Her Majesty the Queen - v. -, 2010 SKPC 172

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2010 SKPC 172 Date: December 10, 2010 Information: 24273064 Location: Gravelbourg , Saskatchewan _____________________________________________________________________________ Between: Her Majesty the Queen - and - David Norman Konefall Appearing: Mr. Steve Kritzer For the Crown Mr. Ryan Plewis For the Defence SENTENCING DECISION L.A. MATSALLA, J [ 1 ] Mr. Konefall has entered a plea of guilty to the following offence: that he did on or about the 23 rd day of February 2008, at Coderre, Saskatchewan in committing an assault upon Bryan Jeffrey Wall cause bodily harm to him contrary to

section 267 (

b) of the Criminal Code . [ 2 ] The accused entered his plea on December 19, 2008 and the case was adjourned on numerous occasions for sentencing. In fact, a sentencing hearing was scheduled but the parties agreed that the hearing was not necessary. A Pre-Sentence Report was prepared on April 10, 2009 and it was filed with the Court. On October 25, 2010, the Crown and the Defence made a joint submission suggesting that a conditional discharge be imposed. I expressed reservations about such a sentence and I invited counsel to file briefs in support of the submission. The case was adjourned for further argument.

The Defence filed a brief – the Crown did not. On the adjourned date, I heard from both counsel and sentencing was scheduled to take place this date.

The Facts [ 3 ] Crown counsel indicated that on the date in question, the accused, in the company of his 8 year old son and 21 year old daughter, attended at a small residence in the Village of Coderre that was typically used by Mr. Konefall’s friends as a house at which persons could stay while hunting in the area. It so happened that the victim, Mr. Wall, attended at the residence as well. Mr. Konefall’s son remained in the house while the other parties went to a nearby bar where the group consumed beverage alcohol.

It seems that the accused’s daughter, Jessica, was flirting with the victim who, at 40 years of age, was very much her senior. At the request of one Mr. Flynn, Mr. Wall took a dog that had accompanied the parties for a walk and upon his return, the accused became upset that the dog was not left at the residence. Mr. Wall responded by telling Mr. Flynn to take the animal back. As I understand it, the accused was upset with the victim because the dog was to provide comfort to his son at the house. As it turned out, the victim and the accused later returned to the residence. As Mr. Wall tried to leave, Mr.

Konefall became angry with him and accused Mr. Wall of making advances to his daughter. The accused then grabbed the victim, threw him to the floor and kicked and punched him repeatedly. Mr. Konefall dragged Mr. Wall to the porch of the residence where a mattress was located. He then threw the victim onto the bed and punched and struck him and pulled his hair. The Crown acknowledges that Mr. Konefall had administered a significant beating to Mr. Wall who had suffered scrapes, lacerations, a swollen face and three fractured ribs. At this point, the victim was covered in blood and his clothing was torn.

He left the area and returned to the bar where he met Mr. Flynn who then took him back to the residence. It appears that as Mr. Wall came up the street the accused saw him and once again attacked him. He grabbed the victim and ripped his jacket. Mr. Flynn took Mr. Wall to another residence where he cleaned the blood from the victim’s face. Jessica Konefall expressed concern for Mr. Wall and the accused engaged in an argument with Mr. Flynn’s female companion about the incident.

As a result, the accused and his family left Coderre. [ 4 ] A Pre-Sentence Report was prepared by a probation officer employed with Manitoba Justice, Corrections Division. Mr. Konefall is 44 years of age - he was 41 years of age on the date of the offence and he did not have a criminal record. At paragraph 2 of the report, the writer said this: The subject accepted responsibility for the offence presently before the Court. He acknowledged his guilty plea. Overall, the subject rationalized his behaviour to a certain extent.

He told the writer he had “no intent to harm the victim”, but “had good reason to defend himself” and his children. He recalled punching the victim in the face six (6) times, throwing him three (3) times, and telling him to stay down. The subject disagreed with elements of the circumstances contained in the Prosecutor’s Information Sheet (PIS). It is noted in the PIS the subject jumped on the victim when he entered the residence. Conversely, the subject indicated the victim “attacked” him. He also noted in an email he composed on September 12, 2008, “It had everything to do with him (the victim) attacking me”.

Despite his view of the offence, the subject offered his remorse. In a letter he composed dated February 25, 2008, he stated, “I am very sorry for what happened”. He repeated this to the writer, and admitted he “went too far”. He described feeling embarrassed by his actions, and stated “it makes me sad” when he reflects upon the offence. In terms of empathy, the subject did not verbalise how his actions may have affected the victim, physically or psychologically, or any adverse consequences the victim may have faced. He admitted he is still angry with the victim.

He provided the writer with a letter in which he describes the victim as “a belligerent and outrageous (and debatably sexual) predator”. The report observes that the accused was brought up in Winnipeg, Manitoba and that he did not experience neglect or violence in his family home. His daughter was born as a result of a relationship that later ended, however he was never violent to the girl’s mother. Jessica had a difficult childhood that included significant contact with the drug culture. In 2006, she had a daughter to which the accused is very close.

Jessica provided the author of the report with a letter in which she expresses the view that her father’s support has been invaluable to her as she has gone through life and that this Court proceeding has been worrisome for him. [ 5 ] Mr. Konefall has a son (now 13 years old) from another relationship. The child’s mother was shocked to hear about the charge that is now before the Court. She said that he was never physically abusive to her during the relationship. [ 6 ] The accused commenced but did not finish a course at the University of Manitoba in which he majored in Economics and

Sociology. At present he is employed with a firm as a District Marketing Manager. He is not required to travel for his employment. He earns a significant income and does not have any large debts. Apparently he plans to pursue further education in order to become a stockbroker, however no particulars of the course nor the designation that he seeks to obtain were provided to the Court. [ 7 ] While he admits that he consumed alcohol on the night in question, he does not feel that his judgment was affected.

In all respects, he claims that he is in good health. [ 8 ] In conclusion, the author of the report noted, at page 7, that while he accepts responsibility for his actions, he “tends to rationalize the offence. He is remorseful; however his empathy level is low.” According to the Manitoba Corrections Risk Assessment, Mr. Konefall is assessed as a low risk to re-offend. [ 9 ] Numerous letters were filed with the Court. The letters describe the accused as a “loving and good father” and a friend who is not usually violent. Victim Impact [ 10 ] The victim, Mr. Wall, filed a Victim Impact Statement pursuant to

section 722 of the Code and he asked for leave to address the Court. Leave was granted. In his comments he advised that as a result of the incident he received a cut above his right eye and a cut below his right eye, neither of which required stitches but which have left scars. He also has a scar on the right side of his nose. After the incident he had difficulty breathing and he still experiences pain on the left side of his chest. He has had headaches and he has experienced dizziness with a loss of balance. He lost some hair in the incident.

He said that some of his teeth had been shattered although precise details were not provided to the Court. He required surgery and he remains under care. He had to use dental appliances for some time. Even now he suffers from disrupted sleep patterns. He has experienced certain psychological problems and he has become reclusive and anxious.

He has been meeting with a psychologist. [ 11 ] He missed a number of months of work as a roofer and he was not employed on the date of sentencing. [ 12 ] While some of the costs of his dental work have been absorbed by victim’s compensation programs in Alberta , not all of the remedial work has been completed and so he does not know how much of his expenses will be covered. [ 13 ] It might be noted that the Crown tendered photographs of the victim and photographs of the area in which a part of the incident had occurred.

The walls and the window coverings in the porch in which the mattress was located are splattered with blood. The Joint Submission [ 14 ] The Crown elected to proceed summarily in this case. [ 15 ] The Crown and the Defence suggest that a conditional discharge could be imposed by the Court in this case. Counsel have recommended that the conditions of the discharge include a requirement that the accused report to a probation officer, that he take such anger management programming as may be required and that he pay the accused restitution in the amount of $30,000.00 to recover lost wages.

Apparently $10,000.00 has already been paid to the victim and the remaining $20,000.00 would be paid upon sentencing. Counsel for the accused told the Court that the accused had obtained the funds from his family. It would appear that the significant amount of compensation in this case is a key factor in the submission. [ 16 ]

Section 267 is a “Primary Designated Offence” as defined in

section 487.04 of the Code and so it is mandatory that an order be made pursuant to

section 487.051(1) requiring Mr. Konefall to provide samples of bodily substances for forensic DNA analysis. [ 17 ] The issue in this case is whether or not the joint submission should be accepted and, if not, the sentence that ought to be imposed.

[ 18 ] The law is clear that a judge must give serious consideration to a joint submission in order to provide certainty when discussions occur between the Crown and the Defence as to a disposition in a particular case. Our Court of Appeal has commented on joint submissions. In the case of R. v. Kasakan [1] , the Court referred to the case of R. v. Webster [2] , and said the following, at paragraph 17: We agree entirely with those statements. Here, the issue is clearly one of determining whether the sentence proposed was unfit.

A sentencing judge may decline a joint submission if the sentence is unfit in that it falls outside the range and he is satisfied there is no compelling reason to depart from the norm. An unfit sentence is one which is “clearly unreasonable.” As I read the law, there is no requirement in the sentencing process that the parties justify the submission and, it appears, once the submission is made, the trial judge should not reject it unless it is found to be unfit. In order to consider this issue, I propose to determine the sentence that would be appropriate in this case.

Analysis [ 19 ] Any and all sentences must satisfy the purposes and principles of sentencing set out in sections 718 - 718.2. Not only must a sentence denounce the criminal act but it must also deter the accused and others from committing such

an act. While rehabilitation must be considered, it may be necessary to separate an offender from the community. A sentence must take into account reparations to the victim. Throughout, the sentence must relate to the seriousness of the offence and the extent to which the offender was responsible for the commission of that offence. Aggravating and mitigating factors must be taken into account to determine the appropriate sentence.

Section 718.2(6) requires that a sentence be similar to sentences imposed upon similar offenders for similar offences. At the end of the day, a custodial sentence should not be considered if a less restrictive sentencing option would be appropriate. [ 20 ]

Section 730 of the Code enables a sentencing judge to consider imposing an absolute or a conditional discharge in certain circumstances. The

section reads as follows: Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interest of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2). [ 21 ] The Supreme Court of Canada in R. v. Proulx [3] examined the provisions of

section 742 (now 742.1) of the Code relating to conditional sentences. A conditional sentence is a sentencing option that is available respecting sentences in all cases provided the requirements set out in the Code have been met. The Court must make a preliminary assessment as to whether sentencing provisions, including probationary measures, are appropriate. Our Court of Appeal in R. v. Banda [4] , has applied Proulx .

In order to determine if a measure other than incarceration is appropriate, it is necessary to review dispositions made in other cases. [ 22 ] In reviewing similar cases, it is necessary to keep in mind that an offence of this nature is more significant than a common assault described in

section 266 for which the maximum sentence is six months in jail. Cases in which there has been domestic violence are not comparable and cases in which an accused did not have a criminal record should be considered. [ 23 ] In the case of R. v. Lacourciere [5] , an accused person trained in Tae-Kwon-Do who had a business related to his training, went to another location to confront a business competitor. He struck the victim causing him to fall to one knee. He then kicked him in the face prompting the victim’s nose to bleed. The victim’s nose was broken in two places and surgery was necessary.

He continued to have difficulty breathing and he suffered from headaches. A 90 day intermittent sentence with one year probation was appealed and the Court of Appeal imposed a suspended sentence and a period of probation of six months with three months on electronic monitoring. [ 24 ] The Court of Appeal in R. v. Ross [6] upheld a fine of $800.00 that had been imposed upon an accused by the trial judge in a case in which the accused had worked for the victim and, as a result of a dispute between the two persons, the accused was fired from his position by the victim.

The victim bent over to pick up an item and the accused kicked him in the face causing a wound that required 19 stitches and that resulted in a permanent loss of 25 percent of his vision in one eye. The accused had a dated criminal record that included one conviction for an assault.

[ 25 ] In the case of R. v. Curtis [7] , a 20 year old person and his three friends exchanged words with other persons in a vehicle. A fight erupted during which the accused repeatedly kicked the victim while the victim was on the ground. He incurred a broken right cheek, a broken nose and loose front teeth and he spent 5 or 6 days in the hospital. He had cuts over his eyes, along his eyebrow and his forehead that required 50 to 60 stitches to close. In addition he suffered short term memory loss and it was necessary to have his nose re-broken because of breathing problems.

The accused did not have a criminal record and he was required to help his father on the farm. The trial judge imposed a suspended sentence for a period of two years. On appeal, the Court of Appeal imposed electronic house arrest of 30 days and intensive probation for a period of 6 months. [ 26 ] In the case of R. v. Guest [8] , a bouncer was owed $800.00 by the victim. He and another person took the victim to a granary where they stripped him. The accused then threw the victim against a wall and punched him and when he fell to the floor the accused kicked him in the head and ribs.

He also struck the victim across the back with a board. As a result, the victim suffered numerous cuts and bruises but the injuries were not permanent. At trial the accused, who did not have a criminal record, received a six month conditional sentence. The Court of Appeal, at paragraph 4 of the judgment, concluded that a conditional sentence was not an appropriate sentence because such a sentence did not address the objectives of denunciation and deterrence – paramount objectives in such a case.

The Court concluded that a conditional sentence did not satisfy the need to uphold public confidence in the administration of justice. A period of incarceration was necessary. [ 27 ] The Court of Appeal has, in the past, stated that a serious unprovoked assault that resulted in serious consequences would normally attract a sentence of six to nine months in jail. [9] In Faubert , a 27 year old male was in the bar after a recreational hockey game. After consuming a significant amount of alcohol, he punched the victim in the face with a glass causing significant injury.

The victim continued to experience numbness that, it was believed, could be corrected. The victim did not have dental or sick benefits at his place of work. The accused had a minor and, it appears, dated criminal record. A suspended sentence with two years of probation including an order of restitution was imposed by the trial judge. The Crown appeal was allowed and the Court of Appeal imposed an absolute minimum sentence of three months and upheld the probation order with the exception of a community service order. [ 28 ] In the case of R. v. Oltean [10] , the accused and the victim had a dispute over money.

The accused was intimidated by the victim who was a large person. Mr. Oltean and another broke into the victim’s house and assaulted him with the result that the victim required treatment for a severely bruised shoulder. The accused had a dated criminal record with no offences of violence. The Court of Appeal reduced a one year jail term to four months and a compensation order of $705.27 was made. [ 29 ] More recently in the case of R. v. Johns [11] , the victim, who was the accused’s uncle, expressed an interest to have sex with the accused’s sister.

The accused was upset and he struck the victim knocking him down. Mr. Johns then sat on the victim and began striking him repeatedly with his fists. He then threw a tire rim at the victim and struck the person with a two by four and with a steel bar. The victim received significant injuries from the beating. It appears that the accused had a criminal record that included a conviction for one assault.

The Court of Appeal upheld the trial judge’s sentence of 20 months. [ 30 ] It has been said that “it is only common sense that the more serious the offence, the less likely it will appear that an absolute discharge, or even a conditional one, is ‘not contrary to public interest’”. [12] Our Court of Appeal has said that a “sentence becomes demonstrably unfit when the accused does not accept that she has done anything wrong, and does nothing to indicate that she has accepted the seriousness of the harm caused.” [13] [ 31 ] Counsel for the accused has argued in support of a conditional discharge by referring to the case of R. v.

Jimenez [14] , a case in which an accused was sentenced to an eight month custodial sentence. He caused significant injuries to the victim but he did make substantial restitution in the amount of $9,951.00 to the victim after punching him in the mouth thereby causing bodily harm that required dental treatment. He was a young man with a family and he did not have a criminal record. A Pre-Sentence Report was favourable and the offence was out of character for him. He had a promising career in baseball.

The Ontario Court of Justice (General Division) Kozak O.C.J. allowed the appeal of the accused and substituted a conditional discharge and a period of probation for 6 months. A stand alone restitution order was made in the amount previously described. [ 32 ] Counsel for the accused has referred to the case of R. v. Swenson [15] . A bouncer, believing that a victim was causing a disturbance, dragged the individual outside and dropped him on his face causing the person to become unconscious.

The victim required sutures to close a cut on his chin and lower lip and he had seven broken teeth that were expected to cost between $5,500.00 and $6,000.00 to repair. A six month jail sentence was imposed by the trial judge but the Court of Appeal of this Province concluded that the sentence was excessive in light of the accused’s lack of a criminal record, the fact that the assault was not unprovoked and the fact that the assault occurred during his employment. A suspended sentence was imposed. A probation order required that the accused make partial restitution to the victim in the amount of $1,200.00.

[ 33 ] The Defence relies upon the case of R. v. Dean [16] , a case in which an intelligent young man who was playing hockey at a high level had attended a graduation party and, after believing that the victim’s brother had compromised his sister’s honour, he without provocation and without any notice “sucker punched” the victim with the result that the victim’s jaw was broken in two places. After surgery was performed, his jaw was wired shut for a period of six weeks. He lost 15 pounds.

The Defence argued in that case that a conditional discharge should have been imposed in large part because the accused wanted to pursue a hockey scholarship. A conditional sentence of three months was imposed followed by a probation order for a period of one year. The accused’s appeal was dismissed. In the judgment the Court referred favourably to the case of R. v. Wood [17] – a case in which a young defendant without a prior record and who received a positive Pre-Sentence Report received a fine and a probation order.

Jessup J.A. said this at page 80: It is our view that in cases of violence resulting in injury the requirement of general deterrence to the public militates, in almost every case, against the grant of a conditional discharge, notwithstanding considerations personal to the accused.

In this case, accordingly, we are of the opinion that a grant of conditional discharge would not be in the public interest; we are not convinced that the interests of the appellant will be seriously prejudiced by the registration of a conviction. [ 34 ] The cases can be distinguished by noting that the accused in this case was not provoked and he did not administer force during his employment. Instead of striking one blow, Mr. Konefall administered a beating upon the victim and continued the assault a second time.

The injuries suffered by the victim are more significant than in Jimenez and the victim continues to suffer from the effects of the assault. There is some indication that a conviction might have some impact on his future career plans but the details of those plans are less than clear and it is not necessary for him to travel to another jurisdiction for him to maintain his employment. Mr. Konefall appears to be otherwise of good character, however while he expresses remorse and he accepts responsibility for the incident, he continues to harbour animosity toward the victim. He shares little, if any, empathy for Mr.

Wall. In fact he has some time after the incident, referred to the victim, in writing, as “belligerent” and possibly a “predator” apparently suggesting that the victim was responsible for the incident. [ 35 ] Based on the cases that I have referred to, I am satisfied that the broad range of sentences for a conviction under

section 267 in which an accused does not have a criminal record or has but a nominal record is between a suspended sentence and a period of custody short of penitentiary time. I must conclude that while a conditional discharge might be in Mr. Konefall’s best interest, such a discharge would be contrary to the public interest. A discharge falls outside the acceptable range of sentences for an offence of this kind which I find to be between a suspended sentence and four months in custody. It is not a fit sentence.

Having so determined I must now impose an appropriate sentence. [ 36 ] A recent case decided in the Court of Queen’s Bench on November 19 th , last, deserves consideration even though the case was one of committing an assault with a weapon. [18] In that case an accused with a lengthy criminal record, including two assaults causing bodily harm and two convictions for common assault, as well as numerous property offences (including convictions for five armed robbery offences for which he received a sentence of 10 years) and other offences (including drinking and driving offences).

He had been sentenced to a custodial sentence for many of the convictions. He has not been convicted of any offences since his return from parole in 2003. He was at a bar where he became heavily intoxicated such that he could not remember most of the evening. After he was told he could not have any more drinks, he attempted to help himself and, in his frustration, he threw a bar stool at a female bartender. The bartender was not struck. The accused had addiction issues. He was a single parent with the responsibility to raise two young sons.

He accepted responsibility for the offence and he expressed remorse to the victim who believed the incident was an isolated incident. She was not afraid of him. He intended to undertake treatment for his problems. Dawson J., after a lengthy examination of previous authorities, concluded that the range of sentences for such an offence was between a fine and 20 months in jail, and that in a predominant number of cases incarceration was ordered where the victim was injured.

She concluded that the case before her was of a less serious nature and she imposed a suspended sentence for 18 months on strict conditions. [ 37 ] Turning now to the sentence that must be imposed. The cases have said that the objectives of denunciation and deterrence are predominant in a case such as the case that is before me. There is no indication that the objective of specific deterrence is a significant consideration.

It seems to me that, after looking at the aggravating and mitigating circumstances and the purposes and principles of sentencing, a custodial disposition is necessary to maintain confidence in the administration of justice. Evidently, Mr. Konefall has recognized that he should make reparations to the victim. The restitution that he proposes to make is certainly a factor that should be considered but it is not the predominant consideration in a case in which significant personal injury has been caused and the after effects of the injury are ongoing.

Were this not so and if the payment of restitution was to be a primary objective that was more important than denunciation and deterrence, it is likely that the impression that would be left is that the consequences of an assault are primarily financial. Once again, it seems to me, public confidence in the administration of justice would not be served were that to be the case.

Having made these observations, I am considering that the accused is gainfully employed and appears to have a close relationship with his family and so it does appear that if he were to serve his sentence in the community on appropriate conditions, the community would not be endangered. Therefore, even though I believe that a period of custody should be imposed, I am also satisfied that the sentence can be served in the community. I impose a conditional sentence of four months.

In setting the term of the conditional sentence, I am mindful of the significant restitution that the accused is prepared to make to the victim. I accept that Mr. Konefall may not typically display the anger that he did on this occasion however, for reasons that only he can relate, he took it upon himself to administer a

significant beating on the victim. He must learn to manage his anger. I do note that alcohol could have been a factor in this case. Since I cannot consider the joint submission that was made to the Court, I propose to further hear from counsel before formally imposing sentence. ___________________________ L.A. Matsalla, J