R. v. MacDonald, 2003 NSCA 36

NOVA SCOTIA COURT OF APPEAL Citation: R. v. MacDonald , 2003 NSCA 36 Date: 20030327 Docket: CAC 191149 Registry: Halifax Between: Her Majesty the Queen Appellant v. Chloran Vincent MacDonald Respondent Judges: Glube, C.J.N.S.; Roscoe and Bateman, JJ.A. Appeal Heard: March 18, 2003, in Halifax, Nova Scotia Held: Leave to appeal is granted and the appeal is allowed per reasons for judgment of Bateman, J.A.; Glube, C.J.N.S. and Roscoe, J.A. concurring.

Counsel: James Gumpert, Q.C. and Anne Calder, for the appellant Stephen Robertson, for the respondent Reasons for judgment : [ 1 ] This is a Crown appeal from a sentence imposed by Judge John MacDougall of the Provincial Court. BACKGROUND: [ 2 ] The facts are not in dispute. The offender, while in a drunken rage, severely beat his common law wife, using a clothes iron and wine bottle as weapons. The attack was unprovoked. He pleaded guilty to one count of aggravated assault ( Section 268(1) of the Criminal Code , R.S.C. 1985, c.

C-46 ). [ 3 ] Provincial Court Judge John MacDougall imposed a conditional sentence of two years less a day with conditions, including house arrest, reporting, counselling and abstinence from alcohol. [ 4 ] The Crown has applied for leave to appeal, maintaining that the sentence is manifestly inadequate having regard to the nature and circumstances of the offence and insofar as it inadequately reflects the objectives of denunciation and deterrence. [ 5 ] The following facts, which were read into the record by the Crown Attorney at the time of sentencing, were not disputed. Mr.

MacDonald was represented by counsel at the hearing.

[6] On October 8, 2002, Mr. MacDonald had been doing some interior painting at the house where he lived with the victim, hiscommon law wife, Donna Mona Gass. By the time of the assault both had been drinking, but Mr. MacDonald to a much greater extent. In one statement to the police Ms. Gass indicated that the cause of Mr. MacDonald beating her was his perception that she was notappreciating his painting job, notwithstanding that she had told him many times that day that he had done a beautiful job. [7] After an exchange of words between Ms. Gass and Mr. MacDonald in the early evening Mr.

MacDonald reacted by forcefullysweeping everything from a cupboard onto the floor. He then commenced throwing whatever was near him. He picked up a wine bottleand struck it across the side of Ms. Gass’s head, knocking her to the floor. He then threw a clothes iron at her, striking her on the foot. Ms. Gass felt faint. [8] Ms. Gass unsuccessfully tried to convince Mr. MacDonald to go to bed. When she tried to call for help, he pulled the phonecord out of the wall. Ms. Gass felt that she needed to go to the hospital for stiches. Mr. MacDonald refused to accompany her.

She leftthe house but returned to find something to staunch her bleeding nose. As she approached the house, Mr. MacDonald struck her again. She fell to the ground. [9] Ms. Gass returned to the residence to try and reason with Mr. MacDonald. She told him that he could have killed her. Heresponded that he would continue to attempt to do so. [10] Ms. Gass finally fled the residence and was picked up along the road and driven to a residence where she called the police. Mr.MacDonald did not pursue her. [11] The police took Ms. Gass to the hospital for treatment.

Photographs were taken which confirmed injuries to her head, back,arm and foot. She recalled being knocked to the floor in the house at least three times. Ms. Gass says that she is afraid of Mr.MacDonald when he is drinking and violent. [12] Mr. MacDonald had been convicted on February 12, 1997 of assaulting Ms. Gass with a weapon (Criminal Code s.267(1)(a)). On that occasion he struck her in the face with an axe handle. For that offence he received a conditional sentence of sixmonths (house arrest), accompanied by two years’ probation.

STANDARD OF REVIEW: [13] In passing sentence a judge is exercising a statutorily authorized discretion under the Criminal Code: 718.3

(1) Where an enactment prescribes different degrees or kinds of punishment in respect of an offence, the punishment to beimposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts a person who commits theoffence. [14] As with other discretionary decisions, the standard of review on appeal is a deferential one. This standard has been articulatedin a number of ways. It was neatly expressed by Macdonald, J.A. of this Court in R. v.

Cormier (1975), (NS CA), 9N.S.R. (2d) 687 at p. 694: 20 Thus it will be seen that this Court is required to consider the “fitness” of the sentence imposed, but this does not mean that asentence is to be deemed improper merely because the members of this Court feel that they themselves would have imposed a differentone; apart from misdirection or non-direction on the proper principles a sentence should be varied only if the Court is satisfied that it isclearly excessive or inadequate in relation to the offence proven or to the record of the accused. [15] More recently, in R. v.

Shropshire, (SCC), [1995] 4 S.C.R. 227; S.C.J. No. 52 (Q.L.)(S.C.C.) Iacobucci J., fora unanimous Court, said: [46] ... An appellate court should not be given free reign to modify a sentencing order simply because it feels that a different orderought to have been made. The formulation of a sentencing order is a profoundly subjective process; the trial judge has the advantage ofhaving seen and heard all of the witnesses whereas the appellate court can only base itself upon a written record. A variation in thesentence should only be made if the court of appeal is convinced it is not fit.

That is to say, that it has found the sentence to be clearlyunreasonable. [16] Similarly, in R. v. M.(C.A.), (SCC), [1996] 1 S.C.R. 500; S.C.J. No. 28 (Q.L.) (S.C.C.), Lamer, C.J.C. said,for a unanimous Court, at pp. 565-566: [90] Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, acourt of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit.

Parliament explicitlyvested sentencing judges with a discretion to determine the appropriate degree and kind of punishment under the Criminal Code ...

[91] . . . The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community. The discretion of a sentencing judge should thus not be interfered with lightly. (Emphasis added) [ 17 ] This deference reflects a recognition of the unique qualifications of front line judges and is equally applied whether the sentence arises after a trial or from a guilty plea.

As explained by the Court in R. v. M.(C.A.) , supra : [91] This deferential standard of review has profound functional justifications. As Iacobucci J. explained in Shropshire , at para. 46 , where the sentencing judge has had the benefit of presiding over the trial of the offender, he or she will have had the comparative advantage of having seen and heard the witnesses to the crime.

But in the absence of a full trial, where the offender has pleaded guilty to an offence and the sentencing judge has only enjoyed the benefit of oral and written sentencing submissions (as was the case in both Shropshire and this instance), the argument in favour of deference remains compelling . A sentencing judge still enjoys a position of advantage over an appellate judge in being able to directly assess the sentencing submissions of both the Crown and the offender.

A sentencing judge also possesses the unique qualifications of experience and judgment from having served on the front lines of our criminal justice system. Perhaps most importantly, the sentencing judge will normally preside near or within the community which has suffered the consequences of the offender's crime.

As such, the sentencing judge will have a strong sense of the particular blend of sentencing goals that will be "just and appropriate" for the protection of that community. . . . (Emphasis added) [ 18 ] Thus, before interfering with this sentence, we must be persuaded that the judge proceeded upon an error in principle, failed to consider a relevant factor, overemphasized the appropriate factors, or that the sentence is demonstrably unfit. ANALYSIS: [ 19 ] Ms. Gass and Mr. MacDonald have lived together since 1991. His last work was as a welder, thirteen years ago. Since 1992 Mr.

MacDonald has been in receipt of a disability pension. Mr. MacDonald says that he is an alcoholic. He professes to be a member of Alcoholics Anonymous, but, at the time of the offence had not attended meetings for some time. In 1997 Mr. MacDonald attended the New Leaf Program for anger management, but for only six sessions. The director of that program felt that Mr. MacDonald’s attendance had been too short to accomplish anything. That involvement was motivated, presumably, by his conviction for assault with a weapon that year. [ 20 ] Mr.

MacDonald was fined for breaching the terms of his probation related to the 1997 sentence. The details of that breach were not a part of the record before the trial judge. [ 21 ] The photographs of Ms. Gass taken immediately after the assault, and also after the injuries had matured, depict a person who has been subjected to a severe beating. [ 22 ] A post-sentence report, dated January 20, 2003, was prepared on the Order of this Court at the request of counsel for Mr. MacDonald. While the author noted that Mr.

MacDonald had been to that date compliant with the conditions of his sentence, the results of the Domestic Violence Inventory administered as a part of that process are troubling: . . . With regards to the violence scale, Mr. MacDonald’s response pattern is in the high risk or severe problem range. Mr. MacDonald should be considered dangerous. Recommendations are for referral for comprehensive psychological or psychiatric evaluation.

As well, consideration might be given to a structured residential and/or treatment program to deal with his propensity for violence. [ 23 ] The report further indicated that, since sentencing, Mr. MacDonald has been regularly attending the New Leaf Program. The Spousal Abuse Risk Assessment puts him at “high risk”. Mr. MacDonald was angry and argumentative on calls to the Gass/MacDonald home made to ensure compliance with his conditional sentence. Ms. Gass was annoyed at such calls as well. Mr. MacDonald told the writer that, since the sentencing, he had been attending Alcoholics Anonymous twice weekly.

He was scheduled to enter a five day detox program on January 26, 2003. [ 24 ] At the sentencing hearing the Crown Attorney sought incarceration for a period of three years. It was her submission that any sentence had to be of sufficient length to enable Mr. MacDonald to take advantage of addiction and anger management programs within the institution. Such programs are thought to be more readily available in a Federal Institution. To serve time in a federal institution, offenders must receive an incarcerative sentence of two years or more.

Any sentence, of course, must be within the range appropriate for this offence and cannot be greater than otherwise justified in order to facilitate treatment (see, for example, R. v. Sack , [1994] N.B.J. No. 413 (Q.L.) at ¶ 11 ). The defence urged a conditional sentence with house arrest and conditions, including a requirement that Mr. MacDonald take steps to address his addiction to alcohol and attend counselling for anger management.

[25] The judge’s thoughtful oral sentencing decision revealed his familiarity with the sentencing principles enumerated in s. 718 ofthe Criminal Code. He expressly recognized the need here for both general and specific deterrence and noted that the fact that this wasa second assault upon the same victim was an aggravating factor. I am persuaded, however, that in imposing the conditional sentence,the judge fell into error. [26] In R. v. Brown (1992), 1992 ABCA 132 , 73 C.C.C. (3d) 242; A.J.

No. 432 (Q.L.) (Alta.C.A.), a case which pre-datesthe implementation of the conditional sentencing provisions of the Criminal Code, the Court discussed the blight that is spousal assault,at p. 249 (C.C.C.): This court's experience is that the phenomenon of repeated beatings of a wife by a husband is a serious problem in our society. It isnot one which may be solved solely by the nature of the sentencing policy applied by the courts where there are convictions for suchassaults.

It is a broad social problem which should be addressed by society outside the courts in ways which it is not within our power tocreate, to encourage, or to finance. But when such cases do result in prosecution and conviction, then the courts do have an opportunity,by their sentencing policy, to denounce wife beating in clear terms and to attempt to deter its recurrence on the part of the accused manand its occurrence on the part of other men.

In cases of assault by a man against his wife, or by a man against a woman with whom he lives even if not married, the starting-point insentencing should be what sentence would be fit if the same assault were against a woman who is not in such a relationship. For example,what would be the fit sentence if the man had assaulted a woman on the street or in a bar -- and if the aggravating factors (such as severeviolence, or a serious record of previous convictions for similar or other assaults), or the mitigating factors (such as a guilty plea or otherevidence of remorse) were the same as in the actual case?

Then the court should examine the circumstances which are peculiar because of the relationship. When a man assaults his wife or otherfemale partner, his violence toward her can be accurately characterized as a breach of the position of trust which he occupies. It is anaggravating factor. Men who assault their wives are abusing the power and control which they so often have over the women with whomthey live. The vulnerability of many such women is increased by the financial and emotional situation in which they find themselves,which makes it difficult for them to escape.

Such women's financial state is frequently one of economic dependence upon the man. Theiremotional or psychological state militates against their leaving the relationship because the abuse they suffer causes them to lose theirself-esteem and to develop a sense of powerlessness and inability to control events. In the case of assaults by a man against his wife or other female partner in life, two of the applicable principles are that the sentenceshould be shaped in the hope of furthering the rehabilitation of that man and in the hope of deterring him from repeating his conduct inthe future.

However, the more important principles are that the sentence should be such as to deter other men from similarly conductingthemselves toward women who are their wives or partners (what is called the principle of "general deterrence"), and that the sentenceshould express the community's wish to repudiate such conduct in a society that values the dignity of the individual (the "denunciationprinciple"). The importance of giving effect to these latter two principles has been driven home by recent remarks in cases that did notrelate to sentencing in criminal cases. The first is R. v.

Lavallee, in the passage from Wilson J.'s judgment which has already been quoted.The second is the dissenting judgment of Hetherington J.A. in R. v. Coston (1990), 1990 ABCA 200 , 108 A.R. 209 (C.A.). (Emphasis added) [27] Conditional sentences are authorized by s. 742.1 of the Criminal Code: 742.1 Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and thecourt (

a) imposes a sentence of imprisonment of less than two years, and (

b) is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistentwith the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in thecommunity, subject to the offender's complying with the conditions of a conditional sentence order made under

section 742.3. [28] The Crown submits, and I would agree, that in formulating this sentence the judge did not follow the two stage process

mandated by the legislation and clarified by the Supreme Court of Canada in R. v. Proulx, 2000 SCC 5 , [2000] 1 S.C.R. 61;2000 SCC 5. The judge must first determine whether this offence should attract a period of incarceration of less than two years. If so, aconditional sentence may be available. The judge must then be satisfied that a conditional sentence would not endanger the safety of thecommunity and that such a disposition would be consistent with the fundamental principles and purposes of sentencing (see Proulx atparas. 58 to 78): ¶ 58 . . . Hence, a purposive

interpretation of s. 742.1(

a) does not dictate a rigid two-step approach in which the judge would first haveto impose a term of imprisonment of a fixed duration and then decide if that fixed term of imprisonment can be served in thecommunity. In my view, the requirement that the court must impose a sentence of imprisonment of less than two years can be fulfilledby a preliminary determination of the appropriate range of available sentences. Thus, the approach I suggest still requires the judge toproceed in two stages. However, the judge need not impose a term of imprisonment of a fixed duration at the first stage of theanalysis. Rather, at this stage, the judge simply has to exclude two possibilities: (

a) probationary measures; and (

b) a penitentiaryterm. If either of these sentences is appropriate, then a conditional sentence should not be imposed. (Emphasis added) [29] Here, it appears that the judge failed to turn his mind to the first requirement - that this crime warranted an incarcerativesentence of less than two years. As stated above, it is not necessary that the judge assign a fixed term to the sentence prior to moving tothe second step, rather the judge must be satisfied that the appropriate term is under the two year period.

Here the judge noted that therange for domestic assaults was from one to nine years but did not expressly fit this assault within that range. Indeed, he commented thatthe three year term sought by the Crown was not “untoward” for this crime. He said nothing more about the appropriate term ofincarceration. [30] Having reviewed the range of sentences for such offences, and taking into account the mitigating factors here — the earlyguilty plea and the month served on remand, I am satisfied that the sentencing judge could have concluded that a sentence of less thantwo years was appropriate.

As the Supreme Court of Canada noted in Proulx, no offence is presumptively excluded from theconditional sentencing regime (at ¶ 79). I would not, therefore, interfere with this sentence on account of the judge’s failure to expresslyaddress the length of sentence before he moved to a consideration of the propriety of a conditional disposition. [31] As I will discuss below, it is my view, however, that a conditional sentence was not available here in that the circumstances ofthis offence did not satisfy the requirements of s.742.1(b).

The Court, in Proulx, elaborated upon the additional prerequisites for aconditional sentence: ¶ 60 Once that preliminary determination is made, and assuming the other statutory prerequisites are met, the judge should thenproceed to the second stage of the analysis: determining whether a conditional sentence would be consistent with the fundamentalpurpose and principles of sentencing set out in ss. 718 to 718.2. Unlike the first stage, the principles of sentencing are now consideredcomprehensively.

Further, it is at the second stage that the duration and venue of the sentence should be determined, and, if a conditionalsentence, the conditions to be imposed. . . . ¶ 63 As a prerequisite to any conditional sentence, the sentencing judge must be satisfied that having the offender serve the sentence inthe community would not endanger its safety: see Brady, supra, at para. 58; R. v. Maheu, (QC CA), [1997] R.J.Q.410, 116 C.C.C. (3d) 361 (C.A.), at p. 368 C.C.C.; Gagnon, supra, at p. 2641; Pierce, supra, at p. 39; Ursel, supra, at pp. 284-86 (perRyan J.A.).

If the sentencing judge is not satisfied that the safety of the community can be preserved, a conditional sentence must neverbe imposed. . . . ¶ 68 In my view, the focus of the analysis at this point should clearly be on the risk posed by the individual offender while serving hissentence in the community. I would note that a majority of appellate courts have adopted an

interpretation of the criterion referring onlyto the threat posed by the specific offender: see Gagnon, supra, at pp. 2640-41 (per Fish J.A.); R. v. Parker (1997), (NS CA), 116 C.C.C. (3d) 236 (N.S.C.A.), at pp. 247-48; Ursel, supra, at p. 260; R. v. Horvath, (SK CA), [1997] 8W.W.R. 357 (Sask. C.A.), at p. 374; Brady, supra, at paras. 60-61; Wismayer, supra, at p. 44. . . .

¶ 69 In my opinion, to assess the danger to the community posed by the offender while serving his or her sentence in the community,two factors must be taken into account: (1) the risk of the offender re-offending; and (2) the gravity of the damage that could ensue in theevent of re-offence. If the judge finds that there is a real risk of re-offence, incarceration should be imposed. Of course, there is alwayssome risk that an offender may re-offend. If the judge thinks this risk is minimal, the gravity of the damage that could follow were theoffender to re-offend should also be taken into consideration.

In certain cases, the minimal risk of re-offending will be offset by thepossibility of a great prejudice, thereby precluding a conditional sentence. (Emphasis Added) [32] The assessment of danger to the community includes a consideration of the threat posed by the specific offender and focuses onissues such as the risk of re-offence and the gravity of damage in the event of re-offence. In Proulx, the Supreme Court of Canada,endorsing the following words from R. v.

Brady (1998), 1998 ABCA 7 , 121 C.C.C. (3d) 504 (Alta.C.A.), confirmed that the“safety of the community” concern is directed, not just to the community as a whole, but includes an individual victim: [64] The words "endanger the safety of the community" include an unacceptable risk of danger to persons or property. It is not necessarythat the risk of danger affect the whole community; it may affect any particular person or persons in it. The mere fact that an offenderaims his misconduct at selected victims does not make the danger any less a community safety issue. Everyone is part of the largercommunity.

When Parliament speaks of safety of the community, it is speaking of what it takes to make safe communities in thiscountry. Freedom from personal harm or violence is most assuredly in that class. [33] The risk of re-offence, which is also a part of this analysis, requires a case-specific assessment. Lamer C.J., writing for the fullCourt in Proulx, refers to the list of factors relevant to this assessment as enumerated by Rousseau-Houle J.A. in R. v.

Maheu, (1997), (QC CA), 116 C.C.C. (3d) 361 (Que.C.A.): [TRANSLATION] ... 1) the nature of the offence, 2) the relevant circumstances of the offence, which can put in issue prior andsubsequent incidents, 3) the degree of participation of the accused, 4) the relationship of the accused with the victim, 5) the profile of theaccused, that is, his [or her] occupation, his lifestyle, his criminal record, his family situation, his mental state, 6) his [or her] conductfollowing the commission of the offence, 7) the danger which the interim release of the accused represents for the community, notablythat part of the community affected by the matter. [34] Also relevant is whether the offender has complied with court orders in the past.

The risk of re-offence must be assessed inlight of the conditions which could be imposed with a conditional sentence. It may be that the risk can be appreciably reduced throughthe imposition of appropriate conditions coupled with an adequate level of supervision. [35] The judge, in granting this conditional disposition, did not expressly and could not have turned his mind to the requirement thatsuch a sentence not endanger the safety of the community.

Failure by the sentencing judge to do so, was, in my view, a material error inprinciple which requires this Court to intervene (C.A.M., supra at para. 90, per Lamer, C.J.C.). After conducting the required analysis Iam not satisfied that a conditional sentence would not endanger Ms. Gass. Factors militating against such a sentence include Mr.MacDonald’s prior offence for the same crime on the same victim; the plan to resume co-habitation with Ms. Gass; and Mr.MacDonald’s lack of sustainable success in previous alcohol and anger management programs.

In view of the couple’s stated intent toco-habit, there are no conditions which can reasonably ensure Ms. Gass’s safety. While a condition could be imposed that Mr.MacDonald have no contact with Ms. Gass, in view of his re-offence, and taking into account his past violation of a condition ofprobation, I would have no confidence that such a condition could be effective. Mr. MacDonald’s consumption of alcohol leads toviolent and unpredictable behaviour. When that occurs, Ms. Gass is the focus of his rage. She is apparently unable to predict his temperflare-ups or to remove herself in order to avoid injury.

In those circumstances, no level of supervision would suffice to adequatelyreduce the risk to Ms. Gass. [36] The sentencing judge noted that a significant deterrent to re-offending is the fact that, should Mr. MacDonald breach aconditional sentence, he would most likely be incarcerated for the balance of the term. He failed to recognize, however, that any suchbreach might well involve another assault upon Ms. Gass. There seems to have been a progression of the level of violence from the firstassault to the second insofar as one can determine from the limited information available about the first offence.

The fact that Mr.MacDonald purports to have no recollection of this brutal assault speaks of his lack of control when intoxicated. When he is in such astate it is fair to conclude that the deterrent effect of possible incarceration will have no impact on his behaviour. Had the judgeconsidered the very real risk of serious harm to Ms. Gass should Mr. MacDonald re-offend, he could not have been satisfied that aconditional sentence was appropriate here. [37] Not only is the risk of re-offence high, but the gravity of the potential injury to Ms. Gass, should Mr. MacDonald re-offend, isunacceptable.

In the case of violent offenders, a small risk of very harmful consequences of a future crime may preclude a conditionalsentence (Proulx, supra, at ¶ 74). It is Ms. Gass’s view that Mr. MacDonald’s abuse of alcohol and violent behaviour is brought on bystress. One would expect him to be under great stress with the confinement of house arrest. The planned continued co-habitation,coupled with Mr. MacDonald’s addiction, his unpredictable and uncontrolled explosions of anger, and the progression of violence is apotentially fatal combination. [38] I have considered, as well, that this was an unprovoked assault.

I do not suggest that provocation would in any way excuse this

brutal attack. The lack of provocation, however, speaks of the random nature of such an outburst and the probability of Ms. Gass being unable to avoid circumstances that could lead to a similar attack in future. [ 39 ] Thus, in my view, had the judge, as is required by s. 742.1 (b), considered the safety of the community, he could not have imposed a conditional sentence for this crime. [ 40 ] While the above analysis is sufficient to preclude a conditional sentence here, I would note that s. 742.1 (

b) also requires that the judge be satisfied that such a sentence be consistent with the fundamental principles of sentencing. It is at this stage that the judge considers factors such as general deterrence and denunciation. I need not address this further requirement in detail. I would note, however, that, as stated in the excerpt from R. v. Brown above at ¶ 26, sentencing for spousal assault requires emphasis upon denunciation and general deterrence.

While recognizing that “a properly crafted conditional sentence can also achieve the objectives of general deterrence and denunciation ...” ( Proulx at ¶ 67 ) that Court acknowledges that institutional incarceration will generally provide more denunciation ( Proulx at ¶ 102 ) and deterrence ( Proulx at ¶ 107 ). It would be my view these principles deserve particular attention where a spousal abuser has re-offended following a conditional disposition. [ 41 ] It is important to recognize, as well, that society has an interest in Ms. Gass’s continued safety. Mr.

MacDonald’s random attacks burden the state’s resources and endanger not only Ms. Gass but also the peace officers who are called upon to intervene. It is counter-intuitive to permit a violent offender to continue to cohabit with the victim, even though that victim is a willing participant. This would surely undermine confidence in the administration of justice. [ 42 ] It is my view that the judge’s application of the appropriate sentencing principles was overborne by Ms. Gass’s poignant plea that Mr. MacDonald be free to continue to reside with her. Ms. Gass elected not to file a victim impact statement.

She did, however, address the court orally, at length. It is not uncommon for sentencing judges to be faced with similar pleas for leniency in cases of domestic violence. Ms. Gass said: MS. GASS Okay. I don’t know where to begin. I’m nervous for one thing. Where do I start? I don’t know if anybody in this courtroom understands alcoholism or not. I’m a recovering alcoholic myself. I do understand it. I think alcoholism is – I understand what an alcoholic black-out is. I have had them.

And I know the remorse and I know the feeling of waking up in the morning and not knowing where your car is, wondering how you got home, afraid to ask somebody, scared to ask anybody because you’re afraid that you may hear that you’ve done something that you shouldn’t have or offended somebody or hurt somebody and not remembered it. And it’s a very lonely, scary feeling. I know that. And I know you do things in an alcoholic black-out that you wouldn’t normally do. I don’t think the medical profession even understands alcoholism.

I don’t think anybody really understands alcoholism unless they are an alcoholic themselves or have experienced alcoholism. [Inaudible] the best way I can compare it is to how in the world would you ever know what it’s like to have a baby if you’ve never had one. That’s about the way I can – my way of explaining it. Let me see. I blame myself a little bit for what happened because I knew that Chloran was drinking butt (sic) I was not watching to see – I wasn’t aware.

I should have been more aware of the amount that he was consuming, but I wasn’t and especially where I know he was under a great deal of pressure for about a month prior to that. And, therefore, I should have been more cautious and watched that he wasn’t – he shouldn’t have been consuming at all. I should have – that was something about that, I feel partly to blame because I didn’t . And as far as taking the first drink, only an alcoholic knows how powerful [inaudible] - - mostly powerful it is. Sometimes the alcoholic doesn’t know [inaudible].

If they’re in a weakened condition and that drink is there, it’s more powerful than they are. I know because I’ve been there. I’ve got a little note so I can try to remember everything that I want to say. I love Chloran very much. He’s been a real good friend to me . He’s the best friend that I have. We’ve had - - we’ve been together for nine years in total, I guess, nine or ten years. And there was an incident eight years ago, a black-out drinking, and anyway it’s in the past as far as I’m concerned . And since then we’ve gotten along fine, better than most couples I might say.

He’s very supportive and he’s kind to me. He’s real kind to me. And I need him, for one thing. I don’t know how I’m going to survive without him especially with winter coming on . I feel it’s unfair to me that I would have to line people up to do what he’s capable of doing for me; for instance, winter is coming on. I’m worried about that. We have a Keymac stove. It’s the only heat - - that’s the heating system for our house is a Keymac stove. There’s nobody in this area of Pictou - - in Pictou County that can fix a Keymac stove. Chloran fixes Keymac stoves, carburetors for people in the area.

And if something goes wrong with my Keymac stove and Chloran is not there to fix it, I have no heat in the house . I would have to hire somebody from Truro to come to fix it. That’s one thing.

I don’t know how to work the back-up system if we have a power failure and the Keymac goes - - I have to put the Keymac out because [it will go all through to that?] so I have no heat. And we bought insulation to put up under the house. It’s all under the house there. The two of us were going to put it up together. Now I may have to put that up or get - - hire somebody to put it up. Chloran and I can do it alone. The two of us can do it. That’s what the plan was. Another thing is our water pump. It loses its pressure. I don’t know how to put pressure in that water tank.

I have to hire somebody to put pressure in that water tank or I’m without water. Well, the insulation. The windows need to be done. I probably could manage that on my own. I don’t know. What about if we have a winter like last winter? How am I going to get that snow off the roof by myself without hiring somebody? I’m sure that the Crown or somebody else isn‘t going to pay to do it. It’s going to be out of my pocket. Even the lawnmower hasn’t been cleaned up for winter and I’m not sure what to do with it.

I feel unsafe with - - I feel more unsafe living out on the Sunrise Trail by myself out there in a small town in Pictou where there is a certain amount of crime in this town. And it’s a small town. People know that I’m living alone. I feel that I’m easy prey for somebody. There’s nobody there to protect me. I’m by myself . And everybody - - being a small town, everybody in town knows that I’m alone. You know, little things that I need Chloran for, as well. To get my winter clothes down from out in the shed, I have to climb up on a ladder. There’s nobody to hold the ladder for me.

I haven’t even got the winter clothes down from up in the shed yet. I’m scared to go up on that ladder alone for fear I’ll fall. And car repairs, my [inaudible] TV anything goes wrong with that, I have to hire somebody to fix it. I’d like to thank the RCMP and the Court for their concern about my safety, but I feel safer with him than without him . And I’m not even sure I want to go on without him. There’s no point in it to me. As far as I’m concerned, I don’t even want to live without him . And regardless of what sentence he makes, it doesn’t matter. If it’s (minimum of?) two years, ten years, it doesn’t matter.

When he is out, he’s back with me. And - - because I feel that I am safe with him . And I just dread the thought of Christmas without him. And Christmas is a very important time of year for me. It’s the time I get to see my grandchildren we can and spend quality time with them. I won’t have Christmas this year without Chloran. It’s him who looked after all the turkey dinner in the past, always has, so I can spend quality time with my grandchildren and my children that I don’t see very often. They don’t even know I’m here.

They don’t know any of this has happened and I don’t want them to know because I don’t want them to worry about me. I guess - - and like I said, no matter how long he’s sentenced for, whatever you do, he’s going to be back with me regardless . That’s really all I can say, I guess. Please try to understand it is a disease and it’s not - - it’s a disease of the mind, the body, and the soul. And it’s, I think, one of the worst diseases anybody could ever have because it affects so many parts of you. That’s all I have to say to you, I guess. (Emphasis added) [ 43 ] Ms.

Gass’s remarks underscore the extent of her vulnerability and dependence upon Mr. MacDonald. One wonders if she is able to fairly evaluate the relationship and the dangers that it creates for her. [ 44 ] Having heard Ms. Gass’s plea, the judge was clearly aware that incarceration of Mr. MacDonald would remove Ms. Gass’s only source of physical and, possibly, financial support. According to her, without the assistance of Mr. MacDonald, her living situation would be compromised. The judge’s imposition of a community based sentence was a well motivated effort not to re-victimize Ms. Gass.

As I have already stated, however, by so doing he erred. [ 45 ] Such requests are all too common a part of sentencings for spousal assault. In R. v. Brown , supra , that court addressed the placement of the victim’s wishes in the sentencing process (at p.251): It is not possible to draw up an exhaustive list of factual elements which should be taken into account in sentencing in wife assault cases.

Because the violence has occurred in the context of a spousal relationship without which the man might never have been violent toward the woman, the court must consider whether the assault for which the man has been convicted is relatively minor in nature, or is an isolated incident, or whether there are other circumstances which make it desirable that the sentence not be such as to be counter-

productive to the possibility that the family relationship will be preserved (if there is any such possibility remaining). The first two ofthese points will already have been taken into account in deciding what the starting-point should be; that is, what the fit sentence wouldhave been if it had been an assault between strangers.

The third point must be applied with care, because the plea of the wife that herhusband be returned to her and that she not be further victimized by being deprived of his income should not readily be permitted toprevail over the general sentencing policy that envisages imprisonment of the man as not only an instrument of the deterrence of othermen, but also as an instrument of breaking the cycle of violence in that man's family even at the risk of the relationship coming to an endduring the enforced separation. (Emphasis added) [46] In R. v. Leger (J.D.) ([1997), 1997 NSCA 137 , 160 N.S.R. (2d) 143; N.S.J.

No. 245(Q.L.)(N.S.C.A.), an appeal froma sentencing for spousal abuse, Flinn J.A., writing for this Court, quoted the following remarks of the trial judge: [14] With respect to the willingness of the appellant's common law spouse to forgive him, and continue their relationship, the trialjudge said the following: When you take many of those purposes of sentencing and put them together, they override the very subjective interest in the victim herein maintaining an unbroken and continued relationship with the accused.

Her forgiveness and the fact that she is willing to take herchances of further abuse and humiliation from this degradation, I might add, from this individual do not take away from the fact that hehas committed a crime against the community as well as the victim and the whole community, to the mechanism of deterrence, mustunderstand that not only is this wrong, it will not be tolerated. [47] I agree with the sentencing judge that Mr. MacDonald’s circumstances cry out for a rehabilitative sentence.

Whilerehabilitation might better be accomplished in the community, this opportunity has been provided in the past, without lasting success. Here, the desirability for rehabilitation outside of an institutional setting conflicts with the goal of protecting the public from a dangerousperson and must therefore give way to that end. [48] Mr. MacDonald must understand that one of the consequences of his criminal behaviour is to visit long term hardship upon Ms.Gass through his removal as her helpmate. The sad result is that the injury to Ms.

Gass is not limited to the transient physical results ofthe beating but includes a profound impact on her day to day living. [49] Having found that a conditional sentence was not available here, it remains to fix the term of incarceration. A person whocommits aggravated assault, wounds, maims, disfigures or endangers the life of the victim. Aggravated assault carries a greater penaltythan does assault with a weapon, the crime for which Mr.

MacDonald was previously convicted, and reflects an increased level ofviolence over his earlier crime. [50] As in all sentencing decisions, we must consider mitigating and aggravating factors. Mr. MacDonald’s guilty plea is amitigating factor. His expression of remorse, however, rings hollow in the case of this second assault upon the same victim. Nor am Isatisfied that Mr. MacDonald’s addiction to alcohol should mitigate on this second offence. Indeed, I would consider the fact of Mr.MacDonald’s intoxication an aggravating factor here.

He was, as a result of the first conviction, introduced to the support servicesnecessary to deal with his addiction. At that point, if not before, he was well aware of the dangers associated with his abuse of alcohol. He has not taken sustained advantage of those services, as a consequence of which he has re-offended. [51] Amendments to the Criminal Code in 1997 clarify that abuse of a spouse is an aggravating factor that should increase thesentence above what it would otherwise be. 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offenceor the offender, and, without limiting the generality of the foregoing, . . . (ii) evidence that the offender, in committing the offence, abused the offender's spouse or common-law partner or child, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, ...

[52] That this is a second spousal assault upon the same victim is a significant aggravating factor. As has already been mentioned,the nature of this crime calls out for denunciation and general deterrence. Specific deterrence is required, here, as well. [53] As mentioned above, Mr. MacDonald was fined for breaching the conditions of his earlier sentence. The particulars were notavailable at time of sentencing.

Counsel agreed at the hearing of this matter that, should this court conclude that the sentence must beoverturned, it would be appropriate for us, in substituting a fit sentence, to consider the circumstances of that previous breach. Mr.MacDonald was sentenced on February 12, 1997 to a six month conditional sentence followed by a period of probation. The offence towhich he pleaded guilty and was fined was breaching the terms of his probation by consuming alcohol on August 31of that same year. Clearly, Mr. MacDonald’s abstention from alcohol was a key term of the probation order.

I consider this past breach to be an additionalaggravating factor. [54] As is the custom, I would grant a two month credit for the one month served on remand. After allowance of that credit, I amsatisfied that the appropriate sentence for this offence is a term of imprisonment of twenty-two months followed by three yearsprobation. (See, for example, R. v. Brown (B.J.) (2000), 2000 NSCA 146 , 189 N.S.R. (2d) 287 (C.A.); R. v. Leger, supra;and R. v. Wiswell (1992), (NS CA), 110 N.S.R. (2d) 333; N.S.J.

No. 135 (Q.L.)(C.A.)) DISPOSITION: [55] I would grant leave to appeal, allow the appeal, set aside the conditional sentence and order that Mr. MacDonald serve asentence of imprisonment of twenty-two months followed by a three year probationary term with conditions. In addition to the statutoryconditions Mr.

MacDonald, while on probation shall: report to the Probation Services as directed by Probation Services; remain withinthe Province of Nova Scotia unless permission in writing is otherwise granted by Probation Services; attend for any mental healthassessment as may be directed by Probation Services; and continue with or commence any substance abuse, anger management or otherrelated program(

s) or counselling as may be directed by Probation Services. Mr. MacDonald has fully complied with the terms of hisconditional sentence. I would, therefore, order that he be granted four months credit for time already served. The weapons prohibition,which was not appealed, shall remain in effect. Bateman, J.A. Concurred in: Glube, C.J.N.S. Roscoe, J.A.