R. v. Whebby, 2017 NSPC 83

PROVINCIAL Court of Nova Scotia Citation: R. v. Whebby , 2017 NSPC 83 Date: June 15, 2017 Docket: 2974605 Registry: Dartmouth Between: Her Majesty The Queen v. Charles Henry Whebby Library Heading Judge: The Honourable Judge Frank P. Hoskins Oral Decision The Honourable Frank P. Hoskins Subject: Sentencing; principles of sentencing; aggravating and mitigating factors; crimes of violence; aggravated assault.

Summary: The offender pled guilty to aggravated assault, contrary to s 268 of the Criminal Code . The offender entered the residence of his former partner and locked her in the basement. Thereafter, the offender retrieved a kitchen knife, entered the bedroom, and stabbed the male victim twice in the neck. The offender possessed a criminal record, although the prior convictions related to non-violent offences and were unrelated to the present offence before the Court. Issue: What is the fit and proper sentence for aggravated assault contrary to s 268 of the Criminal Code ?

Result: The predominant sentencing objectives for crimes of violence are denunciation and general deterrence. Crimes of violence, particularly those involving weapons, will generally be subject to sentences of incarceration. The range of sentences imposed for aggravated assault is broad, ranging from suspended sentences to several years of incarceration. Such a range is subject to change over time and relates to the individual circumstances of each case.

The principle of restraint and the objective of rehabilitation are especially relevant where a youthful offender acts out of character in committing violent offences, although the mitigating effects of age decrease as the gravity of the offence becomes more serious. A domestic context, as well as premeditation, malice of forethought, lack of provocation, the use of force, and serious injuries constitute aggravating factors, which place a particular case towards the upper end of the sentencing range. The offender was sentenced to five years incarceration.

THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. PROVINCIAL Court of Nova Scotia Citation: R. v. Whebby , 2017 NSPC 83 Date: June 15, 2017 Docket: 2974605 Registry: Dartmouth Between: Her Majesty The Queen

v. Charles Henry Whebby Judge: The Honourable Judge Frank P. Hoskins Decision June 15, 2017 Charge: That on or about the 12 th day of February, 2016 at or near Dartmouth, Nova Scotia, did unlawfully wound, or endanger the life of Travis Paul Hooper thereby committing an aggravated assault, contrary to section 268(1) of the Criminal Code . Counsel: Aaron Martens, for the Crown Ian Hutchison, for the Defence By The Court (Orally) : Introduction [ 1 ] The following is the sentencing decision in the matter of The Queen v. Charles Henry Whebby. Mr.

Whebby pled guilty to the offence of aggravated assault, contrary to s. 268 of the Criminal Code . [ 2 ] The Victim’s injuries were life-threatening, and they will undoubtedly leave an indelible effect on him. [ 3 ] Mr. Whebby’s life will also be permanently affected by the imposition of a term of imprisonment in a federal institution, for having committed an unprovoked, brutal, senseless, and vicious act of violence on a helpless and defenceless person. [ 4 ] Mr.

Whebby, a youthful offender, must serve a significant period of imprisonment to denounce this extremely violent act. [ 5 ] The offence of aggravated assault is a very serious offence, as reflected by Parliament’s imposition of a maximum period of 14 years imprisonment. [ 6 ] In assessing the issue of what is the appropriate and just disposition for this offence and offender, Mr. Whebby, I have carefully considered and reflected on the following:

a) The circumstances surrounding the commission of the offence and the offender, Mr. Whebby;

b) The relevant Criminal Code provisions, including ss. 718 , 718.1 , and 718.2

c) The Pre-Sentence Report dated May 2, 2017;

d) The letters of support for Mr. Whebby; and

e) Submissions of counsel. [ 7 ] The victim, Mr. Hooper, has been informed of his right to provide a victim impact statement. He has declined to exercise this right. The Circumstances Surrounding the Offence [ 8 ] The circumstances surrounding the commission of the offence are not in dispute, nor are the tragic consequences of it. [ 9 ] The parties submitted an agreed statement of facts, in the form of an admission, which states: Pursuant to s. 655 of the Criminal Code of Canada , Charles Henry Whebby, (Mr. Whebby) admits the facts set out below for the purpose of dispensing with the proof thereof at trial: 1.

Mr. Whebby is the former romantic partner of Amy McKenzie (Ms. McKenzie) with whom he has one child, Ava McKenzie; 2. That at all material times Ms. McKenzie was residing at 1-21 Thistle Street, Dartmouth, Nova Scotia (the “residence”) with her two children, Ava McKenzie and Matthew McKenzie; 3. Mr. Whebby’s family owns the residence and he, accordingly, has a key to the residence;

4. Mr. Travis Hooper (Mr. Hooper) began a romantic relationship with Ms. McKenzie approximately two weeks prior to the offence; 5. Mr. Hooper had known Mr. Whebby’s family for years and met Ms. McKenzie through that connection; 6. On the night of February 11 th – 12 th of 2016, Mr. Whebby attended the residence, let himself in, and entered the bedroom of Ms. McKenzie and Mr. Hooper as they lay sleeping, where he tore the covers off their bed, yelled at them and smashed a French door; 7. Mr. Whebby returned to the residence on the morning of February 12 th , 2016 retrieved Ava McKenzie, and took her to school; 8.

Mr. Whebby returned to the residence shortly before 9:00 am as Ms. McKenzie went about her morning routine, and locked Ms. McKenzie in the basement; 9. After securing Ms. McKenzie, Mr. Whebby retrieved a kitchen knife, from somewhere in the residence, with a 12-cm long blade (the “knife”) and re-entered the bedroom where Mr. Hooper lay; 10. Mr. Whebby straddled Mr. Hooper and stabbed Mr. Hooper with the knife twice in the neck, leaving the knife buried in Mr. Hooper’s neck; 11. Mr. Hooper threw Mr. Whebby off him, after which Mr. Whebby ran from the residence as Mr. Hooper pursued him; 12. Once Mr.

Whebby left the residence, Mr. Hooper attempted to remove the knife from his neck, inadvertently snapping the handle off the knife; 13. Mr. Hooper was ultimately able to get his fingers around the blade of the knife and pull it out of his neck; 14. Mr. Hooper then let Ms. McKenzie out of the basement, who called for the paramedics as Mr. Hooper was unable to speak – as he later told the police: But all . . . every time I spoke it was just blood coming out of my mouth. There was nothing coming out the holes or anything, yeah. It was just air. So, I mean, like . . . 15. Mr.

Hooper was transported to hospital by paramedics, where an exploratory neck surgery was performed and the following was determined: a. Mr. Hooper had two stab wounds to his neck; b. Mr. Hooper’s airway had been punctured, which could have resulted in Mr. Hooper choking on his own blood and losing his airway; and c. The stab wounds were centimetres away from Mr. Hooper’s carotid artery. 16. A tracheostomy was performed; and 17.

The book of photographs taken by Detective Constable Randy Wood, tendered along with these Admissions, truly and accurately depicts the residence on the morning of February 12, 2016 and the knife. The Personal Circumstances Surrounding Charles Whebby [ 10 ] Mr. Whebby is a young man. He is only 27 years old, having been born in April 1990. It appears from both the content of the Pre-Sentence Report (PSR), and from the comments of counsel that Mr. Whebby was acting out of character when he committed the offence. [ 11 ] Indeed, the PSR is very positive. The report suggests that Mr.

Whebby benefited from a good upbringing, nurtured by strong family support. Mr. Whebby’s family continues to support him, and will undoubtedly assist him in his rehabilitation. [ 12 ] The PSR dated May 2, 2017, discloses the following information surrounding the personal circumstances of Mr. Whebby. [ 13 ] Mr. Whebby was raised by both parents until they separated when he was six years old. At that time, he and his brothers remained with their mother. He reported that his father was an alcoholic. He commented that he believed this contributed to his parents’ separation.

While he was in the sole care of his mother, he had a good childhood with no exposure to further addictions or violence. [ 14 ] He reported that several years after his father left, his mother entered a new relationship with Bill Bursey. Mr. Whebby shares a positive relationship with Mr. Bursey and considers him to be his step-father. [ 15 ] Mr. Whebby first left home when he was 16 years old, and for several years, after that he occasionally lived at his mother’s home. When he was 18 years old, he relocated to Alberta to work on oil rigs for the winter.

Upon returning to Nova Scotia, he resided with his grandmother for a brief period. At the age of 20, he returned to Alberta, but moved home a year later because his father was sick, and Mr. Whebby needed to be tested to see if his kidney was a match for his father. Mr. Whebby has since remained in Nova Scotia. [ 16 ] When he was 19 years old, Mr. Webby entered into a relationship with Amy McKenzie, who also had a son, now 11, from a prior relationship. Together for seven years, they had a daughter, Ava McKenzie, who was born in 2010. Mr.

Whebby informed the author of the PSR that the two ended their relationship about a year ago as they were not getting along, and he felt it was not a positive

environment for raising the children. [ 17 ] Mr. Whebby stated that currently Ms. McKenzie has custody of the children, and he sees his daughter every weekend. [ 18 ] For a brief period in the winter of 2016, Mr. Whebby informed the author of the PSR that he dated another person. Although they are no longer together, he disclosed that at the time of the PSR, she was five or six months pregnant with his child, and he wanted to be good father. [ 19 ] Presently, he has been residing with his brother, Liam Whebby, for approximately the past year.

He described a positive relationship with his brothers, and as well as with his mother, all of whom work together in the rental property business. [ 20 ] Ms. Baker, Mr. Whebby’s mother, reported that she was shocked to learn of her son’s charges. She commented that her son’s actions were “certainly out-of-character”. She added that it took her son a long time to discuss the incident with her openly. [ 21 ] Ms. Baker said her son spent a lot of time with his father and his paternal grandmother as a teenager; however, she did not necessarily think this was a good influence on him. Since the offence, Ms.

Baker said she has had many conversations with her son about his formative years. The author of the PSR noted that Ms. Baker became openly emotional as she commented on her son’s father’s alcohol addiction, which has had a profound effect on her son. She stated that her son’s closest male relatives had not been positive role models. [ 22 ] When asked if there are issues from which her son may benefit addressing, Ms. Baker commented that she feels her son relies too much on alcohol to help him relax and sleep at night.

Although her son has a medical marijuana license, she also feels her son relies too much on marijuana. Given these concerns, she stated she feels her son could benefit from some sort of program which addresses these areas. Furthermore, she added that her son attended one session with a psychiatrist a few months ago, and that one trip “really seemed to help him open up”. If her son is incarcerated, she said she would like to see him have an opportunity to improve his education, and his health. [ 23 ] Ms. Baker stated that her son has a lot of family support and, aside from this offence, he is a “sweetheart”.

As well, she described her son as a very intelligent man with much capability. If her son is incarcerated, her hope is that it does him more good than harm. However, she stated that her understanding of jail is that it is “not a place to go to improve yourself”. [ 24 ] Mr. Whebby’s brother, Liam Whebby, upon learning of the offence stressed that he was is disbelief, and shocked by it. Liam Whebby acknowledged that his brother is “not much of a talker”, but believes that his brother is remorseful for having committed the offence.

Liam Whebby stressed that his brother’s biggest concern is for his young daughter, whom his brother sees every weekend. Mr. Liam Whebby stated his brother has been struggling to sleep since this offence, which required a medical prescription. He also commented that his brother probably had an alcohol problem in the past, likely he “was going through personal things in the past and did not deal with them the best”. [ 25 ] However, Mr. Liam Whebby believes that his brother is now doing well notwithstanding all of the personal issues.

He also commented that he shares a close relationship with his brother, whom he described as a “bit of a joker” who likes to make people laugh, and who is pretty laid back. In conclusion, he commented that he is willing to continue to support his brother, along with the rest of the family. [ 26 ] Mr. Whebby informed the author of the report that he attended Prince Andrew High School in Dartmouth, Nova Scotia, but left prior to completing grade ten. When asked why he made this decision, he commented, “I just thought I knew everything” and felt school was a waste of his time.

He said he was “pretty good” in school, but he struggled to sit in a classroom. As well, he admitted to a few suspensions for smoking marijuana. He denied ever having been diagnosed with a learning disability. [ 27 ] At the age of 19, Mr. Whebby obtained his G.E.D. from the Nova Scotia Community College, where he did well when in the program. [ 28 ] He attended the Nova Scotia Community College at the Bridgewater Campus, where he obtained a one year diploma in refrigeration and air conditioning. He stated that he graduated about three years ago, and is currently an apprentice in the trade.

He does not have his Red Seal Certification. [ 29 ] Mr. Whebby informed the author of the PSR that he and his brothers currently own and maintain rental properties throughout Truro, Nova Scotia. These properties include a trailer park in Bible Hill, Nova Scotia. Their intention is to continue to expand the family business. [ 30 ] Mr. Whebby has worked with his father’s and grandfather’s construction company, J & W Whebby Enterprises, off-and-on for many years. [ 31 ] Mr.

Whebby also has been employed as a heavy equipment operator in Cold Lake, Alberta; an oil rigger at Rockwell Servicing in Grand Prairie, Alberta, and at W. Eric Whebby Ltd. as a heavy equipment operator for his cousin’s company. Overall, he said he has always been able to locate and to maintain employment, and that he has always been motivated to work. [ 32 ] His brother, Liam Whebby, confirmed that they are in business together, and that they own and maintain rental properties.

Liam acknowledged that should his brother be incarcerated, he will be able to regain employment with the family upon his release. [ 33 ] Under the heading, Financial Situation, of the PSR it appears that Mr. Whebby has managed his financial affairs appropriately. [ 34 ] Mr. Whebby reported to be of good physical health, aside from some on-going back pain. He has been provided with a medical marijuana license for the past three months to help with his back pain and sleeping. Mr. Whebby presented the author of the PSR with his medical marijuana license for viewing and confirmation.

[ 35 ] When asked about his use of alcohol, Mr. Whebby stated that he began consuming it as a teenager, and he continues to consume “a lot” today, in the sense that he drinks “a beer or two daily”. However, he clarified that he does not consume alcohol to the point of intoxication, and he has never viewed it as an issue in his life. He commented he has seen the effects of alcohol when he was younger, so he now knows “what not to do”. [ 36 ] Mr. Whebby also disclosed that he began experimenting with illicit substances as a teenager and, except for intravenous drugs, would use “pretty much everything”.

However, he explained “that got old quick”, so he only continued with marijuana as he got older. Upon further questioning, he commented he did “recreationally” use cocaine and crack cocaine around the time of the offence. However, he said he does not view this as an addiction, and he denied using any illicit substances, aside from marijuana, since this offence. [ 37 ] He denied any history of treatment or counselling, and when discussing his mental health, he reported that he had been diagnosed with depression in the last six or eight months, for which he has been prescribed medication.

He commented that the medication is helpful and he plans to continue using it. As well, Mr. Whebby noted that he attended one mental health counselling session with Mr. Martin Whitzman. He did not return to a second session as it was concluded that therapy was not necessary. [ 38 ] Mr. Whebby expressed that he may have had an issue with his anger when he was younger, but presently, he commented that he is “probably the calmest person you will ever meet in your life”. [ 39 ] Mr. Martin Whitzman, a private therapist specializing in marriage and family therapy, confirmed that he did meet with Mr.

Whebby on one occasion, but he did not reschedule another appointment with him as he did not feel they were a good fit together. [ 40 ] The author of the PSR noted that Mr. Whebby was polite and respectful during the interview for preparation of the report, and he appeared to answer all questions in an open and honest manner. The author also noted that Mr. Whebby answered all the questions to the best of his ability, and only struggled with the recollection of dates and timelines. [ 41 ] The author of the PSR also noted that Mr. Whebby admitted his responsibility, and just wants to move past it.

He explained his actions by stating he did not want the victim around his daughter, but in further conversation, acknowledged he “definitely should have handled this differently”. [ 42 ] He made no reference to the impact of his actions may have had on the victim. [ 43 ] Mr. Whebby has a criminal record. However, his previous convictions are unrelated to the offence before the Court. As noted in the JEIN Offender

Summary Report attached to the PSR, Mr. Whebby has a conviction recorded on November 18, 2016 for an offence he committed on May 6, 2016, for failing to comply with a recognizance. His previous offences are noted in the JEIN Offender

Summary on September 16, 2011. He was sentenced for failing to stop at an accident contrary to s. 252(1); that offence occurred on January 27, 2011, and he was sentenced to 12-month period of probation. On the same date, September 16, 2011, he was sentenced for having committed an offence under the Controlled Drugs and Substances Act , possession of a substance contrary to s. 4(1), which occurred on January 15, 2010. He received a fine in the amount of $500.00 for that offence. [ 44 ] I have also had the benefit of reading the two letters in support of Mr. Whebby.

One letter written by his mother, and the other by his brother. [ 45 ] Mr. Whebby’s mother, Sheila Baker wrote: Recently, an elderly family friend described Charlie as a “gentleman and a gentle man”. His adored grandmother calls him a “sweetheart”. Many times I’ve heard his daughter tell him “you’re the best daddy in the whole world”. Charles Henry is my third born of three sons. As a young boy he enjoyed a variety of activities such as soccer, swimming, fishing, Boy Scouts, Sea Cadets, etc. He has always loved the outdoors and as he grew he developed an interest and talent in gardening and agriculture.

From childhood to adulthood he has been a responsible and kind pet owner. His polite and charming personality earned him many friends whose families continually welcomed him back into their homes. His pleasant personality has helped him to get along with others, whether playing on a team, being a student in a classroom, or learning to share with his brothers. Of course, there was a sibling rivalry but it was usually short-lived. There were rules at home; meant to teach morals, respect and life guidelines.

Upon my return to work in the family business, my aunt (who is also Charlie’s Godmother) would come to our home to help care for Charlie and his brothers. She finds it hard to believe that Charlie could commit a violent act. She continues to provide strong, loving and structured support to our family. The boys were 12, 9, and 7 when their father left. During those early years (I think Charlie was 9) I remember Charlie wanting to get an ear pierced.

After some time, he had saved enough money and still wanted to do it so I took him to a professional and he got his piercing along with instructions on how to properly care for it. The first time he went to visit his father after he had his ear pierced, I received a phone call. His brothers hadn’t arrived yet, nor had his father, Charlie was at the apartment with his father’s girlfriend and he was quite concerned. He wanted to know if it was true that his father “will have a heart attack” when he sees the earring.

In later years when his father needed a new kidney Charlie started the procedure to find out if he was a good candidate to donate one of his to him. His father was able to acquire a kidney from another source but to the heartache of his family, he has not been able to acquire sobriety. Instead of spending his 13 th birthday with his father, Charlie chose to fly to Newfoundland with me to visit his maternal grandparents. His pop took him out and taught him how to drive his snowmobile. Charlie then quite proudly took him for a drive.

The machine slipped on a patch of ice on a turn and when it struck a tree, the windshield broke. Charlie very promptly apologized to his grandfather, who for years later still recalled the incident with pride because “Charlie showed respect to him and took responsibility for what he did and apologized”. Seven years later while Charlie and his brother were visiting their grandfather in the retirement home, knowing cancer had limited his time; he requested Charlie and his brothers be pallbearers. Months later they returned to honour his wish. Less than 4 months later they returned again to honour their nan.

If those grandparents were alive today, they would not believe Charlie to be capable of unprovoked violence. At the age of 16, Charlie became an uncle to the first baby girl in our family. Although he was particular about his appearance I never once saw him deny her his attention even if it meant sitting on the floor in his white pants and playing with dolls. Her first “kid” birthday party was at Charlie’s place. This year he could not attend her birthday party. One time Charlie and I were Christmas shopping when I saw a sign advertising a sale on ear piercing. I confided to him that I always wanted a second set.

When we were finished

shopping I had just enough money left to do it. So with his encouragement we entered the store. He insisted on holding my hand while I got my ears pierced. I saw and felt the tenderness from my teenage son. Today I only have to see him with his daughter to witness that loving tenderness and the desire to protect her from pain or harm. As Charlie’s father is an only child, his paternal grandparents have been a pivotal part of Charlie’s life. On two occasions he has lived with them for a number of months.

His common-law partner, his stepson and his daughter lived there with him the last time; about two and a half years ago. Charlie was his usual easy-going self. These grandparents have been in a state of disbelief this past year. They do continue to give him their love and support. My retired partner and I were visiting for a couple of months during the winter before last. My partner has been a silent stepfather to my sons for eighteen years. We were shocked to learn what had happened that fateful day in February. We extended our stay and agreed to sell our home in NL and return to NS.

We moved back before the end of June. A few months ago my sons hired me to work for them. It was wonderful to see each of them presenting their individual skills and talents. Charlie is intelligent and has a variety of knowledge and experiences he applies. He likes to bring forward any issues so they can be resolved. His organizational skills make for a more productive time and attest to his good work ethics. I was enthralled and proud, watching my three sons unite. We have spent much time together this past year and the family bond has grown incredibly stronger.

Charlie’s brothers and I could not be anymore supportive. Charlie is not a saint but he is a wonderful father, a loving son, brother, grandson, nephew and uncle. Respectfully, Sheila Baker [ 46 ] Mr. Whebby’s brother, Liam Whebby, wrote: My name is Liam Whebby and Charles is my brother. It’s[sic] unfortunate to have to be writing this letter but I think it’s necessary. When the police notified me of the incident, I had a hard time believing it. I couldn’t imagine him doing something like that. I knew Charles was going through a hard time with work, his girlfriend, Amy and he was worried about his daughter Ava.

I had tried to talk to him about it and bring his spirits up apparently, with no avail. Charlie as we call him is a social butterfly who enjoys talking to people and making jokes to get people laughing. He’s not one to want to focus on or talk about negative things. He likes working with his hands and had gone from construction and machine operating to h-vac, installing heat pumps which he was really getting into. He always seemed to be willing to come help me or my brother with a project or job especially if he got to run machines.

It’s been a real shock for the family but we’ve rallied to help him through this difficult time. Our best wishes go out to Travis. We’ve donated whatever we can to helping Charlie from providing bail, work, transportation and arrangement of visitation. Charlie’s main concern in all of this has been his daughter Ava. We’ve been lucky enough to be getting along great with Amy and her family and have had continued regular visitation. I think spending all of his time with his daughter when he wasn’t working, is mostly what has got him through this ordeal. Having a regular routine and staying busy helped too.

It was quite difficult for him to tell her she wouldn’t be able to visit him at home for a while. I’m very happy with how Charlie’s house arrest turned out. He went and spoke with a professional and said it was something he’d be open to continuing. He’s expressed concern over over the troubles he caused for his own and Travis’ family. He started out pretty upset and down trotted but seems to be much more of himself now. We spent a lot of time together, keeping busy with work and making goals and plans for the future.

I am going to continue bringing Ava over to see us, so she can play with my other niece and she says she has to come feed her pet fish we have acquired at my house. I would to finish off by saying that we will continue to support Charlie in the most beneficial ways that we can. Thanks for your time. Liam Whebby [ 47 ]

Section 718. 2(

a) of the Criminal Code requires the Court to consider the aggravating and mitigating factors surrounding the circumstances of the offence and the offender, Mr. Whebby. [ 48 ] Accordingly, there are several aggravating factors surrounding the offence which include:

a) Mr. Whebby’s actions are aggravated by the degree of deliberation involved in his actions, which include: i. making a conscious, deliberate and premeditated decision to engage in an extremely vicious, brutal, and violent attack. This is extremely aggravating.

b) Mr. Whebby returned to the residence, locked Ms. McKenzie in the basement, and then grabbed a 12-cm knife and entered the bedroom with the knife in his possession with the intent to stab the victim, Mr. Hooper;

c) Mr. Hooper was in bed, in a defenceless, helpless and vulnerable position;

d) Mr. Whebby straddled over Mr. Hooper and stabbed him twice in the neck, which is an extremely aggravating factor, that suggests a very high degree of blameworthiness, or culpability. Indeed, the act of stabbing Mr. Hooper twice in the neck with a 12-cm knife is extremely aggravating, as it is consistent with an intent to cause serious personal injury or death;

e) Mr. Hooper was almost killed by the stab wounds inflicted in such a fatal area, the neck;

f) The significant degree of force and great intensity with which the knife was applied is aggravating;

g) Mr. Hooper broke the knife as he tried to remove it from his neck;

h) Mr. Hooper sustained serious life-threatening injuries; and

i) This offence arises out of a domestic context which is deemed as a statutory aggravating factor under s. 718. 2(a)(ii) of the Criminal Code . Mr. Whebby also victimized his former partner by locking her in the basement before he attacked her new partner. [ 49 ] There are also several mitigating factors surrounding the offence and Mr. Whebby, which include the following:

a) Mr. Whebby has pleaded guilty to the offence, which prevented the expenditure of considerable Court cost and the necessity ofwitnesses testifying;

b) He has accepted responsibility for the offence, and expressed remorse;

c) Mr. Whebby has no previous convictions for violence. This is his first offence of violence, and he has never been incarcerated;

d) He is a youthful offender, who has potential for successful rehabilitation and reintegration into mainstream society following hisperiod of incarceration;

e) His PSR was positive and suggests that this offence was out of character for him; and

f) Mr. Whebby was subject to very restrictive bail conditions, including house arrest for a significant period of time. Crown and Defence Positions on Sentence [50] The Crown contends that the appropriate disposition for this offence and offender is six years of imprisonment because of theextreme aggravating factors surrounding the commission of the offence. The Crown also has asked for two ancillary orders; namely, aDNA order, and a firearm’s prohibition order pursuant to s. 109 of the Criminal Code. Given the nature of the offence, these orders aremandatory orders.

Also, the Crown has asked for an order of non-communication pursuant to s. 743.21 of the Criminal Code. [51] The Defence submits that a fit and appropriate sentence for Mr. Whebby is three to four years of imprisonment. The Defencesubmits that, while the assault was very serious, it was committed by a youthful offender, with no previous misconduct for violence. Thisis Mr. Whebby’s first period of incarceration, as a relatively youthful offender. The Relevant Statutory Provisions and Case Law [52] The Supreme Court of Canada has enunciated the correct approach to sentencing in R. v.

M. (C.A.), (SCC),[1996] 1 S.C.R. 500, and Parliament has enacted legislation which specifically sets out the purpose and principles of sentencing. Thus, itis these sources, and the common law jurisprudence, to which courts must turn in order to determine the proper sentence to impose. [53] It is trite to say that the imposition of a just and appropriate sentence can be difficult a task as any faced by a judge, as it was inthis specific case. [54] However, as difficult as the determination of a fit sentence can be, that process has a narrow focus.

It aims at imposing asentence which reflects the circumstances of the specific offence and the attributes of the individual offender.

Indeed, sentencing is notbased on group characteristics, but on the facts relating to the specific offence and offender as revealed by the evidence adduced in theproceedings. [55] Generally, it is recognized that a fit sentence is the product of the combined effects of the circumstances of the specific offencewith the unique attributes of the specific offender. [56] Although the sentencing process is highly contextual and necessarily an individualized process, the judge must also take intoaccount the nature of the offence, the victims, and the community.

As Lamer, C.J. (as he then was), noted in M.(C.A.), sentencingrequires an individualized focus, not only of the offender, but also of the victim and the community as well. [57] As stated, sentencing is governed by the specific purpose and general principles of sentencing provided for in the CriminalCode under s. 718. [58] In addition to complying with these principles of sentencing, dispositions or sentences must promote one or more of the sixobjectives identified in s. 718(a) - (f), inclusive. [59] The purpose of sentencing is achieved by blending the various objectives identified in s. 718(

a) to (f). The proper blending ofthose objectives depends upon the nature of the offence and the circumstances of the offender. Thus, the judge is often faced with thedifficult challenge of determining which objective, or combination thereof deserves priority. [60] Indeed, s. 718.1 directs that the sentence imposed must fit the offence and offender.

Section 718.1 constitutes the codificationof the fundamental principle of sentencing, the principle of proportionality, which is deeply rooted in notions of fairness and justice. [61] I have considered the fundamental purpose of sentencing as it is expressed in s. 718, of the Criminal Code, the fundamentalprinciple as stated in s. 718.1 of the Criminal Code, and the other sentencing principles as set out in 718.2 the Criminal Code, whichstipulates that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating tothe offence or offender. [62] I am also mindful of the principle of restraint which underlies the provisions of s. 718 of the Criminal Code. [63] Thus, in accordance with s. 726.2 of the Code, what follows are my reasons for imposing the sentence that I view as a “just andappropriate”, “a fit and proper sentence” for this offender and for this offence. [64] The Nova Scotia Court of Appeal has repeatedly and consistently emphasized that crimes of violence, particularly involvingweapons; such as knives, will be subject to sentences of incarceration.

[65] This has been the approach in Nova Scotia since the seminal decision of R. v. Perlin, [1977] N.S.J.No.548, at para. 8, whereinMacdonald J.A., in writing for the Court of Appeal, stated: [8] In my opinion, the overriding consideration in sentencing with respect to crimes of violence must be deterrence and it is for suchreason that save for exceptional cases substantial terms of imprisonment must be imposed. [66] More recently, in R. v.

Marsman, 2007 NSCA 65, MacDonald C.J.N.S., in delivering the judgement of the Nova Scotia Court ofAppeal, stated at para. 17 that: [17] In Canada, assault charges are organized along a continuum depending upon the severity of the attack. They range from the leastserious common assault to the ultimate “assault” - murder. Short of culpable homicide, aggravated assault represents the most seriousindictment.

It involves either wounding, maiming, disfiguring or the endangerment of life and carries a potential punishment of fourteenyears: … [67] Chief Justice MacDonald quoted with approval the comments of Cameron, J.A., in R. v. D.S.K., 2005 SKCA 18 ,[2005] S.J. No. 97, writing for the Saskatchewan Court of Appeal, who placed the seriousness of aggravated assault into context, in theseterms: [22] Judges are required, of course, to sentence offenders in accordance with the purpose, objectives and principles of sentencing foundin sections 718, 718.1 and 718.2 of the Criminal Code.

This includes the fundamental principle that “a sentence must be proportionate tothe gravity of the offence and the degree of responsibility of the offender”. [23] The gravity of an offence lies in the nature and comparative seriousness of the offence, in the circumstances of its commission, andin the harm caused. [24] Aggravated assault consists of wounding, maiming, disfiguring, or endangering the life of another person, according to section268(1) of the Code, and constitutes an indictable offence. That is the nature of the offence.

Some indication of the comparativeseriousness of the offence is apparent on the face of the provisions of the Criminal Code regarding various forms of assault. In thescheme of these provisions, assault is an offence against the person, and it ranges through common assault, assault causing bodily harm,sexual assault, aggravated assault, sexual assault with a weapon, and so on. [25] The first, second, and third of these are either indictable or

summary conviction offences, which are potentially punishable in theirindictable version by imprisonment of up to five years in the case of the first, and up to ten years in the case of the second and third. Thefourth, aggravated assault, is an indictable offence, potentially punishable by imprisonment of up to fourteen years. So is sexual assaultwith a weapon other than a firearm. In this lies Parliament’s general view of the comparative seriousness of aggravated assault. [68] In Nova Scotia, as in other jurisdictions, the range of sentences imposed for the offence of aggravated assault variesconsiderably.

The range of a sentence for aggravated assault is very broad. It extends from the suspension of the passing of a sentenceto several years of incarceration. [69] It should also be noted that ranges, however, are not set with firmness nor is the analysis of previous cases and a comparisonwith those cases the sole measure of the appropriate range. It is possible that the range should change, so as to widen or narrow, andchange in accordance with social circumstances. So, one cannot, in my view, be certain about the range merely from an examination ofprior cases. [70] As stated by out Court of Appeal, in R. v.

A.N., 2011 NSCA 21, at para. 34 of that decision: [34] Unless expressed in the Code, there is no universal range with fixed boundaries for all instances of an offence: R. v. M.(C.A.), para.92; R. v. McDonnell, para. 16; R. v. L.M., para. 36. The range moves sympathetically with the circumstances, and is proportionate to theCode's sentencing principles that include fundamentally the offence's gravity and the offender's culpability... Once the sentence occupiesthe range, is fit and is not clearly unreasonable, ... [71] It is worthy of note that in considering the parity principle pursuant to s. 718.2(

b) of the Criminal Code, I am mindful of whatthe Supreme Court of Canada stated in M. (C.A.), at para. 92: [92] It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime. ...

Sentencing is an inherentlyindividualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be afruitless exercise of academic abstraction. … [72] In light of these comments, I have considered the numerous cases submitted by counsel, as well as others in determining therange of sentence available for this type of offence of aggravated assault, which included the following cases: R. v. Marsman, 2007NSCA 65; R. v. Melvin; 2016 NSCA 52; R. v. Tourville; 2011 ONSC 1677; R. v. Thompson, 2007 NBQB 81; R. v. MacNeil, 2013NSPC 6; R. v.

Gaudet, [2009] N.S.J.No. 2189; R. v. Perrault, 2006 BCCA 215; R. v. Lawrence, (NSSC); R. v.Vickerson, (Ont. CA); R. v. Basilio; ; R. v. Blackmore, (PE SCAD); R. v.Thomas, 2015 NSCA 112; R. v. S.F.A.,2001 NSSC 13; R. v. McQuad, (NSCA); R. v. Jullian, 9(NSCA); R. v. Beals, an unreported decision of the NSPC. While these cases are helpful in determining the appropriate range, no twocases are exactly the same, as the circumstances of each case differs from that of the others. [73] I am mindful of Justice Hallett’s comments in R. v.

Muise, (1994), 1994 NSCA 198 , 94 C.C.C. (3d) 119, in writing forthe Nova Scotia Court of Appeal, at para. 83, he stated: [83] ... sentencing is not an exact science; it is anything but. It is the exercise of judgment taking into consideration relevant legalprinciples, the circumstances of the offence and the offender. The most that can be expected of a sentencing judge is to arrive at asentence that is within an acceptable range. …

[74] I will now briefly address some of the Nova Scotia cases which I have found particularly helpful. Before I do that let me saythat there is a plethora of aggravated assault cases in the case law in Nova Scotia, but I will only mention the following. [75] In Lawrence, Justice Goodfellow of the Nova Scotia Supreme Court, sentenced the accused after he was convicted by a jury forhaving committed an aggravated assault with a baseball bat. In that case, the 22 year old accused, struck the victim from behind with abaseball bat, thereby causing serious injury to the victim.

The accused had a prior recent record for assault and possession of a weapon. He had been in custody for three months. He was not remorseful and there was some evidence of attempts to intimidate witnesses. Hewas sentenced to 42 months’ imprisonment without parole eligibility under s. 741. 2 of the Criminal Code. [76] In Thomas, the Nova Scotia Court of Appeal upheld the imposition of a 66-month (5½ years) sentence for a very violent andunprovoked attack on a victim, which resulted in very serious injuries.

In that case, the accused and the victim bumped into one anotherand the accused pulled out a knife, stabbed the victim in the side, fractured a rib, and lacerated his spleen and his diaphragm. The victimwas rushed to the hospital where he underwent surgery. The victim sustained a permanent hole in his spleen and suffered somelimitations in his activity.

The accused had a lengthy criminal record for violent crime. [77] In Beals, a decision of this Court, I imposed a four-year sentence upon a 24-year old first offender, who had no criminal record,for having committed a serious aggravated assaulted by repeatedly stabbing the victim after having been provoked. The victim sustainedserious injuries. Notwithstanding the many positive attributes surrounding Mr. Beals’ personal antecedents, an extremely positive Pre-Sentence Report, and the support of his family, he was sentenced to four years.

In that case, there were numerous mitigating factors,which included the undisputed fact that Mr. Beals was suddenly and unexpectedly provoked by an intoxicated victim who hurled racialinsults at Mr. Beals. Mr. Beals’ culpability or degree of blameworthiness was reduced because of the undisputed fact that he wastaunted by racial slurs and epithets, which provoked him into an emotional rage whereby he assaulted the victim with the knife. [78] In SFA, the accused was sentenced on two counts of aggravated assault and one count of unlawful confinement.

In that case, theaccused, SFA, believing that DL had raped his girlfriend, pointed a sawed-off shotgun at DL several times, struck him in the face andelsewhere with the gun and his fists. The offender, SFA, made DL disrobe and pushed the gun into his rectum and cut his ankles. Healso struck DL's friend, MR, with the gun and threatened to kill him and his mother. DL and MR testified that their lives werepermanently altered by the attacks. SFA was 27 years old, and had a record of one previous sexual assault, theft under $5,000, causing adisturbance and a weapons offence.

He had completed one year of university and had spent 12.5 months in custody before obtainingbail. As well, he had been attending anger counselling sessions and had a supportive family. He had wanted to plead guilty from earlyon, but acceded to his lawyer's advice to learn about the Crown's case by participating in a preliminary hearing. Justice Cacchionesentenced SFA to six years concurrent on each count of aggravated assault and one year concurrent on the unlawful confinement. Hewas credited with two years for time already served.

This was a crime of vigilante terrorism and SFA still viewed himself as a protectorand enforcer. Specific deterrence remained necessary, although he was capable of rehabilitation and contributing to society. Aggravating factors included the degree of premeditation, involving MR in the pursuit, the fact that the offences occurred over anextended period, the use of a prohibited firearm, and the nature of the assaults and threats. Mitigating factors included the guilty plea,SFA's age, his psychological makeup and the positive Pre-sentence Report.

Nothing in the offences indicated that SFA attempted todisguise himself or his motives. [79] At paragraphs 54 to 60, Justice Cacchione refers to several cases: [54] In R. v. Silvea, [1988] N.S.J. No. 327 a 23 year old male committed an unprovoked aggravated assault on a pizza delivery driver. Mr. Newton noted that he was the crown prosecutor in that case. The victim was rendered a quadriplegic and a sentence of nine yearswas imposed. That sentence was upheld on appeal. [55] In R. v.

Johnson (1998), (BC CA), 131 C.C.C. (3d) 274 the British Columbia Court of Appeal upheld a sentenceof five years for charges of aggravated assault and assault with a weapon where the victim was pulled from a vehicle, beat about thehead with a baseball bat and left with injuries that caused a permanent disability. [56] I have considered as well Her Majesty the Queen v. James R. Purvis et al. an unreported decision of the Provincial Court datedJanuary 31st, 2000, and cited as case number 916464.

The Provincial Court Judge in that case imposed sentences of six, four, three andtwo years respectively on various accuseds for their involvement in an aggravated assault which left the victim in that case with seriousfacial injury, fractures to his skull and a permanent loss of eye sight. [57] I have also considered R. v. Chisholm, 1998 NSCA 155 , [1998] N.S.J. No. 274 in which our Court of Appeal affirms thatthe range of sentence for aggravated assault runs from suspended sentence to several years incarceration. [58] I have considered as well The Queen v. Julian, [1991] N.S.J.

No. 84 and the sentences imposed in what has been commonlyreferred to as the Darren Watts beating, McQuaid, Smith, Dixon et al.

Sentences of eight years were upheld in those particular cases foraggravated assaults where the victim was beaten and kicked by a group of assailants and left with some permanent serious brain injuries. [59] Having considered these and other cases not referred to at the present regarding the appropriate sentence for a charge of aggravatedassault, I can only conclude what is patently obvious and that is that the fixing of a sentence is a highly subjective exercise. [60] What is a just and appropriate sentence is really a delicate art which attempts to balance the societal goals of sentencing against themoral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and currentconditions of and in the community. [80] Lastly, I considered Justice Saunders’ observations in R. v.

Bryan, 2008 NSCA 119, mindful that he was dealing with anattempted murder case, where I am not here, as Mr. Whebby is being sentenced for having committed aggravated assault. JusticeSaunders stated, at para. 59-60: [59] Finally, and as recognized by Judge Murphy, this crime was committed against a spouse. The appellant's actions violated theelement of trust that is implicit in such a relationship. Persons who live together in a domestic context deserve the community's

protection from violence and abuse in their homes. Similarly, individuals who leave such romantic relationships should be free to get on with their lives without fear of violence, abuse or subjection at the hands of jealous ex-lovers. The law must do its best to provide such protection.

Accordingly, sentences imposed in cases involving domestic violence must reflect the seriousness of the offence, the community's unequivocal denunciation of such conduct, and lead to a sufficiently lengthy period of imprisonment as will provide a specific deterrent to the offender and a general deterrent to other persons who may be similarly disposed. [60] For all of these reasons I would direct that for a planned and deliberate attempted murder committed in the context of a domestic relationship, the proper sentence should result in a term of imprisonment ranging from 8 years to life.

Unless there are truly exceptional circumstances, the sentencing starting point upon conviction for attempted murder in a domestic relationship will be 8 years. [ 81 ] While I am mindful that Mr. Whebby committed the aggravated assault on Mr. Hooper, not Ms. McKenzie, it occurred in her residence and Mr.

Hooper was involved in a relationship with her at that time. [ 82 ] In my view, the aggravating circumstances surrounding this offence places the present case towards a sentence range of five years or more, particularly when one considers that the premeditation, the malice of forethought involved in this, and that the circumstances arose from a domestic context. [ 83 ] Again, I realize that I am not sentencing him for attempted murder, but for a serious aggravated assault. [ 84 ] His deliberate and calculated acts, which included locking his former partner in the basement, arming himself with a knife and then attacking a helpless, defenceless victim by straddling him while he lay in bed, and twice, stabbing him in the neck, is extremely aggravating and distinguishes this case from the cases where an accused acting under the stress of provocation, spontaneously reacts and assaults someone contemporaneously with the insult or assault. [ 85 ] Put differently, what distinguishes this case from the Beals case is the significance of the premeditation and viciousness of the unprovoked assault, which has arisen from a domestic context.

Unlike the Beals case, in this case Mr. Whebby’s actions were absolutely unnecessary. Mr. Hooper did nothing to him.

In my view, society’s denunciation is greater where the victim is vulnerable and further greater where a weapon was used. [ 86 ] In fact, if one could put these types of offences on a scale then it might be fair to say that the aggravating circumstances of this case, which includes the degree of premeditation and the degree of force used, as well as the resulting injuries inflicted, would place it at the higher end of the range. [ 87 ] Pursuant to s. 719 of the Criminal Code , I have also considered that fact that Mr.

Whebby was subject to very stringent conditions of release, which included house arrest for a significant period of time. As stated in R. v. Knockwood, 2009 NSCA 98 , at para. 29 , a decision of our Court of Appeal, the impact of release conditions may be considered or “put into the mix”, together with all other mitigating factors, in arriving at a fit sentence. [ 88 ] In reaching a fit sentence for these offences and Mr.

Whebby, I have also considered the principle of restraint which underlies the provisions contained in s. 718 of the Criminal Code. [ 89 ] In essence, each case appears to turn very much on its own unique set of circumstances. Thus, it is often a difficult challenge to apply the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

However, what emerges from the case law are several significant factors that are often considered and applied in the determination of a fit and just disposition, including the following: ⋅ the degree of force used; ⋅ the victim’s injuries, the impact upon the victim or victims; ⋅ the degree of premeditation; ⋅ the number of people involved; ⋅ the offender’s criminal record and propensity for violence; ⋅ the frequency of the offence in the community; ⋅ the degree of provocation; ⋅ elements of self-defence; ⋅ intoxication to some degree; ⋅ motive; ⋅ the victim’s conduct, character and lifestyle; ⋅ the degree of violence used; ⋅ the character of the accused; ⋅ the age of the accused; ⋅ the support of family and community members;

⋅ the post-arrest conduct of the accused; ⋅ remand time or the conditions of bail; ⋅ the expression of remorse; ⋅ the acceptance of responsibility, a guilty plea; and ⋅ a positive or negative pre-sentence report. [90] This list is not meant to be exhaustive, but a mere demonstration of the myriad of factors which a court must consider infashioning a just and appropriate sentence, as the appropriateness of the sentence is the product of the combined effects of thecircumstances of the specific offence, and with the unique attributes of the specific offender. [91] As stated, the purpose of sentencing is to impose “just sanctions.” A “just sanction” is one that is deserved.

A fit sentence inthat context is one that is to commensurate with the gravity of the offence and the moral blameworthiness of the offender. In R. v. Proulx,[2001] 1 SCR 61, at para. 82 Chief Justice Lamer reaffirmed that principle wherein he stated, at para. 82: [82] … Proportionality requires an examination of the specific circumstances of both the offender and the offence so that the‘punishment fits the crime”. [92] Disparity in sentencing for similar offences is a natural consequence of the fact that the sentence must fit not only the offencebut also the offender. [93] The Ontario Court of Appeal in R. v.

Priest, (1996), (ON CA), 110 C.C.C. (3d) 289, at p. 298, expressed theview that proportionality ensures that an individual is not sacrificed “for sake of the common good”. [94] An appropriate or reasonable disposition will depend on circumstances of the case in the context of all relevant considerations,which includes not only the personal circumstances of the offender and the degree of responsibility of the offender for the offence, butalso the gravity of the offence itself. [95] Proportionality means that the sentence must be proportionate to the gravity of the offence and the moral blameworthiness ofthe offender.

This principle must also take into account the presence of any aggravating or mitigating circumstances including thoselisted in s. 718.2(a). [96] Parity means that the sentence must be similar to those sentences imposed for similar offences upon similarly situated offenders.

This necessarily requires a review of the sentences approved or imposed by other Trial Courts in this province, our Appeal Court, andthe Appeal Court of other provinces. [97] Our Appeal Court and those of other provinces have repeatedly stated that general deterrence and denunciation are theobjectives to be emphasized in the offences of violence, particularly those violent offences involving the use of weapons, such as knives. [98] This is not to say that the other objectives are not important or are not to be considered; however, I believe that because of theview which our courts and our society take of these crimes, these objectives must be the primary focus.

A sentence which is undulylenient can provide neither the necessary deterrence or denunciation required to meet the fundamental purpose of sentencing. [99] I am mindful, however, that as the gravity of the offence become more serious, such as here, particularly, in crimes of violence,the mitigating effects of age decrease. [100] In the present case, Mr. Whebby is only 27 years of age, having been born on April 12, 1990. He is a youthful offender. Thus,the principle of restraint must be considered.

Section 718.2(

d) provides that an offender should not be deprived of liberty if a lessrestrictive sanction may be appropriate. It requires a sentencing judge to consider all available sanctions other than imprisonment thatare reasonable in the circumstances. [101] These provisions exist to discourage imprisonment when another less onerous sanction will also satisfy the relevant sentencingprinciples. Restraint means that prison is the sanction of last resort.

Restraint also means that sentencing courts should seek the leastintrusive sentence and the lowest quantum that will achieve the overall purpose of being an appropriate and just disposition. [102] However, even in the most serious violent offences, courts have been sensitive to the principle of restraint in cases involvingyouthful offenders; for example, in the decision of the Nova Scotia Court of Appeal in R. v. Colley, (NS CA), [1991]N.S.J.

No. 62, wherein the Court endorsed the notion that “if the need to protect society can be well served by a shorter sentence as by alonger one, the shorter is to be preferred.” Similarly, the Ontario Court of Appeal in Priest has expressed the view, at para. 23 that: [23] Even if a custodial sentence was appropriate in this case, it is a well-established principle of sentencing laid down by this court thata first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather thansolely for the purpose of general deterrence. … [103] This sentiment is often expressed in cases involving youthful offenders who have acted out of character in committing seriousviolent offences, such as in the present case. [104] As stated, given that sentencing is highly contextual and necessarily an individualized process, the Court must impose a sentencewhich addresses the two elements of proportionality; that is, the circumstances of the offence and the circumstances of the offender, andthereby reach a sentence that fits not only the offence but also the offender.

The sentencing judge must fashion a disposition among thelimited options available which take both sides of the proportionality inquiry into account.

[105] Having carefully considered and weighed all of the aggravating and mitigating factors earlier identified in this case against theseriousness of the offence and the normal range of sentence for this specific offence and offender, I am of the view that a substantialfederal period of incarceration is a fit and proper punishment for this offence and offender, Mr.

Whebby. [106] Notwithstanding the mitigating factors present in this case, this is a very serious violent crime involving the use of a weapon,which requires an appropriate disposition that effectively emphasizes the principles of deterrence and denunciation, while at the sametime balancing the need to ensure the rehabilitation of Mr. Whebby. [107] A review of the case law, which has considered and applied the statutory purpose and principles of sentencing suggests asubstantial period of incarceration given the seriousness of the crime is “unavoidable”.

Indeed, this is one of those serious cases where itis necessary to separate a youthful offender for a significant period of incarceration because of the seriousness of the crime committed. [108] As stated, the mitigating factors in Mr.

Whebby’s case have been considered and include: his age; absence of a criminal recordfor violence; his previous good character; his guilty plea and acceptance of responsibility; his positive PSR; his sincere expression ofremorse; his strong potential for rehabilitation; his family support; and his liberty had been significantly restricted while on bail for anextended period of time. [109] I have also considered the aggravating factors, which include: the deliberate and premeditated use of a knife in committing avicious and relentless assault upon a defenceless and helpless person; the extent of the injuries; and the fact that the offence arose from adomestic context. [110] A factor which mitigates the length of a sentence is the fact that this would be Mr.

Whebby’s first incarceration. In R. v. Butler,2008 NSCA 102, the Nova Scotia Court of Appeal referenced its approval in R. v. Riley, 1996 NSCA 112 , [1996] N.S.J. No.183 at paragraph 26 of a passage from Ruby on Sentencing, 4th ed at page 204: The proper sentencing of first offenders requires that the sentencing judge exhaust all other possibilities before concluding thatimprisonment is required ... thus, in examining the possibility of a custodial term, the court should ask whether it is “the only appropriatesentence to be imposed”. ...

The notion that a first offender should be treated leniently in the hope that lesser punishment would beeffective has been characterized as “doubly so” in the case of youthful first offenders.

There is a presumption of fact that one who has notoffended previously is capable of reform and not to be dealt with accordingly. [111] Having reviewed all the cases, including the ones provided to me by counsel, there can be no question that if this very seriousassault had been perpetrated by an older offender with a prior record for violence, a lengthy term of imprisonment in the double digitswould be warranted in order to protect the public. [112] As stated, I have carefully considered that sentences for youthful offenders should be directed at rehabilitation and reformation,not only general deterrence and denunciation.

However, in cases of serious violence, such as the assault perpetrated by Mr. Whebbyagainst Mr. Hooper, requires a sentence which emphasizes denunciation and deterrence. Thus, given the gravity of the offence, and thedegree of Mr. Whebby’s responsibility in such circumstances, deterrence and separation from society must be reflected in the sentenceimposed. [113] I am mindful that the rehabilitation of Mr. Whebby must not be lost in the sentencing calculus or role in fixing the length of anyprison term.

The fact that the sentence being imposed is the first sentence of incarceration is also of some significance. [114] In my view, based on all of the circumstances surrounding the offence and offender, Mr. Whebby, while he has never beensentenced to a term of imprisonment, one is necessary in this case. While it is necessary because of the seriousness and gravity of theoffence, and the degree of Mr.

Whebby’s responsibility, it is not necessary or appropriate to separate him from society for too long as todestroy any chance of rehabilitation. [115] Having considered all the circumstances surrounding the offence and the degree of responsibility of Mr. Whebby, and weighingand balancing the purpose and principles of sentencing that I am required to consider, I have arrived at the conclusion that the fit andproper sentence in this case is one of five years for the aggravated assault on Mr. Hooper.

The imposition of five years, in my view,would not be disproportionate to the gravity of the offence, as it strikes a just proportion between the gravity of the offence and thedegree of responsibility of the offender, Mr.

Whebby. [116] As stated, in the present case, a period of imprisonment is required, given the gravity, the seriousness of the offence, and helplessvictim. [117] A troubling feature of this case is that a young man of previous good character committed such an egregious, shocking act ofviolence. [118] While a custodial disposition will address society’s condemnation of the severity and gravity of the offence, a custodialdisposition of five years, will also fulfill the objectives of rehabilitating, restoring and promoting a sense of responsibility in Mr.Whebby. [119] In my view, sentencing relatively youthful offenders with previous good character such as Mr.

Whebby requires carefulconsideration of their unique and individual characteristics, as the protection of the public in the long-term is best served by theimposition of a sentence which promotes the fundamental purpose of sentencing and appropriately balances all of the principles ofsentencing, while emphasizing the principles of deterrence and denunciation, albeit not to the detriment of rehabilitation. Thus, theimposition of a custodial sentence of five years strikes a just proportion between the offence and the offender. [120] Mr. Whebby, would you please stand sir. [121] Mr.

Whebby, for all the reasons that I articulated here today, this Court sentences you to five years imprisonment for the offence

which you committed. Mr. Whebby, you are a young man. You will presumably receive the benefit of parole during your sentence and I hope you take advantage of it. Your brother is here. Your family is supporting you. You have potential to become a very productive member of the community again. I hope that is not lost on you. I accept your expression of remorse and your acceptance of responsibility and I hope that you participate, in a meaningful way, in any treatment or counselling program that is offered to you that you feel is necessary to assist you in your rehabilitation.

That is the sentence of the Court. [ 122 ] With respect to the s. 109 order, the Court makes the order that you are prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance for a period of ten years.

I am not satisfied nor have I been persuaded that a life term of imposition for an offender who has no previous violence in their record, notwithstanding the seriousness of this offence, is appropriate in the circumstances. [ 123 ] The second Order I will impose is the DNA Order and that can be done today. [ 124 ] An order pursuant to s. 743.2(1) of the Criminal Code will be granted.

You are prohibited from communicating, directly or indirectly, except through legal counsel, with Travis Hooper during the custodial period of your sentence. [ 125 ] There is a victim surcharge, that I must impose in law, in this case it would be of $200.00 to be paid on or before June 15, 2027. [ 126 ] Before we conclude, Mr. Whebby, I wish you all the best in terms of your rehabilitation. Keep in mind that your mother and brother, in particular, and your family are supporting you. You have something to look forward to in the future.

You have accepted responsibility and now you are going to move forward and hopefully things will work out for you. [ 127 ] Remaining counts are dismissed for want of prosecution. Frank P. Hoskins, J.P.C.