Her Majesty the Queen - v. -, 2010 SKPC 044

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2010 SKPC 044 Date: April 27, 2010 Information: 40559045 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Stacey Vincent Chaboyer Appearing: M. Longworth For the Crown D. Blenner-Hassett For the Accused JUDGMENT RE: SENTENCE S. D. LOEWEN, J [ 1 ] After a trial I convicted the accused of four counts in a four count information.

Those charges are an assault on Andrea Corrigal, confining Andrea Corrigal, uttering threats to Andrea Corrigal, and disobeying a Court of Queen’s Bench Order. All offences occurred on June 8, 2008. [ 2 ] Extensive reasons were given for having convicted the accused and form part of the oral record of the Court. I don’t intend to repeat those reasons here, but suffice it to say that the accused, having given evidence, was disbelieved by me, and the aggravating circumstances as provided by the complainant were accepted. This led to the convictions referred to above.

[ 3 ] The accused, having been convicted, requested of the Court that I order a pre-sentence report. That issue was adjourned to today’s date to give me time to consider whether a pre-sentence report would be appropriate.

If so, then the matter could be adjourned further, and if not, then the matter would proceed to sentence. [ 4 ] For reasons that follow it is obvious that I am not of the view that a pre-sentence report is necessary or even helpful, and I intend on proceeding to sentencing today. [ 5 ] In speaking to sentence, the Crown filed a criminal record that included a short record as a youth that began in 1989, but more particularly, a record as an adult that included nine prior convictions for assaults.

That record will be reviewed further in more detail, however, it should be noted that the majority of the assaults in question were assaults against women. [ 6 ] The portion of the accused’s record that came as a surprise to me were convictions from January the 5 th of this year from Cumberland House, Saskatchewan. Those convictions were for an assault causing bodily harm on a male, and yet another common assault upon the same complainant as in the present case. As a result, I ordered copies of the informations from the sentencing that occurred in Cumberland House and the endorsements on both those informations.

Both the Crown and defence were provided with copies of that material. The accused received a one year conditional sentence order and a further six month concurrent conditional sentence for those assaults. [ 7 ] As well, I received a copy of the sentencing submissions and decision of the Learned Provincial Court Judge that sentenced the accused. Again, copies of those submissions were provided to the Crown and defence. [ 8 ] There were two significant differences between the sentencing submissions provided to my brother judge in Cumberland House and the facts that I am dealing with here today.

Had my colleague known of them, that sentence might well have been different. [ 9 ] First, the accused’s criminal record in Cumberland House made reference to only three assault convictions, all of which were common assaults. The last assault alleged and accepted by the accused in that sentencing was in 2002. [ 10 ] The second significant difference is that in the accused’s submissions in Cumberland House, he acknowledged that there was a proceeding in Prince Albert involving the same Ms.

Corrigal, however, he minimized that proceeding and in some respects misrepresented it to the sentencing judge in Cumberland House. The primary misrepresentation that he made, through his counsel, was a representation to the Court that the witness, Andrea Corrigal, in our proceeding in Prince Albert, had failed to appear at his trial some time before Christmas in 2009, and that the matter was adjourned for trial to March 24, 2010.

This left the impression with me when I listened to the submissions, (and I’m sure the judge in Cumberland House would have had a similar impression), that the prosecution in this matter was in significant doubt. [ 11 ] For the record, in the present charges, by January of 2010, all of the evidence of the complainant was completed on November 2, 2009. There was no need whatsoever for her to appear at any court date thereafter, and certainly not some time before Christmas of 2009.

By the time he was sentenced in Cumberland House the Crown’s evidence was in, except for some evidence from a police officer. [ 12 ] A review of the court record in my case discloses that Andrea Corrigal appeared every time that she was required to and it is indeed the accused who had failed to appear a number of times for his proceeding before the Court. [ 13 ] Again, on reviewing the court record in this matter, the accused absented himself, and had warrants issued for his arrest on three separate occasions.

On July 24, 2008, a warrant was issued for his arrest and the endorsement read that he did not have a ride to Court on that date. The accused at that time had a lawyer who brought the matter forward to December 15, 2008, so that he could apply to withdraw. His lawyer indicated that the accused knew of the time and place, however, he didn’t appear, and leave to withdraw was granted. [ 14 ] The trial that had been set on August 27, 2008, was set to begin January 5, 2009.

On that occasion the Crown witnesses were all present and the accused failed to appear and a warrant was issued for his arrest a second time. [ 15 ] On January 12, 2009, Robin Ermine, a court worker appeared for the accused, the warrant was expunged, and it was

adjourned over for trial to May 14, 2009. [ 16 ] On May 14, 2009 it was adjourned further by consent and on application by the Crown I appointed a lawyer to cross-examine the Crown witness as she was in a former common-law relationship with the accused. [ 17 ] The trial proceeded on November 2, 2009. Evidence was called, consisting of the evidence of Ms. Corrigal. The accused was present, represented by Mr. Blenner-Hassett. The trial did not finish on that date, and therefore it was adjourned to December 1, 2009 for continuation.

On December 1, 2009 a warrant for the accused’s arrest was issued for the third time, as he failed to appear when required to do so.

This is very clearly not the picture that the accused painted for the sentencing judge in Cumberland House in January of this year. [ 18 ] In any event, the matter was adjourned to March 26, 2010 for continuation, and the Crown concluded its case on that date and the accused gave evidence, which as indicated above, I rejected, and the accused was convicted after an adjournment, on April 22. [ 19 ] Unlike the criminal record that was presented on January 5 th of this year to the sentencing judge in Cumberland House, the accused’s record in this matter consisted of nine prior assault convictions.

Those assaults are from August 1994, March 1995, February 2001, March 2002, October 2002 (2 assaults), March 2005 and January 5, 2010 (2 assaults as referred to above). Those latter assaults are acknowledged by the accused to have occurred against Ms. Corrigal in November 2008, and the second assault against Mr. Dussion in January 2009. [ 20 ] The accused is before me awaiting sentence on his tenth assault with two further violent offences, one of confining Ms.

Corrigal, and the other of threatening her life. [ 21 ] Returning to the issue of whether or not a pre-sentence report would be appropriate, as indicated above I do not believe that it is in this case. One of the primary purposes of a pre-sentence report is to explore sentencing options. The accused has accumulated, in fifteen years, a criminal record consisting of twelve violent offences, he ignores court orders, he has misled the Court and has generally shown that he is not to be trusted on a community-based disposition.

In my view, even though I am directed to look at all other sentencing options, the only appropriate sentence in these circumstances has to emphasize deterrence and denunciation, which essentially is a term of imprisonment. [ 22 ] The balancing that a sentencing Court needs to do in considering an appropriate sentence is to consider all of the aggravating factors against those that might mitigate. [ 23 ] In this case the aggravating factors are: 1. That the victim was a common-law spouse of the accused; 2.

The accused had been recently ordered to have no contact with the victim by way of an order under The Victims of Domestic Violence Act ; 3. The assault occurred over a lengthy period of time, perhaps as long as two hours; 4. The accused has shown no remorse for his actions, and indeed blames the victim. Examples of that were that he suggested she had started the assault and further that “she would have nothing without me”; 5. The victim feared for her life as a result of the assault; 6. The assault and confinement were accompanied by threats of death that the victim believed, and; 7.

The accused’s significant criminal record. [ 24 ] In looking for mitigating factors, there appear to be virtually none. The only thing in the accused’s personal history that is relevant, from what I could tell, on the sentencing, is that he has held a job for in excess of ten years. That may be something that shows an accomplishment on his behalf, but during that last ten years of work, the accused has accumulated a criminal record consisting of some eight further violent offences. Indeed it is likely that the accused received some of the lenient sentences that he did because of this

factor, and in my view, it is no longer a significant factor to consider. To demonstrate to this accused, and others in like circumstances, that this type of repeated conduct will merit serious consequences, a significant period of incarceration is appropriate. [ 25 ] Turning to the issue of what an appropriate length of incarceration would be, a review of the endorsements shows that the Crown originally took the position that count #2 was indictable by law.

Indeed that is not the case, and on June 9, 2008, the Crown elected to proceed summarily. [ 26 ] Therefore the maximum sentence available for this accused on count #1 would be six months; count #2 eighteen months; count #3 eighteen months; and count #4 six months. [ 27 ] It is indeed a rare occasion when a Court imposes a maximum sentence of incarceration as is available to it. It is however in my view, in these circumstances, a situation where nothing less than the maximum available for sentencing would be appropriate for this accused.

I am therefore sentencing the accused accordingly to six, eighteen, eighteen, and six months on all of these charges. In the interests of totality of sentencing I am going to make all of those sentences concurrent one to the other. [ 28 ] On information ending 0738, a charge of the accused failing to appear in Court on January 5, 2009, a guilty plea was entered.

I will as well sentence the accused to a further sentence of two months incarceration, again concurrent to any other sentence of even date. [ 29 ] As the accused is presently on a conditional sentence order my sentence will be consecutive to it or any other sentence. By operation of law, s. 742.7(1), the conditional sentence order he is presently on will be suspended during the period of his incarceration on these matters. ________________________ S. D. Loewen, J