HIS MAJESTY THE KING - v. -, 2023 SKKB 157

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 157 Date: 2023 07 28 Docket: CRM-SC-00002-2023 Judicial Centre : Swift Current BETWEEN: HIS MAJESTY THE KING - and - LEON MOSQUITO Counsel: Curtis G. Wiebe for the Crown Daniel N. Booy for the appellant JUDGMENT KEENE J. JULY 28, 2023 I. INTRODUCTION [ 1 ] Mr. Mosquito pleaded guilty on January 25, 2023 to six charges set out in four separate Informations. These charges pertain to:

a) Info. 501 – s. 266 – assault on Arlene Cutarm on October 21, 2021;

b) Info. 391 – s. 266 – assault on Arlene Cutarm on October 29, 2021;

c) Info. 391 – s. 145(4)(a) – fail to comply [FTC] with undertaking to stay away from Arlene Cutarm on October 29, 2021;

d) Info. 541 – s. 145(2)(b) – fail to attend court – March 10, 2022;

e) Info. 639 – s. 267(a) – assault with a weapon on Nancy Jean Ferguson on January 19, 2023;

f) Info. 639 – s. 264.1(1)(a) – threaten Marc-Antoine Huard on January 19, 2023; [ 2 ] The Crown set out the circumstances to the Provincial Court as follows: First of all, Information 501, October 21 st , 2021. Mr. Leon Mosquito was at his house with his spouse, Arlene Cutarm, who was visiting their children. Mr. Mosquito and Ms. Cutarm started to drink, which led to getting them into an argument with each other. Mr. Mosquito pushed Ms.

Cutarm and then hit her in the face, leaving her with a bloody lip. As the fight continued, Ms. Cutarm told her children to call the police. There’s a note here that on his record he has multiple convictions, three for previous assaults on -- on Ms. Cutarm. He was released on an officer’s undertaking, and then eight days later, October 29 th , 2021, Mr. Mosquito was intoxicated at his house and he hit Ms. Cutarm during an argument. This was witnessed by their son, Latrel Cutarm (phonetic). Mr. Mosquito was on conditions to have no contact with her following a domestic assault only eight days prior.

He was arrested, and then he was again released the next morning on an undertaking. Information 639, January 19 th , 2023, he went warrant. Then after he was in court he went warrant, failure to appear from March the 10 th , 2022. In January 19 th , 2023, Maple Creek RCMP were called to house number 83 on the Nekaneet First Nation by Nancy Ferguson. She reported that Mr. Mosquito picked up a metal kitchen chair and threw it at her. Mr. Mosquito told her that he was going to kill her as he chased her around the table. He hit Ms. Ferguson in the face with an open hand. Mr. Mosquito and Ms.

Ferguson were in the -- are in a domestic relationship. And Mr. Mosquito fled the house before police arrived, and then returned to the house after police departed -- departed, resulting in another call from Ms. Ferguson to the police. During the arrest, Mr. Mosquito pulled away from the officers trying to get away. He clenched his fist, and threatened to assault Constable Huard by saying, “I will grab your dick”.

While with clenched fists, said, “I will fuck you up”, at the time of arrest … (Transcript, page T4, lines 40-41, page T5, lines 1-37) [ 3 ] Crown counsel then went on to make the following submissions for sentencing: With respect to my submissions, Your Honour, Mr. Mosquito does have a criminal record with similar offences. As stated before, he has three domestic assaults prior. He also has a record for that -- that’s recent, his -- his most recent matters involved assault causing bodily harm, assault, and the other assault. He has uttering threats as well; he’s got failure to appears on his record.

All of that becomes relevant when we’re looking at a moral culpability with respect to this. We also have three assaults before the Court today. What our submission for a sentence, Your Honour, is taking into consideration the gravity of each offence, as well as the history and -- and taking, also, consideration totality, we would suggest the following: Information 501, 30 days jail. Information 391, 30 days jail consecutive, count 2, ten days consecutive for the no-contact clause. Information 541, the failure to appear, ten days concurrent, taking into consideration totality.

And then we’d suggest the assault with a weapon, count 1 of 639, 180 days consecutive. It is -- we’re also seeking a DNA order, which is primary compulsory, a

Section 110 firearms order for ten years. I would also suggest a probation order to follow for 12 months on that charge with two clauses: report to probations and assessment, counselling, treatment for domestic violence and addictions. And then count 4, we would seek a 30-day consecutive sentence for the threats to Constable Huard. (Transcript, page T5, line 41, page T6, lines 1-28) [ 4 ] I will summarize this as follows:

a) Info. 501 – 30 days for the assault;

b) Info. 391 – 30 days consecutive for count #1 – the assault, and 10 days consecutive on count #2 – FTC;

c) Info. 541 – 10 days concurrent for failure to appear;

d) Info. 639 – 180 days consecutive for the assault with a weapon and 30 days consecutive for the threat; [ 5 ] This totalled (considering the concurrent time recommendation) 280 days. The Crown also requested an order for 12 months probation, DNA order and firearm prohibition for 10 years. [ 6 ] Defence counsel addressed the court and requested a conditional sentence order of 12 months with the first six months to be served by an absolute curfew along with programming and treatment for the entire term. [ 7 ] The court then adjourned sentencing to February 8, 2023 for the decision.

The court on February 8, 2023 adjourned the sentencing decision to February 15, 2023. The sentencing judge gave his sentencing decision on that date which I reproduce, in relevant part, as follows: Okay. So on this matter, Mr. Mosquito has plead guilty to six charges, three of which are assaults upon a domestic partner, one being assault with a weapon, being a chair.

Mr. Mosquito has a gap in his convictions in that his last one was in 2014, which was an assault where he received nine months jail andone year probation. Mr. Mosquito’s next offence is on October 21, 2021, which is one of the first ones that we’re going to deal with here. As set out in the facts by the Crown, Mr. Mosquito assaulted his partner, Ms. Cutarm, being the fourth domestic assault that he hascommitted against her. He is released on an undertaking, and eight days later he breaches a no-contact order and assaults Ms. Cutarmagain, making it his fifth domestic assault against Ms. Cutarm.

There were children present during these assaults, and the children called the police on the first one. This -- the second assault is about a year-and-a-half later, against another domestic partner, Ms. Ferguson. Mr. Mosquito threw a metalchair at her, and then he chases her. All assaults involved heavy drinking by Mr. Mosquito. It is of note that Mr. Mosquito was on warrant status from the time he misses his court for the Cutarm charges, from March 10 of 2020,to until he’s arrested on the Ferguson charges, January 19, 2023. Of significant concern is that after being charged with the assault on Ms.

Cutarm, the first one, approximately eight days later heassaulted her again while breaching a no-contact order. In this matter, aggravating factors are both Ms. Cutarm and Ms. Ferguson are domestic partner situations; as to Ms. Cutarm, the secondassault was on a release order and a no-contact order, which he breached. Mr. Mosquito has assaults on his record, as mentioned, three previously with Ms. Cutarm and the fourth and fifth against Ms. Cutarm arespecifically related to her we’re dealing with today. Mr. Mosquito has had alternative sentences in the past, such as fines in jail, and has had probation. Mr.

Mosquito’s record indicates thathe consistently has been receiving jail sentences since about 1998, indicating the seriousness of his offences. His sentence in 2014 was nine months jail and one year probation for an assault. In the assault on Ms. Ferguson, a chair was used as a weapon that he threw at her. As to Ms. Cutarm, the offences occurred in aresidential area with children present. As to Ms. Ferguson -- and when I refer to a residential area, he has a residence on Nekaneet FirstNation.

The residences there are further apart than one would expect in a -- a town situation, where the houses are, basically, side-by-side. As to Ms. Ferguson, the police are called and Mr. Mosquito leaves. And then when the police leave, he comes back, and there had to bea second call by Ms. Ferguson to the police. The result of the assaults should have been contemplated by Mr. Mosquito. Mr. Mosquito appears to have been heavily intoxicatedduring the assaults. There are no physical injuries to Ms. Cutarm -- lasting physical injuries to Ms.

Cutarm, as she is pushed and hit in theface with a bloody lip as to the first assault. On the second assault, eight days later, Mr. Mosquito again hit Ms. Cutarm, which is witnessed by her son. After the Cutarm assault, as indicated, Mr. Mosquito was on warrant status for about a year-and-a-half until his arrest for the assault onMs. Ferguson. He’s -- he’s actually -- it’s not a year-and-a-half. It’s about eight months, from March to -- 2022 to 2023. Mr. Mosquito -- just give me a second. Mr. Mosquito appears not to have taken any steps to address his alcohol issue, but he has beenworking with Mr.

Buffalocalf at Nekaneet First Nation directly as to addictions and cultural aspects, and he also has had the gap aboutseven years. Mr. Mosquito’s [sic] 52 years of age. Some mitigating factors: there’s a time gap of about seven years since his last offence prior to the 2021 assault on Ms. Cutarm. Mr.Mosquito has an alcohol problem. Mr. Mosquito has, on his record, fails to appear, and he also has breaches of his probation order in2008 and 2009. Overall, as to Mr. Mosquito, the objective of denunciation and deterrence is paramount.

There’s also the need to separate him fromsociety as he has -- has a pattern of assaulting domestic partners. Denunciation and deterrence is specific for Mr. Mosquito, but also to the general public that assaults on spousal partners is not to betolerated. Mr. Mosquito does have significant Gladue [ (SCC), [1999] 1 SCR 688] factors. These were outlined by defence incourt. However, Mr. Mosquito has a long record of violent behaviour, in particular towards women, being spousal partners. Though overall sentencing does require jail for Mr. Mosquito irrespective of his Gladue factors. Particularly, as to Ms.

Cutarm being thefourth and fifth assault upon her. He clearly had not understood that his behaviour will not be tolerated, and he has to make changes inhis life to address his alcohol and assaultive behaviour. The sentencing that we are involved with today involves three spousal assaults. While the defence argues for a conditional sentence, Mr.Mosquito’s conduct simply indicates that he is not going to follow a condition put on him, particularly when he breaches his conditionand assaults his partner eight days after the first charge back in 2021.

He’s bought [sic] back to court when he was charged with assaulting a new domestic partner. The jail terms are required to be significant so that Mr. Mosquito understands that he has to take steps to change his life so that he is notassaulting domestic partners, and if this is caused by alcohol, then he has to take steps to deal with his alcohol issue. So when I first was calculating this sentence, I came to 390 days jail for Mr. Mosquito. After looking at that, I’ve considered theprinciples of restraint, considering the gap, as well as Gladue factors, and I’ve reduced it down.

So the total sentence is going to be 330 days, and it’s going to be followed by a probation order, just have a form there, Madam Clerk. And what I’ve done -- and this is only done because of the considerations of restraint, is that I am lumping some sentences as concurrent,where, in fact, they should all be consecutive. And so for the sentence then on Information ending 391, I’ll start off with count number 2. This is the breach of the no-contact order, thejail term is 150 days. And on 391 count 1, which is the assault, the jail term is 120 days served concurrent with any other sentence.

And for Information 501, which is a separate assault, I -- it’s going to be a jail term of 60 days concurrent to any other sentence. Information 541, fail to show up in court, is a ten-day jail term, concurrent with any other sentence. Information ending 631 [sic], the assault on Ms. Ferguson, is a jail term of 180 days, served consecutive to any other sentence, and count4, which is the threat, is a jail term of 30 days served concurrently to any other sentence. So the total time to be spent in jail is 330 days. Mr.

Mosquito has been in custody for 20 days, from January 19th to present, he has acredit of 1.5 of ten days, so he has a credit of 30 days. (Transcript, page T13, lines 40-41, pages T14 -16 and page T17, lines 1-14) [8] I will summarize the court’s penal sentence as follows:

a) Info. 391 – count #2 – FTC 150 days and count #1 – assault 120 days (concurrent);

b) Info. 501 – s. 266 assault – 60 days (concurrent);

c) Info. 541 – FTA – 10 days (concurrent); and

d) Info. 639 – s. 267(1) assault – 180 days (consecutive) and 30 days (concurrent) for the threat charge. [9] It is to be noted that in the Transcript, at page T16, lines 27-31, the court seemed to come up with a total of390 days and after taking Gladue (R v Gladue, (SCC), [1999] 1 SCR 688) factors into consideration, reduced thesentence to a total of 330 days as set out above. [10] Therefore the difference between what Crown counsel had proposed as a total (280 days) and what the courtimposed (330 days) is 50 days. II. THE APPEAL [11] Mr. Mosquito’s grounds for appeal are: 1.

The sentencing judge exceeded the Crown prosecutor’s sentencing position without allowing counsel the opportunity toprovide further support for their sentencing recommendation; and 2. The sentencing judge exceeded the Crown prosecutor’s sentencing position without giving reasons for doing so. (The court has reversed the grounds set out in his appeal document to reflect the order of consideration). [12] The appellant asks this Court to: 1. Allow him to file fresh evidence; 2. Vacate the sentencing judge’s sentence; and 3. Impose a compliant sentence in its place. III. JURISDICTION AND STANDARD OF REVIEW i.

Summary Conviction Appeal Jurisdiction [13] The Criminal Code, RSC 1985, c C-46 at ss. 810(1)(

d) and 813 give this Court jurisdiction to hear

summaryconviction appeals generally. Specifically, s. 813(a)(ii) of the Criminal Code gives this Court jurisdiction to hear

summary conviction sentencing appeals. Leave is not required. ii. Fresh Evidence Jurisdiction

[14] Sections 822 and 683(1)(

a) of the Criminal Code jointly operate to give this Court jurisdiction to admit freshevidence where the court determines it is in the interests of justice to do so. The Supreme Court of Canada has held that fresh evidencemust be relevant, credible, and can reasonably be expected to impact the results if admitted (Palmer v The Queen (1979), (SCC), [1980] 1 SCR 759 at 775 [Palmer]).

Although courts should generally not admit fresh evidence if the parties could have adducedit at first instance by exercising due diligence, this standard applies less strictly to criminal cases, is not determinative of the admissibilityissue, and should not be applied when doing so may lead to a miscarriage of justice (Palmer; R v Fraser, 2011 NSCA 70 at para 36, 273CCC (3d) 276). iii.

Sentence Appeal Standard of Review [15] The standard of review on a sentencing appeal is highly differential, such that an appellate court may only vary asentence on appeal if the sentence resulted from an error in principle or was demonstrably unfit (R v M.(C.A.), (SCC),[1996] 1 SCR 500 at paras 89 and 90). IV. ISSUES 1. Is the fresh evidence sought to be adduced in this appeal relevant, reliable and could it materially impact the result? 2.

Did the sentencing judge err in principle and thereby make an error in law when he failed to notify counsel he was contemplatingexceeding the Crown’s recommended total sentence? 3. Is appellate intervention warranted? V. ANALYSIS 1. Is the fresh evidence sought to be adduced in this appeal relevant, reliable and could it materially impact theresult? [16] The appellant wishes to adduce the following fresh evidence: (

a) Information #90458502 and corresponding disposition sheet on appeal; (

b) Prosecutor’s Information Sheet corresponding to Information #90458502; (

c) Constable Lane’s General Report corresponding to Information #90458502; (

d) Constable Inkster’s Supplementary Report corresponding to Information #90458502; (

e) Information #90431390 and corresponding disposition sheet for Arleen Cutarm; (

f) Prosecutor’s Information Sheet corresponding to Information #90431390. (

g) Constable Lane’s General Report corresponding to Information #90431390. (

h) Constable Inkster’s Supplementary Report corresponding to Information #90431390; and (

i) Affidavit of Cherie Day. (Factum of appellant, page 13, para. 20) [17] I will note that Crown counsel does not oppose the defence’s request to adduce the above items. In addition,Justice Moldaver in R v Nahanee, 2022 SCC 37 at para 59, 418 CCC (3d) 417 [Nahanee] directed that “The Crown should assist theappellate court wherever possible by providing or confirming the information that the sentencing judge did not have” which Crowncounsel in the case at bar has willingly done. [18] Items (

a) through (

d) above pertain to an acknowledged error made by the prosecutor during his address to thecourt on January 25, 2023. Crown counsel told the court: Mr. Mosquito and Ms. Cutarm started to drink, which led to getting them into an argument with each other. Mr. Mosquito pushed Ms.Cutarm and then hit her in the face, leaving her with a bloody lip. … (Transcript, page T5, lines 4-5) [19] Items (

a) through (

d) set out the correct version which I will summarize as follows. On October 21, 2021, Mr.Mosquito and Ms. Cutarm were having an argument that escalated to a mutual pushing match that resulted in Ms. Cutarm punching Mr.Mosquito in the face causing him to receive a bloody lip. Neither the Crown nor the defence caught this mistake. Ms. Cutarm wascharged on October 21, 2021 with assault under s. 266 of the Criminal Code and pleaded guilty on November 1, 2021 and received a 12month probation order. [20] The judge made reference to this October 21, 2021 assault as follows: … There are no physical injuries to Ms.

Cutarm – lasting physical injuries to Ms. Cutarm, as she is pushed and hit in the face with abloody lip as to the first assault. (Transcript, page T15, lines 15-16)

[ 21 ] I find this corrected version would have been relevant, was reliable ( i.e. came from the police investigation) and could be reasonably expected to impact the results if admitted since it was the appellant and not Ms. Cutarm who sustained the bloody lip. Therefore this fresh evidence can be considered in this appeal. [ 22 ] The second piece of fresh evidence pertains to Ms. Cutarm’s failure to abide by no-contact conditions by being with the appellant on October 29, 2021. This arose out of the events of October 29, 2021 where Mr. Mosquito pleaded guilty to assaulting Ms.

Cutarm and failing to abide by the court order to have no contact with her. As it turns out, the police investigation on that date revealed that when the R.C.M.P. attended to Mr. Mosquito’s residence to answer a call of domestic violence, they found the appellant and Ms. Cutarm laying together on a mattress in the residence. She was charged with failing to comply with a no-contact order of Mr. Mosquito. She pleaded guilty to that charge on November 1, 2021. She received probation. This was not brought to the sentencing judge’s attention by counsel.

I find that this set of circumstances would have been relevant, was reliable ( i.e. came from the police officers) and could have reasonably been expected to have made a material impact since both parties were mutually breaching the no- contact order. Therefore items (

e) through (

h) can be considered in this appeal. [ 23 ] Finally, Mr. Mosquito asks that item (i), the affidavit of Cherie Day, a legal assistant at Mr. Mosquito’s lawyer’s law office, be adduced as fresh evidence. Ms. Day deposes that Nancy Ferguson, the complainant in Info. 639, telephoned the law office on February 6, 2023 and spoke to Ms. Day. Ms. Ferguson wanted to speak to Mr. Booy who was unavailable. Ms. Day then took a message from Ms. Ferguson and relayed the message to Mr. Booy. I will reproduce the relevant part of Ms. Day’s affidavit as follows: 3.

During my conversation with Ferguson, she stated she did not wish to proceed with the charges where she was the named complainant. She stated she had contacted the Crown Prosecutor’s office in Swift Current, Saskatchewan, and told them as much. I told her that the prosecutor could go ahead with the charges regardless of her wishes. 4. Ferguson told me she wanted to attend court to support Mosquito. I provided her with his next court date. 5. After speaking with Ferguson, I sent Booy an email outlining my conversation with her.

I have attached that email to this affidavit as Exhibit “A”. [ 24 ] It is to be noted that this call from Ms. Ferguson was received on February 6, 2023 and relayed in substance to Mr. Booy that same day. The sentencing decision was on reserve at this time and ultimately rendered on February 15, 2023. This information was not brought to the sentencing judge’s attention on February 15, 2023. I find that to a degree this was relevant in that Ms. Ferguson seemed to be for unstated reasons opposed to the charge going forward. Ms. Day’s recollection appears to be a reliable accounting of what Ms.

Ferguson said even though it is hearsay. The issue is whether it would have made a material impact on sentencing had her reticence been provided to the sentencing judge. However, on the strength of the Crown’s concession that this can be adduced on this appeal, I will allow Ms. Day’s evidence to form part of the record. [ 25 ] I will conclude this issue by noting the acknowledged lapse of due diligence by defence counsel in not catching the mix-up over the bloody lip, not advising the court of the rekindling of the relationship of Mr. Mosquito and Ms.

Cutarm and the failure to advise even belatedly the sentencing judge of Ms. Ferguson’s apparent opposition to see her complaint prosecuted. The purpose of this diligence factor is to avoid trying to get a redo which, if such allowance became a common occurrence, would adversely affect the proper administration of justice. I will not however disqualify the application on this basis as overall I do not think the diligent factor is so pronounced to cause the application to be dismissed.

I also note that the purpose of the application is to make sure justice is served. [ 26 ] Therefore the request for fresh evidence to be allowed in this appeal is granted and there shall be an order that items (

a) through (

i) are made part of the appeal record. 2. Did the sentencing judge err in principle and thereby make an error in law when he failed to notify counsel he was contemplating exceeding the Crown’s recommended total sentence? [ 27 ] The short answer to the notice issue is: yes. If a sentencing judge presiding over a contested sentencing hearing is of the mind to impose a harsher sentence than what the Crown has proposed, he should notify the parties and give them the opportunity to make further submissions ( Nahanee at para 44 ).

In this appeal it is evident that the sentencing judge did not notify the parties that he was considering increasing the jail sentence beyond what the Crown recommended. As it turned out, the court’s jail time after the Gladue analysis was factored in, ended up being 50 days more. Justice Moldaver concluded that this failure to notify “is always an error, though not necessarily one warranting the appellate intervention” (para. 52). [ 28 ] Therefore this issue is decided in favour of the appellant but not determinative of the appeal.

The appellant must go further and persuade this Court that appellate intervention is warranted. 3. Is appellate intervention warranted? [ 29 ] Justice Moldaver in Nahanee sets out three types of errors in principle that warrant intervention by the appellate court: [59] … i. If the failure to provide notice and/or further submissions impacts the sentence . The appellant must demonstrate that there was information that they could have provided, if given the opportunity to do so, and it appears to the appellate court that this information would have impacted the sentence.

If the appellate court is of the view that there is missing information that would realistically have impacted the sentence, the court can consider the sentence afresh. In assessing impact, the focus should be on whether the missing

information is material to the sentence at issue. For example, where both parties propose non-custodial sentences and the judge imposes a period of incarceration without notice, the appellant can establish impact by pointing to something material that they would have presented had they been given notice and the opportunity for further submissions, such as a pertinent authority or important mitigating fact. The Crown should assist the appellate court wherever possible by providing or confirming the information that the sentencing judge did not have. ii.

If the sentencing judge failed to provide reasons, or provided unclear or insufficient reasons, for imposing the harsher sentence . Failure to provide sufficient reasons is an error of law, which is a type of error in principle ( Friesen [2020 SCC 9 , 391 CCC (3d) 309 ], at para. 26; R. v. Sheppard , 2002 SCC 26 , [2002] 1 S.C.R. 869 , at para. 28 ). The appellate court may only intervene if the insufficiency of reasons foreclosed meaningful appellate review.

While it is preferable for sentencing judges to explicitly say why they exceeded the Crown range, it will not necessarily foreclose meaningful appellate review if this is not done. The court may look to the record, as a whole, to determine whether sufficient reasons have been given for exceeding the Crown range. Courts are to take a functional approach to sufficiency of reasons ( Sheppard , at para. 50 ). iii. If the sentencing judge provided erroneous reasons for imposing the harsher sentence .

The appellate court may intervene if the sentencing judge relied on flawed or unsupportable reasoning for imposing the harsher sentence, such as the erroneous consideration of an aggravating factor or misapprehension of relevant authorities.

Standing alone, however, flawed reasoning will not be enough; the appellant must also satisfy the court that this reasoning impacted the sentence ( Lacasse [2015 SCC 64 , [2015] 3 SCR 1089 ], at paras. 43- 44). [ 30 ] Justice Moldaver went on to state: [61] If there is an error in principle that impacts the sentence, the appellate court may sentence the appellant afresh without deference, save for the findings made by the sentencing judge ( Friesen , at para. 28 ).

Although I need not decide whether appellate courts can remit a case back to the trial court for a fresh sentencing hearing, I would not foreclose the possibility that they could, in rare cases, order a fresh sentencing hearing where the record is so incomplete as to foreclose a fresh assessment at the appellate court.

If no error in principle is established, or the error in principle does not have an impact on the sentence, then the only potential remaining ground of appeal will be whether the sentence is demonstrably unfit ( Friesen , at para. 26 ). [ 31 ] I will now review these types of errors in the context of this appeal. (

i) Notice and opportunity for further submissions [ 32 ] Justice Moldaver sets out in Nahanee a step by step process to determine whether appellate intervention is required once an error in failing to notify the parties has occurred (paras. 63-69). I have to consciously blend the fresh evidence into what the sentencing judge did have by way of submissions.

In essence, putting my feet into the sentencing judge’s shoes, now knowing more than he did, and test whether all of this would have likely impacted his sentencing decision. [ 33 ] There are three pieces of fresh evidence that defence counsel submits could reasonably have had a material impact on the sentencing judge’s decision. [ 34 ] The first is the mix up over the bloody lip and Ms. Cutarm’s subsequent guilty plea to punching Mr. Mosquito. This in my view is easily answered. The judge gave Mr. Mosquito a sentence of 60 days for assaulting Ms.

Cutarm on October 21, 2021 but made the sentence concurrent with any other sentence, in essence not imposing from a practical point of view any increased penalty. The court was more concerned about the fail to comply with the no-contact charge under count #1 in Info. 391 where he imposed a jail sentence of 150 days with the 60 day sentence for the October 21, 2021 offence made to be served concurrently.

Therefore regardless there was no real increase in penalty for the appellant, as the October 21, 2021 penalty was subsumed in the overall totality of sentence. [ 35 ] The next piece refers to the resumption of the relationship by Mr. Mosquito and Ms. Cutarm on October 29, 2021 when the police caught the couple on a mattress in Mr. Mosquito’s residence. This resulted in an effective sentence of 30 days for the assault because it was to be served consecutively and 10 days for the FTC to be served concurrently.

Quite frankly I cannot see how the fact that the two were again apparently happy with each other would have affected the penalty on the assault reported to have occurred rather shortly before their reconciliation on the mattress took place nor the 10 days for the FTC. [ 36 ] Finally I am not persuaded that if the court had been advised before passing sentence that Ms. Ferguson, a victim of domestic violence, was expressing the all to common post complaint dissidence, that this would have had a material impact on sentencing. Mr. Mosquito pleaded guilty to that charge and under the circumstances I doubt Ms.

Ferguson’s reluctance to have the charge go forward would have made a material difference in the outcome. [ 37 ] Therefore in

summary, I am not persuaded further submissions based on the fresh evidence would have materially impacted the sentences imposed. Accordingly while the learned sentencing judge did err, this in my opinion does not require appellate intervention. (ii) Sufficient reasons for exceeding the Crown recommendations [ 38 ] The sentencing judge provided adequate reasons why he exceeded the Crown’s submissions. While it would have been preferrable if he had explicitly addressed the issue, nevertheless the judge’s reasons explain why he decided to impose the sentence that he did.

I am satisfied that in looking at the sentencing judge’s reasons functionally and as a whole, they do not prevent meaningful appellate review ( Nahanee at para 66 ). (iii) Erroneous reasons for exceeding the Crown’s recommendations [ 39 ] I find that the sentencing judge’s reasons for imposing a harsher sentence by some 50 days, when read as a whole, were not erroneous. The factors he considered were relevant and supported his conclusion that the recommendation of the Crown

was too low. (iv) Whether the sentence was demonstrably unfit [ 40 ] Defence counsel concedes that judge’s sentences were not demonstrably unfit. I agree. Mr. Mosquito’s pattern of repeated domestic assaults required a sharp rebuke. VI. DISPOSITION [ 41 ] For the above reasons I dismiss Mr. Mosquito’s sentencing appeal. I wish to thank both counsel for their helpful briefs and oral arguments. J. T.J. KEENE