r v. R., 2014 NBCA 17

COURT OF APPEAL OF NEW BRUNSWICK 90-13-CA VALERIE PARKER APPELLANT VALERIE PARKER APPELANTE - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Parker v. R., 2014 NBCA 17 Parker c.

R., 2014 NBCA 17 CORAM: The Honourable Justice Robertson The Honourable Justice Richard The Honourable Justice Green CORAM : l’honorable juge Robertson l’honorable juge Richard l’honorable juge Green Appeal from a decision of the Provincial Court: August 22, 2013 (sentencing) Appel d’une décision de la Cour provinciale : le 22 août 2013 (sentence) History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard: January 22, 2014 Appel entendu : le 22 janvier 2014 Judgment rendered: April 3, 2014 Jugement rendu : Le 3 avril 2014 Reasons for judgment by: The Honourable Justice Green Motifs de jugement : l’honorable juge Green

Concurred in by: The Honourable Justice Robertson The Honourable Justice Richard Souscrivent aux motifs : l’honorable juge Robertson l’honorable juge Richard Counsel at hearing: For the appellant: A. Gordon Shepard For the respondent: Rodney A. Jordan Avocats à l’audience : Pour l’appelante : A. Gordon Shepard Pour l’intimée : Rodney A.

Jordan THE COURT Leave to appeal the sentence is granted, the appeal is allowed, and the sentence imposed at first instance is varied as follows: the passing of sentence is suspended for three years and the appellant is to be released on the conditions set out in a probation order. The mandatory firearms prohibition for a period of ten years, the DNA sample order, and the waiver of the victim fine surcharge, as ordered by the sentencing judge, are confirmed. The judgment of the Court was delivered by GREEN, J.A. I.

Introduction [ 1 ] The focus of this appeal is the fitness of a 6-month term of imprisonment for breaking and entering into a dwelling place, and therein uttering a threat, contrary to s. 348(1) (

b) of the Criminal Code , R.S.C. 1985, c. C-46. The appellant entered a guilty plea, was sentenced, and now seeks leave to appeal her sentence. Of particular note in the fact situation of this case is the state of the appellant’s mental health prior to, during, and subsequent to the incident in question. For the reasons which follow, I would grant leave to appeal, allow the appeal, and vary the sentence imposed by the Provincial Court judge. II. Background [ 2 ] The appellant and her husband of 17 years owned and operated an alpaca farm in Harvey, New Brunswick.

The victim had been an employee at said farm for approximately two years. [ 3 ] At some point in time, the appellant’s husband and the victim began having an affair, of which the appellant eventually became suspicious. During the early morning hours of February 1, 2013, the appellant went in search of her husband, and located his vehicle parked at the victim’s home.

[ 4 ] With the apparent intention of confronting her husband and their employee, the appellant pounded on the door of the victim’s residence. She then proceeded to break a pane of glass in the door using a plastic shovel or rake, reached inside, unlocked the door, and entered the residence. [ 5 ] The scene which played out inside the residence featured the appellant in a highly emotional state. She met her husband in the kitchen, and began expressing quite vocally her displeasure with the situation. To underscore her displeasure, the appellant smashed one or more items in the kitchen, including a spice rack.

Having exited a bedroom in the home, the victim entered the kitchen and stood behind the appellant’s husband. [ 6 ] At this stage in the unfolding drama, the appellant uttered certain threats to the victim, pointing out that the victim would not always have the benefit of the appellant’s husband being present to offer protection. Specifically, the appellant threatened to slit the victim’s throat, and to burn down the victim’s residence with the victim’s children inside.

The appellant left the residence, but then returned, and had to be escorted off the property by her husband. [ 7 ] Seven days following the incident, the appellant telephoned the victim three times. The victim did not answer the calls, but the appellant left a message advising the victim to stay away from her husband. The next day, the appellant phoned again, on this occasion leaving a message expressing the hope that the victim was experiencing the same pain the appellant was feeling as a result of what had happened.

Finally, on February 13, 2013, the appellant called the victim’s ex-boyfriend, who is the father of the victim’s children, and shared with the ex-boyfriend the story of what had taken place. [ 8 ] At the time of the offence, the appellant was 58 years old.

In addition to her mental health issues, which will be itemized later in these reasons, the appellant suffers from a variety of health problems, including diabetes and high blood pressure. [ 9 ] In the aftermath of these events, the appellant was admitted to the psychiatric ward of the regional hospital in Fredericton, due to what she describes as a nervous breakdown. [ 10 ] I find it helpful, in terms of setting out the full context against which the sentencing judge crafted her decision, to quote the following excerpt from the Appellant’s Submission: On April 24, 2013 the Appellant was detained to the psychiatric ward of the Dr.

Everett Chalmers Hospital pursuant to s.8 of the Mental Health Act , as a result of her suicidal thoughts. The Appellant had to obtain a temporary pass to leave the hospital to attend Provincial Court on May 10, 2013 to enter her plea of guilty to the charge of breaking and entering. [para. 8] III. Issues [ 11 ] The appellant raises three grounds of appeal, and alleges the sentencing judge erred in principle:

(1) In misapplying the sentencing principle of parity by imposing a custodial sentence of 6 months, using as her guide the decision of this Court in R. v. Brideau , 2006 NBCA 94 , 308 N.B.R.(2d) 296 , wherein a conditional sentence of 6 months imprisonment was imposed;

(2) In misapplying the sentencing principle of proportionality, by treating the sentence imposed by this Court in Brideau as creating a de facto minimum sentence for home invasion type offences; and,

(3) In giving undue weight to the sentencing principles of denunciation and deterrence, and insufficient weight to the sentencing principles of rehabilitation and restraint.

IV. Law and Analysis A. Standard of Review [12] Little need be said on the appropriate standard of review to be followed on a sentence appeal. This Court hasconsistently made clear that considerable deference is owed to a sentencing judge, and appellate intervention is warranted only within anarrow range of circumstances. The oft cited words of Drapeau C.J.N.B. in R. v.

Steeves, 2010 NBCA 57, 360 N.B.R. (2d) 88, provide asuccinct statement of the law on point: In sum, a court of appeal is not at liberty to substitute its view of fitness for that of the sentencing judge unless the sentence imposed isthe product of either an error of law or an error in principle, or unless it is clearly unreasonable (see R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227, [1995] S.C.J. No. 52 (QL), at paras. 46-48; R. v. Solowan, [2008] 3 S.C.R. 309, [2008] S.C.J. No. 55 (QL),2008 SCC 62, at para. 16; R. v. L.M. [2008] 2 S.C.R. 163, [2008] S.C.J. No. 31 (QL), 2008 SCC 31, at paras. 14-15; and R. v.

C.A.C.(2009), 349 [N.B.R.] (2d) 265, [2009] N.B.J. No. 342 (QL), 2009 NBCA 68 (Bell, J.A. for the Court, at para. 4)). If the sentence at issueis the result of reversible error, the court of appeal bears the burden of prescribing the punishment that it considers fit in thecircumstances. In R. v. R.K.J. (1998), (NB CA), 207 N.B.R. (2d) 24 (C.A.), [1998] N.B.J. No. 483 (QL), the Court framed theapplicable standard of review in this way: It is the undoubted duty of this Court to review the fitness of any sentence imposed.

That it must do so bearing in mind the privilegedposition occupied by the trial judge is settled law. All agree that the sentencing process is hardly an exact science. It is a subjectiveprocess which features a large measure of discretion. The intrinsically discretionary nature of the sentence decision explains, at least inpart, the Supreme Court's insistence on a deferential approach to all sentence reviews. See R. v. Shropshire (M.T.), (SCC), [1995] 4 S.C.R. 227 [...], R. v. M.(C.A.), (SCC), [1996] 1 S.C.R. 500 [...], and R. v.

MacDonnell, (SCC), [1997] 1 S.C.R. 305. [...] Nevertheless, deference has its limits, and this Court is duty bound to vary a sentence in appropriate circumstances. Indeed, if thesentencing court commits an error of law or an error in principle, or if the sentence imposed is clearly unreasonable, there is no longerroom for deference and this Court is required to impose the sentence which it considers fit. See R. v. F.S.A. (1996), (NB CA), 182 N.B.R. (2d) 20 (C.A.) [...], and R. v.

Melanson (E.R.) (1998), (NB CA), 199 N.B.R. (2d) 338 (C.A.).[...] In this context, an error in law most commonly occurs as a result of a misapprehension of the evidence or a misapplication of judicialprecedents. As for an error in principle, it typically involves one or more of the following: the application of wrong sentencing principles,a failure to consider relevant factors or the taking into account of irrelevant considerations.

As well, there will be cases where the failureto give proper weight to each relevant circumstance will amount to an error in principle. (Our court will necessarily be slow to find anerror of this nature for, if it was otherwise, professions of deference would soon ring hollow.) Finally, a sentence will be clearlyunreasonable where it is either inordinately long or inordinately short. It will reach this level only if it is a substantial and markeddeparture from the sentence customarily imposed for similarly situated offenders committing similar crimes. [paras. 11-13] [paras. 25-26] B.

Sentencing Options [13] As the starting point in my analysis, I wish to focus on the sentencing options available in this case. Allinvolved readily agree that by virtue of amendments to s.742.1(

c) of the Criminal Code, conditional sentences are not available if theoffence in question, prosecuted by way of indictment, carries a maximum term of imprisonment of 14 years or life. Such is the situationat hand. [14] The appellant quite rightly points out, however, that in making the above noted amendments to the Code,Parliament chose not to foreclose from sentencing judges the option of imposing a suspended sentence for the offence of breaking andentering into a dwelling house.

Thus, the sentencing judge could have imposed a suspended sentence if she felt such a disposition wasappropriate in the specific circumstances of this case. At the sentencing hearing, the respondent requested a sentence of 18 to 30 monthsincarceration, while the appellant argued in favour of a suspended sentence and a period of probation. [15] Did the sentencing judge give proper consideration to the option of imposing a suspended sentence, asrequested by counsel for the appellant? The answer is to be found in the following excerpt from her decision:

A suspended sentence is not a fit sentence for a home invasion […]. [Sentencing decision, page 36, lines 20-21] [16] Had the sentencing judge phrased the above comment differently, and stated that in her opinion, a suspendedsentence was not a fit sentence in this case, given the facts before her, there would be no issue on point. However, the statement madewas absolute and unqualified. She clearly held “a suspended sentence is not a fit sentence for a home invasion”.

In my opinion, thisconstitutes an error of law, and on that basis alone this Court may allow the appeal, set aside the decision, and impose a sentence we“consider fit in the circumstances”. While I make that exact determination, and therefore need not explore the grounds of appeal set outabove, I feel it advisable to comment on each at least briefly. C. The Parity Principle [17] The parity principle is found in s. 718.2(

b) of the Code, which states: 718.2 A court that imposes a sentence shallalso take into consideration the followingprinciples: […] (

b) a sentence should be similar to sentencesimposed on similar offenders for similaroffences committed in similarcircumstances; 718.2 Le tribunal détermine la peine à infligercompte tenu également des principes suivants : […]

b) l’harmonisation des peines, c’est-à-direl’infliction de peines semblables à cellesinfligées à des délinquants pour des infractionssemblables commises dans des circonstancessemblables; [18] Adherence to this principle assures both fairness and predictability within the criminal justice system. Thoseconvicted of any given offence can and should expect the courts of their jurisdiction to treat them in the same way as others convicted ofthe same offence, in similar circumstances.

Within the scope of “similar circumstances” to be considered, a sentencing judge will becomparing and contrasting all aspects of the case before her or him with analogous cases, including the presence or absence of specificaggravating and mitigating circumstances. [19] This Court explained the parity principle and the role of the appellate courts in applying the principle in R. v.Nash, 2009 NBCA 7, 340 N.B.R. (2d) 320, per Robertson JA: While the Supreme Court recognizes the highly subjective nature of the sentencing process and the critical role of the trial judge, s.718.2(

b) of the Criminal Code goes on to prescribe that the sentence ultimately imposed must respect the parity principle: the sentencemust be similar to sentences imposed on similar offenders for similar offences in similar circumstances, the so-called "acceptable range"(see R. v. W. (G), (SCC), [1999] 3 S.C.R. 597, [1999] S.C.J. No. 37 (QL) adopting R. v. Muise (D.R.) (No. 4) (1994),1994 NSCA 198 , 135 N.S.R. (2d) 81 (C.A.), [1994] N.S.J. No. 487 (QL)).

The role of an appellate court is to ensure that the trial judge did not err in principle and that the sentence is not "demonstrably unfit".Part of the task is to ensure that the parity principle is respected and, indeed, the Court of Appeal is ultimately responsible for decidingwhat constitutes an "acceptable range" […]. [paras. 53-54] [20] Of the cases presented to the sentencing judge for her consideration, she identified the decision of Richard, J.A.in Brideau as being “the most relevant of all”.

The facts of that case are summarized as follows: The context in which the offences were committed is not in dispute. On August 11, 2004, Mr. Brideau and Mr. St-Onge broke into JulienHaché's dwelling, where they assaulted Mr. Haché and damaged his property. Mr. St-Onge, who was accompanied by Mr. Brideau,wanted to confront Mr. Haché because he suspected him of having an affair with his wife. After entering the dwelling, the accusedattacked Mr.

Haché in a scuffle that involved grabbing as well as an exchange of blows in which a door was broken down, a wall wassmashed in two places, and a mirror and chain were broken. The victim managed to break free from his assailants and seek refuge in a

neighbour's house, where he called 911. Since the accused were unable to catch Mr. Haché before he arrived at the neighbour's house, they left. They were arrested shortly thereafter in their respective homes. Both Mr. Brideau and Mr. St-Onge confessed. The investigation revealed that they were inebriated at the time of the offences and that no weapons were involved. [para. 6] [ 21 ] Following acceptance of their guilty pleas, Mr. Brideau and Mr. St-Onge were fined and sentenced to one-year probation, a condition of which was the performance of 50 hours of community service.

In setting aside the sentence imposed, this Court found the sentencing judge had not taken into account that the break and enter in question constituted a home invasion, and in crafting the sentence the judge was required to consider that fact to be an aggravating circumstance as set out in s. 348.1 of the Code . Furthermore, it was held that the reasons of the sentencing judge did not disclose he had adequately considered and applied the dual objectives of deterrence and denunciation. In the result, this Court sentenced Mr. Brideau and Mr.

St-Onge to a period of imprisonment for six months, to be served in the community. In other words, they received a six-month conditional sentence, as that sentencing option was available at the time. [ 22 ] In the case at bar, the appellant argues the fact situation of the home invasion in Brideau was more serious than that present here, and yet the sentence imposed on the appellant is significantly harsher than that imposed upon Mr. Brideau and Mr. St-Onge.

Specifically, the appellant is saying that six months spent behind bars in secure custody is clearly a harsher punishment than six months spent serving a sentence in the community. Thus, the parity principle has not been respected. How does the Crown respond to this assertion?

The position of the respondent is that there are aggravating circumstances present here which were lacking in Brideau , which include: the appellant chose to enter the victim’s home after ascertaining her husband was inside (by virtue of the fact she saw his truck in the driveway); the appellant uttered treats of a serious nature; and, the appellant telephoned the victim on at least four occasions following the initial altercation, indicating this was not an isolated incident. [ 23 ] I find the argument of the appellant the more persuasive.

Let us examine the aggravating factors present in Brideau which are not to be found before this Court: there were two male assailants confronting one male victim, as opposed to a 58-year old woman confronting her husband and his companion, the female victim in this case; an actual, physical assault took place in Brideau , whereas none took place here; more property damage was committed in Brideau ; and, most importantly in my opinion, the assailants in Brideau were not suffering from the serious mental health issues afflicting the appellant (more on this final point later).

I note parenthetically that one similarity between the two cases is that none of the accused had prior criminal records. [ 24 ] In support of its argument that the sentencing judge did respect the parity principle, the respondent also relies on R. v. Goulette , 2009 NBCA 49 , 350 N.B.R.(2d) 152 , another home invasion case. The respondent points out that in Goulette , the Court refers to the Brideau decision, and makes the observation Mr. Brideau received “a very lenient sentence”.

That short excerpt omits the context found in the entirety of the Court’s comment: […] This case has none of the features of Brideau , where numerous mitigating circumstances combined to justify a very lenient sentence. [para. 52] [Emphasis added.] [ 25 ] What’s more, it can hardly be said the author of Goulette was in any fashion being critical of the sentence in Brideau , given that the same judge penned both, less than three years apart. He also made the following comment: […] Brideau was exceptional, in that counsel for the Attorney General had recommended a conditional sentence.

Moreover, a number of mitigating factors supported a more lenient sentence . [para. 42] [Emphasis added.] [ 26 ] I consider it prudent at this juncture to reproduce another segment of Goulette , as it impacts not only upon the parity discussion, but as well on the broader question of a fit disposition for home invasion offences.

Richard, JA, writes: Although all cases are different and each requires its own assessment of the principles of sentencing in light of its particular facts, the message is clear: home invasion type offences, in all but exceptional circumstances, will attract lengthy terms of imprisonment in order to satisfy the principles of sentencing. Although robbery was not the motive for the home invasion in the present case, a break into a home in order to assault the occupant is nonetheless a crime which must be strongly denounced and in respect of which deterrence must play a pivotal role.

The present case is not exceptional. This is not a case like Brideau , where the break was not pre-meditated and was not committed for the purpose of assaulting the occupant. This is also not an offender like those in Brideau , where none had a criminal record and where each pleaded guilty, showed remorse, made restitution and had a favourable pre-sentence report. In the absence of exceptional circumstances, a sentence of 30 months imprisonment (before considering the time Mr.

Goulette served in pre-sentencing custody) represents a marked departure from the sentences typically imposed for home invasion type offences. For that reason alone, I am of the view the sentence is unfit and ought to be varied. [para. 44]

[27] Given the circumstances of this case, and making direct comparisons to the earlier decisions of this Court onpoint, particularly Brideau, I am satisfied the parity principle was not properly applied. In my opinion, the facts here are less serious thanthose present in Brideau, and the sentence is unquestionably harsher. I hasten to add that I recognize a conditional sentence was not anoption open to this sentencing judge, but other options were open, which I will touch upon in due course. D.

The Proportionality Principle [28] The Code identifies proportionality as the “fundamental principle” of sentencing in s. 718.1: 718.1 A sentence must be proportionate tothe gravity of the offence and the degree ofresponsibility of the offender. 718.1 La peine est proportionnelle à la gravitéde l’infraction et au degré de responsabilité dudélinquant. [29] The appellant argues the sentencing judge treated the Brideau decision as having created a de facto minimumsentence for home invasion offences.

She points to the judge’s comment that Brideau is “sentencing on the lower end of a break-enter-assault” (Sentencing decision, page 30, lines 10-11). With respect, the sentencing judge is correct. Brideau is on the lower end of thesentencing spectrum for home invasion. Perhaps a clearer statement of the law would be to say Brideau is toward the low end of thesentencing spectrum. [30] Exceptional circumstances existed in Brideau which justified the sentence imposed. That said, it is not at thelowest possible end of the spectrum, and the sentencing judge did not explicitly state that it was.

She did, however, find that this case“fits in the spectrum closer to the R. v. Brideau case” (Sentencing decision, page 36, lines 22-23). In my opinion, it actually falls belowBrideau for the reasons I have already stated. [31] I am not convinced the sentencing judge treated Brideau as a de facto minimum sentence for home invasions.Had she done so, it would have constituted an error of law separate and apart from any discussion of the proportionality principle. As thiswas the thrust of the appellant’s argument on point, I will explore this ground of appeal no further. E. Denunciation and Deterrence vs.

Rehabilitation [32] This Court most recently considered home invasion in the companion cases of Simon v. R., 2014 NBCA 4, andGinnish v. R., 2014 NBCA 5. Both decisions underscore the seriousness with which the Court views such acts, especially where violencefeatures prominently in the fact situation. Each accused was sentenced to a lengthy period of incarceration for robbery and aggravatedassault (7 years and 9 years, respectively). Denunciation and deterrence featured prominently in their sentences.

While the Simon andGinnish decisions are representative of cases toward the higher end of the sentencing spectrum, the present case is most certainly not. [33] In Goulette, the Court provided clear guidance on the importance of denunciation and deterrence when craftingsentences for home invasions, while at the same time recognizing that in certain circumstances, it may also be appropriate to considerrehabilitation: Cases such as Joyce, Ivan and Brideau, point to the need to emphasize specific and general deterrence in cases involving a homeinvasion.

That is not to say that a sentence cannot be based on another of the objectives mentioned above. There is, however, arequirement that deterrence play a pivotal role in the crafting of an appropriate sentence. I would add that denunciation must also beconsidered, the reason being self-evident. The law regards one's home as one's castle, meaning that one can seek refuge and privacy inone's own home, and this, but for exceptional circumstances, even against the unauthorized intrusion of the state: R. v. Feeney, (SCC), [1997] 2 S.C.R. 13, [1997] S.C.J. No. 49 (QL).

There is abundant jurisprudence indicating that courts do not toleratestate conduct that infringes the sanctity of one's home. It therefore follows that individual conduct that also infringes the sanctity of thehome must be just as loudly denounced, as well as strongly deterred. Thus, in crafting an appropriate sentence, it is necessary for us tokeep the objectives of denunciation and deterrence at the forefront of our consideration.

In proper cases, such as Brideau, it may beappropriate to also consider the rehabilitation of the offender, but I do not consider that particular objective to be realistic in the presentcase. […] [para. 47]

[ 34 ] Here, it is obvious the sentencing judge clearly placed considerable weight on denunciation and deterrence. She stated, Now the issue, of course, is that it’s important in our society that no one enters anyone’s house without invitation and that is why we look at the issue of denunciation and deterrence in these serious issues of home invasion. The entering of a dwelling house knowing it is occupied is an aggravating factor. The objectives of denunciation and deterrence must be considered. As stated in Brideau , citing R. v.

Lea […] a sentencing judge must “balance society’s interest in maintaining a dwelling house as a safe place” and also address the “objectives and principles of sentencing”. [Sentencing decision, page 35, lines 4-16] [ 35 ] When making their respective arguments at the sentencing hearing, counsel for both the appellant and the respondent spoke of rehabilitation. Defence counsel urged that as a sentencing principle, it be considered to offset denunciation and deterrence, and submitted that, “this offender is not going to be rehabilitated by a jail sentence”.

Crown counsel argued that in home invasion cases, rehabilitation must take a “backseat” to denunciation and deterrence. For her part, the sentencing judge made only one reference to rehabilitation, and that was to acknowledge that defence counsel had requested she look at it. [ 36 ] For the reasons set out herein, this is precisely the sort of fact situation contemplated by Goulette in which rehabilitation is an appropriate consideration. Moreover, in this case, I am convinced it must take priority over the other enunciated sentencing principles.

The sentencing judge found there to be exceptional circumstances in this case, which no doubt tempered the severity of the sentence she imposed. The difference is that, with the greatest respect, I do not believe she went far enough. F. Sentence To Be Imposed [ 37 ] It now falls upon this Court to impose a sentence we consider fit in the circumstances. In my opinion, what distinguishes this case from other break and enter or home invasion cases is the state of the appellant’s mental health.

Absent this factor, upon which I place considerable weight, I would not take issue with imposing a short (although certainly less than 6 months) custodial sentence, followed by probation. To elaborate, the threats uttered by the appellant were serious enough to warrant a brief period of incarceration but for the overriding seriousness of the appellant’s mental health. [ 38 ] The evidence placed before the sentencing judge through the Pre-Sentence Report included the following pertinent points with respect to the appellant’s mental health:

(1) Primary diagnosis of Depression NOS;

(2) Underlying Borderline Personality Disorder;

(3) Mood Dysregulation;

(4) Self-Harming Behaviours;

(5) Receiving focused group therapy;

(6) Experiencing a “lengthy battle with depression”;

(7) Hospitalization following a suicide attempt in October 2011;

(8) Hospitalization following an express intention to overdose in April 2013; and,

(9) On Long Term Disability from her employment. [ 39 ] The picture of the appellant clearly painted by the Pre-Sentence Report is one of an individual struggling with significant mental health issues, serious enough to lead to attempted suicide. Within the Statement of Facts found in the Appellant’s Submission, the appellant identifies the reason for being on long term disability from her employment as “stress and mental health issues”.

I note the respondent accepted and agreed with this assertion in his written submission. [ 40 ] In terms of precedential significance, this decision does not stand for the proposition that anyone suffering from mental illness is entitled to break into another’s home, damage property, and utter threats. Nor does it stand for the proposition that when faced with an individual suffering from mental illness who has been convicted of a home invasion, the appropriate disposition is a suspended sentence.

There will be, however, those rare fact situations in which such a disposition is appropriate, and in my opinion this is one such case.

[ 41 ] The jurisprudence on point is clear: when crafting a sentence respecting home invasion, the predominant sentencing principles are to be denunciation and deterrence, the latter being both general to the wider population and specific to the individual offender. This is true but for exceptional circumstances . The sentencing judge found there to be exceptional circumstances in this case, and I agree. [ 42 ] The appellant is in need of rehabilitation, and specifically treatment for her mental illness. Given the facts before the Court, a period of incarceration is not the appropriate sentence.

A person such as the appellant belongs not in a jail cell, but in a doctor’s office, counselling program, or treatment facility. V. Disposition [ 43 ] I would grant leave to appeal the sentence, allow the appeal, and vary the sentence imposed at first instance as follows.

I would suspend the passing of sentence for three years and direct that the appellant be released on the following conditions of a probation order: keep the peace and be of good behaviour; strictly follow the directions of her health care providers and probation officers, and in particular mental health professionals, with respect to treatment, counselling, and medication; and, have no contact with the victim, Amanda Dyke.

The mandatory firearms prohibition for a period of ten years, the DNA sample order, and the waiver of the victim fine surcharge, as ordered by the sentencing judge, are confirmed. _______________________________ BRADLEY V. GREEN, J.A. WE CONCUR: __________________________________ J.T. ROBERTSON, J.A. __________________________________ J.C. MARC RICHARD, J.A.