R. v. Green, 2021 NLSC 139

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Green , 2021 NLSC 139 Date : October 28, 2021 Docket : 202005G0145 Her Majesty The Queen v. Larry John Wilson Green Before: Justice Glen L.C. Noel Oral Reasons for Judgment Place of Hearing: Gander, Newfoundland and Labrador Dates of Hearing: September 27 and 28, 2021 Date of Oral Judgment: October 28, 2021

Summary: The Offender pleaded guilty to break and enter into a dwelling house with the intent to commit an indictable offence and aggravated assault. The Offender entered the victim’s residence with a knife and stabbed the victim. The victim had a 10 cm laceration to his neck that required urgent medical attention and 13 sutures to close the wound. The Court imposed a sentence of five years’ incarceration for each of the two offences to be served concurrently less credit for pre- sentence time in custody, and other ancillary orders.

Appearances: Amanda Hiscock Appearing on behalf of the Crown Jason Edwards Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Roberts, 2019 NLCA 43; R. v. Hutchings, 2012 NLCA 2; R. v. Crocker (1991), (NLCA), 292 A.P.R. 222, 93 Nfld. & P.E.I.R. 222 (Nfld. C.A.); R. v. Newhook, 2008 NLCA 28; R. v. Lundrigan, 2012 NLCA 43; R v.Atkins, (NL CA), 211 A.P.R. 99, 4 W.C.B. (2d) 348, 69 Nfld. & P.E.I.R. 99 (Nfld. C.A.); R. v. Bourgeois, 2017NLTD(G) 182; R. v. King, 2018 NLSC 36; R. v. Ryan, 2006 NLTD 167; R. v. Nicholson, 2020 NLSC 41; R. v. Jakupaj, 2017 NLTD(G)120; R. v.

Murray, 2021 NLSC 16; Manuel, 2010 NLTD 177 , 2010 NLSCTD 177 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c.

C-46 REASONS FOR JUDGMENT Noel, J.: INTRODUCTION [1] On 28 September 2021, Larry Green pleaded guilty, and based on an Agreed Statement of Facts, was convicted of thefollowing two counts as set forth in the Indictment: THAT on or about the 17th of February in the year 2020 at or near the Town of Dover, in the Province of Newfoundland and Labrador,did break and enter a certain place to wit a dwelling house situate at 143 Fault Drive, Newfoundland and Labrador with intent to commitan indictable offence therein contrary to section 348(1)(

a) of the Criminal Code: AND WHEREAS on or about the 17th day of February in the year 2020 at or near the Town of Dover, in the Province of Newfoundlandand Labrador, did wound and endanger the life of Ralph Pickett thereby committing an aggravated assault contrary to section 268(2) ofthe Criminal Code; [2] These are serious crimes as reflected in the maximum penalties prescribed by Parliament. The maximum penalty for theoffence of break and enter with intent to commit an indictable offence is imprisonment for life, if the offence is committed in relation to adwelling house: section 348(1)(

d) of the Criminal Code, R.S.C. 1985, c. C-46 (“Criminal Code”). The maximum term of imprisonmentfor the offence of committing an aggravated assault is fourteen years pursuant to section 268(2) of the Criminal Code. [3] The Crown submits the appropriate sentence is three and one half years for break and enter, and five years for aggravatedassault to run consecutively for a total of eight and one half years.

In addition, the Crown points to the mandatory DNA Order under s.487.051(1); the s. 109 Firearms Prohibition Order for life (in consideration of a prior weapons prohibition order), and seeks a Non-communication Order with the victim under s. 743.21 during the custodial period. [4] The Defence agrees that the appropriate sentence is three and one half years for break and enter, and five years for aggravatedassault. However, counsel for Mr.

Green strongly opposes the sentences running consecutively and submits the sentences be servedconcurrently, and in any event the totality principle justifies a term of imprisonment not longer than five years. [5] Crown counsel concedes whether the sentences are served consecutively or concurrently is a matter of judicial discretion to beexercised according to the applicable guiding principles. issues [6] What is a just and appropriate sentence for Mr.

Green for these offences? [7] In considering the appropriate sentence, I must decide whether to impose consecutive or concurrent sentences, and what thetotality of the custodial period should be while taking the principles and factors of sentencing into account.

analysis Circumstances of the Offence [8] An abridgement of the Agreed Statement of Facts as read into the record by the Crown, states as follows: On February 17, 2020 Mr. Pickett had been stabbed in the neck claiming Larry Green was the assailant and had left the residence. Mr.Pickett was treated aboard the ambulance by paramedics and taken to the hospital in Gander. An attending constable obtained a coupleof photographs of Mr. Pickett and the wound at the scene. Inspection of the residence by the attending officers revealed that the main door to the entrance had the front window broken out.

Therewas blood located in the porch area behind the main door. The floor from the kitchen to the living room area was covered in blood. Larry Green was located at a residence in Hare Bay. He was placed under arrest for aggravated assault. Mr. Green said that his girlfriend, Sherry Hunt loaned Mr. Pickett some money and he was not going to pay it back. He heard from afriend, whom he did not want to identify, that Mr. Pickett said he was going to kill someone in Dover, and the only person that could behe believed was Ms. Hunt. He said “I just lost my mind.” Mr. Green confirmed he attended Mr.

Pickett’s residence and he would not let him in. He confirmed he was angry. He confirmed he puthis arm through the glass window of the door, unlocked the door and entered the residence. He indicated acknowledgment of having abad temper. He confirmed he had a small knife in his hand that he carries with him. Mr. Pickett was at his home in Dover when he heard a bang on the door and something to the effect of “open this door mother fucker.”When he went to see who was there, he saw Mr. Green. Mr. Pickett said he saw a knife in Mr. Green’s hand saying to come open thedoor, “we’re going to settle the score.” Mr.

Green broke the glass window, reached in and unlocked the door and came into the home. Mr. Green advanced up two stairs and swung at him with the knife. Mr. Pickett kicked him down the two stairs but Mr. Green cameback and punched him. Mr. Pickett noticed blood on the floor at this point and believed it was from Mr. Green as a result of breaking thewindow. In the kitchen Mr. Green stabbed Mr. Pickett on the side of his neck and then left the residence. Mr.

Pickett did not realize theextent of the wound on his neck until he observed what he described as a pool of blood on the counter dripping down to the floor.Danielle Glover, Mr. Pickett’s girlfriend at the time, came into the residence. Mr. Pickett grabbed a towel, wrapped it around his neck,putting pressure on it, and Ms. Glover called 911. In his statement, Mr. Pickett indicated he owed Sherry Hunt a couple hundred dollars; he believed it was $300.00. Mr. Pickett stayed in the hospital overnight. Medical records indicate Mr. Pickett sustained an approximate 10 cm laceration to the leftside of his neck.

He received 13 sutures. Mr. Green claimed Mr. Pickett had been buying Ritalin off Ms. Hunt, and he owed her money 300.00 to 400.00 dollars. Mr. Pickett wasupset and said he was going to burn us alive and burn the house down. Mr. Green recollected when he got to the house he saw Mr. Pickett get up from the sofa, go to the kitchen sink and pick up a knife. Seeing him with the knife, Mr. Green opened his blade, tapped on the other side of the window saying, “look I got a knife too man;you’re not intimidating me.” He entered the home and Mr. Pickett came at him with the knife.

He indicated he knows what he did was wrong. He felt had he not gone there drunk it wouldn’t have happened. Sentencing for Multiple Offences [9] When sentencing for more than one offence, our Court of Appeal has established a framework that involves a “three-stepapproach”: R. v. Roberts, 2019 NLCA 43, at para. 37; and R. v. Hutchings, 2012 NLCA 2, at para. 84. The first step is to determine anappropriate sentence for each individual offence according to ordinary sentencing principles.

There is a presumption that the individualsentences will be served consecutively, unless there is a reason for making them concurrent: R. v. Crocker (1991), (NL CA), 292 A.P.R. 222, 93 Nfld. & P.E.I.R. 222 (Nfld. C.A.), at para. 38.

[10] The second step is determining whether any of the offences should be ordered to be served concurrently with other sentencesbeing imposed on the basis that they constitute a single criminal venture. [11] The third and final step is to take “one last look” at the combined sentence for the purpose of consideration of the principlerelating to totality. [12] Goodridge , C.J.N. put it very succinctly in Crocker, quoted with approval by Justice Rowe (as he then was) in R. v. Newhook,2008 NLCA 28, at para. 9, when dealing with concurrent sentences: “There are two situations where sentences may be made concurrent.

The first is where there are multiple convictions arising out of a single criminal adventure. The second is to achieve a proper totality.” [13] What is considered to constitute “a single criminal adventure” is somewhat of a gray area. Goodridge, C.J.N. readilyrecognized this when he stated in Crocker: “A single criminal adventure may not be an adequate description of the circumstances whichinvite concurrent sentences.

Other expressions have been used such as ‘a single enterprise.’ A situation where two or more crimes areconnected or related may also be included in that description.” [14] Justice Rowe noted in Newhook (at paras. 16 and 17) that breaking into someone’s dwelling house, then assaulting a personinside the home “in a brutal and menacing way” can constitute separate crimes.

He concluded in that case: “While one offence followedhard on the heels of the other, they are sufficiently distinct in their nature that they are not a single criminal adventure.” [15] Based on the Agreed Statement of Facts and the submissions of counsel, I will determine whether Mr. Green’s offencesconstitute one single criminal adventure justifying concurrent sentences. Even if I find otherwise, I must still ask myself whether eightand one half years is too much and whether five years or some other custodial period is adequate to satisfy the sentencing principleswhile accounting for all pertinent factors.

Principles of Sentencing [16] The starting place for arriving at a just and appropriate sentence is the principles codified in sections 718 to 718.2 of theCriminal Code. [17] The fundamental purpose of sentencing is to protect society and to contribute to respect for the law and maintenance of a just,peaceful and safe society by imposing just sanctions having one or more of the objections set forth in s. 718. The objectives are: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [18]

Section 718.1 sets out that the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of theoffence and the degree of responsibility of the offender. A fit sentence takes account of the circumstances of the offences and theoffender: R. v. Lundrigan, 2012 NLCA 43. A key consideration is the prospect for Mr. Green’s rehabilitation. As Rowe J.A. noted inLundrigan (at para. 24), “[i]t is important to recall that the best protection for society is that the offender not re-offend.” [19]

Section 718.2 provides that a sentence should be increased, or reduced, to account for any relevant aggravating or mitigatingcircumstances relating to the offence, or the offender. Of particular significance, is subsection (

b) in that “a sentence should be similar tosentences imposed on similar offenders for similar offences committed in similar circumstances.” This requires an examination of thecase law range of sentencing for similar offences. AGGRAVATED ASSAULT, s. 268(2) [20] I will first examine the factors and case law applicable to the aggravated assault offence. [21] The factors when considering a sentence for aggravated assault are known as the “Atkins Factors”: R v. Atkins, (NL CA), 211 A.P.R. 99, 4 W.C.B. (2d) 348, 69 Nfld. & P.E.I.R. 99 (Nfld. C.A.); R. v. Bourgeois, 2017 NLTD(G) 182, at para. 7;and R. v. King, 2018 NLSC 36, at para. 15. The factors are:

1) the extent of the assault...; 2) the degree of violence or force used; 3) the impact of the crime upon the victim, the family of the victim and the offender; 4) the degree of trust involved; 5) public abhorrence to the type of crime involved; 6) the attitude of the offender to what he has done and his plea; 7) the biological and psychiatric factors that lead to the commission of the offence; 8) the need for specific and general deterrence; 9) the prospect of successful rehabilitation; 10) the antecedents and age of the offender; 11) the time spent in custody prior to trial; and 12) sentences imposed by other courts in Newfoundland and elsewhere in Canada.

The Extent of the Assault [ 22 ] Nine photographs of the victim, Ralph Pickett, were tendered by the Crown at the sentencing hearing. The photographs taken on the day of the assault reveal blood pouring from Mr. Pickett’s neck and his residence spattered in blood. The photos of Mr. Pickett receiving medical attention in hospital show a gaping wound to the left side of his neck. Apparent from the photographs are the 13 sutures Mr. Pickett received to close the 10 cm laceration and the unsightly closed wound. A photograph taken sometime later clearly shows residual scarring to his neck above his shirt collar line.

The Degree of Violence or Force Used [ 23 ] Mr. Green came to Mr. Pickett’s residence in a fit of rage “to settle the score” over monies allegedly owing to Mr. Green’s girlfriend and threats made to her. Mr. Green had a knife in his hand. He broke the glass window of the door, then reached in and unlocked the door and came at Mr. Pickett with the knife. [ 24 ] Mr. Pickett tried to ward off the attack by kicking Mr. Green down over two stairs of the entrance to the house. Mr. Green came back at him. Mr. Pickett picked up a knife in the kitchen before Mr. Green stabbed him once in the neck. Mr.

Green immediately left the residence after the stabbing. The Impact of the Crime Upon the Victim [ 25 ] In accordance with s. 722 of the Criminal Code , Mr. Pickett provided a Victim Impact Statement to the Court, which was read into the record by the Crown. [ 26 ] Mr. Pickett describes the impact the injury and Mr. Green’s crime has caused to him both physically and psychologically. He is conscious of the “nasty scar” on his neck and having to live with it the rest of his life. He suffers from nerve damage with tingling in his face, neck, and ear. He finds it hard to shave and even drive.

He has been prescribed pain, nerve, and sleep medications. He worries about increasing problems as time goes by. [ 27 ] To this day, he lives and sleeps in fear in his own residence. He has “real bad dreams related to that night.” [ 28 ] It has affected his interest in leisure actives, interpersonal relations, and employment. His trips to the cabin have been “cut in half,” as are other activities such as boating and driving his ATV. He is a different person and has trouble maintaining relationships.

He is not able to work on his own at the same capacity in repairing small engines, boats, and ATVs that he did prior to the offences. [ 29 ] While the impact on Mr. Pickett has been significant and must be accounted for in fixing the appropriate sentence, vengeance has no role in the sentencing process. I cannot compensate Mr. Pickett for his injuries, trauma, and grief by imposing too harsh of a sentence on Mr. Green: King , at para. 24. The Degree of Trust Involved [ 30 ] This is not a relevant factor in the context of this case, as there is no “trust” relationship between the victim and the offender.

Public Abhorrence to the Type of Crime Involved [ 31 ] The public undoubtedly abhors all crimes of violence, and expects the courts to denounce violent attacks upon others for the protection and safety of the community. The Attitude of the Offender to His Offence and His Plea

[ 32 ] Mr. Green cooperated with the police in giving statements and essentially accepted responsibility for his unlawful actions immediately upon his arrest, as his first statement to the police reveals. He told the police in his third and final statement, he knew what he did was wrong. He entered a guilty plea saving Mr. Pickett and others from having to testify. The guilty plea while coming on the date set for trial nevertheless saved Court time and resources. I accept the guilty plea as a mitigating factor. [ 33 ] As required under s. 726 of the Criminal Code before imposing sentence, I asked Mr.

Green if there was anything he wanted to say. He offered in my view a genuine apology to Mr. Pickett and to the Court. This is what he had to say: I’m deeply saddened that I did what I did. I really didn’t mean to hurt that man. I just wanted things to be normal and the life that I was living and things got out of hand. I’m sorry that I took up the time in courts and I deeply apologize. [ 34 ] Mr. Green’s remorse and understanding that what he did was wrong constitute further mitigating circumstances.

The Biological and Psychiatric Factors that Led to the Commission of the Offence [ 35 ] The Defence did not request a pre-sentence report. I have little to go on regarding Mr. Green’s biological and psychiatric factors other than the comments that Mr. Green made in his police statements, as incorporated in the Agreed Statement of Facts. [ 36 ] Mr. Green referred to having a difficult childhood and that he grew up differently than everybody else. He said his mother almost beat him to death. He indicated he has a bad temper that is fueled by alcohol. He stated if he didn’t go there drunk it wouldn’t have happened.

The Need for Specific and General Deterrence [ 37 ] Mr. Green’s actions must be denunciated and call for both specific and general deterrence. Society strongly condemns crimes of violence and the sentence imposed must be sufficiently harsh to deter others from such behavior. [ 38 ] Mr. Green has a criminal record of a previous serious aggravated assault for which he received a long custodial period. I need to impose a sentence that makes him understand the reality of the harm he caused to Mr. Pickett and deter him from violent conduct in the future.

The Prospect of Successful Rehabilitation [ 39 ] The safest way to keep the community safe is the successful rehabilitation of Mr. Green. At some point, Mr. Green will be released from prison into the community. When he is released, he needs healthy relationships and an environment where he can control his temper. Whether it is alcohol or other factors that contribute to his outbursts, it is advisable for Mr.

Green to seek the help he needs during both his incarceration and after his release. [ 40 ] His plan is to return to New Brunswick where he has a nine-year-old child and the prospect of employment working with a family member in a sawmill. I hope he follows through with his plans and is able to reconnect with his child (if that is in the child’s best interest), and he can secure employment. [ 41 ] I accept Mr. Green has a real desire to improve his life and his prospect of successful rehabilitation is promising. The Antecedents and Age of the Offender [ 42 ] I agree with the Crown that Mr.

Green is a violent repeat offender. [ 43 ] He is 50 years of age and has a long but dated criminal record encompassing 42 convictions. His counsel points out that before committing the subject offences he went several years without any criminal convictions. [ 44 ] The most salient and serious of the convictions is for aggravated assault committed on 27 April 2001.

On 26 October 2001, he received a custodial period of nine years to run concurrent with a number of other offences committed on the same date, including failures to comply with a Probation Order, another aggravated assault, three assaults, and escaping from lawful custody. [ 45 ] Also on 26 October 2001, he was convicted for the offence period of 26 April 2001 of uttering threats to cause death or bodily harm and failure to comply with a Probation Order; uttering threats, assault, assault with a weapon or imitation, and failures to comply on 1 April 2001; assault and failure to comply on 12 April 2001.

All terms of imprisonment ran concurrently to the nine years in total. [ 46 ] On 21 September 2000, he received one-month terms of imprisonment served consecutively for offences arising on 1 August 2000, including assault causing bodily harm, failures to comply with Probation Order, two counts of uttering threats, mischief to property less than $5000 and assault. [ 47 ] I place less significance on his record dating from 1992 to 1999, but I do note he had convictions for uttering threats, assault, sexual assault, and assault causing bodily harm.

The longest of the imposed sentences during that time was four months. [ 48 ] I will address Mr. Green directly with my next comments. [ 49 ] Mr. Green, you went years without falling back into a life of violence. If I did not believe in your prospects for reintegration into the community, the custodial time would be longer. To keep people and our communities safe, it will depend squarely on you and your efforts to abide by the law and get any supports and help you need. I trust you will do so.

The Time in Custody Prior to Trial [ 50 ] Section 719(3) of the Criminal Code allows the Court to take into account any time Mr. Green has spent in pre-sentence

custody for the offences. The Defence seeks credit for the maximum permitted under subsection (3.1) of one and one-half days for each day spent in custody. The Crown does not oppose Mr. Green getting credit of 1.5 days. [ 51 ] Mr. Green has been in custody since his arrest on 17 February 2020. The total time on remand up to and including today’s date, 28 October 2020, is 620 days. Applying a factor of 1.5 days for each day in pre-sentence custody, Mr. Green is entitled to a credit of 930 days. Sentences Imposed by Other Courts in Newfoundland and Elsewhere in Canada [ 52 ] Like cases should be decided alike.

The inherent paradox in this principle is that no two cases are actually alike. That is why sentencing judges are afforded proper discretion to fix an appropriate sentence to the particulars of the specific offences and offender. The case law is merely a guide. My discretion must be exercised judicially with proper consideration of the cases for similar offenders, offences, and circumstances. [ 53 ] The Crown presented three cases on aggravated assault: R. v. Ryan , 2006 NLTD 167 , Bourgeois (2017) , and King (2018) ; and a relatively more recent case on aggravated assault involving home invasion: R. v.

Nicholson , 2020 NLSC 41 . The Defence also submitted and relied on the Nicholson case. [ 54 ] In Ryan , O’Regan J. convicted the offender of two counts of aggravated assault. He was sentenced to six years’ imprisonment, concurrent, for each charge. [ 55 ] The offender was at a bar when he was subject to unprovoked shoving and punching by S. He responded by pulling out a utility knife, stabbing S. in the lower stomach and wounding him in the arm.

The stabbing caused a small perforation to S.’s bowel, which necessitated corrective surgery. [ 56 ] The offender then used the knife to ward off others, including an off-duty police officer, K. In the process of his attempting to break up the confrontation, K was cut on his finger and stabbed in the lower back. The wound to his back missed major organs and was not life-threatening. [ 57 ] The offender was in his early 20’s and had strong family support. He also had an extensive criminal record with some 51 prior convictions, including crimes of violence. [ 58 ] I note two distinguishing aspects of the Ryan case.

It involved a stabbing with two victims and in a public place frequented by hundreds of people on a given evening. [ 59 ] In Bourgeois , the two offenders pleaded guilty to aggravated assault. The victim had 12 stabs wounds to his upper body requiring 52 staples and 4 sutures. One of the stab wounds came close to puncturing the main artery of the heart, and there was risk of lung collapse from another wound. [ 60 ] Handrigan, J. pointed out (at para. 46) from a review of the cases that the range of sentence for aggravated assault is two years to six years’ imprisonment.

He sentenced Bourgeois to a global sentence of 60 months, comprising 59 for the aggravated assault and one month consecutively for breaching a direction in his warrant of committal. The other offender, Sheahan received a global sentence of 36 months, comprising 35 months for the aggravated assault and one month consecutive for breach of probation. Sheahan played a secondary role in the attack, in that he did not stab the victim but restrained him while Bourgeois stabbed him with the knife. [ 61 ] The aggravated assault in Bourgeois was more vicious and prolonged than the single stab wound to Mr. Pickett.

I recognize it could have been fatal, but as counsel for Mr. Green reminds the Court the sentence must reflect the consequences of the actions and not what might have happened. [ 62 ] Handrigan J. also noted neither offender expressed remorse to the victim or for their actions when given an opportunity to do so at the end of the sentencing hearing. He remained skeptical about the prospects of rehabilitation for the two young men, given their increasing and recent involvement in criminal activity. Whereas I am placing considerable weight on Mr.

Green’s expression of remorse and prospect for rehabilitation. [ 63 ] In King , Burrage J. accepted the guilty plea and sentenced the offender on a single count of aggravated assaulted to six years’ imprisonment. As with Mr. Green’s offences, the assault was not premediated and occurred as a result of a “fit of rage.” The offender spontaneously attacked his former girlfriend with a box cutter after she approached him in the retail store he had been working.

The attack continued until a male customer tackled the offender, allowing others in the store to assist the victim. [ 64 ] The victim suffered multiple lacerations to her face, including a 10 cm cut to the right side of her face and an 18 cm cut on the left side. In attempting to ward off the attack, she sustained lacerations to her finger and wrist. She continued to suffer reduced mobility in her right hand/arm and was left with scarring on her face and wrist. [ 65 ] Certain aggravating factors in King set the case somewhat apart from this one.

The offender admitted he slashed his ex- girlfriend’s face to disfigure her as he felt she placed a great deal of value on her appearance. At the time of the assault, the offender was subject to a Probation Order to have no contact with the victim. And most significantly, it was a case of intimate partner violence invoking s. 718.2 (a)(ii) that deems such violence as an aggravating circumstance.

The vicious attack on the victim was the second time the offender had assaulted her. [ 66 ] Based on my review of the cases, I am satisfied that five years is a reasonable and adequate custodial period for the aggravated assault committed by Mr. Green. BREAK AND ENTER WITH INTENT, s. 348(1)(a)

[67] I turn now to the offence of break and enter with intent to commit an indictable offence. Aggravating Circumstance – Home Invasion [68] The Crown refers to

section 348.1 of the Criminal Code. It requires a court in imposing a sentence on a person convicted ofbreak and enter, to consider the fact that a dwelling-house was occupied at the time of the commission of the offence, as an aggravatingfactor when, (

a) Mr. Green knew the dwelling-house was occupied; and (

b) inflicted violence to Mr. Pickett. I so find and accept theseas aggravating factors. [69] Breaking and forcing entry into someone’s residence and committing a vicious assault on that person attracts significant publicabhorrence. Every person should feel safe and secure in the comfort of their home. [70] In the words of Whalen C.J. in R. v. Jakupaj, 2017 NLTD(G) 120, at paragraph 61: In my view, a home invasion is a most serious and egregious crime for which offenders should expect to receive lengthy terms ofimprisonment.

Protection of persons in the sanctity of their homes by imposing substantial sentences that clearly express denunciation isa paramount consideration. [71] McGrath J. in Nicholson extensively reviewed the case law sentencing range for violent home invasions in this Province. I amsatisfied the circumstances of the offences and the offender here put the sentencing range between five to seven years. I cannot acceptthree and one half years as adequate, however I will explain why I find five years as sufficient. [72] The offender in Nicholson was of indigenous background.

McGrath J. (at para. 95) would have imposed seven years but for“the abuse suffered during his childhood and his aboriginal background.” He received a period of six years of incarceration. [73] As Defence counsel submitted, and I agree, the home invasion was more serious, premediated and egregious in Nicholson. Theoffender was convicted following trial before judge alone. He formed a common intention with another accused to break and enter aresidence and harm the residents residing there. The assailants beat in the door while wearing masks and carrying baseball bats.

Theybegan swinging and striking the two occupants of the residence. A knife appeared to have also been used in the attack. [74] The victims were both young men and in good physical condition and were eventually able to fend off the assailants. Thevictims received emergency room medical care for contusions and lacerations necessitating sutures. [75] Not unlike Mr.

Green, the offender had a serious but dated criminal record, the most serious of the convictions for arson withdisregard for human life, and a conviction for manslaughter for which he received four years’ imprisonment. [76] The road to rehabilitation starts with empathy for the victim and accepting responsibility for your actions. Mr. Greenimpressed me as a man owning up to his terrible mistake. Unlike the offender in Nicholson, who McGrath J. found (at para. 83) to haveminimized his involvement and attempted to blame the victims and his accomplice.

She noted, “[t]here was no true expression ofremorse for the harm done to both victims.” [77] The cases with sentences for home invasions with violence (extensively surveyed in Nicholas, Jakupaj, and Manuel, 2010NLTD 177 2010 NLSCTD 177) that exceed five years had one or more of the following elements: premeditated attacks withmore sustained brutality; victims with catastrophic injuries; attacks involving former intimate partner relationships or vulnerable elderlypeople; and beatings in the commission of robberies.

Without one or more of the foregoing elements, I am satisfied that five years’incarceration for the s. 348(1)(

a) violent home invasion here, as spontaneous and vicious as it was, is just and appropriate. Second Step - Concurrent Sentences for One Criminal Venture [78] I must now turn to the second step of the analysis and decide whether the offences constituted one criminal venture. I find Mr.Green’s actions and the offences are one single criminal event. He went into a rage over Mr. Pickett allegedly owing money and makingthreats to his girlfriend. He went to where Mr.

Pickett lived with one intention and that was “to settle the score.” He had a knife in hishand before breaking the window, opening the door and entering the house. Mr. Pickett made an effort to ward off the attack. Mr.Green struck him once savagely to the neck with the knife, and then left. [79] Keeping Rowe J.A.’s comments in Newhook foremost in mind, Mr. Green’s actions in breaking and entering Mr. Pickett’shouse are part of the same criminal adventure. There is no sufficient distinction in the nature of the actions. The aggravated assaultfollowed immediately after Mr. Green broke and entered Mr.

Pickett’s residence with the intention to assault him with a knife. [80] An essential element for the conviction under s. 348(1)(

a) is proof of an ulterior mental element: the intent to commit anindictable offence in the place that has been broken into and entered. Mr. Green committed the offence of aggravated assault whilecarrying out his express purpose and intention for breaking and entering Mr. Pickett’s residence. The convictions for both offences areconnected and related to the same criminal adventure, which was to break and enter to inflict harm to Mr. Picket. [81] Even if the two offences constituted a single criminal venture, it does not mean the sentences must be concurrent: R. v. Murray,2021 NLSC 16, at para. 38.

The Court still has discretion to make them consecutive when the circumstances justify doing so (Roberts atpara. 46). [82] McGrath J.’s conclusion and comments on concurrent sentences in Nicholson are again helpful. She concluded the offences ofaggravated assault, assault with a weapon and disguise with intent all arose out of the same criminal adventure of carrying out the

common purpose of a violent home invasion. She observed in all the cases submitted to her the sentences for break and enter and assaults committed in the course thereof were served concurrently. [ 83 ] There are no circumstances that justify the exercise of my discretion to make the sentences consecutive; therefore, I conclude the sentences of five years’ imprisonment for each of the offences are to be served concurrently.

Third Step – Totality [ 84 ] Finally, I must then take “one last look” at the combined sentence accounting for the principle of totality. [ 85 ] I am satisfied that the Crown’s submission of consecutive sentences totaling eight and one half years is excessive and would be crushing. A sentence of that duration is more in the range of what could be expected for a manslaughter conviction. [ 86 ] A total sentence of five years’ imprisonment properly serves the principles of denunciation and deterrence, while promoting Mr.

Green’s rehabilitation and his aspirations at becoming a productive and law-abiding citizen upon his release from custody. The sentence is an expression of my belief and hope that in mid-life Mr. Green will now do his part to ensure the community is at all times safe with him on the outside. disposition [ 87 ] Mr. Green, please stand. I hereby order: [ 88 ] On the offence of aggravated assault, contrary to s. 268(2) of the Criminal Code , Mr. Green is sentenced to five years’ imprisonment. [ 89 ] On the offence of break and enter with intent to commit an indictable offence, contrary to s. 348(1) (

a) of the Criminal Code , Mr. Green is sentenced to five years’ imprisonment. [ 90 ] The two five-year terms of imprisonment for the corresponding offences are to be served concurrently, less credit for time served, 620 days at 1.5, totaling 930 days credit. Ancillary Orders 1. DNA – I order the taking of bodily substances by the appropriate peace officers or a person authorized under their direction, to take from Mr. Green any number of samples of bodily substances that are reasonably required for forensic DNA analysis under the conditions set out in s. 487.051(1) of the Criminal Code . 2. Weapons Prohibition - Pursuant to s. 109(1) (

a) and (3) of the Criminal Code , Mr. Green is prohibited from having in his possession any firearm, crossbow, restricted or prohibited weapon or device, ammunition or explosive substance for life. 3. No Contact - I order that Mr. Green have no contact with Mr. Pickett for the duration of his custodial sentence pursuant to s. 743.21 of the Criminal Code . 4. Victim Fine Surcharge - In light of the term of imprisonment and Mr.

Green being unemployed, I exempt him in accordance with s. 737(2.1) of the Criminal Code from payment of the Victim Fine Surcharge. [ 91 ] In closing, while fully recognizing the ongoing impact that Mr. Green’s harm has caused to Mr. Pickett, I hope the sentence imposed brings a measure of closure for Mr. Pickett. [ 92 ] Mr. Green, I wish you all the best in your efforts toward rehabilitation. [ 93 ] Thank you Ms. Hiscock and Mr. Edwards for your professionalism and able submissions. ____________________________ Glen L.C. Noel Justice