R v Mala, 2018 NUCA 2

Court of Appeal of Nunavut Citation: R v Mala, 2018 NUCA 2 Date: 20180604 Docket: 21-18-001-CAP Registry: Iqaluit Between: Her Majesty the Queen Appellant - and - Buddy Mala Respondent _______________________________________________________ The Court: The Honourable Madam Justice Myra Bielby The Honourable Madam Justice Sheila Greckol The Honourable Madam Justice Jo'Anne Strekaf _______________________________________________________ Memorandum of Judgment Delivered from the Bench _______________________________________________________

Memorandum of Judgment Delivered from the Bench _______________________________________________________ Strekaf J.A. (for the Court): [ 1 ] This is a sentence appeal brought by the Crown. [ 2 ] The respondent was sentenced to nine months jail for aggravated assault on a police officer contrary to

section 270.02 of the Criminal Code and three months jail for possession of a weapon for a dangerous purpose contrary to

section 88 of the Criminal Code . These sentences were to be served consecutively and he was also given two years’ probation subject to the usual terms and an additional counselling provision. [ 3 ] The respondent pled guilty, and the sentencing proceeded on the basis of the Agreed Statement of Facts and viva voce testimony from the respondent’s mother. [ 4 ] The admitted facts, in

summary form, were that at 10:00 pm on June 11, 2017, the RCMP in Cambridge Bay, Nunavut, received a report that the respondent was outside a house waving a gun and threatening to kill police officers. Two police officers attended at the scene and observed a pellet gun lying on the ground. The respondent was at the top of the stairs to the house yelling, “shoot me, shoot me.” [ 5 ] Constable Potty pointed a carbine at him and told him to lie down.

The respondent continued to yell at the police officers to shoot him and then ran into the house. [ 6 ] When they entered the house, Constable Potty encountered the respondent in the kitchen. The respondent by that time had grabbed the knife and said, “I’m going to fucking kill you”, and stabbed him once in the left arm. Constable Potty pushed back at the respondent and attempted to fire his carbine, but it did not fire properly. [ 7 ] The respondent then stabbed Constable Potty twice more in the arm.

Constable Simard then tasered the respondent and took control of him. [ 8 ] Constable Potty was bleeding and taken to the Health Centre. [ 9 ] The respondent was arrested. At that time he was agitated and intoxicated with a strong smell of liquor on his breath. [ 10 ] At the cells in the detachment, the respondent was yelling that he would wipe out the cops. [ 11 ] In her decision, the sentencing judge reviewed the agreed facts.

She noted that the Crown had sought a sentence of two and a half to three years and that the defence sought time served plus three years probation. [ 12 ] She summarized some of the respondent’s background experiences growing up, noted a brain injury that he had sustained relatively recently, and his current circumstances and family support. [ 13 ] She outlined the principles of sentencing set out in

section 718 of the Criminal Code and acknowledged that the Criminal Code requires the court to give primary consideration to the principles of denunciation and deterrence when sentencing someone who has been convicted of aggravated assault of a police officer. [ 14 ] She considered the respondent’s youth (he was 19 at the time), his lack of a criminal record, his life circumstances, and considerations of rehabilitation. [ 15 ] She concluded that he was not setting out to harm anyone other than himself and took into account his guilty plea and acceptance of responsibility as mitigating factors. [ 16 ] She considered the three stab wounds that had been suffered by Constable Potty as aggravating circumstances.

She noted that it would be desirable for the respondent to be under court supervision to assist in his reintegration and rehabilitation. [ 17 ] So that led to the sentence that I have outlined earlier. [ 18 ] The Crown submits that the sentencing judge erred, first, by giving primary consideration to the respondent’s personal circumstances and focusing on his rehabilitation when the Criminal Code expressly requires that primary consideration be given to denunciation and deterrence; second, by misapprehending the facts in characterizing the incident as “suicide by cop” and the police officer’s injury as minor and transitory; and thirdly, by imposing a sentence that was manifestly unfit. [ 19 ] The standard of review on a sentence appeal is strict.

Sentencing decisions are afforded a high degree of deference. Absent an error of principle, such a consideration of inappropriate factors, overemphasis on appropriate factors, or an error of principle that had an impact on the sentence, an appellate court should only intervene where a sentence is demonstrably unfit.

Bielby J.A. (for the Court): [ 20 ] We conclude that the sentence imposed is demonstrably unfit as it was unreasonable and a marked departure from other sentences imposed in similar circumstances. An assault on a police officer is more serious and is to be treated more seriously than an assault on another type of victim as evidenced by Parliament’s creation of a separate offence of aggravated assault on a peace officer,

section 270.02 of the Criminal Code of Canada . Further,

section 718.02 of the Criminal Code requires that the primary consideration in sentencing for a breach of

section 270.02 must be deterrence and denunciation. Sentences imposed must reflect the police officer’s vulnerability, society’s dependence on the police, and the goal of avoiding the creation of a mentality towards the police that invites easy resort to violence. [ 21 ] As instructed by the Nunavut Court of Appeal in R v Lyta , 2013 NUCA 10 , we are to consider the particular circumstances of policing in the north. The court, in paragraph 23 of Lyta , instructs us to underscore the vulnerability of the police in isolated northern communities.

And while that case is distinguishable on a number of points, including the fact that it involved gun violence and an offence with a statutorily imposed minimum sentence, these comments in relation to the particular vulnerability of police in small northern communities are readily transferable to this case. [ 22 ] The sentencing judge here also erred by failing to provide us with her analysis showing how the primary considerations of denunciation and deterrence could be achieved with a sentence of nine months in the circumstances of this offence. [ 23 ] Further, we accept the Crown submission that she erred in concluding that the evidence did not support the finding that the accused, Mr.

Mala, set out to harm the police officers or anyone but himself, and we also conclude that she erred in failing to adequately address the serious nature of the victim’s injuries and the risk that Mr. Mala put the police officer into by stabbing him. [ 24 ] However, R v Ponticorvo , 2009 ABCA 117 , where a 42-month period of incarceration was imposed by the Alberta Court of Appeal for assault, does not assist us in determining the proper sentence for Mr. Mala because the facts in that case were not sufficiently similar to these.

For one thing, 12 months of that sentence was imposed for an assault on a companion victim, not the police officer, and that accused was in his 40s with three prior convictions for offences of violence. So it is distinguishable from this case.

But again, the comments made there about the need to treat denunciation and deterrence as a primary factor on sentencing are transferable to these circumstances. [ 25 ] Therefore, we find we must allow the appeal in relation to the custodial portion of the sentence and substitute a sentence of 21 months on the assault offence and three months less a day consecutively on the weapon offence for a total of 24 months less a day. Against that, one year’s credit will be given to him based on the concessions made by the Crown this morning.

So that even though he has not been in actual custody for the entirety of 12 months on these offences, he will be given 12 months credit to take into account his actual period of pretrial custody, the additional credit he got for that pretrial custody, and the actual period of time he served in jail prior to his release in early February.

All other terms of the original sentence, including those in relation to probation, are to remain in effect. [ 26 ] The resulting sentence is at the lower end of the proper range of sentencing for the offence of aggravated assault on a police officer because of the significant number of mitigating factors in play here. Mr.

Mala was only 19 years of age when the offence occurred, he had no criminal record, and the effect of the sentence required him to leave his home in Cambridge Bay to be incarcerated in Rankin Inlet which is far enough that we are prepared to infer that he did not and will not have much by way of family visits and support during his period of incarceration. [ 27 ] While we did not have the benefit of a Gladue report, looking at his circumstances that we do have on the record, we are prepared to and do infer that Gladue factors existed in his life and his upbringing in the circumstances which led to the commission of this offence.

We take into account that he had a recent head injury, that he expressed remorse after the events occurred, that he had a record of volunteering in his community and, of course, most importantly, that he entered a guilty plea to these offences. [ 28 ] We direct that Mr. Mala turn himself into the police detachment in Cambridge Bay within the next 48 hours to commence serving the balance of his sentence and direct that the court staff prepare a transcript of this decision which we will edit and then provide to counsel so that Mr.

Mala’s counsel may more carefully explain to him why he has had to return to custody on these offences. Appeal heard on May 15, 2018 Memorandum filed at Iqaluit, Nunavut this day of June, 2018 Bielby J.A.

Authorized to sign for: Strekaf J. A. Appearances: S. O'Connor for the Appellant C. Christie for the Respondent