R. v. Power, 2022 NLSC 167

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Power , 2022 NLSC 167 Date : November 18, 2022 Docket : 202106G0122 Her Majesty The Queen v. Lucas Power Before: Justice Peter A. O'Flaherty Edited Reasons for Judgment Given Orally Place of Hearing: Grand Bank, Newfoundland and Labrador Dates of Hearing: November 17, 2022

Summary: The Offender was convicted after trial of assault and assault causing bodily harm. The offences arose from an unprovoked attack on a patron outside a bar in Marystown, NL. The victim suffered serious and permanent injuries. Held: The Offender, who was 21 years old at the time of the offences, was sentenced to 12 months imprisonment for assault and assault causing bodily harm, with ancillary orders. On his release, he was placed on 18 months’ probation and ordered to remain away from licensed premises or events. Appearances:

Alison J. Manning Appearing on behalf of the Crown Marcus A. Evans, K.C. Appearing on behalf of the Offender Authorities Cited: CASES CONSIDERED: R. v. Lundrigan , 2012 NLCA 43 ; R. v. Green , 2021 NLSC 139 ; R. v. Purcell , 2017 NLTD(G) 82; R. v. Murray , 2015 NLTD(G) 147; R. v. Companion , 2010 NLTD 18 ; R. v. Crant (2013), 343 Nfld. & P.E.I.R. 151, 1066 A.P.R. 151 (N.L. Prov. Ct.) ; R. v. Buuck , 168 W.C.B. (2d) 164, 2020 CarswellNfld 308 (Prov. Ct.) ; R. v. Mikasinovic , 2017 ONSC 3192 ; R. v. Barnaby , 2021 NBQB 248 ; R. v. Denney , 2007 NLTD 54 STATUTES CONSIDERED: Criminal Code , R.S.C. 1985, c.

C-46 TEXTS CONSIDERED: Clayton C. Ruby, Sentencing , 10th Ed. (Toronto: LexisNexis, 2020) REASONS FOR JUDGMENT O'Flaherty, J. : INTRODUCTION [ 1 ] On June 23, 2022, Mr. Lucas Power was found guilty after trial on both charges on a two count indictment. The first charge alleged that on or about the 19th day of December, A.D. 2020, at or near Marystown in the province of Newfoundland and Labrador, he did commit an assault on Justin Lockyer contrary to s. 265 of the Criminal Code , R.S.C. 1985, c. C-46 and punishable by s. 266 of the Criminal Code .

The second charge alleged that on or about the 19th day of December, A.D. 2020, at or near Marystown in the Province of Newfoundland and Labrador, he did commit an assault on Justin Lockyer causing bodily harm to him contrary to

section 267 (

b) of the Criminal Code . [ 2 ] On the night of the offences, Mr. Lockyer had been out with a friend at a bar in Marystown celebrating the Christmas season. Mr. Lockyer did not know the Offender, or have any interaction with him in the bar, prior to the events outside the bar which culminated with the assaults. He did not speak to the Offender, provoke the Offender, or consent to fight the Offender who was highly intoxicated and has no memory of the events. The Offender did not act in the defence of himself or any other person. He senselessly and recklessly attacked Mr.

Lockyer who in his evidence testified that he is 5’ 4” tall and weighed between 150 and 160 lbs. [ 3 ] There were two separate physical altercations early in the morning on December 20, 2020, both of which I found amounted to assaults. After Mr. Lockyer exited the bar at about 1:30 a.m. he attempted to extricate his friend from a group of people in the parking lot which included the Offender. The Offender saw another person trying to punch Mr. Lockyer in the back of his head, and he then challenged Mr. Lockyer to a fight, grabbed him and swung him around and attempted to punch him in the face. [ 4 ] Mr.

Lockyer then left the parking lot, walked away on the roadway to meet the taxi he had called, and was chased by the Offender who punched him in the left side of the face more than once causing or contributing to serious injuries to the left side of his face and head. Mr. Lockyer was then set upon by associates of the Offender, one of whom punched him in the head and then a group of them kicked him in the head, ribs, side, shoulder and back as he lay on the ground defenceless. [ 5 ] As a result of the injuries that were suffered by Mr. Lockyer that night he was transported to hospital in St.

John’s to undergo surgical treatment. The most serious and permanent injuries he suffered were facial fractures, including a fractured orbital bone, for which three plates and six screws were inserted in his cheek bone. He has been left with permanent scarring as well as significant emotional and other impacts from the violent assault and the injuries he suffered.

His life has been permanently changed by what occurred that night. [ 6 ] The question before the court is the appropriate sentence for the Offender. sentencing positions of parties The Crown sentencing submission [ 7 ] The Crown argues that an appropriate sentence for the assault causing bodily harm in this case would include a sentence of between 12 months and 16 months imprisonment.

The Crown submits that an appropriate sentence for the assault would be 30-60 days to be served concurrently. [ 8 ] The Crown submitted that there should be a period of supervised probation ordered upon the Offender’s release with the usual statutory conditions, and additional conditions that the Offender attend counselling as required for mental health, addiction, and anger management and control issues, that he not contact or communicate directly or indirectly with Justin Lockyer or his family, and a

condition that he abstain from the consumption of alcohol upon his release. The Crown also requested an order under s. 743.21 of the Code that the Offender have no contact with Justin Lockyer, directly or indirectly, while he is incarcerated. [ 9 ] The Crown requested that the Offender be required to provide samples of bodily substances for the DNA data bank. Finally the Crown requested a mandatory prohibition order under s. 109 of the Code .

The Defence Sentencing Submission [ 10 ] The Defence took issue with a sentence of 12-16 months for the assault causing bodily harm, submitting that the practical range of sentencing for similar offences was between a conditional discharge and 12 months, and that a just sentence for the Offender was 4-6 months imprisonment.

The Defence concurred with the Crown submission that an appropriate sentence for the assault would be 30-60 days to be served concurrently. [ 11 ] The Defence did not oppose the DNA order or the prohibition order and agreed with the Crown’s submission that a period of supervised probation upon the release of the Offender was appropriate. The Defence submitted that the victim fine surcharge should be waived as it would cause undue hardship to the Offender. discussion The Framework for Sentencing [ 12 ]

Part XXIII of the Criminal Code has codified the common law of sentencing. The purpose, objectives, and principles of sentencing set out in s. 718 et seq. of the Code , as interpreted by the courts, provide the statutory framework which is required to be applied by a judge in determining a fit sentence in every case. It is appropriate to reference the most relevant sections of

Part XXIII of the Code . [ 13 ] In s. 718 Parliament confirmed that the “(t)he fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society. In 2015, Parliament amended s. 718 to add the words “ to protect society and to ” immediately after the opening words “(t)he fundamental purpose of sentencing is.” The language of the

section now expressly confirms that the principal purpose of sentencing in criminal law is the protection of society. [ 14 ] S. 718 provides this principal purpose of protecting society is achieved by imposing sanctions on offenders that have one or more of the following objectives: • To denounce unlawful conduct; • To deter the offender and other persons from committing offences; • To separate offenders from society, where necessary; • To assist in the rehabilitation of offenders; • To provide for reparations of harm done to victims, or the community; and • To promote a sense of responsibility in offenders and acknowledgment of harm done to victims and the community. [ 15 ] The authorities confirm that the first objective, denunciation, focuses on the protection of society by denouncing the conduct rather than on the offender.

The role of denunciation is to express, to a wider audience, the seriousness of the conduct and its impact on the victim and the community. Denunciation is arguably less important in spur of the moment rather than planned and deliberate crimes. Deterrence focuses on reduction of crime by letting the offender and like-minded persons know that the conduct in question will result in severe punishment (see: Clayton C. Ruby, Sentencing , 10th Ed. (Toronto: LexisNexis, 2020) at p. 6-14).

The objectives of denunciation and deterrence most often find expression in the length of the term of imprisonment imposed on an offender. [ 16 ] Another key objective in sentencing is the prospect for the rehabilitation of the offender. Rehabilitation of offenders is recognized as a key value in the Canadian criminal justice system. It is directly aligned with the protection of society because a reformed offender will presumably not commit further crimes. [ 17 ] In 2015, Parliament amended s. 718(

a) to add the words “ and the denunciation of “the harm done to victims…that is caused by unlawful conduct ” after the words “to denounce unlawful conduct.” Recognition of the impact of criminal conduct on the victim is therefore another important codified objective in sentencing. [ 18 ]

Section 718.1 codifies the proportionality principle and states that “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” In simple terms the punishment must fit the crime and fit the offender. A proportionate sentence is therefore one that expresses society’s condemnation of the offence but ensures that the offender is punished no more than is necessary. [ 19 ]

Section 718.2(

a) further provides that a sentence should be increased, or reduced, to account for any relevant aggravating or

mitigating circumstances relating to the offences or the offender. [ 20 ]

Section 718.2 goes on to provide the following principles for arriving at a fit and proper sentence: (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. [ 21 ] Overall, I conclude that the sentencing court has a broad discretion within the statutory framework outlined, and guided by the authorities on the appropriate range of sentence, to craft a sentence that is tailored to reflect the nature of the offence and the character of the offender. This concept was neatly summarized by Rowe, J.A. in R. v.

Lundrigan , 2012 NLCA 43 at paragraph 24 , where the Court of Appeal confirmed that a fit sentence is “one that takes account of the circumstances of the offences and the offender.” [ 22 ] I will therefore review the nature and the circumstances of the two offences first and then turn to the circumstances of the Offender. The Circumstances of the Offences [ 23 ] In dealing with the circumstances of the offences, I note that the events leading up to and including the first offence were captured on videos seized by the police from the bar. The videos show Mr.

Lockyer in the bar, then outside the bar where he is initially assaulted by the Offender, and finally leaving the parking lot and trying to get away from the Offender. Based on the video evidence and the evidence of the witnesses I concluded there was no evidence in this case that even remotely suggests that Mr. Lockyer provoked the assaults or that the Offender acted in his own defence or in the defence of any other person. [ 24 ] In finding Mr. Power guilty of the offence of assault under s. 265 of the Code I made a number of specific factual findings as to the circumstances of the offence.

I further find as a fact that he (Mr. Justin Lockyer) did not say or do anything to provoke the accused or any other individual before the altercation shown in the video at the side of the vehicle. I further find as a fact on December 18th and 19th, 2020 that the accused, Lucas Power, was heavily intoxicated and for want of a better expression, he was looking for a fight. I find that when he encountered Mr. Lockyer in the parking lot he challenged him to a fight after he had observed Mr. Gourlay’s interaction with him. … I further find as a fact that the accused did put his hands on Mr.

Lockyer as shown in the video, he did swing him around and he did try to punch him in the head. I further find as a fact that Mr. Lockyer left the first incident in that parking lot as shown in the video without receiving the injuries to the left side of his face. [ 25 ] On the basis of those findings, and the law, I found the Offender guilty of an assault under s. 265 of the Code . [ 26 ] In finding Mr. Power guilty of the offence of assault causing bodily harm under s. 267(

b) of the Code I made a number of specific factual findings as to the circumstances of the offence: I have watched the video myself closely in this court and I have confirmed and am satisfied that there is no evidence that he was struck in the left side of his face by Brian Gourlay. He also testified himself that when he was struck by Mr. Power near the street light he had suffered a significant injury to the left side of his face. I find in the video on the parking lot and according to his evidence as a fact that he was struck in the back of the head by Mr.

Gourlay. … I find that the accused then decided to pursue Mr. Lockyer and to attack him. I find as a fact that the complainant Mr. Lockyer did turn to try to defend himself from this “attack”, as he testified, and he managed to block one blow from the accused and was then punched heavily to the left side of the face by the accused where the injuries complained of are found. I find as a fact that the punches by the accused caused a serious injury and certainly more than a trifling or transient injury. I find as a fact that Mr. Lockyer who is 5 foot 4 and 150 lbs. did not consent to fight with you, Mr. Power.

That he left the club and the scene to get away from you and that the fact that he may have faced you in this altercation was an attempt to defend himself and not an invitation to you to fight him. I find as fact that he then ended up on the ground as a result of what happened between you and him, where other members of your same group of friends and other individuals associated with you kicked and punched Mr.

Lockyer on the ground. … On the question then of what caused the injuries I find as a fact that the blows struck by the accused to the left side of the face of the complainant were the cause of a serious injury and certainly more than a trifling or transient injury, and that they did cause or contribute to the orbital fracture which is found on the face of Mr. Lockyer.

[ 27 ] On the basis of those facts and the law I found the Offender guilty of an assault causing bodily harm under s. 267(

b) of the Code . [ 28 ] I further found that the Offender together with his associates had participated and joined together in an assault on the complainant, and on that basis I also found him guilty of an assault causing bodily harm under s. 267(

b) of the Code . I further find that the accused and the other individuals who are associated with him and who acted in concert with him also assaulted the complainant and (he) acted jointly with those other individuals because they acted in close enough concert both in terms of the temporal connection, or in other words the time, and the fact that they were associated and were acting together and that when they did so this also amounted to a circumstance in which the accused is guilty of assault as one of a group of two or more persons who participate in and join in an assault on the complainant.

Gourlay acted first, then the accused, then the accused again, and then the group. It is not necessary at law for this court to make any finding with respect to who actually broke the orbital bone of the complainant’s face. [ 29 ] The maximum sentence for assault is imprisonment for a term not exceeding five years. The maximum sentence for assault causing bodily harm is imprisonment for a term not exceeding ten years. Objectively, these are considered serious crimes in the Code but the latter is much more serious.

The Crown submits, and I agree, that the unprovoked and brutal nature of the assault and the extent of the injuries to the complainant are aggravating factors. The Circumstances of the Offender and the Pre-Sentence Report [ 30 ] A key consideration in the determination of a fit sentence is the circumstances of the Offender and the prospect that Mr. Power may be rehabilitated.

After all, as Rowe J.A. noted in Lundrigan at paragraph 24 , “[i]t is important to recall that the best protection for society is that the offender not re-offend.” [ 31 ] The Defence submitted that the circumstances of the Offender indicate that he is young, he has no prior record for a crime of violence, and he has expressed some remorse.

The Defence submitted that the pre-sentence report in this case contains some positive elements, pointing specifically to his ability and capacity for meaningful employment, which points to a sentence at the lower end of the range. [ 32 ] The Crown acknowledges the limited record and partial expression of remorse by the Offender as mitigating factors.

The Crown points out however that the Offender has very little insight into the personal factors which underlie his anti-social behavior and he requires professional intervention. [ 33 ] The information in the pre-sentence report filed with the court is to be used by the court to assess the Offender’s character and relate the sentence to Mr. Power. The report indicates the Offender is a resident of Marystown. He reports having a good family support relationship with his mother and her partner, his siblings, and with his father, however contact was unable to be made with the latter for the report. Mr.

Power is a young man, now 22. Since the offences were committed he has obtained full-time employment at Canadian Tire where he is a good employee. He had no prior record for crimes of violence. He was given an opportunity to speak to the court before sentence was passed and advised that he will not be back in H.M.P. [ 34 ] The information in the report indicates that the Offender has an unresolved problem with anger and aggressive behavior, and with alcohol. His mother indicated that aggression and a quick temper have been an issue for the Offender for many years.

She indicated that “when he drinks too much he can’t handle it” and she therefore suspected alcohol contributed to his conduct on the night of the offences. She indicated that she had arranged counselling for Mr. Power prior to the incident to address his issues but he backed out. It is obviously unfortunate he did not avail of the services his mother had arranged. [ 35 ] The report indicates that Mr. Power still does not recognize that he has a problem with anger and aggressive behavior, and with alcohol, but he indicated his “temper” occurs when he is under the influence of alcohol.

He reflects on his negative associations with others and the need to stop drinking liquor, but not beer, and indicates that he is now ready for a change and would like to move on and do something with his life. [ 36 ] I accept from the report that the Offender’s anger and aggressive behavior, and the exacerbation of the anti-social behavior with the consumption of alcohol, are an obstacle to rehabilitation. Until these issues are addressed I conclude there is a high likelihood that Mr.

Power will reoffend. [ 37 ] On the question of whether the Offender has taken responsibility for his criminal behavior and acknowledged the harm he has done to the victim, the report is ambivalent. The Offender does express remorse for the harm suffered by the victim of the crime but states “if I did do that, I am completely sorry”. Furthermore, his mother relates a narrative which suggests that Mr. Power was picking up for his cousin.

This information, which may have come from the Offender, should strictly speaking not be in a pre-sentence report, and I give it no weight, as there is absolutely no evidence that the Offender was picking up for anyone on the evening in question as it related to the actions of Mr. Lockyer. It is also an unhelpful narrative as the Offender needs to eventually accept that nobody except himself is responsible for the turn his life has taken. [ 38 ] Overall, based on the pre-sentence report, I accept that Mr.

Power has expressed a willingness to change his ways, but there is a lack of evidence that he has taken the necessary steps to move in the direction of rehabilitation by addressing the issues which were present before this incident. I therefore conclude that the prospects for rehabilitation of the Offender at this juncture are at best uncertain unless and until he receives the necessary counselling and treatment. [ 39 ] The mitigating circumstances of this offence and offender are the youth of the Offender, the fact that he has employment skills, and the limited record. He has also expressed some remorse.

The Range of Sentences for Assault Causing Bodily Harm [ 40 ] I turn now to a brief review of the sentencing rulings for similar offences. As Noel, J. noted in R. v. Green , 2021 NLSC 139 , at

para. 52 , no two cases are ever really alike and the case law operates as a guide to the exercise of my discretion: Like cases should be decided alike. The inherent paradox in this principle is that no two cases are actually alike. That is why sentencing judges are afforded proper discretion to fix an appropriate sentence to the particulars of the specific offences and offender. The case law is merely a guide.

My discretion must be exercised judicially with proper consideration of the cases for similar offenders, offences, and circumstances. [ 41 ] The Crown submitted that the range of sentence was 12-24 months imprisonment, and referred the Court to authorities in support of its position that the Offender should receive a sentence of 12 to 16 months imprisonment including R. v. Purcell , 2017 NLTD(G) 82, R. v. Murray , 2015 NLTD(G) 147, and R. v.

Companion , 2010 NLTD 18 . [ 42 ] The Defence submitted that the practical range of sentence for unprovoked bar assaults was a conditional discharge to 12 months imprisonment, and referred the Court to authorities in support of its position that the Offender should receive a sentence of 4-6 months imprisonment including R. v. Crant (2013), 343 Nfld. & P.E.I.R. 151, 1066 A.P.R. 151 (N.L. Prov. Ct.) , R. v. Buuck , 168 W.C.B. (2d) 164, 2020 CarswellNfld 308 (Prov. Ct.) , R. v. Mikasinovic , 2017 ONSC 3192 , and R. v.

Barnaby , 2021 NBQB 248 . [ 43 ] I have considered all the decisions provided, and in particular those above. [ 44 ] The authorities support the view that an appropriate range of sentence for assault causing bodily harm in the circumstances is from a suspended sentence to 18 months (see: R. v. Denney , 2007 NLTD 54 ). Based on my review of the authorities, it appears that of the cases in our province’s courts the facts and circumstances of this case resemble most closely the facts in Companion , in which a sentence of 12 months imprisonment was imposed.

Companion also involved a relatively young Offender, a serious and violent assault, and significant permanent injuries. In terms of the circumstances of the offenders, while each are of course unique, except for the absence of a relevant record the circumstances of the Offender are not unlike those of the offender in Companion .

ANALYSIS [ 45 ] I am satisfied that any sentence I impose on the Offender must address the objectives of denunciation and deterrence of other persons from committing unprovoked violent assaults, it must address rehabilitation for the Offender, and it must address recognition of the impact on the innocent victim, Mr. Lockyer. As noted, the aggravating circumstances of this crime are the violent and unprovoked nature of the assault on the victim and the life-changing effect of the crime on the victim.

On the latter point the victim’s words are important to remember. [ 46 ] In a Victim Impact Statement dated February 1, 2021, Mr. Justin Lockyer wrote the following about the impact of the attack: My lifestyle has changed big time. What was once an outgoing person, spending time with family and friends, now I find that I keep to myself. Hiding my face when around others. In constant pain all over. I can hardly move most times, let alone work. My daughter who is 5, called me scary. She is nervous to hug or interact with me because of the scars and afraid she might hurt me. I feel scared all the time.

Afraid to go out in public places. Fear for my life. I truly thought I was going to die. There was a time while I was healing I literally broke down in tears. I couldn’t do anything, I couldn’t spend time with my daughter and she was asking for me. I was and continue to be in major pain and I couldn’t do anything about it. I feel like I am disfigured. I have 3 plates and 6 screws in my face. One of the places holds my eye in place. 4 breaks in the cheek bone. The roof of my mouth was cut open to fix this. I find going out in cold weather the pain in my face is unbearable with the plates getting cold.

When I lie down at night, I can’t lie on my left side because of the pressure in my face. On the other hand, lying on my right side, my ribs, side, shoulder and back act up in pain. I continue to take pain medication on a regular basis. I will always have these physical scars. My daughter will always see them. The plates, screws, scars will always be there. Reminders of that awful night that changed my life. [ 47 ] As I noted, the mitigating circumstances are the age of the Offender, his employment skills, and his limited record. He has also expressed some remorse.

DISPOSITION [ 48 ] Based on the foregoing, I have decided that the Offender shall be sentenced to 12 months imprisonment for assault causing bodily harm and to 30 days imprisonment for assault. These sentences shall be served concurrently, on the basis that together they are all part of and constitute a single criminal adventure. [ 49 ] I also order that the Offender shall report to an Adult Probation Officer within two days of his release. The Offender shall be

placed on supervised probation for a further period of 18 months from his release date on the usual statutory conditions along with conditions that the Offender attend counselling as required for mental health, addiction, and anger management and control issues, that he not contact or communicate directly or indirectly with Justin Lockyer or his family, and a condition that he not enter and he remain away from any licensed premises which has as its primary purpose the sale of alcohol upon his release.

I am ordering this last condition for the protection of the public to ensure he is prevented from entering any bar, or any licensed event, whether a concert, or music or other festival on his release. I will also order under s. 743.21 of the Code that the Offender have no contact with Justin Lockyer, directly or indirectly, while he is incarcerated. [ 50 ] I am satisfied that a DNA order is in the best interests of the administration of justice in this case, and I order pursuant to s. 487.051(3)(

b) of the Code that the Offender be required to provide samples of bodily substances for the DNA data bank upon request. [ 51 ] I order that the Offender is subject to a mandatory prohibition under s. 109 of the Code . [ 52 ] Given the financial circumstances of the Offender, the victim fine surcharge shall be waived. _____________________________ Peter A. O'Flaherty Justice