did what he could.

He also took immediate responsibility for the stabbing. He had no prior criminal record. His guilty plea has saved Robert Noftall’s family the pain of a trial. These are all mitigating factors. [ 50 ] Additionally, Mr. Noftall is remorseful. He was from the moment he realized what he had done to Robert. His remorse and his apology do not repair the damage caused but they are mitigating considerations for sentencing. [ 51 ] Finally, Mr. Noftall is a youthful offender and he has been taking steps while incarcerated to address his drug addiction. These factors are also mitigating.

ANALYSIS [ 52 ] Ultimately, I find that Brandon Noftall’s unlawful act is at the more serious end of the mid-range between “near accident” and “near murder”. He did not plan to cause the harm he did but he engaged in highly risky activity when he produced the knife and then used it. Had elements of provocation and near self-defence not been present, I would have assessed his act as more serious. [ 53 ] Denunciation and deterrence are the primary sentencing objectives for a violent crime causing death. A significant imprisonment sentence is necessary to both denounce Mr.

Noftall’s conduct and to deter him from repeating this kind of violence. The message must be sent to others too. Introducing a knife to a fistfight is inherently very dangerous. Doing so creates a risk of serious bodily harm or even death. The risk is not small or remote. [ 54 ] A fair and proportionate sentence must also address Mr. Noftall’s rehabilitation. He is still a youthful man. Despite setbacks evidenced by his disciplinary record at Her Majesty’s Penitentiary, he has been taking steps while in custody to address his drug addiction. He wants to continue this work and he wants to further his education.

He told me that he wants to work toward a better future. His desire to do that creates the hope but it will be his hard work that brings the result. It will not be easy. Mr. Noftall was raised in a home with drug use, violence and poverty. You have to be strong and determined to overcome the damaging effects of such a childhood. [ 55 ] Although Mr. Noftall has been assessed at a high risk to become involved in further criminal activity, the assessment acknowledged that some of Mr. Noftall’s characteristics that contribute to this risk may be addressed through intervention or treatment.

The assessment does not define Mr. Noftall’s future, only he can do that. [ 56 ] I am satisfied that five and a half years of imprisonment is a fair, fit and principled sentence for the charge of manslaughter. The sentence is a significant one that is proportionate to the seriousness of the offence and Mr. Noftall’s responsibility for it. It is in line with the cases I have reviewed and reflects the aggravating and mitigating circumstances particular to Mr. Noftall’s case. [ 57 ] I accept that thirty days imprisonment is an appropriate sentence for the breach of release order.

This sentence shall be served consecutively because breaches of release orders are presumptively served that way. The combined sentence is neither disproportionate nor unduly long or harsh. [ 58 ] Manslaughter is a primary designated offence under s. 487.04 (

a) of the Criminal Code and thus a DNA order is mandatory under s. 487.051(1). As is a firearms prohibition for 10 years under section 109(1) (

a) of the Criminal Code . Given that Mr. Noftall is incarcerated and has been for some time, the victim fine surcharge is waived. [ 59 ] Mr. Noftall shall be credited for 657 days of pre-trial custody at a ratio of 1.5:1. This is 986 days. DISPOSITION [ 60 ] For the offence of manslaughter causing the death of Robert Noftall, Brandon Noftall is sentenced to five and a half years of imprisonment, less credit for time served. [ 61 ] For the offence of breaching a condition of a release order, Brandon Noftall is sentenced to 30 days of imprisonment, to be served consecutively. [ 62 ] In addition, I order: a. A DNA order under s. 487.051(1) of the Criminal Code in Form 5.03;

b. and c. A firearms prohibition under s. 109(1)(

a) for a period of 10 years. [ 63 ] The Victim Fine Surcharge is waived. _____________________________ KatheriNe O'Brien Justice