R. v. Saunders, 2018 NLSC 227

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Saunders , 2018 NLSC 227 Date : November 19, 2018 Docket : 201701G8536 Her Majesty The Queen v. Lancelot saunders On Appeal From : A decision of the Provincial Court of Newfoundland and Labrador, R. v. Saunders , 0117A01263, heard on the 1 st day of December 2017. Before: Justice Donald H. Burrage Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: October 24, 2018 Appearances: Jennifer E. Lundrigan Appearing on behalf of the Crown Candace G. Summers Appearing on behalf of the Accused

Authorities Cited: CASES CONSIDERED: R. v. C. (W.C.), [2001] N.J. No. 229, 2001 CarswellNfld 355 (Prov. Ct.); R. v. D. (D.), (ON CA), [2002] O.J. No. 1061, 157 O.A.C. 323; R. v. Broome, 2014 ONSC 6704; R. v. Squires, 2012 NLCA 20; R. v. Lundrigan, 2012NLCA 43; R. v. Lacasse, 2015 SCC 64; R. v. Elsharawy (1997), (NL CA), 156 Nfld. & P.E.I.R. 297, 119 C.C.C.(3d) 565, (Nfld. C.A.); R. v. Gardiner, 2017 MBCA 57; R. v. Fong (2011), 312 Nfld. & P.E.I.R. 63, 92 W.C.B. (2d) 804 ; R. v. Stacey(1995), 368 Nfld. & P.E.I.R. 346, 122 W.C.B. (2d) 485 (Nfld. Prov. Ct.) STATUTES CONSIDERED: Criminal Code, R.S.C., 1985, c.

C-46 REASONS FOR JUDGMENT Burrage, J.: INTRODUCTION [1] On 1 December 2017 Lancelot Saunders pled guilty, and based upon an agreed statement of the facts, was convicted of asingle count of common assault on Aden Savoie, contrary to

section 266(

b) of the Criminal Code, R.S.C., 1985, c. C-46. Followingsubmissions from counsel, in which the Crown sought a suspended sentence with probation, as well as a DNA order and firearms’prohibition, the sentencing judge granted Mr. Saunders an absolute discharge.

The sentencing judge declined to make a DNA order, orto impose a firearms’ prohibition. [2] The Crown acknowledges that an absolute discharge is not without precedent, and falls within the range of sentencingoptions available for common assault, when prosecuted summarily, as it was here, but argues that such a disposition was demonstrablyunfit based on the facts of this case. The Crown thus appeals this aspect of the sentence imposed.

The Crown does not appeal thesentencing judge’s decision not to impose a DNA Order or firearms’ prohibition. [3] In support of its contention that an absolute discharge is a demonstrably unfit sentence, the Crown argues that the sentencingjudge erred in giving weight to the fact that Ms. Savoie did not file a victim impact statement, and/or erred in principle by giving little orno weight to the aggravating factors. Before addressing each of these arguments, I turn to the circumstances of the offence andantecedents of the offender. background The Circumstances of the Offence [4] As noted, Mr.

Saunders was convicted based upon agreed facts. These were read into the record by the Crown at thesentencing hearing held on 1 December, 2017, as follows: MS. LUNDRIGAN: Yes, Your Honour. On April 12, 2017, at 11:25 a.m., Aden Savoie attended at RNC Headquarters and reported thatan assault had occurred on April 9, 2017. In a statement Miss Savoie alleges that Lancelot, Lance Saunders, the Accused in this matter, assaulted her at his residence at Shoal BayRoad, St. John’s, Newfoundland and Labrador, by pulling her hair, pushing her and hitting her with a metal hanger.

Miss Savoie saidthat that this was in relation to an argument the two had had over a cell phone. Constable McCarthy was assigned the file and took a statement from Miss Savoie. Constable McCarthy observed some light bruising onMiss Savoie and some scratches. Obviously this was observed by Constable McCarthy and some other officers. There was no medical treatment that Miss Savoie required as a result of this incident. At 4 p.m., on that same date, April 12th, Constable McCarthy attended at22 Gullage Street, St. John’s, Newfoundland and Labrador and met with Savoie. Miss Savoie stated that she was fearful of Mr.

Saundersand tried to resolve the issue without police involvement, but was unable to do so. 4:12 p.m., Constable McCarthy and Slaney went toMr. Saunders’ residence at 51 Shoal Bay Road. Mr. Saunders stated that he and Miss Savoie had an argument over a cell phone andabout her leaving his house on the date of the incident. Mr. Saunders also said that he was scratched and bruised as a result of thisincident, he showed some of these abrasions to -- on his forearms to the police officers and they observed same, Your Honour. 4.16 p.m., rights to caution were read to Ms. [sic] Saunders. Mr.

Saunders did not wish to speak to a lawyer. He was given anappearance notice to appear at Court. Those are the facts, Your Honour.[1] [5] In response to a question from the sentencing judge, Crown counsel clarified that the incident was neither a case of forcible

confinement, nor a case of Ms. Savoie refusing to leave the house when asked. [2] [ 6 ] In addition to the foregoing, defence counsel offered that Ms. Savoie was on top of Mr. Saunders when he hit Ms. Savoie with the metal hanger. [3] During submissions, defence counsel also added that Mr. Saunders and Ms. Savoie had engaged in the occasional recreational use of Percocet, and the incident arose from an “argument over the cell phone and the drug and whatnot” [4] . Mr. Saunders’ counsel also reported that Mr.

Saunders had been diagnosed with generalized anxiety disorder, and that at the time of the incident he had not been stabilized on his medication. No objection was taken to these additional facts. The Antecedents of the Offender [ 7 ] At the time of the incident, Mr. Saunders and Ms. Savoie were 19 and 18 years of age respectively. [ 8 ] Mr. Saunders has no criminal, or juvenile record, and at the time resided with his parents in St. John’s. By the time of sentencing, Mr. Saunders had turned 20 years of age and was living in his own apartment. He finished high school in 2015 with an advanced diploma.

His plan was to study statistics at Memorial University with a view to becoming an actuary. To this end, his counsel advised the Court of Mr. Saunders’ intention in January 2018 to upgrade his marks in chemistry, so as to improve his chances of getting into university. [ 9 ] In terms of his mental health, Mr. Saunders has a diagnosis of generalized anxiety disorder. The sentencing judge was satisfied that since June 2017, he had regularly attended his medical appointments, and at the time of sentencing was stabilized on his medication. He was no longer involved in the recreational use of Percocet. [ 10 ] Mr.

Saunders had been working at Sears in the Avalon Mall, but lost his job as Sears phased out its operation. At the time of sentencing he was in receipt of income support. Analysis [ 11 ] Each issue is addressed as it is framed by the Crown. Did the Sentencing Judge Err in Giving Weight to the Fact that Ms. Savoie did not file a Victim Impact Statement? [ 12 ] The sentencing judge found that a probation order was not necessary to address Mr. Saunders personal issues. She concluded that these issues had already been adequately addressed through Mr.

Saunders cessation of recreational drug use, his adherence to his prescription medicine for his anxiety, his participation in psychotherapy and his educational plan. The remaining question was whether such an order was necessary to protect Ms. Savoie from future contact. [ 13 ] The absence of a victim impact statement from Ms. Savoie thus arose in the context of the Crown’s argument for a suspended sentence and a 12-month period of probation, during which Mr. Saunders would be subject to the condition that he remain away from Ms. Savoie, as well as her residence.

In support of this condition, the Crown pointed to the fact that on 12 April 2017 Ms. Savoie had informed the police that she was fearful of Mr. Saunders. This submission led to the following exchange between the sentencing judge and Crown counsel: THE COURT: I’m not satisfied that there is anything that could be achieved by imposing on you a period of probation. The only condition that could be included in that would be the no contact with Miss Savoie. Sob [sic] do I think that a period of probation is necessary to ensure that you have no contact with Miss Savoie.

Well as I said a moment ago, you have had no contact with her since April of this year. You have expressed through your lawyer a desire not to resume any relationship or contact with Miss Savoie. That both yourself and she have deleted each other from any social media of any sort, so it is a mutual decision not to have any future contact with each other and therefore given the fact that I have no Victim Impact, where she is stating that she has an ongoing fear of you or anything of that nature, that. MS. LUNDRIGAN: That was read into the facts, Your Honour. THE COURT: There’s a Victim Impact Statement? MS.

LUNDRIGAN: Her, there was, it was, no, but it was read into the facts that she indicated to the police that she was quite fearful, so. THE COURT: She did not file a Victim Impact Statement with the Court? MS. LUNDRIGAN: No, but it was in the facts, Your Honour.

THE COURT: Alright she did not file a Victim Impact Statement. She said, she told the police back in April that she was fearful of you,but I don’t have anything recent from her to indicate that that fear is ongoing. So, based on all of the evidence that I have heard, I have tolook at what imposing a period of probation would mean for your rehabilitation. And essentially what it would mean is that any periodof probation, would have to expire before the period for the falling away of a conditional discharge would come into play, and thatwould be three years’ post conclusion of the probation order.

Three years in a young person’s life when they’re trying to get things ontrack, they’re trying to get into universities, work programs, all sorts of different things, that could be crushing to you, if you wereshowing as having a criminal record for three plus years from this point going forward.

And because of the fact that you have no priorhistory and there’s nothing to indicate that you would continue to be an offender in the future, I’m satisfied that it would be appropriatein this case, unusual as it may be, and certainly would not necessarily be the disposition for every offender, but in your particular case,the discharge can be absolute, and will be absolute. Alright-— [14] I accept the Crown’s argument that it would be a perilous course for a sentencing judge to draw any inference from the absenceof a victim impact statement.

The absence of such statements, particularly in cases of child sexual abuse, is hardly surprising (See: R. v.C. (W.C.), [2001] N.J. No. 229, 2001 CarswellNfld 355 (Prov. Ct.) and R. v. D. (D.), (ON CA), [2002] O.J. No.1061, 157 O.A.C. 323). [15] On this issue the Crown referred to R. v. Broome, 2014 ONSC 6704, wherein the Ontario Superior Court found that thesentencing judge drew an impermissible inference from the absence of a victim impact statement (at paragraphs 23 – 24): 23.

Turning first to the sentencing judge's consideration of the significance of the lack of a victim impact statement, the court'sobservations cannot easily be taken as simply steeped in a narrative review of the case. It cannot reasonably be concluded that the courtdid not infer, and in turn rely upon, significant existing fear on J.H.'s part from the absence of a s. 722 victim impact statement beingfiled in the sentencing hearing. 24. It is generally an uncertain course for a court to seek to draw an inference from the fact that a victim has elected not to file a victimimpact statement. For example, in R. v.

Whalen, 2011 ONCA 74 (Ont. C.A.), at para. 9, the court noted the impropriety of the trial courtconcluding "that the absence of a victim impact statement entitled him to infer that the victims had not suffered any" unusual "harm". [16] In his reasons for sentence, the sentencing judge had stated, (Broome, at paragraph 17): 17. … This kid was so scared that he did not even report it. He did not go to the doctor. He did not seek any medical attention. That is why wedo not have any photographs or any medical reports here. The police were not even told until a couple of days later when someone elsecalled the police.

I suspect there is no victim impact statement, that this kid is still living in fear and probably this assault will impact him and affect himfor the rest of his life. That is what normally happens when people are attacked, defenseless... [emphasis added] [17] The Court of Appeal in Broome concluded that the sentencing judge expressly drew the impermissible inference that thecomplainant continued to be fearful of his assailant and for this reason did not file a victim impact statement.

This, however, was not thereason for its decision on appeal. [18] Unlike the facts in Broome, I am unable to find anywhere in the sentencing judge’s reasons where she drew an inference thatMs. Savoie was no longer in fear of Mr. Saunders from the absence of a victim impact statement. [19] Rather, the subject arose in the context of the Crown’s assertion that Ms. Savoie remained, at the time of sentencing, in fear ofMr. Saunders. The sentencing judge was invited to draw this conclusion based on a comment made by Ms.

Savoie to the police in April2017, some eight months prior. [20] I interpret the sentencing judge’s reference to the lack of a victim impact statement as no more than a statement of fact, in herquest for an update on the perspective of Ms. Savoie. The victim impact statement is but one way in which an update might be obtained,but not the only way. The sentencing judge observed that she did not have a victim impact statement “or anything of that nature” andthat she did not have “anything recent from her to indicate that that fear is ongoing”.

No evidence of an ongoing fear was presented byCrown counsel, or from a representative of Victim Services, by way of example. [21] In deciding whether or not a no contact order was warranted, thereby also obliging the sentencing judge to depart from anabsolute discharge, the sentencing judge reasonably sought to weigh the Crown’s assertion against the intervening period. This, thesentencing judge did, when she observed that there had been no contact between Mr. Saunders and Ms. Savoie during that time; that thetwo had deleted each other from any form of social media; and that Mr.

Saunders expressed through counsel the desire not to resume anyrelationship, or contact with Ms. Savoie.

[ 22 ] To the extent the sentencing judge was asked to draw an inference, she was in effect asked to assume that Ms. Savoie continued to be fearful some eight months later. I see no error in the sentencing judge balancing Ms. Savoie’s communication to the police in April 2017, with the whole of the evidence respecting the intervening eight months, in exercising her discretion on whether or not to impose the no contact condition.

Did the Sentencing Judge Err in Principle by Giving Little to no Weight to Aggravating Factors? [ 23 ] The Crown submits that the sentencing judge gave little, or no weight, to the fact that Mr. Saunders and Ms. Savoie were in an intimate relationship and that Ms. Savoie suffered injuries, however minor. [ 24 ] On this point, the sentencing judge stated, as follows: THE COURT: Alright, Mr.

Saunders, earlier this morning, I heard a sentencing hearing for you, where you pleaded guilty to a single count of assault that was committed against your girlfriend at the time Miss Savoy, Savoie, and it appears that at the time of the incident, the two of you, had been, I guess, using drugs, there was some issues with the use of Percocets that an argument or disagreement broke out over a cell phone, or over the drugs or a combination of all that, and it resulted in the two of you getting into a tussle with scratches, bruising and you hitting Miss Savoie, with a hanger, a metal hanger.

Now, this is a situation that of course is very concerning for the Court. Because it is a domestic type situation, girlfriend, boyfriend and under s. 718.2 of the Criminal Code , I have to look at that as an aggravating circumstance. I’ll just read to you what that, what that says, it says, 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, (ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner, is deemed to be an aggravating circumstance.

So, I have to put that as the backdrop against the appropriate sentence that I impose here today and I have to be conscious of the fact that whenever any kind of violence erupts in the context of a domestic situation, it has to be treated seriously and has to be a factor that’s taken into consideration in the sentence. [5] [ 25 ] It is not clear from the foregoing remarks whether or not the sentencing judge felt that

section 718.2 was engaged, as Mr. Saunders and Ms. Savoie were neither married, nor in a common law relationship, either one of which is a pre-requisite to the application of this section. Regardless, the sentencing judge chose to regard the fact that Mr. Saunders and Ms. Savoie were in a “girlfriend, boyfriend”, a “domestic type situation”, as an aggravating factor on sentencing. This is a correct application of the law, as violence occurring in the context of an intimate relationship is an aggravating factor even when

section 718.2 (a)(ii) is not specifically engaged (see R. v. Squires , 2012 NLCA 20 ). [ 26 ] The sentencing judge then went on to address the principles of sentencing in

section 718 of the Criminal Code , including deterrence, specific deterrence, denunciation for the conduct, as well as rehabilitation. [ 27 ] It is clear from the foregoing that the sentencing judge was very much alive to the serious nature of any form of domestic abuse.

Rather, the Crown’s real complaint is that the sentencing judge then went on to review at greater length the circumstances of the offender, and in so doing, placed insufficient weight on general deterrence. [ 28 ] It is true, as the Crown states, that having addressed the circumstances of the offence, the sentencing judge then proceeded to consider the circumstances of the offender. However, the sentencing judge could not have done otherwise, for proportionality is a fundamental principle of sentencing ( R. v. Lundrigan , 2012 NLCA 43 ).

A just and appropriate sentence is one that takes into consideration both the circumstances of the offence and of the offender. A sentence which is proportional will at the same time ensure that the secondary goals of denunciation, restraint, promotion of justice for victims and maintenance of public confidence in the administration of justice are met. [ 29 ] As for Mr. Saunders, the sentencing judge observed that he was 19 years old at the time of the offence with no prior criminal history, that he entered a guilty plea and thereby took responsibility for his actions. The sentencing judge noted that Mr.

Saunders suffered from generalized anxiety disorder for which his medication was not stabilized at the time of the incident. She concluded that Mr. Saunders now had his medication under control, and his future prospects looked bright. [ 30 ] I see no error in the foregoing approach by the sentencing judge. She was clearly attuned to the need for general deterrence and society’s abhorrence of any form of domestic violence.

At the same time, she was cognizant of the antecedents of the offender and impact of a criminal conviction on his future prospects. [ 31 ] The real issue is not the approach adopted by the sentencing judge, but the weight she ascribed to general deterrence, as

compared to the offender’s prospects. In truth, the Crown’s argument that insufficient weight was placed on general deterrence anddenunciation is a segue into its position that the sentence was demonstrably unfit. Did the Sentencing Judge err in law by Imposing a Sentence Which was Demonstrably Unfit? [32] In R. v. Lacasse, 2015 SCC 64, the Supreme Court of Canada addressed the circumstances under which sentences may beappealed. A deviation by the sentencing judge from the proper sentencing range does not in itself warrant appellate intervention.

Further, where the sentencing judge commits an error of law, or of principle, the appellate court should not vary the sentence unless it isdemonstrably unfit. The rationale for such deference was explained by Wagner, J., as follows, (at paragraphs 11 and 12): 11. This Court has on many occasions noted the importance of giving wide latitude to sentencing judges.

Since they have, inter alia,the advantage of having heard and seen the witnesses, sentencing judges are in the best position to determine, having regard to thecircumstances, a just and appropriate sentence that is consistent with the objectives and principles set out in the Criminal Code in thisregard. The fact that a judge deviates from the proper sentencing range does not in itself justify appellate intervention.

Ultimately, exceptwhere a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate court may notvary the sentence unless it is demonstrably unfit. 12. In such cases, proportionality is the cardinal principle that must guide appellate courts in considering the fitness of a sentenceimposed on an offender. The more serious the crime and its consequences, or the greater the offender's degree of responsibility, theheavier the sentence will be.

In other words, the severity of a sentence depends not only on the seriousness of the crime's consequences,but also on the moral blameworthiness of the offender. Determining a proportionate sentence is a delicate task.

As I mentioned above,both sentences that are too lenient and sentences that are too harsh can undermine public confidence in the administration of justice.Moreover, if appellate courts intervene without deference to vary sentences that they consider too lenient or too harsh, their interventionscould undermine the credibility of the system and the authority of trial courts. … [33] A sentence may be demonstrably unfit even if there is no error in imposing it.

That said, the expressions “demonstrably unfit”,“clearly unreasonable”, “clearly or manifestly excessive”, “clearly excessive or inadequate”, or representing a “substantial and markeddeparture”, all reflect the “very high threshold” which applies to appellate courts when reviewing the fitness of a sentence (see Lacasseat paragraph 52). [34] The statutory range of sentence for common assault, where the Crown proceeds summarily, is from an absolute discharge to afine of not more than $5,000, or to a term of imprisonment not exceeding six months, or to both (section 787(1) of the Criminal Code). [35] The Crown therefore acknowledges that an absolute discharge is within the range of dispositions available for common assaultunder

section 266 of the Criminal Code. [36] In R. v. Elsharawy (1997), (NL CA), 156 Nfld. & P.E.I.R. 297, 119 C.C.C. (3d) 565, (Nfld. C.A.) ourCourt of Appeal observed that for the Court to grant a discharge it must consider that that type of disposition is in the best interests of theaccused and not contrary to the public interest[6], at paragraph 3: 3. … The first condition presupposes that the accused is a person of good character, usually without previous conviction ordischarge, that he does not require personal deterrence or rehabilitation and that a criminal conviction may have significant adverserepercussions.

The second condition involves a consideration of the principle of general deterrence with attention being paid to thegravity of the offence, its incidence in the community, public attitudes towards it and public confidence in the effective enforcement ofthe criminal law. See R. v. Fallofield (1973), (BC CA), 13 C.C.C. (2d) 450 (B.C. C.A.) and R. v. Waters (1990), (SK KB), 54 C.C.C. (3d) 40 (Sask. Q.B.). [37] In R. v.

Gardiner, 2017 MBCA 57, a decision relied upon by the Crown, the Manitoba Court of Appeal concluded that inimposing a conditional discharge the sentencing judge failed to give sufficient weight to general deterrence, and imposed instead a twoyear suspended sentence. The facts in Gardiner are, however, distinguishable from the present matter. In Gardiner, the offender andvictim were in an on and off common law relationship for approximately three years. The offender choked the complainant, placing oneor both of his knees on her chest while they were on the floor.

He then placed a leather belt around her neck for several hours to preventher from fleeing,

an act which the Court of Appeal described as “deliberate, prolonged and demeaning” (at paragraph 8). The offenderpled guilty to assault with a weapon and found guilty after trial for an additional charge of assault. [38] The grant of an absolute discharge, while not common, is not unprecedented in this jurisdiction. In R. v. Fong (2011), 312Nfld. & P.E.I.R. 63, 92 W.C.B. (2d) 804 Gorman, Prov. J. accepted a joint submission for such a sentence. The 57-year-old first offenderstruck his wife in the face with the back of his hand as she was being moved from a chair to a bed.

While this case involved a jointsubmission, after a review of sentencing precedents in which a discharge was granted, Gorman, Prov. J. concluded an absolute dischargewould not bring the administration of justice into disrepute. [39] There are other reported decisions which have attracted a conditional discharge (see: R. v. Stacey (1995), 368 Nfld. & P.E.I.R.346, 122 W.C.B. (2d) 485 (Nfld. Prov.

Ct., at paragraph 23)). [40] As noted, the Crown’s challenge to the sentence is not so much predicated on the sentencing judge’s approach, as it is theweight the sentencing judge ascribed to the aggravating and mitigating circumstances. On the deference to be accorded the sentencingjudge on this point Wagner, J. observed in Lacasse (at paragraphs 54 and 78): 54. The determination of whether a sentence is fit also requires that the sentencing objectives set out in s. 718 of the Criminal Codeand the other sentencing principles set out in s. 718.2 be taken into account.

Once again, however, it is up to the trial judge to properlyweigh these various principles and objectives, whose relative importance will necessarily vary with the nature of the crime and thecircumstances in which it was committed. The principle of parity of sentences, on which the Court of Appeal relied, is secondary to the

fundamental principle of proportionality. This Court explained this as follows in M. (C.A.) : It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime.... Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction. [para. 92] 78. … As I mentioned above, however, determining the weight to be given to aggravating or mitigating circumstances falls strictly within the sentencing judge's discretion.

The decision to weigh such factors in a given way is not in itself an error that opens the door to appellate intervention unless the weighing is unreasonable. [ 41 ] In deciding to impose a discharge, the sentencing judge stated: Now if I were to consider a discharge, I would have to look at two things. I would have to look firstly as to whether or not it would be in your best interest, clearly it would. You’re a young person with your whole life ahead of you and the implications of a criminal conviction and a permanent criminal record could have long standing repercussions for you.

I also have to consider, whether or not, in all of the circumstances, a discharge would be contrary to the public interest. And, it is always in the public interest for somebody to rehabilitate themselves and to become a productive member of the community. So I’m satisfied in the circumstances of everything that I’ve heard here, that a discharge is an appropriate disposition. [ 42 ] This approach is consistent with

section 662.1 of the Criminal Code and the Court of Appeal’s direction in Elsharawy . [ 43 ] The sentencing judge then referred to the annotation with respect to first time offenders as “the primary objectives in sentencing a first time offender are deterrence and rehabilitation” such that the sentence should constitute the minimum necessary intervention that is adequate in the particular circumstances. [ 44 ] The sentencing judge then went to consider the impact of a criminal conviction on Mr.

Saunders further prospects and turned her mind to the prospect of a discharge. [ 45 ] The sentencing judge then turned her attention to the appropriateness of a conditional discharge.

In doing so the sentencing judge again referred again to the objectives of deterrence and denunciation when she stated “Now, it’s a situation where, you know, I can’t have you leaving the courtroom thinking that you have gotten away with something in getting into this situation with your girlfriend by engaging in a physical altercation of that nature.” [7] [ 46 ] The sentencing judge then concluded that a conditional sentence was not necessary to address any drug, or anger management issues: Because you have no prior criminal history, and certainly no prior history of any violence of any sort.

Because it appears that you are bright and capable young person who has taken steps to deal with your mental illness condition and get the proper medication for that, that you have no ongoing drug or alcohol problems and there’s no indication that there is anything of a nature that would required anger management or anything of this sort, and in fact this seems like it would be an isolated incident. [8] [ 47 ] This left the remaining question of whether a no contact order with Ms. Savoie was warranted.

As previously noted, following a consideration of the whole of the evidence the sentencing judge found that such an order was not necessary. It was only then that she went on to consider the appropriateness of an absolute discharge. [ 48 ] In conclusion, I see no error in the sentencing judge’s reference to the lack of a victim impact statement, nor any error in her approach to the sentencing of Mr. Saunders. It is clear from her reasons that the sentencing judge was attuned to the need for general deterrence in crimes of this nature, while at the same time respecting the fundamental principle of proportionality.

The sentence imposed, while not often given, is not without precedent. In any event the sentencing judge was in the best position to weigh the aggravating and mitigating factors. Whether this Court would have reached the same sentence is not the test. Rather, is the sentence imposed demonstrably unfit? For the foregoing reasons, I am satisfied that it is not. disposition [ 49 ] The Crown’s appeal of sentence is dismissed. _____________________________ Donald H. Burrage Justice