R. v. House, 2012 NLCA 41

Date: 20120629 Docket: 11/52 Citation: R. v. House , 2012 NLCA 41 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: STEFAN HOUSE APPELLANT AND: HER MAJESTY THE QUEEN RESPONDENT Coram: Welsh, White and Harrington JJ.A. Court Appealed From: Provincial Court of Newfoundland & Labrador, Corner Brook Appeal Heard: April 5, 2012 Judgment Rendered: June 29, 2012 Reasons for Judgment by Welsh J.A. Concurred in by White and Harrington JJ.A. Counsel for the Appellant: T. James Bennett Counsel for the Respondent: Robin Fowler

Welsh J.A.: [ 1 ] Stefan House was convicted of break and enter and assault. He was sentenced to imprisonment for two years less a day for the break and enter, two months concurrent for the assault, and twelve months probation. The appeal against conviction focuses on whether the facts support a conviction for break and enter or for the lesser offence of being unlawfully in a dwelling-house. In addition, Mr. House appeals the sentence imposed for both convictions. BACKGROUND [ 2 ] On September 19, 2010, Stefan House was working a night shift at his place of employment located at Daniel’s Harbour, NL.

He received a call from his cousin informing him that his girlfriend had left a local drinking establishment with Bruce Pieroway, a man whom Mr. House knew only casually. At about 3:30 a.m., during his fifteen minute coffee break, Mr. House arrived at Mr. Pieroway’s house. He testified that, when he arrived at the house, he saw a light on in one of the rooms in the house and could hear a television playing. As a result, he thought someone in the house was awake. [ 3 ] He said that he knocked on the door but did not get an answer.

The door was unlocked so he opened it and called out to see if his girlfriend was there. Again, he received no response. He then entered the house stopping in the porch to take off his work boots. He said he saw a bedroom door ajar where he could hear a television playing and see a light on. He went to that door and pushed it open to find that he had surprised and disturbed Mr. Pieroway’s father who had been asleep. Mr. House demanded to know where Mr. Pieroway was. Mr. House admitted that he was “pretty upset at the time”. He said that he then walked back toward the entrance of the house and saw Mr.

Pieroway coming out of a bedroom. [ 4 ] Mr. House asked Mr. Pieroway where his girlfriend was. When told she was in the bedroom, Mr. House went into that room and had a loud exchange of words with her. After leaving the bedroom, he saw Mr. Pieroway sitting on the couch in the living room. Mr. House challenged Mr. Pieroway to go outside, the implication being, to fight. Mr. Pieroway told him that he did not want to fight and that they should talk about it in the morning. Meantime, Mr. Pieroway’s father demanded that Mr. House leave. [ 5 ] Mr.

House testified that the three men were “all talking back and forth and gradually moving towards the entrance at the same time”. When he got to the porch, he slipped his boots back on as they continued to argue. Mr. House testified that: … Bruce was in the doorway, and we were exchanging words, same as before – and I actually grabbed him by the shirt and probably pulled on it a bit; and that’s when he hit me in the face. And then, that’s when I put my arm around him, I guess in – if you would call it a headlock – and we kinda’ tumbled out onto the ground and I landed on bottom, and Bruce was on top.

I couldn’t really do much and he hit me three or four times; … The altercation ended quickly and Mr. House returned to work. Neither he nor Mr. Pieroway was injured. Mr. Pieroway’s evidence regarding the incident is generally consistent with that of Mr. House. Two days later, Mr. Pieroway’s father filed a complaint with the police and Mr. House was charged with break and enter and assault. ISSUES [ 6 ] The central issue in this appeal is whether the trial judge erred in convicting Mr. House of break and enter based on an incorrect understanding of the factual circumstances surrounding the incident.

The conviction for assault and the sentences imposed are also under appeal. ANALYSIS The Convictions [ 7 ] In this appeal, the Crown concedes that the trial judge misconstrued the factual circumstances underpinning the charges. In her oral decision, the trial judge concluded: 27. I am satisfied that Stefan House did not provide evidence to the contrary [a defence to the charge of break and enter] and that he committed a break and entry into the Pieroway home on September 19, 2008. The court is also satisfied that he then committed the offence of assault on Bruce Pieroway. I do not accept that Mr.

House went to the home to simply talk to [his girlfriend]. He walked into the house uninvited and he did so according to the evidence with the intention of engaging Bruce Pieroway in a fight. Despite the fact that he took the time to remove his work boots he entered the property in an aggressive manner. This is especially clear from the way in which he pushed open the door to Bruce Pieroway Sr.’s bedroom demanding to know “where his fucking son was”. When Bruce Jr. wasn’t in that bedroom Mr. House proceeded to search the next bedroom which was occupied by Bruce Jr. and [his girlfriend].

When he encountered Bruce Pieroway Jr. he challenged him to go outside to fight and proceeded to grab him by the shirt and then put him in a headlock. Mr. Pieroway endeavoured to defend himself but the altercation was initiated by Mr. House who reluctantly agreed that jealousy had gotten the better of him on the night in question. [ 8 ] However, there is no evidence that Mr. House went to Mr. Pieroway’s residence with the intention of engaging him in a fight. The angry words and Mr. House’s uncontrolled jealousy ultimately led to the physical altercation which occurred, for the most part, outside the house.

Counsel agreed that Mr. House entered the house without an invitation after knocking on the unlocked door and calling out. He removed his work boots and proceeded to the room where he saw a light and heard a television. When he discovered that his girlfriend and Mr. Pieroway were not in that room, he proceeded back toward the entrance. He then saw Mr. Pieroway coming out of the other bedroom. Mr. House went into the bedroom to confront his girlfriend while Mr. Pieroway went and sat on the couch in the living room. After coming out of the bedroom, Mr. House challenged Mr.

Pieroway to go outside to settle the matter. Mr. Pieroway’s father demanded that Mr. House leave. When Mr. Pieroway said he did not want to fight, angry words were exchanged as the two men moved toward the porch. Mr. House put his boots on, and at the doorway, he grabbed Mr. Pieroway by the shirt. It is unclear whether Mr. Pieroway then hit Mr. House, but Mr. House put Mr. Pieroway in a ‘headlock’ and the two men fell out the door, with Mr. Pieroway gaining the upper hand when he landed on top. The altercation ended quickly, without injury to either, and Mr.

House returned to work. [ 9 ] The trial judge convicted Mr. House of break and enter contrary to

section 348 of the Criminal Code . Mr. House admits the facts as set out in the previous paragraph, but submits that they support a conviction, not for break and enter, but for the lesser offence of being unlawfully in a dwelling-house contrary to

section 349 of the Code . I agree. [ 10 ]

Section 348 provides, in relevant parts:

(1) Every one who (

a) breaks and enters a place with intent to commit an indictable offence therein, (

b) breaks and enters a place and commits an indictable offence therein, … is guilty … (

d) if the offence is committed in relation to a dwelling-house, of an indictable offence and liable to imprisonment for life, …

(2) For the purposes of proceedings under this section, evidence that an accused (

a) broke and entered a place or attempted to break and enter a place is, in the absence of any evidence to the contrary, proof that he broke and entered the place or attempted to do so, as the case may be, with intent to commit an indictable offence therein; … [ 11 ]

Section 349 of the Criminal Code provides for the offence of entering and being unlawfully in a dwelling-house:

(1) Every person who, without lawful excuse, the proof of which lies on that person, enters or is in a dwelling-house with intent to commit an indictable offence in it is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or of an offence punishable on

summary conviction.

(2) For the purposes of proceedings under this section, evidence that an accused, without lawful excuse, entered or was in a dwelling- house is, in the absence of any evidence to the contrary, proof that he entered or was in the dwelling-house with intent to commit an indictable offence therein. [ 12 ]

Section 350 of the Criminal Code defines circumstances when a person is deemed to have ‘entered’ for purposes of

section 349 or deemed to have broken and entered under

section 348 : For the purposes of sections 348 and 349 , (

a) a person enters as soon as any part of his body or any part of an instrument that he uses is within any thing that is being entered; and (

b) a person shall be deemed to have broken and entered if (

i) he obtained entrance by a threat or artifice or by collusion with a person within, or (ii) he entered without lawful justification or excuse, the proof of which lies on him, by a permanent or temporary opening. [ 13 ] Clearly, Mr. House had not been invited into the house. However, the evidence must be assessed in context and as a whole in determining whether there was a factual basis for the trial judge to convict Mr. House of break and enter as opposed to being unlawfully in a dwelling-house. [ 14 ] Crown counsel conceded that there are errors in the trial judge’s factual findings.

There was no evidence to support the conclusion that Mr. House went into the house “with the intention of engaging Bruce Pieroway in a fight”. He entered the house through an unlocked door after knocking, and upon seeing a light on and hearing a television playing. As he entered, he called out. He removed his boots and went looking for his girlfriend and Mr. Pieroway. Upon seeing Mr. Pieroway, he did not challenge him or assault him. Rather, he went to confront his girlfriend. It was when he left her after a verbal exchange and saw Mr. Pieroway sitting on the couch that he challenged him to go outside.

They argued as both moved toward the porch where Mr. House put on his boots. [ 15 ] It is clear from the concession of the Crown and a review of the transcript that the trial judge made palpable and overriding errors of fact which were material to her determination that Mr. House was guilty of break and enter contrary to

section 348 of the Criminal Code . In the result, the conviction on that charge must be set aside and the evidence reviewed to determine whether the facts as established support a conviction under

section 348 , break and enter, or

section 349 , being unlawfully in a dwelling-house which is a lesser included offence. [ 16 ] A review of the evidence as conceded by both the Crown and Mr. House, considered in the context of the circumstances as a whole as discussed above, is consistent with a finding, not that Mr. House broke into the house, but that he entered the house without lawful excuse as contemplated by

section 349 . The elements of the lesser included offence of being unlawfully in a dwelling-house contrary to

section 349 of the Criminal Code have been established beyond a reasonable doubt. A finding of guilt on that charge must be entered. [ 17 ] With respect to the conviction for assault contrary to

section 266 of the Criminal Code , Mr. House admitted that he grabbed Mr. Pieroway by the shirt and subsequently put him in a ‘headlock’. Accordingly, the elements of the offence were proven beyond a reasonable doubt, and the finding that Mr. House was guilty of the offence is affirmed.

The Sentence [18] The conviction for break and enter having been set aside, this Court must determine a fit sentence for the offence of beingunlawfully in a dwelling-house. Mr. House submitted that an appropriate disposition would be a conditional discharge as provided forunder

section 730 of the Criminal Code.

The criteria for granting a conditional discharge are enumerated in section 730(1): Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which aminimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court beforewhich the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, insteadof convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation ordermade under subsection 731(2). [19] In this case, the preconditions for considering a conditional discharge are satisfied.

Section 349, being unlawfully in adwelling, provides for imprisonment for a term not exceeding ten years, and

section 266, assault, provides for a term not exceeding fiveyears. Neither prescribes a minimum punishment. [20] Whether a conditional discharge is appropriate in these circumstances requires a consideration of whether such a dispositionwould be in the best interests of the accused and not contrary to the public interest. These factors were discussed in R. v. Elsharawy(1997), (NL CA), 156 Nfld. & P.E.I.R. 297 (NLCA): [3] For the court to exercise its discretion to grant a discharge under s. 730 of the Criminal Code, the court must consider that thattype of disposition is: (

i) in the best interests of the accused; and (ii) not contrary to the public interest. The first condition presupposesthat the accused is a person of good character, usually without previous conviction or discharge, that he does not require personaldeterrence or rehabilitation and that a criminal conviction may have significant adverse repercussions.

The second condition involves aconsideration of the principle of general deterrence with attention being paid to the gravity of the offence, its incidence in thecommunity, public attitudes toward it and public confidence in the effective enforcement of the criminal law [authorities omitted]. [21] The offences were committed by Mr. House in September 2008 when he was twenty years old. He has no criminal record. The pre-sentence report indicates that he completed high school in 2006 and a one year industrial mechanic millwright program at theCollege of the North Atlantic in 2007.

He reported that he completed all his studies with honours. He has been employed more or lessregularly since completing his course and was employed at the time of the hearing in this Court. [22] According to the pre-sentence report, he has a supportive family. At the time of the report, he was single with no children. Hismother indicated that Mr. House’s conduct on the night that the offences were committed was uncharacteristic. Letters of reference fromMr. House’s employer, his former school principal, the deputy mayor of Daniel’s Harbour, and the retired postmaster were submitted atthe sentencing hearing.

As stated by the trial judge in her oral decision: 19. … The letters of reference described Mr. House as being mild mannered, polite, hard working, energetic and respectful. He wasdescribed as being an exceptional student and being a responsible person. [23] The author of the pre-sentence report wrote that Mr. House “presented as honest”, and that: Mr. House is articulate and expressive. He appears to have a stable lifestyle with solid and long-term roots in the local community. Hismother concurs with those comments. She adds that her son is “laid back” and usually not prone to overreaction.

She says he is notviolent toward her or other members of the family and is not known in the community to be violent. He is reportedly quiet and not“rowdy” in any way, adding that her son is well liked in the Daniel’s Harbour area. Ms. House asserts that she has not seen orexperienced any sort of anger management concerns with her son and that as far as she is concerned this event (the offences before theCourt) is unusual and not likely to happen again. She adds that her son is upset that he acted as he did and has expressed remorse for hisactions and the effects of the offence on those involved. Mr.

House maintained his innocence in respect of the offence of break and enter, but he has admitted the facts as set out in paragraph 8,above, and recognizes the possible effect his conduct had on the Pieroways and his girlfriend. [24] As discussed in Elsharawy, in an assessment of whether a conditional discharge is in the best interests of Mr. House, the firstcondition presupposes that the accused is a person of good character, ordinarily with no previous criminal conviction or discharge. Based on the above, this supposition is satisfied in this case.

As to the need for personal deterrence or rehabilitation, I note that Mr.House was on release, with conditions, on a Promise to Appear prior to his trial, and that he obtained judicial interim release, again withconditions, pending determination of his appeal. He has been compliant with the terms of release, particularly the requirement to keepthe peace and be of good behaviour, for almost four years. Given the nature of the offence and Mr. House’s conduct since the offenceswere committed, personal deterrence and rehabilitation are not matters of concern.

Finally, regarding adverse repercussions from acriminal conviction, Mr. House is a promising young man who, in his twenties, is still maturing and developing the basis for aproductive life including employment and relationship opportunities and decisions. A criminal record, where such is unnecessary forpurposes of protection of the public, may result in roadblocks in terms of this development. Such a result is to be avoided provided Mr.House is otherwise a proper candidate for a conditional discharge. [25] The second condition that must be satisfied under

section 730 of the Criminal Code is that a conditional discharge would not becontrary to the public interest. As discussed in Elsharawy, this involves a consideration of “the principle of general deterrence withattention being paid to the gravity of the offence, its incidence in the community, public attitudes toward it and public confidence in theeffective enforcement of the criminal law” (paragraph 20, above).

A conditional discharge for the offence of being unlawfully in adwelling-house in the particular circumstances of this case as discussed above would not engage a concern related to the principle ofgeneral deterrence such that Mr. House should be denied a such an order. [26] A similar analysis and conclusion applies with respect to the offence of assault contrary to

section 266 of the Criminal Code. While the assault, which was minor in nature, constituted a separate offence, it was part of the same event and engages the same

considerations. In the circumstances, it would be counter-productive and unreasonable to grant a conditional discharge in respect of theoffence of being unlawfully in a dwelling-house while imposing a conviction and two month sentence for the assault. In the result, aconditional discharge is properly ordered with respect to the offence of assault contrary to

section 266 of the Criminal Code. Since Mr.House was convicted of this offence, it is necessary, for purposes of ordering a conditional discharge, to set aside the conviction andsubstitute a finding of guilt. This is necessary because

section 730 requires the court “instead of convicting the accused” to make anorder for a conditional discharge (R. v. Bartlett, 2005 NLCA 75, 252 Nfld. & P.E.I.R. 154, at paragraph 3; R. v. Prowse (1998), (NL CA), 168 Nfld. & P.E.I.R. 289 (NLCA)).

SUMMARY AND DISPOSITION [27] The trial judge erred in convicting Mr. House of the offence of break and enter. Accordingly, the appeal against convictionunder

section 348 of the Criminal Code is allowed. Mr. House is, however, guilty of the offence of being unlawfully in a dwelling-housecontrary to

section 349 of the Criminal Code. In the particular circumstances of this case, it is appropriate to grant a conditionaldischarge with respect to the offences arising from this incident; that is, the charge under

section 349 and the finding that Mr. House wasguilty of assault contrary to

section 266. [28] Accordingly, a conditional discharge under

section 730 of the Criminal Code is ordered. Mr. House shall be on probation forsix months subject to the following conditions: (1) keep the peace and be of good behaviour; (2) appear before the court when required todo so by the court; (3) notify the court or the probation officer in advance of any change of name or address, and promptly notify thecourt or the probation officer of any change of employment or occupation; and (4) promptly report to a probation officer upon receipt ofthis decision and report as required by the probation officer and in the manner directed by the probation officer. _______________________ B.G. Welsh J.A. I concur: C. W. White J.A. I concur: M. F. Harrington J.A.