R. v. Pyke, 2012 NSSC 187

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Pyke, 2012 NSSC 187 Date: 20120430 Docket: CRH 354302 Registry: Halifax Between: Her Majesty the Queen v. Cordell Alvin Pyke Judge: The Honourable Justice Felix A. Cacchione Heard: April 30, 2012, in Halifax, Nova Scotia Written Decision: May 10, 2012 Counsel: Catherine Cogswell and Alonzo Wright, for the Crown Luke A. Craggs, for Mr. Cordell Pyke

By the Court : [ 1 ] We are here for the sentencing of Mr. Cordell Pyke who was convicted by a jury of two offences, attempted murder and aggravated assault, arising out of one fact situation. [ 2 ] With respect to the aggravated assault, counsel, I propose to enter a stay on that conviction. It was not addressed in sentencing. Mr. Craggs : He was also convicted of a s.88 offence My Lord. [ 3 ] Yes he was. I will stay that offence as well, given that it is all part and parcel of the principal offence for which he was convicted.

So there will be a stay on both the aggravated assault and the s.88 offence. [ 4 ] I have had the benefit of the submissions of counsel together with the presentence report. The presentence report shows that this is a 25 year old young man who has a limited education. He has a prior adult criminal record as well. [ 5 ] With respect, before I continue Ms. Cogswell, Mr. Craggs made the comment this morning that he was not on probation at the time as indicated in the presentence report. I have reviewed the JEIN report and it would appear that that is accurate, unless the Crown is... Ms.

Cogswell : No, that is my understanding My Lord. [ 6 ] All right. The presentence report shows that Mr. Pyke’s father left the family home when Mr. Pyke was two years old. He has had limited telephone contact, or he had had limited telephone contact with his father until the year 2001, when his father returned to attend Mr. Pyke’s half-brother’s funeral. His half-brother was murdered in 2001. Since that time Mr. Pyke’s contact with his biological father has been minimal. His half-brothers Kellen, Tereeko and Mr. Pyke were raised by their mother. From the age of six years to 11 years, while Mr.

Pyke was in the family home, his mother was in a verbally and physically abusive common law relationship. The violence which he witnessed was directed towards his mother and not the children. Not that that makes any difference. He was exposed to violence at an early age. [ 7 ] The family did not participate in any type of counselling to deal with the issues surrounding domestic violence and in particular the effect of that on young children. [ 8 ] He described a good relationship with his family members until the matter which is before the Court. The co-accused in this matter are family members and Mr.

Pyke’s present situation, that is being convicted of attempted murder, has led him to reflect on the degree of support he received from some members of his family. Mr. Pyke candidly admitted to difficulties following household rules, to legal difficulties and to substance abuse issues within the home setting. He was living at his mother’s home prior to the incident which is before this Court. [ 9 ] He has been on remand since this incident. Remand began February 5 th , I believe or the 6 th , a period of approximately 15 months. He has a seven year old daughter who is not aware of his current situation.

He indicated that there was no domestic violence during the course of his on and off relationship with that child’s mother. My Pyke maintained a separate residence from the child and her mother to keep his substance usage away from his family. [ 10 ] He also has a two year old daughter from another relationship, however that child was taken into custody by Children’s

Services when the child’s mother was before the court. [ 11 ] Mr. Pyke indicated to the author of the presentence report that he continues to benefit from positive support provided by his mother and his girlfriend, Ms. Stevenson. He no longer maintains contact with family members who were involved in the matter before the Court saying that he feels betrayed as they could have cleared things up for him. [ 12 ] His future plans include relocating to Hamilton, Ontario and distancing himself from his current associates in order to turn his life around. [ 13 ] His mother commented that Mr.

Pyke has a limited education and an extensive criminal history and involvement in the drug trade. She reported that he was not doing well and was addicted to pills. She noted, however, that since the age of 13 years when he found himself before the courts, he has always accepted responsibility for his actions and the consequences that follow those actions. His mother feels that he is not capable of doing what he has been charged with. She believes that he was found guilty by association only. She states that incarceration cannot serve to rehabilitate someone who is wrongfully convicted. [ 14 ] His Aunt, Ms.

Anderson, said that the family was close knit, however the current matters have caused friction within the family. She noted that the accused has been in conflict with the law for some time, although in the past he always accepted responsibility for his actions. She believes that the accused was wronged by his conviction and that justice was not fair in this case. [ 15 ] Ms. Stevenson, his on and off girlfriend, said that the incident appears to be out of character for Mr.

Pyke and she noted that she had not witnessed this side of him. [ 16 ] The accused’s disruptive behaviour in school began when he was in Grade Primary. When he was eight years old he was diagnosed with Attention Deficit Hyperactivity Disorder and put on medication. However, the side effects of the medication caused mood swings and difficulty in sleeping. He was expelled from school. He was home schooled when he was in Grad 7 after failing that grade twice.

He was suspended numerous times from school for disruptive and defiant behaviour. [ 17 ] Although it is noted that his education is viewed in the presentence report as being Grades 7-9 equivalent, the presentence report identifies that he may not be functioning at that level of education. He has a limited employment background, having worked as a labourer in the past. [ 18 ] The report also notes that despite the death of his brother and the two subsequent deaths of individuals close to him within the past two years, Mr. Pyke has chosen to deal with their loss on his own and not sought counselling. [ 19 ] Mr.

Pyke, I am going to digress for a minute. I am not a psychologist, nor do I pretend to be one, but the experiences that you have had: witnessing abuse in your household as you were growing up; the death of your half brother; death of some friends, does take its emotional toll. And if you are sincere in your expression that you want to turn your life around, you are going to need some help. You cannot do that on your own. So, do not be so macho that you feel that “I can handle all of this and I’ll be okay”. Because you cannot. [ 20 ] Mr.

Pyke began using marijuana at the age of 13 and over time his consumption became problematic. He discontinued using marijuana after his release from the federal penitentiary, however he began ingesting dilaudid, an opiate. The use of that also became frequent and problematic. He has used alcohol since the age of 15 and there has been an increase in his usage of alcohol. Over the years his use of alcohol has caused major disruptions in his life.

He acknowledged that he can become less tolerant and more aggressive while intoxicated. [ 21 ] Finding himself in legal difficulties has had the result of seriously jeopardizing his family relationships.

[ 22 ] He indicated to the author of the presentence report that since his release from federal custody in 2009 he has not consumed alcohol. He further stated that since being on remand he has been free and clean of both drugs and alcohol. He acknowledged the lengthy criminal history as a result of negative choices he has made in his life. He states that he has always accepted responsibility for his actions and the consequences associated with them. He stated, and I quote “I did a lot of crime and admitted to it”.

Today when asked if he had anything to say he indicated to the Court a similar comment, and in fact indicated that three offers for disposition of this matter short of trial were put on the table and he rejected all of them because he did not feel that he had committed any offence.

He does not accept responsibility nor is he remorseful for the present offences because he is unable to admit to doing something that he says he did not do. [ 23 ] He was released from the penitentiary on December 29 th , 2009, however some six months later his parole was suspended and he was returned to the penitentiary in June of 2009 and released from there in November of 2009. [ 24 ] While in custody he completed some programming which included a program dealing with attitudes, associations and alternatives. He also participated in a substance abuse program.

His parole officer noted that he was not highly motivated to make significant changes in his life to reflect more positive outcomes. While being detained on the present matter he has had two disciplinary matters at the Correctional Centre. [ 25 ] Mr. Pyke has limited educational and employment skills and historically has lacked the motivation to effect positive changes in these areas of his life. The report says that while verbalizing his intent to improve his situation, when provided the opportunity he has admitted to returning to his negative associations and involving himself with the criminal element.

He has expressed an understanding that he must take ownership of the choices that he makes in life and accept the consequences of those choices. [ 26 ] Section 724(1) of the Criminal Code reads as follows: In determining a sentence, a court may accept as proved any information disclosed at the trial or at the sentencing proceedings and any facts agreed on by the prosecutor and the offender. [ 27 ] Subsection (2), which is applicable here, states as follows: Where the court is composed of a judge and jury, the court (

a) shall accept as proven all facts, expressed or implied, that are essential to the jury’s verdict of guilty; and (

b) may find any other relevant fact that was disclosed by the evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact. [ 28 ] A number of witnesses were called at trial. The two key witnesses however were James and Jason Sprague. James, the victim in this matter, began his day on February 5 th , 2011, according to his evidence, with a cup of coffee and a joint. Later on that day he consumed some ecstasy. He was under the influence of ecstasy at the time of this event. On direct examination he stated that he saw the accused as one of four men armed with knives.

He was stabbed, but could not say who stabbed him or when. His evidence was that he never made it inside his mother’s apartment after the stabbing. Photographs introduced at trial clearly show the inside of his mother’s apartment and blood drops in that apartment. [ 29 ] His evidence was inconsistent within itself on direct examination. For example, he stated when referring to an incident earlier that month when he stabbed Mr. Pyke’s dog with a knife - “I always carry a knife”.

His evidence was that on February 5 th , 2011 he did not have a knife on him, because according to his evidence “he didn’t think to bring it with him that day”. His evidence at trial was inconsistent with evidence which he gave under oath at the preliminary inquiry. For example, at trial he stated that he began his day by smoking a joint. At the preliminary his answer to that question was that he did not smoke marijuana that day. After the dog incident he testified that there was bad blood between him and Mr. Pyke.

However, when shown a text message sent on February 2 nd , he indicated that things were okay between him and Mr. Pyke. On direct examination his evidence was that he had used ecstasy about three or four

times in the past. On cross-examination he upped that to maybe six or seven times. His evidence was wrong with respect to the colourof the car that he says followed him and his brother to his mother’s residence. On direct examination he said the car was beige incolour. He then said that the car was similar in colour to that of his brother’s which he agreed looks as if, and in fact was, goldcoloured.

Exhibit 15, a photograph of that vehicle, clearly shows that the car which he described as following them was silver in colour. [30] In cross-examination he testified that he saw five or six guys with knives but could not say who stabbed him, just that theaccused stabbed him. He testified that he saw the accused with a knife in hand. However, at the preliminary inquiry when asked if heknew of anybody other than Kellen stabbing him, his answer was “no, not specifically”. His evidence at trial was that five or six guyshad knives.

However, his statement given to the police two days after the incident indicates when asked if there was a fourth personwith a knife, he said “he wasn’t sure”. At trial his evidence was that he was quite certain that the accused stabbed him. His statement tothe police at page 3, which he agreed was accurate indicates that he told the police that he wasn’t sure if Mr.

Pyke had a knife. [31] Although his evidence was that he was 100% confident about the identity of the four attackers, when shown photographiclineup he picked out a person whom he identified with 100% certainty, however it turned out that the person he identified was not theperson he thought it was. [32] After the lunch break on the day of his testimony Jason Sprague had a question for the court. He wanted to know why theCrown had not paid for his lunch. When I entered the courtroom and took the bench, Jason Sprague reeked of marijuana. It wasincredible. He identified Mr.

Pyke as one of the stabbers. [33] Jason’s criminal record includes numerous convictions for offences of dishonesty. The statement which he gave to the policeregarding who the occupants of the motor vehicle were was based, not on personal observation, but rather on information which heobtained from other sources prior to giving his statement to the police. [34] On cross-examination at trial he recalled trying to find out about the incident after it happened. He did so by sending textmessages.

One of those text messages to his sister read, and I quote: “We have to tell the police that the accused and his brother werethere. They will roll on the rest.” He then received a text indicating the names of two persons in the vehicle and that the vehiclebelonged to Mr. Pyke. In one text message when he was asked by his sister if the names she gave him helped him. His reply was “Yes,100%”.

His statement to the police was given after he had received the text messages from his sister regarding the identity of personswho were in the car. [35] This Court is bound to accept as proven all facts expressed or implied that are essential to the jury’s verdict of guilty. By its verdict the jury accepted that Mr. Pyke was one of several persons who attacked James Sprague on February 5th, 2011. The finding ofguilt however does not indicate if Mr. Pyke was convicted as a principal or as an aider. [36] Neither James nor Jason Sprague could by any measure be viewed as reliable and trustworthy witnesses.

Both have a history ofcrimes involving dishonesty. Their criminal pasts clearly shows that neither has any regard for court orders.

Given the inconsistencies intheir evidence at trial as compared to the evidence given at the preliminary inquiry, the inaccuracy of some of the evidence given at trialand the fact that Jason Sprague was prepared to provide information to the police that did not come from his personal observation, it issafe to infer that both James and Jason Sprague were prepared to say whatever it took to serve their own purposes. [37] This sentencing is made particularly difficult as a result of this.

The presentence report, if accepted as accurate and truthfulwith the respect to the accused always acknowledging his guilt on prior occasions when in conflict with the law but not doing so in thiscase, adds to the Court’s difficulty. [38] As an aside, but in keeping with the foregoing, this Court cannot fail to consider the look of surprise evident on the faces ofboth Crown and defence counsel when the verdict was returned. This Court has presided over countless jury trials over the past 26years.

I cannot help but feel a sense of unease at the verdict. [39] Crown is seeking a period of eight to 10 years and relies on five cases: The Queen v. Ahmed-Saidi (2001), (ON CA), 140 O.A.C. 346; Queen v. Gould (1990), (NS CA), 96 N.S.R. (2d) 123; Queen v. Carty; 2010ONCA 671; Queen v. Smith 2010 ONCA 229; and R. v. Phillips 2006 NBQB 378.

[ 40 ] The Ahmed-Saidi decision is very brief. With respect to the sentence imposed at trial of eight years, six months, the decision noted that the appellant had an extensive criminal record which revealed an escalation in his criminal activity. No specifics are provided in that decision regarding the extent of the appellant’s criminal record, the nature of the convictions and what previous sentences had been. [ 41 ] In Gould the victim was stabbed multiple times and suffered from a laceration which extended from under the right ear to under the chin, wounds to the temple, cheeks, chest, fingers and wrist.

The appellant provided a statement to the police shortly after the incident where he vividly described the events and indicated that he had intended to kill the victim and in fact hoped that the victim died. The Court of Appeal upheld a sentence of eight years incarceration. [ 42 ] In The Queen v. Carty the court set aside a conviction for attempted murder, substituted a conviction for aggravated assault. It also reduced the appellant’s sentence from eight and a half years less two and a half years credit for pretrial custody.

The court described Carty as having inflicted the most serious injuries in what was unquestionably a planned and vicious attack. The victim in that matter continued to suffer from numbness in his face, left shoulder and chronic pain in his knees. [ 43 ] In the Smith case the appellant was sentenced to 10 years imprisonment. The Court of Appeal did not reduce the sentence as it found it to be within the range. The trial judge there had indicated the range being five to 15 years. [ 44 ] In the Phillips case the accused was sentenced to a period of four years nine months for aggravated assault.

The victim in that case was struck a number of times in the head and back with a baseball bat, was also stabbed and severely injured. The appellant was convicted of inflicting some of the injuries suffered by the victim, but not all of them. [ 45 ] In this case the defence submission refers to Kellen Pyke stabbing the complainant in the chest and then the complainant going into shock. The medical evidence revealed that the Kellen’s stab wound went through the complainant’s left nipple and came close to his heart.

The complainant was stabbed several more times and the defence says this is demonstrated by the holes in his clothing with most of the stab wounds causing only superficial injuries or no injuries as all. There was a significant wound on the right side of the complainant’s rib cage under his arm and two other wounds on the right side of his back.

My recollection of the evidence is that the injury on the right side of the rib cage is the one that was life threatening that punctured the lung. [ 46 ] Counsel for the accused argues that the Court should take into consideration s.718.2 of the Code which reads: 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 offence or the offender, and, without limiting the generality of the foregoing, ... (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [ 47 ] Defence counsel has submitted several cases: The Queen v. Cragg , [2009] B.C.J. No. 1015 where the accused stabbed a fellow inmate in the throat was convicted of attempted murder.

He was sentenced to a period of four years and the trial judge considered the accused’s lack of remorse, his guilty plea, his young age, medical issues, his difficult life and the fact that this was his first adult sentence. [ 48 ] The Dixon case involved a female accused stabbing her landlady repeatedly in the face and forehead during a dispute. The accused in that case came from an abusive background, had two prior convictions for significant violent offences.

The decision notes that the attack was extremely violent and prolonged and the accused was sentenced to eight years which was reduced to five after considering her pretrial custody.

[49] The Fitzpatrick, case, [1991] B.C.J. No. 3586 was a domestic violence case where the accused stabbed his common law wifeand left her for dead on the side of the road. There was a history of assaults and threats on the victim and the accused had a number ofconvictions for violent offences. The trial judge found that the accused was not remorseful and had in fact hoped that the victim woulddie. He was sentenced to seven years imprisonment. [50] The Hillier case involved an accused who slashed the victim on the shoulder with a sword.

The accused was 28 years old, hada prior record including assault causing bodily harm. The judge considered as aggravating factors the premeditation, prior record, serousinjury to the victim and sentenced the accused to four years for the attempted murder taking into account 10 months of pretrial custody. [51] R. v. Oelkuch, [2006] O.J. No. 3172 involved an accused who stabbed his employer multiple times with a hunting knife. Theaccused in that case had a history of aggression and drug abuse, however his only criminal conviction was dated. It was 20 years old. The accused had pled guilty to that offence.

The prosecution sought a 56 month sentence however the Court sentenced the accused to 36months. [52] R. v. Weldegergis, (SK CA), [1992] S.J. No. 317 involved an accused who stabbed and slashed threepersons in an apartment. Convicted of three counts of attempted murder. Sentenced to a total of four and a half years. That sentencewas raised on appeal to six years. [53] The defence in the present case asks that the Court consider remand time on the basis of 1.5 to 1 regarding the enhancedremand credit provisions of s.719 (3.1) of the Criminal Code.

The principal argument, as I understand it, is that there should be parityin sentencing this accused, having regard to the sentences imposed on his co-accused. Cordell Pyke was charged with three otheroffenders. Kellen, Tereeko Pyke and Tyler MacInnis. On the opening day of this trial the three other co-accused re-elected to trial byjudge alone and pled guilty to some offences. Two of those three former co-accused pled guilty to offences of violence. Tereeko Pykepled guilty to common assault and received a conditional sentence.

Kellen Pyke pled guilty to aggravated assault and was sentenced to aperiod of 24 months imprisonment. Kellen Pyke is the one that James Sprague identified as stabbing him in the chest near his heart. Kellen Pyke received one year credit for pretrial custody. [54] It is argued by the defence that the accused’s sentence must be proportionate with sentences given to other accused, inparticular Kellen Pyke, who was sentenced for aggravated assault.

It is submitted that although Cordell Pyke does not have the benefitof the mitigation of sentence as the result of a guilty plea and must be sentenced on the basis of the attempt murder conviction, thesentence imposed on his co-accused Kellen Pyke for aggravated assault, must bear some weight in the sentence to impose don Cordell. [55] Parity of sentences is an important component in this sentencing. The co-accused Kellen Pyke was identified by thecomplainant as the person who stabbed him in the chest. That wound penetrated his chest, came close to his heart.

It was thecomplainant’s evidence that immediately after being stabbed by Kellen he went into shock. In his evidence at trial the complainanttestified that the accused and some of the other guys were behind him. He testified that the accused could have been on his left or hisright side, however he was not sure. He could not say who stabbed him or when. His evidence was that he saw five or six guys withknives but could not say who stabbed him, where they stabbed him or when. His evidence was simply that the accused stabbed him.

Itis noteworthy, as I have mentioned before, that in his statement to the police James Sprague was not sure if the accused had a knife. [56] The only difference between Kellen Pyke and the accused, apart from their criminal backgrounds or records, is that Kellen wasconvicted or pled to aggravated assault, whereas Cordell was convicted by a jury of attempted murder. [57] As I indicated before, this is a particularly difficult sentencing as a result of the factors that I have listed. I must sentence Mr.Pyke for attempt murder. [58] If you would stand please Mr.

Pyke. [59] The sentence of this Court is that you be incarcerated for a period of 60 months. That is five years, less credit for remand time

on the basis of 1.5. That is, 22 months. Total sentence is 38 months. [ 60 ] There will be a DNA order and a firearms prohibition order signed. [ 61 ] Mr. Pyke, I have heard a lot of “BS” in my life. All right. If you are sincere about changing, it’s gotta start right now. You cannot, when you get out, go back to doing what you’ve been doing and what you had been doing in the past. Two things can happen if you do that: one, you’re going to go back to the pen. It’s going to be a lot longer. Second one, you’re going to find yourself in a grave. Mr. Pyke : You’re right. [ 62 ] Okay, so get it together. Mr. Pyke : Understood, Your Honour. Thank you. ____________________________ Cacchione, J.