R. v. Tucker, 2011 NSPC 46

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Tucker, 2011 NSPC 46 Date: August 8, 2011 Docket: 2274077, 2312737, 2312738 Registry: Pictou Between: Her Majesty the Queen v. Frank R. Tucker DECISION Judge: The Honourable Judge Del W. Atwood Heard: August 8, 2011, in Pictou, Nova Scotia Charge: 434.1CC, 253(1)(b)CC, 145(5.1)CC Counsel: Patrick Young, for the Crown Doug Lloy, for the defence By the Court : [ 1 ] The Court has for sentencing Mr. Frank Raymond Tucker. Mr. Tucker elected to have his indictable

section 434.1 charge tried in this Court and entered a guilty plea at a very early opportunity. In addition, Mr. Tucker entered timely guilty pleas to

summary charges of violating form 11.1 bail by drinking, contrary to s. 145(5.1), and driving with a prohibited blood-alcohol level, contrary to para. 253(1)(b). [ 2 ] The primary principle of sentencing is obviously the principle of proportionality. The Court is required by law to impose a sentence that reflects Mr. Tucker’s degree of responsibility and the seriousness of his offences.

[ 3 ] In the Court’s view, the charge under

section 434.1CC is extremely serious. Mr. Tucker set fire to a dwelling, admittedly his own, but a dwelling that was occupied by his common-law partner, as well as by Mr. Tucker himself. Fire services were required to respond to that arson and the evidence put before the Court describes the pronounced and substantial danger faced by fire services personnel who were at the scene. [ 4 ] Any time that fire services are required to respond to fires involving dwellings, the risks are substantial.

There’s no doubt that when dealing with a dwelling, as compared to, say, an abandoned warehouse or commercial property, fire services are required to be involved fully, because of the real and potential risk to the lives of occupants of a residential dwelling. That exposes first responders to elevated levels of risk to their safety. It is additionally aggravating, in this particular case, that Mr. Tucker reflected on what he did; after having ignited carpeting using a rolled up piece of newspaper with paint thinner as an accellerant, and thinking whether he should stop and try to put out the blaze, Mr.

Tucker then proceeded to light another paper and ignite a chesterfield or sofa. [ 5 ] There is before the Court an authentic joint submission in relation to all charges. [ 6 ] As noted by the prosecution, Mr. Tucker, indeed, has a prior record in 1988, for DWI offences; Mr. Tucker’s blood-alcohol concentration in the para. 253(1)(

b) case before the court today was 160 mg %, right on the cusp of the aggravated range prescribed by

section 255.1 of the Criminal Code . Anything greater than 160 is required to be treated by the Court as an aggravated circumstance. [ 7 ] This is a joint submission. Pursuant to The Queen v.

Knockwood , the Court is required to give strong consideration to joint submissions and should depart from a joint submission only if the Court is satisfied that the joint submission is motivated by a wrong principle or would result in a clearly inadequate sentence. [ 8 ] What has been proposed by counsel here is well within the range for these offences; therefore, the Court intends to impose a sentence that conforms to the joint submission. [ 9 ] If you could stand up please, Mr. Tucker.

In relation to the charge of 434.1 of the Criminal Code , which is case #2274077, an indictable matter, the Court imposes a sentence of 24 months incarceration. In relation to the charge of 253(1)(

b) of the Criminal Code , a

summary matter, which is case #2312738, the Court imposes a sentence of 30 days consecutive. In relation to the 145(5.1) of the Criminal Code , case #2312737, a

summary matter, a sentence of 30 days concurrent, for a total sentence of 25 months. As that results in a federal term of incarceration exceeding 24 months, a period of probation is not permissible. The Court is also going to waive the imposition of victim surcharge amounts, given your current financial circumstances. [ 10 ] In relation to the 253(1)(b)CC matter, the Court is required to prohibit you from operating a motor vehicle and I do prohibit you from operating a motor vehicle for a period of 24 months, and I believe that was the joint submission Mr. Young and Mr. Lloy? [ 11 ] Mr.

Young: Yes, Your Honour. [ 12 ] Mr. Lloy: Yes, it was, Your Honour. [ 13 ] The Court: Thank you very much. In addition, in relation to the

section 434.1CC matter, the Court is satisfied that it is appropriate, given your prior record, as well, which includes designated offences, and that it is in the interests of justice that the Court make a DNA collection order, secondary-designated offence, and therefore there will be a secondary designated offence DNA collection order made in relation to case #2274077.

_________________________________________ JUDGE DEL W. ATWOOD, A PROVINCIAL COURT JUDGE IN AND FOR THE PROVINCE OF NOVA SCOTIA