R. v. Dunn, 2011 NBCA 19

COURT OF APPEAL OF NEW BRUNSWICK 48-10-CA HER MAJESTY THE QUEEN APPELLANT - and - BURTIS JOSEPH DUNN RESPONDENT SA MAJESTÉ LA REINE APPELANTE - et - BURTIS JOSEPH DUNN INTIMÉ R. v. Dunn, 2011 NBCA 19 R. c.

Dunn, 2011 NBCA 19 CORAM: The Honourable Justice Deschênes The Honourable Justice Richard The Honourable Justice Bell CORAM : L’honorable jug e Deschênes L’honorable juge Richard L’honorable juge Bell Appeal from a decision of the Provincial Court: March 16, 2010 Appel d’une décision de la Cour provinciale : Le 16 mars 2010 History of the 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: September 23, 2010 Appel entendu : Le 23 septembre 2010 Judgment rendered March 17, 2011 Jugement rendu : Le 17 mars 2011 Reasons for judgment by: The Honourable Justice Richard Motifs de jugement : L’honorable juge Richard

Concurred in by: The Honourable Justice Deschênes The Honourable Justice Bell Souscrivent aux motifs : L’honorable juge Deschênes L’honorable juge Bell Counsel at the hearing: For the appellant: Cameron H. Gunn For the respondent: M. Aloysius Hayes Avocats à l’audience : Pour l’appelante : Cameron H. Gunn Pour l’intimé : M. Aloysius Hayes THE COURT The appeal is allowed. The sentence imposed is varied to a three-month term of imprisonment followed by probation for 15 months. However, service of the sentence of incarceration is stayed. LA COUR L’appel est accueilli.

La peine infligée est remplacée par une peine de trois mois d’emprisonnement suivie d’une période de probation de 15 mois. Toutefois, il est sursis à l’exécution de la peine d’incarcération. The judgment of the Court was delivered by RICHARD J.A. I. Introduction [ 1 ] An unprovoked and vicious assault on an unsuspecting victim, resulting in significant injuries requiring hospitalization, is a serious personal injury offence that courts have an obligation to denounce and deter. Since 2007, conditional sentences no longer feature among the tools with which courts can seek to attain those objectives.

With the enactment of

An Act to amend the Criminal Code (conditional sentence of imprisonment) , R.S.C. 2007, c. 12, Parliament determined that conditional sentences are no longer appropriate for serious personal injury offences. The message is loud and clear: a community-based sentence is not the means by which Parliament generally expects courts to denounce and deter certain types of offences. Although neither Parliament nor jurisprudence has decreed a mandatory minimum punishment for all serious personal injury offences, the elimination of conditional sentences for such offences, as this case illustrates, significantly narrows the options when deterrence and denunciation must feature as predominant objectives.

[ 2 ] On August 15, 2008, Burtis Joseph Dunn viciously beat Christopher Allison Arbeau into unconsciousness, causing him to suffer injuries that required his hospitalization for five days. On the date of trial, Mr. Dunn pleaded guilty to assault causing bodily harm (s. 267( b )). The sentencing judge thought a conditional sentence of three months would have been an appropriate sentence in the circumstances, but he acknowledged this option was not available to him. The judge therefore suspended the imposition of sentence and ordered Mr.

Dunn to comply with the conditions of a probation order, which included a curfew for the first three months. Effectively, the judge sought to accomplish with a probation order that which Parliament had said was no longer available through a conditional sentence. The Attorney General seeks leave to appeal on the ground the sentencing judge committed an error in principle. I agree leave to appeal should be granted and the appeal allowed. II.

Background [ 3 ] The trial judge summarized the facts of this case as follows: […] The defendant was 19 years of age and was on his summer break from a two year electrical engineering technology program at the New Brunswick Community College in Moncton, New Brunswick at the time of this offence. He and the victim knew each other from school and both were attending a graduation party, which appears to have been hosted by a parent or parents of one of the graduates. There was a lot of drinking going on at the party and the defendant had consumed at least eight beers himself.

At some point in the evening he noticed that someone had stolen his remaining beers and was told by others at the party that the victim, Mr. Arbeau, was the culprit. The defendant at one point in the evening confronted Mr. Arbeau and accused him of this theft but no violence ensued at that point. The defendant was quite angry at Arbeau and at some point in the evening as well had expressed an intention to fight with him to two other persons in attendance at the party. [...] [S]ome time later in the evening, the victim, Mr. Arbeau, went to his vehicle to make his departure from this party.

The defendant saw him and approached him from behind and then beat him quite viciously into unconsciousness. [...] As a result of the beating Arbeau was hospitalized for five days and he describes his injuries in the victim impact statement as “I had stitches under my left eye, both my eyes were completely blood red for three weeks after the assault. My right eye was swollen shut. [...] My whole face was badly swollen for a while. My cell phone was broken in half, my tooth was broken [...] my glasses [were broken]” [...] and the Crown also added during its submission that Mr.

Arbeau had suffered a fractured nose during the assault. […] [ 4 ] After the assault, Mr. Dunn realized Mr. Arbeau was hurt, so he approached the hostess of the party, apologized for what he had done and sought assistance for Mr. Arbeau. [ 5 ] At the sentencing hearing, counsel for the Attorney General submitted the principles of sentencing would be met with a sentence of incarceration ranging between one and two years. On the other hand, Defence counsel emphasized rehabilitation and sought a conditional sentence, arguing that the 2007 amendments did not apply to the offence with which Mr. Dunn was charged.

Defence counsel relied on R. v. Malley , 2008 NBQB 193 , 335 N.B.R. (2d) 282 , where, in the same community, Baird J. imposed a 6- month conditional sentence in a situation featuring some similarities with the present one. [ 6 ] In Malley , a 21-year-old first offender, who had returned from military service suffering from post-traumatic stress disorder, was convicted of assault causing bodily harm. The incident occurred in a bar, involved excessive consumption of alcohol, and resulted in serious injuries to the victim.

In passing sentence, Baird J. considered the objectives and principles of sentencing, weighed the aggravating and mitigating factors, and settled upon a 6-month conditional sentence. In doing so, she noted and applied the decision of the Supreme Court in R. v. Proulx , 2000 SCC 5 , [2000] 1 S.C.R. 61 , and stated as follows: The conditional sentencing regime is a tool which allows judges to recognize the severity of offences by imposing a period of incarceration but ordering that that incarceration be served in the community as opposed to an institutional setting.

It is to be distinguished from a probationary measure and here I'm quoting from R. v. Proulx at paragraph 127 , where the Court said: Probation is primarily a rehabilitative sentencing tool and by contrast, parliament intended conditional sentences to include both punitive and rehabilitative aspects. I do not believe that a suspended sentence is appropriate in this case. I accept and I believe that in a case of indictable assault that there has to be a punitive recognition and a punitive sentence but also a sentence which addresses the necessity to rehabilitate the offender.

As I said before, rehabilitation in an institutional setting under these circumstances is not in the best interests of the community or of this

particular accused. And I'm going to read as well from paragraph 127 in Proulx : Generally, a conditional sentence will be better than incarceration at achieving restorative objectives of rehabilitation, reparations to the victim and the community, and promotion of a sense of responsibility in the offender and acknowledgement of the harm done to the victim and the community. [paras.18-20] [ 7 ] Applying these principles, Baird J. found it necessary to denounce the unlawful conduct, deter others from committing similar offences and promote in the offender a sense of responsibility for the harm done to the victim.

She concluded that these objectives could be achieved with a conditional sentence. [ 8 ] In the present case, the sentencing judge acknowledged the Malley case was a useful guide for the parity principle. However, he distinguished the case on the basis that Baird J. had at her disposal the availability of a conditional sentence.

Considering this distinction, the sentencing judge determined as follows: […] I am of the view that if it were available to me a conditional sentence of three months followed by a period of probation would be consistent with both the [parity] principle and with satisfaction of the objectives enumerated but this sanction is not available to the defendant.

In the particular circumstances of this case the uncharacteristic behaviour of the defendant, his immediate and sincere remorse, his efforts to mitigate the harm he had caused and his acceptance of responsibility at an early stage coupled with the severe consequences to his education from an incarceration should it be imposed at this crucial time, I give some consideration to the principle that all available sanctions other than imprisonment should be considered for all offenders as enunciated in Section718.2 (

a) of the Code . Returning to the fundamental sentencing objectives the defendant in my view is not dangerous, his deterrence, his personal deterrence is assured and it is not necessary to separate him from society. He has accepted his responsibility and acknowledged the harm he’s caused. His remorse is genuine and was immediate. The sentence should serve to meet the remaining objectives of denunciation, general deterrence, rehabilitating the accused and providing reparations to the victim.

The rehabilitation of the defendant is best assured by a sentence which allows him to complete his Electrical Engineering Technology Program in June of this year. While not perfect I believe the objectives of denunciation and general deterrence can be met by imposing curfews, which, although I don’t have the power to punish in a probation order, would in effect amount to house arrest for part of his term. [ 9 ] Having stated this, the sentencing judge suspended the imposition of sentence and ordered Mr. Dunn to comply with the conditions of a probation order for 15 months.

Other than the usual conditions attached to a probation order, the judge ordered Mr. Dunn to abstain from the consumption of alcohol, to be assessed for alcohol dependency or abuse and follow any recommended treatment, to pay restitution of $500.00 in order to compensate Mr. Arbeau for his dental expenses and the damage to both his glasses and cell phone, and, for the first three months of his probation, to observe a strict curfew. The curfew required Mr.

Dunn to remain in his residence from 10:00 p.m. until 6:00 a.m. from Monday to Friday, and from 10:00 p.m. on Friday until 6:00 a.m. on Monday, except for three hours Saturday morning to attend to grocery shopping or other personal matters, and for periods of time on Sunday, as approved by his probation officer, to attend religious services. The judge also made ancillary orders under s. 109(2) and s. 487.051 of the Criminal Code . III.

Issues on Appeal [ 10 ] The Attorney General seeks leave to appeal on the grounds the sentencing judge imposed a sentence that was manifestly inadequate and clearly unreasonable in the circumstances, or on the grounds the judge erred in failing to adequately consider the principles of sentencing.

[11] As stated earlier, I would grant leave to appeal. I would allow the appeal on the second ground of appeal. IV. Analysis [12] As in all sentencing appeals, my analysis begins with the identification of what is now a well-known principle: appellate courts owe great deference to sentencing judges and must not interfere with sentences passed “unless at least one of thefollowing questions is answered affirmatively:

(1) Is the sentence the result of an error of law?

(2) Did the sentencing judge err inprinciple in the exercise of his or her discretion?

(3) Is the sentence clearly unreasonable having regard to the fundamental purpose andobjectives of sentencing (s. 718), as well as the principles enunciated in sections 718.1 and 718.2 of the Criminal Code?” (R. v. LeBlanc(G.A.), 2003 NBCA 75, 264 N.B.R. (2d) 341 at para. 17). A recent review of the principles that govern appellate review of sentencescan be found in R. v. Steeves, 2010 NBCA 57, 360 N.B.R. (2d) 88, per Drapeau C.J.N.B., at paras. 19-28. [13] But for one issue, deference would, in my respectful view, be in order to resolve this appeal.

The sentencingjudge recognized the governing objectives and principles and weighed the aggravating and mitigating factors. Had he been lawfullyentitled to impose a conditional sentence of three months, which would have met the objectives sought to be attained, I would not haveinterfered with his disposition. In my view, the judge’s approach to the determination of that disposition, as a fit one in thecircumstances, is beyond reproach. However, a conditional sentence was not lawfully available in this case. Thus, the judge had to, asthe Supreme Court stressed in R. v.

M. (C.A.), (SCC), [1996] 1 S.C.R. 500, [1996] S.C.J. No. 28 (QL), “draw upon allthe legitimate principles of sentencing to determine a ‘just and appropriate’ sentence which reflects the gravity of the offence committedand the moral blameworthiness of the offender” (para. 82). The judge was quite correct to consider rehabilitation and reparation asimportant sentencing objectives. However, having also recognized that denunciation and general deterrence had to feature as importantobjectives, the judge had to craft a sentence that gave effect to those principles. This is where, in my respectful view, he erred.

He settledupon a rehabilitative sentence instead of on one designed to achieve not only rehabilitation and restoration, but also to properly denouncethe crime and deter others from committing it. In doing so, he erred in principle. [14] In Proulx, the Supreme Court ruled that no offences were excluded from the conditional sentence regimeexcept those with a minimum time of imprisonment. However, with the 2007 amendments to the Criminal Code, this is no longer thecase. A conditional sentence is not available in the case of certain specified offences or of serious personal injury offences.

A seriouspersonal injury offence includes an indictable offence involving the use of violence against another person for which the offender may besentenced to imprisonment for ten years or more: s. 752. There is no question what Mr. Dunn committed against Mr. Arbeau was aserious personal injury offence. Thus, the sentencing judge was quite correct in ruling that a conditional sentence was not available inthe circumstances. [15] Proulx was a case of dangerous driving causing both death and bodily harm.

The sentencing judge imposedconcurrent 18-month terms of incarceration, but the Court of Appeal substituted a conditional sentence. The Supreme Court of Canadarestored the original sentence. For the Court, Lamer C.J.C. explained that the principal objectives of the 1996 sentencing reforms (BillC-41), pursuant to which the purpose and principles of sentencing were expressly set out in the Criminal Code and a conditional sentenceregime was adopted, were to reduce the use of prison as a sanction and to expand the use of restorative justice principles in sentencing.

As he put it, by adopting these amendments, Parliament “sent a clear message to all Canadian judges that too many people are being sentto prison” (para. 1). He noted that “[t]he conditional sentence was specifically enacted as a new sanction to achieve both of Parliament’sobjectives … [and that it is] a meaningful alternative to incarceration for less serious and non-dangerous offenders” (para. 21). As theChief Justice explained, a conditional sentence is a sentence of imprisonment.

However, because it is served in the community, it willgenerally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparation to the victim andcommunity, and the promotion of a sense of responsibility in the offender. At the same time, because it is still a punitive sanction, it isalso capable of achieving the objectives of denunciation and deterrence.

As he notes, “[i]t is this punitive aspect that distinguishes theconditional sentence from probation” (para. 22). [16] A suspended sentence with probation is “primarily a rehabilitative sentencing tool” (para. 23 in Proulx). It isnot designed to punish, and therefore not designed to have denunciatory or general deterrent effects. As Bayda C.J.S. explained in R. v.Taylor, [1997] S.J.

No. 826 (C.A.) (QL), a probation order “does not particularly seek to reflect the seriousness of the offence or theoffender’s degree of culpability… [n]or does it particularly seek to fill the need for denunciation of the offence or the general deterrenceof others to commit the same or other offences” (para. 30; as quoted in Proulx at para. 32). While Bayda C.J.S. acknowledges there maybe some punitive aspects to a probation order, “punishment is not the dominant or an inherent purpose”.

He adds that it is “perhaps noteven a secondary purpose but is more in the nature of a consequence of an offender’s compliance with one or more of the specificconditions with which he or she may find it hard to comply” (para. 30, as quoted in Proulx at para. 32). As Lamer C.J.C. points out,“[m]any appellate courts have struck out conditions of probation that were imposed to punish rather than rehabilitate the offender” (para.33). It is when punitive conditions are not necessary that probation is “most likely the appropriate disposition” (para. 37).

[ 17 ] In Proulx , Lamer C.J.C. recognized that “Parliament could have easily excluded specific offences [from the conditional sentence regime] but chose not to” (para. 79). Evidently, that situation has now changed. By excluding serious personal injury offences from the regime, the message is loud and clear: a community based sentence is generally not the means by which Parliament expects courts to achieve the objectives of denunciation and general deterrence. Evidently, this speaks in terms of generalities.

Neither Parliament nor Courts have decreed that all serious personal injury offences must be punished by incarceration. There may well be alternatives to incarceration to serve the objectives of denunciation and deterrence. In some cases, fines, for example, may serve those purposes.

However, where denunciation and general deterrence are predominant objectives in the sentencing process and where the offence is very serious and the moral blameworthiness of the offender very high, the removal of conditional sentences from the array of punishment possibilities significantly points the sentencing judge in the direction of a custodial sentence. [ 18 ] In R. v. Peters , 2010 ONCA 30 , [2010] O.J.

No. 128 (QL) , a majority of the Ontario Court of Appeal upheld a suspended sentence, with probation for three years, imposed in the case of an aboriginal offender who had pled guilty to aggravated assault. Writing for the majority, Blair J.A. gave deference to the sentencing judge who held that incarceration was not necessary to meet the needs of denunciation and deterrence, and would in fact “be counterproductive to achieving the restorative purposes that are of particular importance in the case of Aboriginal offenders” (para. 16). Watt J.A. disagreed.

Relying on Proulx , he opined that “[t]he unavailability of a conditional sentence of imprisonment in this case cannot justify the imposition of a sentence that lacks a punitive component and fails to provide an adequate ration of denunciation and deterrence” (para. 53). He continued: […] the sentencing judge erred in treating, as mutually exclusive, the sentencing options of probation and imprisonment. The alternative of a conditional sentence of imprisonment was unavailable, excluded by statute because of the character of the offence the respondent committed.

But that did not leave probation alone or imprisonment alone as the only sentencing options. The unavailability of a conditional sentence of imprisonment as a sentencing alternative seems to have driven the sentencing judge down to suspend the passing of sentence and impose a period of probation. A conditional sentence of imprisonment, as Proulx instructs, combines punitive and rehabilitative features.

Its unavailability does not warrant imposition of a period of probation, a sentence that lacks any denunciatory or deterrent value and is not faithful to the fundamental principle of sentencing: proportionality. [paras. 54-55] [ 19 ] I agree with Watt J.A.’s statements. In my view, the sentencing judge in the present case erred in principle when he failed to give effect to the predominant principles of denunciation and general deterrence.

The sentencing judge, himself, acknowledged that a sentence of imprisonment was appropriate, for it must be recalled that he would have imposed a conditional sentence had it been available. As Watt J.A. noted, there were options other than only incarceration or only probation. A combination of the two can often meet all the governing sentencing objectives. In addition, an intermittent sentence of imprisonment might have alleviated some of the concerns the sentencing judge expressed regarding Mr.

Dunn’s schooling. [ 20 ] As stated earlier, probation is a rehabilitative tool, and, as Lamer C.J.C. pointed out in Proulx , “[m]any appellate courts have struck out conditions of probation that were imposed to punish rather than rehabilitate the offender” (para. 33). The sentencing judge in the present case acknowledged this, stating he didn’t have the “power to punish in a probation order.” He was right to state this.

He was wrong to ignore his statement. [ 21 ] In my respectful view, the trial judge was required to craft a sentence that would meet all the sentencing objectives he had identified as applicable in the circumstances. Considering (1) the seriousness of the offence and the moral blameworthiness of the offender, (2) the Malley case he had identified as relevant for the parity principle, (3) the differences between that case and the present one which point to a more lenient sentence in the latter (such as Mr.

Dunn’s immediate remorse, his early acknowledgement of wrongdoing, his guilty plea, and the fact that in Malley the imprisonment was ordered served in the community), and (4) the governing principles of sentencing, the trial judge would, in my estimation, have been quite justified to impose a sentence of imprisonment for a term of three months followed by probation for 15 months with all the conditions he imposed, except for the curfew. There was no recommendation, submission or even suggestion that a curfew was required for rehabilitative purposes.

In fact, the sentencing judge expressly stated it was being imposed to punish even though he knew this was not proper. [ 22 ] It has now been over 10 months since Mr. Dunn was sentenced. He has fulfilled the curfew condition of the probation order that was, improperly, meant to punish him for his crime. This raises the question whether any useful purpose would be served to imprison him at his point. Imprisonment is often followed by probation, not the other way around.

In Proulx , by the time the Supreme Court decided the matter, the offender had already served the conditional sentence the Court of Appeal had imposed. The Supreme Court stayed the service of the sentence of incarceration. In R. v. Veysey , 2006 NBCA 55 , 303 N.B.R. (2d) 290 , Larlee and Robertson JJ.A. reviewed the jurisprudence and set out a principled approach to govern a stay of execution of what an appellate court determines on appeal would be a fit sentence. They set out their approach as follows:

We find nothing inherently harsh or oppressive in jailing a person who has served a sentence that was demonstrably unfit. The fact that the original sentence has been fully served does not, by itself, warrant special consideration. At the same time, we are left with the Supreme Court's caution that to require an accused to serve a fit sentence after having completed an unfit one may lead to an injustice. Thus, one must be prepared to recognize that in certain instances reincarceration could work an injustice. The difficult task is to identify the circumstances in which reincarceration would work such a result.

In short: What constitutes special circumstances? Having regard to the jurisprudence discussed above, we have isolated four factors that one could reasonably consider relevant to the issue of whether a stay should be granted. This is not to suggest that the list is exhaustive. Other pertinent factors may exist.

However, for purposes of deciding this appeal, we are content to examine the following: (1) the seriousness of the offences for which the offender was convicted; (2) the elapsed time since the offender gained his or her freedom and the date the appellate court hears and decides the sentence appeal; (3) whether any delay is attributable to one of the parties; and (4) the impact of reincarceration on the rehabilitation of the offender. [para. 32] [ 23 ] It is noteworthy that, in Veysey , the offender had previously been incarcerated, and the effect of the appeal was going to be to re-incarcerate him after he had been released.

The time gap between the date of Mr. Veysey’s release from jail and the hearing of his sentence appeal was short and there was no indication Mr. Veysey had made any progress toward rehabilitation. [ 24 ] In contrast, the present case is not one where an offender has recently finished serving an unfit sentence of imprisonment and in regard of whom the rehabilitative probationary phase of the sentence is still in its early stages.

It is the case of a young man with rehabilitation needs, as evidenced in both the pre-sentence report and an anger management report from the John Howard Society, who committed an offence for which not only rehabilitation but also denunciation and deterrence are necessary objectives. The last two of these objectives will be achieved, in the particular circumstances of this case, by this Court’s denunciation of his actions and the deterrent effect of this Court’s decision.

Applying the Veysey approach to the present case, it is obvious the first factor weighs heavily against a stay, while the fourth points in favour of one. In my view, the third factor is neutral since no delay is attributable to one or the other of the parties. In my view, the second factor tips the balance in favour of a stay. Mr. Dunn is in the eleventh month of the 15-month rehabilitative stage of his sentence. In the circumstances, there is no valid reason to abruptly interrupt his rehabilitative path to punish him at this late point in time.

He has already been punished, albeit improperly and inadequately, with the curfew he had to observe for the first three months of his probation. Although this case may be considered borderline, I would stay the service of the sentence of incarceration. V. Disposition [ 25 ] For these reasons, I would allow the appeal, set aside the sentence imposed and substitute a sentence of imprisonment of three months to be followed by a period of probation for 15 months, with the same conditions as the sentencing judge imposed except the one relating to a curfew.

However, I would stay the service of the sentence of incarceration. ____________________________ J.C. MARC RICHARD, J.A. WE CONCUR: _______________________________ ALEXANDRE DESCH ÊNES, J.A. _______________________________

B. RICHARD BELL, J.A.