B.H. APPELLANT AND: HIS Majesty the KING RESPONDENT, 2022 NLCA 54

IN THE COURT OF APPEAL OF NEWFOUNDLAND AND LABRADOR Citation : R. v. B.H. , 2022 NLCA 54 Date : September 15, 2022 Docket Number : 202001H0061 BETWEEN: B.H. APPELLANT AND: HIS Majesty the KING RESPONDENT Coram: Fry C.J.N.L., O’Brien and Goodridge JJ.A. Court Appealed From: Provincial Court of Newfoundland and Labrador Harbour Grace Appeal Heard: June 14, 2022 Judgment Rendered: September 15, 2022 Reasons for Judgment by: Goodridge J.A. Concurred in by: Fry C.J.N.L. and O’Brien J.A. Counsel for the Appellant: Jason A. Edwards Counsel for the Respondent: Arnold W. Hussey, KC Authorities Cited: CASES CITED: R. v.

Noseworthy , 2021 NLCA 2 ; R. v. Friesen , 2020 SCC 9 ; R. v. Lacasse , 2015 SCC 64 , [2015] 3 SCR 1089; R. v. Hutchings , 2012 NLCA 2 , 316 Nfld. & P.E.I.R. 211; R. v. McCarthy , 2005 NLCA 36 , 248 Nfld. & P.E.I.R. 14; R. v. A.T.S. , 2004 NLCA 1 , 232 Nfld. &

P.E.I.R. 283; R. v. Crocker (1991), (NL CA), 93 Nfld. & P.E.I.R. 222 (Nfld CA); R. v. Harris, 2011 ABCA 41; R. v.Marks (1994), (NL CA), 121 Nfld. & P.E.I.R. 200 (Nfld CA); R. v. Young, 2007 NLTD 96, 267 Nfld. & P.E.I.R. 226;R. v. Smith, 2010 NBQB 38; R. v. Roberts, 2019 NLCA 43, 4 C.A.N.L.R. 614; R. v. O’Keefe, 2018 NLCA 11, 2 C.A.N.L.R. 557. STATUTES CONSIDERED: Criminal Code, RSC 1985, c, C-46, sections 687(1)(a), 675(1)(b).

Goodridge J.A.: [1] On September 4, 2020, B.H. received an eight-month sentence plus two years of probation, following his convictions forassault with a weapon and assault causing bodily harm. The judge specified the individual sentence for each offence, being five monthsand three months respectively, and directed that the individual sentences be consecutive. [2] B.H. appeals on the grounds that the judge erred by ordering that the sentences be consecutive without considering the optionto order the sentences be concurrent.

B.H.’s argument is that the two offences were part of a single criminal venture, and accordingly thesentences should have been made concurrent, which would have resulted in five-month sentence. [3] B.H. also argues that a five-month sentence would be appropriate to meet the sentencing principle of totality, and that theeight-month sentence is demonstrably unfit. [4] B.H. asks this Court to intervene pursuant to section 687(1)(

a) of the Criminal Code and direct that the three-month sentencerun concurrent to the five-month sentence, to achieve an overall five-month sentence. [5] The appellant has not raised the duration of the individual sentences as an issue on this appeal; and there was no cross-appealby the Crown to challenge the sentence.

ISSUES [6] As this is a sentence appeal, the threshold issue is whether leave to appeal should be granted, Criminal Code, at s. 675(1)(b).If leave is granted, the remaining issue is whether an error was made in application of the principles of sentencing relating to concurrentor consecutive sentences, and in considering totality of sentence. Leave to Appeal [7] The test for leave to appeal a sentence is whether the appeal is frivolous in the sense of having no arguable basis or sufficientmerit, R. v. Noseworthy, 2021 NLCA 2, at para. 10.

The issues raised on this appeal, namely, whether the offences amount to a singlecriminal venture, and whether the judge failed to apply the principles of sentencing, are not frivolous issues. I am satisfied that the test ismet. Accordingly, I would grant leave to appeal. BACKGROUND [8] The complainant was B.H.’s daughter, nine-years-old at the time of the trial and seven and eight-years-old at the time of theoffences. The trial judge accepted her evidence that she was physically assaulted by B.H. on multiple occasions (between December 5,2017 and September 27, 2018) using a weapon (belt) and his fists.

The nature of the assaults, as described by the complainant, includedbeing whipped with a belt on the face and hands, choked with a belt around the neck, and punched on the body causing bodily harm bybruising (Transcript, September 9, 2019, at 18, 24 and 25). [9] In his reasons for sentence, the judge set out the facts, nature of the offences, and B.H.’s circumstances. He discussed theprinciples of sentencing, noting that for these two offences “specific and general deterrence and denunciation are the paramountsentencing principles”, (Transcript, September 4, 2020, at 279).

The judge referred to B.H.’s position of trust vis-à-vis the complainant,his criminal record (dated as it was), the seriousness of the offences, and the complainant’s young age and vulnerable position, asaggravating factors. The judge found that, “There is very little in the way of mitigation” (Transcript, September 4, 2020, at 279).

Thejudge reviewed various sentencing authorities and then concluded: An appropriate sentence with respect to this matter is, on Count number one [assault with a weapon, Criminal Code, at s. 267(a)] – fivemonths incarceration and, on Count number two [assault causing bodily harm Criminal Code, at s. 267(b)] – three months incarcerationconsecutive.

That is a total sentence of eight months in this case, which in my view reflects the particular facts of this case for the lack ofmitigating factors. (Transcript, September 4, 2020, at 280) STANDARD OF REVIEW [10] An appellate court may intervene to vary a sentence only if (1) the sentence is demonstrably unfit, or (2) the sentencing judgemade an error in principle that had an impact on the sentence, R. v. Friesen, 2020 SCC 9 at paras. 25-26, and R. v. Lacasse, 2015 SCC64, at paras. 41, 44. ANALYSIS Erred in failing to consider concurrent sentences based on single criminal venture

[11] B.H. says that the judge erred in principle by failing to comply with the guidelines regarding sentencing for multiple offencesas set out in this Court's decision in R. v. Hutchings, 2012 NLCA 2, 316 Nfld. & PEIR 211. He claims this error in principle resulted in asentence that was demonstrably unfit. [12] At paragraph 84 of Hutchings, Green C.J.N.L., writing for a unanimous panel, set out guidelines for a three-step process tofollow when sentencing for multiple offences.

The second step, which B.H. argues the judge failed to comply with, states, “The judgeshould then consider whether any of the individual sentences should be made consecutive or concurrent on the ground that theyconstitute a single criminal adventure…” [13] B.H. submits that the two offences for which he was convicted were part of a single criminal venture (same complainant, sametypes of incidents, and the same time frame) and that the judge should have considered whether the two individual sentences should beconcurrent. [14] It is well established that sentences should be consecutive unless there is a valid reason for making them concurrent, R. v.McCarthy, 2005 NLCA 36, 248 Nfld. & P.E.I.R. 14 at para. 11, R. v.

A.T.S., 2004 NLCA 1, 232 Nfld. & P.E.I.R. 283, at para. 9, and R.v. Crocker (1991), (NL CA), 93 Nfld. & P.E.I.R. 222 (Nfld CA). A valid reason would include multiple convictionsarising out of a single criminal venture, or as a method of achieving proper totality.

In Friesen, at para. 155, the Supreme Court ofCanada recognized the general rule that “offences so closely linked to each other as to constitute a single criminal adventure may, but arenot required to, receive concurrent sentences, while all other offences are to receive consecutive sentences”. [15] The judge in the current matter directed that the individual sentences be consecutive; the judge did not specify in his oralreasons that he had considered and rejected the possibility that the sentences be concurrent based on a single criminal venture. [16] At the sentencing hearing, neither the Crown nor the defence counsel suggested that these two offences be treated as a singlecriminal venture.

It was not a live issue considering that the testimony of the complainant, accepted by the judge, outlined two separateand discrete offences. [17] The assault with a weapon – belt – as described by the complainant, involved both choking and whipping. In describing thewhipping, the complainant said that it occurred “tons of times” and involved blows to her face and hands (Transcript, September 19,2019, at 18).

In describing the choking, the complainant said, “He would put the belt around my neck and he would pull the belt on myneck and I would choke” (Transcript, September 19, 2019, at 18). [18] The assault causing bodily harm, as described by the complainant, involved punching, “everywhere on my body” (Transcript at24-25). The complainant clenched her right hand into a fist and made a sweeping motion to illustrate the manner in which B.H. wouldpunch her. The complainant testified that these assaults resulted in visible bruising “everywhere because he punched me everywhere”(Transcript, September 19, 2019, at 26).

Photographs entered at trial showed bruising on the complainant’s face and chest. [19] Crown and defence counsel, in their submissions, reviewed various sentencing authorities. None of the authorities reviewedaddressed concurrency based on single criminal venture. [20] The Crown referred to R. v. Harris, 2011 ABCA 41. It involved a single charge of assault with a weapon – belt – by a fatheragainst his nine-year-old daughter. The offending action occurred multiple times over a ten-month period.

The court allowed the appealand replaced a suspended sentence with a nine-month sentence. [21] The defence referred to R. v. Marks (1994), (NL CA), 121 Nfld. & P.E.I.R. 200 (Nfld CA), R. v. Young,2007 NLTD 96, 267 Nfld. & P.E.I.R. 226, and R. v. Smith, 2010 NBQB 38. The latter two were prosecuted summarily and in that respectare not comparable authorities. [22] Marks involved a single charge of assault causing bodily harm committed by a 21-year-old male against his infant child. Thebodily harm suffered by the child was consistent with “shaken baby syndrome”.

This Court upheld the sentence of the trial judge – aneight-month sentence. [23] Counsel not raising the argument of single criminal venture, and the judge not addressing it in his reasons, are understandablein these specific circumstances, considering that case law from this Court indicates it would be an error to treat these two offences as asingle criminal venture. McCarthy included assault causing bodily harm and assault with a weapon (and other offences) committed bythe offender against his female partner over a 14 month period.

On appeal, the offender argued that concurrent sentences wereappropriate since the offences involved a single criminal venture - same complainant, same types of incidents, and the same time frame. In rejecting that position, Cameron J.A., writing for a unanimous panel, found that these were separate and discrete offences and not partof a single criminal venture: [17] … There is nothing in the descriptions of the offences which would lead to the conclusion that they were anything but separateoffences, which occurred on completely separate occasions.

The mere fact that the victim is the same person does not turn them intoa single criminal adventure. With respect, I can only conclude that the trial judge erred to the extent that he determined that theseoffences or any two of them were part of a single criminal adventure. [24] In the circumstances of the current matter, it was sufficient for the judge to indicate, as he did, that the sentences would beconsecutive, and it was not necessary for the judge to specify that he had considered and rejected the possibility that the sentences beconcurrent based on single criminal venture.

Adequate reasons will not always require the verbalization of every single step engaged inreaching the conclusion on sentence. The judge’s oral reasons here, when read as a whole and in the context of the evidence,submissions, and live issues on sentencing, were adequate. There was no error. Erred in failing to consider totality of sentence [25] B.H. argues, in addition, that the judge erred in not complying with the third step of the Hutchings guidelines regarding

sentencing for multiple offences. Under that third step, a judge takes one last look at the combined sentence to determine whether it is unduly long or harsh, in the sense of it being disproportionate to the gravity of the offence and the degree of responsibility of the offender. If it is found to be disproportionate then the o verall sentence can be adjusted by application of the totality principle , R. v. Roberts , 2019 NLCA 43 , 4 C.A.N.L.R. 614, at para. 51 , and R. v.

O’Keefe , 2018 NLCA 11 , 2 C.A.N.L.R. 557, at para. 29 . [ 26 ] I am satisfied from the oral reasons that the judge directed his mind to, and adequately addressed, this third step.

After reaching his conclusion on the individual sentences, the judge continued in his reasons to explain why this totality was appropriate: That is a total sentence of eight months in this case, which in my view reflects the particular facts of this case, the lack of mitigating factors with respect to this matter, the seriousness of the assaults, and the vulnerable position that [the complainant] was in at the time. (Transcript, September 4, 2020, at 280-281) [ 27 ] This was adequate reasoning in addressing totality and there was no error.

I add that the total sentence is certainly not demonstrably unfit in the sense of being excessive, and in fact is below the low end of the range considering the several aggravating factors, and the absence of mitigating factors. DISPOSITION [ 28 ] I would grant leave to appeal, and I would dismiss the appeal. _____________________________ Goodridge J.A. I concur: _____________________________ Fry C.J.N.L. I concur: _____________________________ O’Brien J.A.