2021 NBPC 9, 2021 NBPC 9

2021NBPC09 Provincial Court Province of New Brunswick Date: February 11, 2021 Docket: 15730513 Her Majesty, The Queen - and - Kevin James Corcoran Decision of the Honourable Judge Cameron Gunn of the Provincial Court of New Brunswick Appearances: Jean-Guy Savoie and Alana Napke, for Her Majesty the Queen Dustin Caissie, for Kevin James Corcoran Note: This document is subject to editorial revision before its reproduction in final form Introduction 1 . Samantha Asoyuf and Kevin Corcoran were in a relationship in the summer of 2020.

That relationship came to an end on July 29 th of that year as a result of the commission of criminal offences by Mr. Corcoran against Ms. Asoyuf. 2 . The trial in this matter began on a nine-count information. It ended with some guilty pleas, two offences which the Crown withdrew, one offence for which the Crown invited me to register an acquittal and two offences for which I found the accused guilty. 3 .

At the conclusion of trial, the accused was has not been found or pleaded guilty to the following offences, all of which occurred on July 29 th , 2020, at or near Bryenton, NB,: Count 1: in committing an assault upon S.A ., he did cause bodily harm to her, thereby committing an indictable offence contrary to subsection 267 (

b) of the Criminal Code ; Count 2: did commit an assault on S.A thereby committing an indictable offence contrary to paragraph 266 (

a) of the Criminal Code ; Count 4: did break and enter a certain place, to wit: a dwelling house situate at 4573 Highway 108, Bryenton, New Brunswick , and did commit therein the indictable offence of assault, contrary to and in violation of paragraph 348(1) (

b) of the Criminal Code ; Count 5: did steal a motor vehicle, to wit: a Toyota Rav 4, the property of S.A., and did thereby commit theft, contrary to and in violation

of violation of subsection 333.1 of the Criminal Code ; Count 6: being at large on an undertaking issued by Justice Fred Ferguson dated December 6, 2018, and being bound to comply with a condition of that undertaking, to wit: keep the peace and be of good behaviour, without lawful excuse failed to comply with that condition, contrary to and in violation of section 145(4) of the Criminal Code ; Count 7: while bound by a probation order entered into before Judge Cameron Gunn, on the 22 nd day of April, 2020, failed without reasonable excuse, to comply with such order, to wit: “keep the peace and be a good behaviour”, thereby committing an indictable offence, contrary to paragraph 733.1(1) (

a) of the Criminal Code ; 4 . As indicated, at the commencement of the trial Mr. Corcoran changed his pleas to guilty on counts 1, 2, 6 and 7. I conditionally stayed count 2 after finding the accused guilty of the break and enter and assault. The Issue 5 . Of course, the ultimate issue I must decide is what is a fit and proper sentence for the offences to which Mr., Corcoran has pleaded or been found guilty. The Parties 6 . The parties do not agree on the appropriate sentences. 7 .

The Crown alleges that the accused committed an offence against an intimate partner, someone who he has a previous record for assaulting, and that the second series of events at Ms. Asoyuf’s residence are a home invasion. They propose a global sentence of 3.5 to 4 years as appropriate before giving credit for pre-trial custody. 8 . Mr. Corcoran suggests that the he has pleaded guilty, expressed remorse, and has strong family support and good prospects of rehabilitation. He suggests that a sentence of 18 months to 2 years is appropriate. The Law 9 .

Sentencing has been described as “one of the hardest tasks confronting a trial judge” [1] and “the gist of the proceeding”. [2] The Supreme Court of Canada has recognized that the fitness of a sentence imposed can establish or diminish the “ credibility of the criminal justice system in the eyes of the public”. [3] 10 .

The task is governed by the provisions of the Criminal Code but it involves “ the exercise of a broad discretion by the courts in balancing all the relevant factors in order to meet the objectives being pursued in sentencing.” [4] The starting point to the imposition of a fit sentence is an understanding an adoption of the purposes and principle of sentence as described in the Criminal Code of Canada . ” [5] The Fundamental Purpose of Sentencing 11 .

Section 718 describes the fundamental purpose of sentencing. It reads: 718. The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

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

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. 12 . What is a just sanction and which of the objectives may be most important is not dictated by strict guidelines or rigid imperatives. The imposition of a just sentence requires “ sufficient manoeuvrability to tailor sentences to the circumstances of the particular offence

and the particular offender.” [6] 13 . The objectives described in s. 718 may have predominance in a set of circumstances dictated by the offence, the offender or both. On some occasions the objective of denunciation (often along with deterrence) “ must be emphasized to convey society's condemnation”. [7] When denunciation becomes predominant courts may “have very few options other than imprisonment for meeting these objectives, which are essential to the maintenance of a just, peaceful and law-abiding society.” [8] This is such a case. 14 . Denunciation and deterrence may also be mandated by statute.

In this case both the assault and the break and enter where the offender committed an assault involved the intimate partner of the Mr. Corcoran. Subsection 718.2(ii) holds that it is an aggravating circumstance that the offender, in committing the offence, abused the offender’s intimate partner. 15 . It is also an aggravating circumstance, pursuant to s.718.2(iii.1) where there is evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation.

I will return to this, but it is apparent that this factor is implicated by the conduct of the offender. 16 . In addition to above noted aggravating circumstance, s. 718.201 says that a court that imposes a sentence in respect of an offence that involved the abuse of an intimate partner shall consider the increased vulnerability of female persons who are victims. 17 .

Section 718.2 of the Criminal Code also dictates that: (

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 and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

Section 348.1 18 . In this case the aggravating circumstances in s. 348.1 apply. That

section reads: a. 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, b. (

a) knew that or was reckless as to whether the dwelling-house was occupied ; and c. (

b) used violence or threats of violence to a person or property. 19 . Mr. Corcoran committed an offence contrary to s. 348 in relation to a dwelling house and that the dwelling house was occupied at the time. Mr. Corcoran knew or was reckless as to whether the dwelling-house was occupied. 20 . The Crown has alleged s. 348.1 is operative. Based upon the evidence called at trial I find beyond a reasonable doubt that the aggravating circumstances of s. 348.1 apply. [9] 21 . Sentencing in this case, requires a consideration of the victim and the impact of the offences on her and the offender. I begin with the victim.

Samantha Asoyuf 22 . The victim impact statement details significant emotional, physical and financial impacts on Ms. Asoyuf. She describes severe anxiety and irritability, continuing physical pain, a loss of peace and a life left in shambles. She says the actions of Mr. Corcoran have caused physical damage, damage to her mental health and to her sense of security. Kevin Corcoran 23 . Kevin Corcoran is 36 years old. He has 4 children and has owned his own business but filed for bankruptcy and has received a foreclosure on his house.

The pre-sentence report details his struggle with physical and mental health and a turbulent upbringing. 24 . His health issues include depression, anxiety and suicidal ideations and attempts. He is on suicide watch while in custody. Physically he has suffered a broken neck, a stomach ulcer and liver damage. 25 . He expresses remorse and a desire to address his mental and emotional issues, which he had begun to do before the events in question. 26 . Several letters from family members were filed in support of Mr. Corcoran.

They profess ongoing support, detail his difficult upbringing and his attempts to better himself, particularly as a father. The letters from his family seek a sentence that allows him to receive the help and support that he did not have as a young man.

27 . It is apparent that Mr. Corcoran has the love and support of some members of his family. 28 . Mr. Corcoran has a criminal record. Though it is not lengthy in relative sense, it has offences for violence and threats of violence. The convictions for assault and uttering threats all involve the same victim as in this case, Samantha Asoyuf and occurred in the context of an intimate partner relationship. Aggravating Circumstances 29 .

I have mentioned the statutorily aggravating circumstances above but for specificity I also consider the following to be aggravating circumstances: a. the nature and duration of the offences and that they ceased only the victim fleeing in both instances; b. the related criminal record of the accused and the fact that there are prior offences for violence against the same victim; c. the significance nature of the violence used; d. in committing the offences, the accused breached court orders; and e. the ongoing emotional, psychological and financial impact the victim has suffered and continues to suffer Mitigating Circumstances 30 .

I consider it mitigating that Mr. Corcoran: a. Has pleaded guilty to some offences. This consideration is muted in that the pleas on the date of trial, though it is not aggravating that he chose to go to trial on other matters.He had every right to rely upon his presumption of innocence and to proceed to trial; b. Has expressed remorse; c. Has the support of his family; d. Has struggled with mental, physical and financial concerns and has taken some steps to address those struggles. The Offences and the Range of Sentence 31 . The offences here encompass two separate series of transactions.

The initial assault causing bodily harm was followed by the escape of the victim. Later, the victim was again assaulted after the accused broke into her home. She again retreated, and the offender stole her vehicle (indeed taking it for the third time…though the theft, based on my findings occurred on the final taking). The offender was also subject tot court orders, an undertaking and a probation order, both of which he violated by his conduct. 32 . Section 348(1) (

b) of the Criminal Code carries a maximum penalty of life imprisonment, s. 267 (

b) carries a maximum penalty of 10 years imprisonment, s. 333.1 subjects the accused to imprisonment for a term not exceeding ten years, 733 has a maximum penalty of 4 years and the breach of s. 145 a maximum penalty of 2 years. 33 . The Crown has provided amongst other cases, R. v. Goulette [10] . In Goulette the Court held that in all but exceptional circumstances home invasion type offences will attract lengthy terms of imprisonment. It is worth noting that in Goulette the Court varied a sentence of 30 months in jail to 7 years in jail for a home invasion. 34 .

While Goulette may not be perfectly analogous, it does frame the Court of Appeal’s attitude toward home invasions. 35 . Counsel for the Crown also refers to R. v. Mullin [11] and R. v. Bodreau [12] . While no two cases are exactly alike these cases are helpful precedents. 36 . In Mullin , Justice Ferguson imposed a 3-year sentence on a 45 year old man with mental health issues who broke into the home of a middle aged woman home while she was alone. The most significant level of violence was his holding a bat across her throat. 37 .

In Boudreau , the Court of Appeal upheld a 4-year sentence for a 50 year old first time offender who, in a nighttime home invasion, confined his former spouse armed with a loaded shotgun. Despite the guilty pleas of the accused, his good work record and the absence of any prior criminal history the Court found no error in the sentence imposed. 38 . Counsel for the accused has referred me to the following cases: a. R. v. MacDonald , 2012 BCCA 155 : The accused was charged with multiple counts of offences against his former partner and her new partner.

He received a global sentence of 5 ½ years for offences against two people. Counsel for the accused has suggested that the guidance I should draw is that a sentence of half the length would be appropriate here; b. R. v. Omilgoituk 2011 NLCA 77 : A break and enter and assault in a non-domestic context resulted in a 12 month sentence followed by 12 month probation which was upheld on appeal. The Court relied on the absence of pre-meditation and no weapon being used. The Court of Appeal described Mr. Omilgoituk's sentence of 12 months as low and potentially below the range, but upheld the sentence none the less; c.

R. v. Ratt 2016 SKQB 190 : A

summary conviction appeal court affirmed a global sentence of a year for the theft of a motor vehicle, breach of probation and a mischief charge.

The Context 39 . The offences here occurred in the context of an intimate relationship. The violence was significant and occurred over two separate occurrences with the victim fleeing her own home three times. The offender had previously victimized Ms. Asoyuf and was sanctioned for it. 40 . While

section 718.2(

b) requires that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances, ranges are difficult given the unique circumstances of offences and offenders and the individualized nature of sentencing. In such circumstances, it is necessary to hue more closely to the other purposes and principles of sentence. 41 . Crimes of violence that occur in the context of an intimate partner relationship should be viewed seriously by sentencing judges. In R. v.

Bernard [13] Lavigne, J. held that general and individual deterrence as well as denunciation must be the paramount considerations in imposing a sentence for an incident of domestic violence. [14] She further held: Domestic violence is a profound problem. The public has to be given the message that the courts will not tolerate this behavior. The courts, by their sentencing policy, must denounce such offences in clear terms and attempt to deter its recurrence and hopefully break the cycle of violence in the victim's place of residence. [15] 42 .

Justice Lavigne was relying on a decision from our Court of Appeal that is now two decades old, in which they quote a decision that is nearly 30 years old. In R. c. Bérubé [16] , Justice Drapeau wrote that courts must express society's intolerance for this type of violence by means of appropriately severe sanctions and that the days of such abuse being tolerated are gone forever. Pre-Trial Custody 43 . Mr. Corcoran has been in custody for 198 days. Pursuant to s. 719(3.1) I find the circumstances justify taking that pre-sentence custody at a rate of one and one-half days for each day. I find, therefore that Mr.

Corcoran has spent the equivalent of 297 days in custody. Sentence 44 . I am mindful here of the obligation to consider the applicability of the provisions governing consecutive and concurrent sentences. In my view the individual offences, separated in time and circumstance, would have merited consecutive sentences.

Though there might be some merit to the argument that there is a reasonably close nexus, I view that nexus to be insufficient to overcomes the presumption of consecutive sentences based upon the distinct occurrences and the return by the offender to commit another offence against the victim after she had found safety. 45 .

I am also aware, however, that as part of the totality principle I am to take a "last look" at the consecutive sentences imposed to “ensure the sentence was not unduly long or harsh, having regard to the gravity of the offences, the offender's moral culpability, the harm done to the victims, the offender's record and future prospects, and ensuring that the effect of the sentence was not "crushing".” [17] Having done so I have chosen to impose concurrent sentences on some offences that I otherwise would have made consecutive. 46 .

Taking into consideration all the aggravating and mitigating factors together with the other principles of sentence that must be applied, I believe that a fit and proper sentence for the count contrary to s. 348(1) (

b) is 4 years imprisonment. I credit, however, Mr. Corcoran with 297 days of pre-trial custody to be deducted from the 4 years. That sentence will be consecutive to any other sentence he may be serving. 47 . The sentence for the offence contrary to s. 267(

b) is 2 years imprisonment, but that sentence will run concurrent to the sentence I have just imposed. 48 . The sentence for the offence contrary to s. 333.1 is 6 months in jail, but that sentence will run concurrent to the sentence I have just imposed. 49 . The sentence for the violation of s. 145(4) is 3 months in jail and will run concurrently to the other sentences I impose here today. 50 . The sentence for the offence contrary to s. 733.1(1)(

a) is 3 months in jail and that sentence will run concurrent to the sentences I have just imposed. 51 . I conditionally stayed the offence contrary to s. 266(a). Had I been imposing a sentence (having in that hypothetical not convicted the offender of the s. 348(1) (

b) offence) I would have imposed a 2-year sentence to run consecutively. 52 . In addition, ancillary orders are required: a. In relation to the s. 267 (

b) offence, pursuant to

section 109 of the Criminal Code I make an order that Mr. Corcoran be prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition

and explosive substance for life as this his second conviction for the offence to which the order relates; b. Section 348(1)(b) (when the location is a dwelling house as indicated in s. 348(1)(d)) of the Criminal Code is a primary designated offence under

Section 487.04 of the Criminal Code and thus pursuant to s. 487.051 I order that such samples of bodily substances that is reasonably required for forensic DNA analysis be taken from Mr. Corcoran; c. Pursuant to s. 743.21(1) I make an order prohibiting the offender from communicating, directly or indirectly, with Samantha Asoyuf during the custodial period of the sentence d. I am not imposing a victim fine surcharge as Mr. Corcoran will be in federal penitentiary and based upon his financial circumstances. 53 . I sought and received the consent of the parties to provide an oral

summary of these reasons. I am filing a full written judgment, proving a copy to the parties and noting that an oral

summary of this judgment has been read into the record. ________________________ Cameron Gunn, PCJ.