R. v. MacIntosh, 2014 NSPC 45

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. MacIntosh , 2014 NSPC 45 Date: 2014-06-26 Docket: 2707163 Registry: Pictou Between: Her Majesty the Queen v. Cody Dylan MacIntosh DECISION ON SENTENCE Judge: The Honourable Judge Del W. Atwood Heard: 26 June 2014, in Pictou, Nova Scotia Charge: Para. 267 (

b) of the Criminal Code Counsel: Patrick Young, for the Nova Scotia Public Prosecution Service Douglas Lloy, Q.C., for Cody Dylan MacIntosh By the Court : [ 1 ] Mr. MacIntosh is before the Court to be sentenced in relation to a serious assault upon Mr. Michel Mailloux under para. 267(

b) of the Code . The charge proceeded indictably; Mr. MacIntosh elected to have it dealt with in this court, and he pleaded guilty [ 2 ] The positive factors are Mr. MacIntosh ’ s early guilty plea and the fact that Mr. MacIntosh has accepted responsibility for his conduct. [ 3 ] The negative or aggravating factors are that this was a crime of violence, it was unprovoked, and it resulted in serious, extremely serious, personal injury to Mr. Mailloux. [ 4 ] The Court saw photography taken of Mr. Mailloux in the immediate aftermath of the assault, and that is before the Court as

Exhibit #1; there is significant evidence of edema, haematoma, abraded injuries, exsanguination or blood loss, all demonstrative of Mr.Mailloux as having been a victim of serious blunt-force trauma that occurred in his own vacation property, as I understand it. Mr.MacIntosh beat this man mercilessly after he had been invited inside for a drink. [5] I do accept that Mr. MacIntosh struggles with substance abuse and also with his mental health. The Court does not sentenceMr. MacIntosh because of the fact that he experiences difficulty with his mental health or with substance abuse.

The court does notdisregard this evidence; however, as in R. v. G.A.M., (NS CA), [1996] N.S.J. No. 52 at paras. 73-82 (C.A.) theCourt’s primary focus is, instead, upon the protection and safety of the public; Mr. MacIntosh’s actions posed grave risk to public safety,and this is one of those instances when the separation of even a first-time offender from the community is appropriate. [6] There is a joint submission before the Court for a bare federal term of two years plus a day. Applying the principles set outby our Court of Appeal in R. v.

MacIvor 2003 NSCA 60, I ought to depart from a joint submission only if I were to be satisfied that therecommended sentence would bring the administration of justice into disrepute. In this case, I find the joint submission to bereasonable. [7] In my view, the recommended sentence is consistent with fundamental purposes and principles of sentencing. It reflectssentence parity with the imposition of a sentence last week in R v.

Avery 2014 NSPC 40 , it takes into account the principles as set out insection 718, 718.1 and 718.2 of the Criminal Code; it takes into account the principles of restraint and also the principles outlined by ourCourt of Appeal in R. v. Perlin, (1977), (NS CA), 23 N.S.R. (2d) 66 at 68, which applies to sentences imposed forcrimes of violence, and which underscores the need for denunciation and deterrence in offences involving violence or weapons. [8] Accordingly, Mr. MacIntosh, in relation to the para. 267(

b) charge, the Court sentences you to two years plus a day. Thatwill be served in a federal penitentiary. [9] The Court will make a primary-designated-offence DNA collection order. [10] There will be a stand alone restitution order under

section 738 of the Criminal Code in the amount of $1,538.00 in favour ofMr. Mailloux. [11] The Court is also going to make a

section 743.21 non-communication order. While in custody you are to have no contact orcommunication with Michel Mailloux or members of his immediate family, directly or indirectly. [12] This offence occurred after the coming-into-force date of the changes to

section 737 of the Criminal Code; therefore, there willbe a $300.00 victim surcharge amount and you will have 36 months to pay that victim surcharge amount. [13] In accordance with

section 109 of the Criminal Code, the Court orders that you be prohibited from possessing any firearm,other than a prohibited firearm or restricted weapon and any crossbow, restricted weapon, ammunition and explosive substance for aperiod of twelve years plus a day and the Court orders and directs, as well, that you be prohibited from possessing any firearm, restrictedfirearm, prohibited weapon, prohibited device and prohibited ammunition for life. [14] I will order and direct that the order of committal be endorsed to recommend, Mr.

MacIntosh, that you be admitted to mental-health counselling and programming at the earliest opportunity. [15] Mr. MacIntosh, I’ll have you accompany the sheriff’s, if you could, please sir. J.P.C.