R. v. Freake, 2012 NLCA 10

Date: 2012022 0 Docket: 09/38 Citation: R. v. Freake , 2012 NLCA 10

Section 486.4 of the Criminal Code respecting the non-publication of the identify of a complainant or of a witness and any information from which they might be identified applies to this judgment. IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: JOSHUA FREAKE APPELLANT AND: HER MAJESTY THE QUEEN RESPONDENT AND: RILEY MOSS INTERVENOR Coram: Welsh, Rowe and White JJ.A. Court Appealed From: Provincial Court of Newfoundland and Labrador St. John’s, NL Appeal Heard: December 9 and 15, 2011 Judgment Rendered: February 20, 2012 Reasons for Judgment by Welsh and Rowe JJ.A.

Concurred in by White J.A. Counsel for the Appellant: Peter Ralph, Q.C. Counsel for the Respondent: Sheldon Steeves

Counsel for the Intervenor: Randolph J. Piercey, Q.C. Welsh and Rowe JJ.A.: INTRODUCTION [ 1 ] Joshua Freake was convicted of sexual assault, uttering threats and breaches of probation. He was sentenced to five years imprisonment. Mr. Freake appeals his conviction and his sentence. FACTS [ 2 ] Joshua Freake and the complainant were boyfriend-girlfriend. This lasted from September to early December 2008, when the complainant told Mr. Freake that she was ending their intimate relationship. [ 3 ] Mr. Freake was staying with the complainant at her apartment until he could arrange for his own place.

On the evening of December 2, Mr. Freake is alleged to have forced the complainant to have sexual intercourse. He admitted to assaulting her, but testified that the intercourse was consensual. He left on the morning of December 3. [ 4 ] On December 18, 2008, Mr. Freake called his social worker. Mr. Freake was upset that he had been charged with sexual assault. The social worker testified that in the course of the conversation Mr. Freake said, “I had a mind, I’d hang myself because I can’t believe that she’s [the complainant] charging me with this.” The social worker testified that Mr.

Freake also said, “I had a mind to go down and chop [the complainant] and her baby up and put them in a suitcase like [a person charged with having committed such an offence].” Mr. Freake testified that he spoke with the social worker, but did not make the threat that she reported. [ 5 ] At trial, Mr. Freake was represented by a Legal Aid lawyer, Riley Moss. Mr. Freake alleges that Ms. Moss failed to provide competent legal representation and that, as a result, he should receive a new trial. [ 6 ] A Provincial Court judge convicted Mr.

Freake of sexual assault, two counts of uttering threats and two breaches of probation. The judge sentenced Mr. Freake to four years for sexual assault, one year consecutive for uttering threats, one year concurrent for the second count of uttering threats and two months concurrent for each of the two breaches of probation (one breach for the sexual assault, the other arising from uttering threats). The judge adverted to totality, but decided no adjustment was needed. [ 7 ] In the alternative to his appeal against conviction, Mr.

Freake appeals his sentence, both as regards the term for uttering threats (one year) and the failure to adjust the sentences having regard to totality. As well, counsel for Mr. Freake submitted that the sentence for sexual assault should be one to two years, rather than four years. ISSUES [ 8 ] Regarding conviction, was the representation provided at trial by Mr. Freake’s lawyer so inadequate that a new trial should be ordered? [ 9 ] Regarding sentence, counsel for Mr.

Freake set out the issues as follows: Did the judge incorrectly categorize the seriousness of the facts in relation to the threats convictions and thereby lead him to impose a sentence which was disproportionate to the seriousness of the offence? Was the sentence imposed for the uttering threats convictions demonstrably unfit? Did the judge err when he considered totality but did not reduce the sentence despite the fact that the sentence was significantly higher than for the most serious offence? Mr. Freake also sought a reduction in his sentence for sexual assault. ANALYSIS: CONVICTION [ 10 ] Mr.

Freake applied to adduce evidence (an affidavit) in support of his submission that he had been incompetently represented at trial. This Court recently addressed the test for when fresh evidence should be admitted on appeal in R. v. R.W. , 2011 NLCA 45, 308 Nfld. & P.E.I.R. 197 . Chief Justice Green reviewed the law as set out by the Supreme Court of Canada in R. v. Palmer , [1998] 1 S.C.R. 759 and recently re-affirmed in R. v.

J.A.A. , 2011 SCC 17 , [2011] 1 S.C.R. 628. [ 11 ] The Palmer test works well for evidence that should have been led at trial, but for some reason was not, e.g. a weapon that was found at the crime scene only after the trial. The test does not fit with a situation, such as here, where an accused wants to place an affidavit in evidence to show that he was incompetently represented at trial. By its nature, such evidence could only come into existence after a trial and would only be relevant on appeal. (See: R. v.

Wolkins , 2005 NSCA 2 , 229 N.S.R. (2d) 222 at paras. 58-61 .) [ 12 ] Thus, where an accused alleges incompetence of counsel such that he or she should have a new trial, an affidavit by the accused setting out the alleged facts should be received in evidence by the appellate court. [ 13 ] Ms. Moss applied to become an intervenor with respect to the adequacy of her representation of Mr. Freake at trial. As well, she provided an affidavit in which she denied Mr. Freake’s allegations.

Where an accused alleges that his or her counsel was incompetent at trial, then that counsel should be granted intervenor status on the issue of competence and be accorded the opportunity to file an affidavit in reply to that of the accused. See Rule 5 of the Supreme Court of Newfoundland and Labrador – Court of Appeal Criminal Appeal Rules (2002) , SI/2002-96. See also R. v. West , 2009 NSCA 63 , 279 N.S.R. (2d) 241 at para. 31 . [ 14 ] The Court admitted the affidavits and granted Ms. Moss intervenor status. Counsel for Ms. Moss cross-examined Mr. Freake

on his affidavit. Counsel for Mr. Freake cross-examined Ms. Moss on her affidavit. Crown counsel also cross-examined Mr. Freake andMs. Moss on their affidavits. [15] In G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, Major J., for the Court, set out a general approach as follows: [26] The approach to an ineffectiveness claim is explained in Strickland v. Washington, 466 U.S. 668 (1984), per O’Connor J. Thereasons contain a performance component and a prejudice component.

For an appeal to succeed, it must be established, first, thatcounsel’s acts or omissions constituted incompetence and second, that a miscarriage of justice resulted. [27] Incompetence is determined by a reasonableness standard. The analysis proceeds upon a strong presumption that counsel’sconduct fell within the wide range of reasonable professional assistance. The onus is on the appellant to establish the acts or omissionsof counsel that are alleged not to have been the result of reasonable professional judgment.

The wisdom of hindsight has no place in thisassessment. [28] Miscarriages of justice may take many forms in this context. In some instances, counsel’s performance may have resulted inprocedural unfairness. In others, the reliability of the trial’s result may have been compromised. [29] In those cases where it is apparent that no prejudice has occurred, it will usually be undesirable for appellate courts to considerthe performance component of the analysis. The object of an ineffectiveness claim is not to grade counsel’s performance or professionalconduct.

The latter is left to the profession’s self-governing body. If it is appropriate to dispose of an ineffectiveness claim on theground of no prejudice having occurred, that is the course to follow (Strickland v. Washington (1984), 104 S. Ct. 2052 at p. 697). [16] The key allegations by Mr. Freake were that Ms. Moss had: - failed to review materials with him, - allowed a statement by Mr.

Freake to be received in evidence that might have been excluded, - failed to attack the credibility of the complainant and the social worker in cross-examination, and - “backed down whenever she was challenged by the Crown or the judge.” [17] Regarding reviewing the evidence, Ms. Moss said they did and Mr. Freake said they didn’t. They met on several occasionsbefore the trial. It is not credible that on these occasions, Ms. Moss would not have gone over relevant material (e.g. statements) withMr. Freake. [18] Regarding Mr. Freake’s statement to police, Ms. Moss said that she wanted it admitted because in it Mr.

Freake asserted theintercourse had been consensual. The statement, being exculpatory, she viewed as helpful to Mr. Freake. This is consistent with areasonable approach to the conduct of a defence and with the expectation that counsel will make tactical decisions. [19] Regarding the failure to attack the credibility of the complainant and the social worker on cross-examination, Ms. Mossconceded that she did not mount a sustained and vigorous cross-examination of the complainant or the social worker.

Her explanationwas that both presented well as witnesses and to press either of them hard in cross-examination and not shake their testimony would onlyenhance their credibility. [20] Depending on the circumstances, counsel for an accused will often cross-examine the complainant at length with a view togenerating contradictions or other aspects of testimony that could detract from the complainant’s credibility. It was a judgment call onMs. Moss’ part not to do so.

Again this is consistent with a reasonable approach to the conduct of a defence. [21] Regarding “backing down” when “challenged” by the judge, this is a very peculiar allegation. Counsel can make submissions,but are obliged to adhere to the judge’s rulings. The remedy is to appeal, not be defiant at trial. There is no basis to the allegation thatdefence counsel “backed down” or that defence counsel’s conduct fell outside the range of the reasonable professional assistancerequired of counsel. [22] In short, Mr.

Freake has not demonstrated that in conducting the defence his counsel failed to meet the standard expected ofcounsel. Thus, his appeal against conviction is dismissed. ANALYSIS: SENTENCE [23] The range of sentence for sexual assault involving intercourse in circumstances such as this would be three to five years. (R. v.Vokey, 2000 NFCA 14 , 2000 NLCA 14, 186 Nfld. & P.E.I.R. 1 at para. 19.) [24] The trial judge noted that Mr. Freake and the complainant had a boyfriend-girlfriend relationship and that they had, in the past,engaged in sexual relations. Indeed, the complainant had, for a short time, moved with Mr.

Freake to a residence in ruralNewfoundland. However, when they returned to St. John’s, the complainant told Mr. Freake “that their boyfriend-girlfriend relationshipwas over, she didn’t want to carry on like that anymore although she agreed that they, you know, still should remain friends”. BecauseMr. Freake did not have his own residence at that time, the complainant agreed that he could stay in her apartment while he madearrangements for his own accommodation. [25] That night, although the complainant had told Mr.

Freake that their sexual relationship was finished, he forced non-consensualsexual intercourse on her. During the evening he had pulled off parts of the complainant’s clothes and had pinned her to the floor morethan once. The trial judge noted that Mr. Freake had spit into the complainant’s face and “was calling her a bitch and crazy and sayingthings like why do you make me do this? And it was a particularly unpleasant matter. At one point during the forced sexual intercourseor at times during the forced sexual intercourse he actually had his hand held over her mouth.” The complainant testified that she “was

screaming, trying to push him off her but he wouldn’t get off her. He kept pushing her down.” It was clear from the victim impactstatement that the complainant “is having difficulty in dealing with the memory of this and the hurt and the pain, the psychological painthat comes from this.” The trial judge also noted that the complainant suffered bruising to her arms. At the time of the incident, thecomplainant was sixteen years old and a single mother. Her infant child was in an adjoining room. Mr.

Freake was twenty years old atthe time. [26] The four year sentence imposed by the trial judge was within the range identified in Vokey. The trial judge considered relevantcase law, sentencing principles, and appropriate aggravating and mitigating factors. The sentence is not demonstrably unfit; the trialjudge did not err in principle; he did not fail to take into account a relevant factor; nor did he over-emphasize an appropriate factor. Thus,the discretion exercised by the trial judge in imposing the sentence is to be accorded deference. See

section 718.3(1) of the CriminalCode; R. v. M.(C.A.), [1996] 3 S.C.R. 500 at 565; and R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 at para. 46. [27] Mr. Freake was also convicted of uttering threats contrary to

section 264.1 of the Criminal Code, which says: Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat (

a) to cause death or bodily harm to any person; … Where the Crown proceeds by way of indictment, as in this case, the maximum sentence is five years imprisonment. [28] The elements of the offence are summarized in R. v. Clemente, (SCC), [1994] 2 S.C.R. 758 at page 763: … The amendment to the

section and the decision of this Court in R. v. McCraw, [ (SCC), [1991] 3 S.C.R. 72], make itapparent that it is not a necessary element of the offence that the intended victim be aware of the threat. Under the present action the actus reus of the offence is the uttering of threats of death or serious bodily harm. The mens rea isthat the words be spoken or written as a threat to cause death or serious bodily harm; that is, they were meant to intimidate or to be takenseriously.

To determine if a reasonable person would consider that the words were uttered as a threat the court must regard themobjectively, and review them in light of the circumstances in which they were uttered, the manner in which they were spoken, and theperson to whom they were addressed. (Underlining in original.) [29] In this case, the trial judge determined that the words that were uttered were meant to intimidate. Clearly, the threats regardingthe complainant and her child were repugnant.

However, considered objectively from the perspective of the reasonable person in light ofthe particular circumstances, the offences fall at the less serious end of the continuum. The threats were made during Mr. Freake’sconsultation with his social worker. He was clearly upset at the time and was “venting”. While the social worker took the threatsseriously and reported them to the authorities out of a sense of caution, she viewed the words in the context in which they were spoken. [30] A situation similar in many respects to the case now before this Court was considered in R. v.

H.J.P. (1995), (NL CA), 133 Nfld. & P.E.I.R. 20 (NLCA). At the time of uttering the threats, the defendant had been engaged in an intense argumentwith an official at Newfoundland and Labrador Housing Corporation regarding the rejection of his application for tenancy. He told theofficial to advise her manager that he should “keep a low profile” and that this was not a warning, but a threat. The official passed thisinformation on to her manager because the defendant had previously caused problems. He was, in fact, refused tenancy because of“anti-social behaviour”.

On appeal, Steele J.A., for the Court, reduced the sentence for uttering threats from six months imprisonmentimposed by the trial judge to one month. He explained: [27] In my view there are several factors that are relevant to the question of an appropriate or fit sentence: firstly, the threat was notmade directly to Mr.

Reid when it appears he could easily have done so; secondly, the threat was made in the course of a heatedargument with an official of the Housing Corporation when the appellant was upset over a perceived injustice; and, thirdly, the threatwas very general, ambiguous, the appellant not mentioning any particular course of action. The appellant did nothing in furtherance ofthe threat. [28] It is obvious that Ms. Hillier did not intend to take any chances and reported the matter to Mr.

Reid and a charge was eventuallylaid. [29] In my opinion a sentence of six months’ imprisonment is unreasonably harsh, out of proportion to the description of the offence,and consequently not a fit sentence. I would reduce the sentence to a term of imprisonment of one month. [31] A framework for determining a sentence that satisfies the principles of parity and proportionality in the case now before thisCourt also includes the following case law. [32] In R. v. G.

C., 2005 NLTD 35, 245 Nfld. & P.E.I.R. 271, the offender was sentenced to three months imprisonment consecutiveto sentences for serious assaults against a woman with whom he had had a relationship for about four years. When striking the womanwith a broom handle, he told her he would “pull a ‘Hilroy Legge’”, which she understood was a reference to an alleged murder in thecommunity of a woman by a man. At the time the woman thought she was “going to die” (paragraph 6). [33] In R. v. Pumphrey (1995), (NL CA), 127 Nfld. & P.E.I.R. 286 (NLCA), Mr.

Pumphrey and the victim wereinvolved in an acrimonious property dispute. Mr. Pumphrey had earlier been subject to a peace bond on that account. The basis of theuttering threats charge was the victim’s testimony that Mr. Pumphrey had threatened to “blow his head off”, a threat which the victim

took seriously since he had been threatened on previous occasions and Mr. Pumphrey “had once discharged a gun over his head”(paragraph 3). Marshall J.A., for the majority, noted that Mr. Pumphrey had committed a series of acts of aggression and violence inrelation to the property dispute, and that there was evidence “that his conduct was terrorizing residents of the community” (paragraph50). The majority of this Court affirmed a sentence of four months imprisonment though Cameron J.A., in dissent, would have reducedthe sentence to one month which she considered would have had the desired effect of changing Mr.

Pumphrey’s behaviour. [34] In R. v. Lewis (2002), (NL SC), 212 Nfld. & P.E.I.R. 145 (NLTD), Mr. Lewis was sentenced to fourteendays imprisonment for threatening the victim by stating that he would cause her death or bodily harm. She had witnessed an assault byMr. Lewis against her boyfriend. [35] The threats in this case would ordinarily result in a sentence at the low end of the range.

However, an aggravating factor is Mr.Freake’s conviction for the same offence just three months earlier. (The circumstances of that offence are not before the Court, but thesentence was short, being “one day, time served” and three years probation.) [36] An appropriate sentence would be two months for each offence taking into account the need for specific deterrence, butrecognizing that Mr. Freake is still a young man with prospects for rehabilitation. However, the sentences for the two offences shouldrun concurrently. The two convictions for uttering threats relate to the same words said at the same time.

Separate charges were laidbased on the fact that the threat was made against both the complainant and her child. However, the threats constituted a single criminaladventure. Accordingly, the sentence for the second conviction is properly made concurrent with the sentence for the first. [37] This Court in R. v. Murphy, 2011 NLCA 16, 304 Nfld. & P.E.I.R. 266 at paras. 27-28, recently re-affirmed that sentences forbreaches of court orders (including probation) should ordinarily be consecutive to the sentences for the offences that gave rise to thebreaches.

It is not clear on what basis the trial judge made the sentences for the breaches of probation concurrent. [38] Indeed, he proceeded on the erroneous assumption that “ordinarily” sentences for breaches of court orders would be servedconcurrently. In imposing a sentence of two months, the trial judge stated that these breaches did not fall “at the bottom end of therange”.

There being no reason either given by the trial judge or that may be concluded from the record for making the sentencesconcurrent, the proper approach is to impose consecutive two month terms of imprisonment for each breach of probation. [39] Regarding totality, the trial judge adverted to it, but concluded that no adjustment to the sentences was necessary. [40] The sentences are, with the adjustment for uttering threats and for the breaches of court orders: - sexual assault 4 years - uttering threats 2 months, consecutive - uttering threats (second count) 2 months, concurrent - breach of probation 2 months, consecutive - breach of probation (second count) 2 months, consecutive This would result in a total sentence of 4 years 6 months. [41] Is this sentence unduly long or harsh in the circumstances of this offender?

This question requires consideration of theprinciples set out in the Criminal Code and in R. v. Hutchings, 2012 NLCA 2 at para. 84. [42] Mr. Freake was twenty years old at the time of the offences. The circumstances surrounding the sexual assault were serious,involving violence and degrading treatment. The offences now before this Court were committed in December 2008. Mr. Freake’scriminal record begins in July 2007 when he was convicted of theft under $5,000 (conditional discharge and six months probation).

InOctober 2007 he was convicted of two counts of uttering threats and one count of assault (nine months probation for each offence, to runconcurrently). In January 2008, he was convicted of theft under $5,000 (suspended sentence, nine months probation). In September2008, he was convicted of armed robbery (fifteen months imprisonment being time served, three years probation); two counts foruttering threats (one day time served, three years probation); and four counts of failure to comply with a court order (one day timeserved, three years probation).

These and the offences now before this Court occurred during the short period of eighteen months. Armed robbery and uttering threats are serious charges. However, the sentences imposed would indicate they fell at the lower end of thecontinuum. Mr. Freake is now in his early twenties. Rehabilitation remains a real possibility. However, so far, relatively lenientsentences have not had the desired effect of altering Mr. Freake’s behaviour.

In the circumstances, a significant term of imprisonment iswarranted. [43] Nonetheless, applying the sentencing principles set out in the Criminal Code and in Hutchings, a total sentence of 4 years 6months is unduly long or harsh and would amount to a crushing sentence for an offender of Mr. Freake’s age and background, given thestill present potential for rehabilitation. Accordingly, the sentence is reduced to a term of imprisonment of four years, less six monthspre-sentence custody. This result is to be achieved by making all the sentences concurrent. In

summary, the sentences are: - sexual assault 4 years (less six months pre-sentence custody) - uttering threats (first count) 2 months, concurrent (changed for totality from consecutive) - uttering threats (second count) 2 months, concurrent - breach of probation (first count) 2 months, concurrent (changed for totality from consecutive) - breach of probation (second count) 2 months, concurrent (changed for totality from consecutive).

CONCLUSION [ 44 ] The appeal against conviction is dismissed. The appeal against sentence is allowed in part. Mr. Freake’s period of incarceration will be four years, less six months for pre-sentence custody, starting from March 27, 2009, the date on which he was sentenced by the trial judge. __________________________________ B. G. Welsh J.A. __________________________________ M. H. Rowe J.A. I Concur: ____________________________ C. W. White, J.A.