R. v. Connors, 2021 NLSC 178

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Connors , 2021 NLSC 178 Date : December 23, 2021 Docket : 202106G0034 Her Majesty The Queen v. Terrance Connors Before: Justice Peter A. O'Flaherty Edited Reasons for Judgment Given Orally Place of Hearing: Grand Bank, Newfoundland and Labrador Date of Hearing: November 24, 2021 Date of Oral Judgment: December 17, 2021 Appearances: Alison J. Manning Appearing on behalf of the Crown Marcus A. Evans, Q.C. Appearing on behalf of the Offender

Authorities Cited: CASES CONSIDERED: R. v. Boudreault, 2018 SCC 58; R. v. Lundrigan, 2012 NLCA 43; R. v. Green, 2021 NLSC 139; R. v.Wiseman, 2020 NLSC 107; R. v. Fitzgerald, 2010 NSPC 73; R. v. Dustyhorn, 2017 SKQB 174; R. v. Green (1997), 1997 ABCA 219, 200 A.R. 307, 1997 CarswellAlta 494 (Alta. C.A.); R. v. Crocker, 2013 NLTD(G) 1; R. v. Parsons, [2020] N.J. No. 213, 2020CarswellNfld 269 (N.L. Prov. Ct.); R. v. Rowsell (2002), (NL SC), 210 Nfld. & P.E.I.R. 226, 630 A.P.R. 226[(N.L.S.C.(T.D.)); R. v. Fewer, 2019 NLSC 221; R. v. Crocker (1991), (NL CA), 93 Nfld. & P.E.I.R. 222, 292 A.P.R.222 (Nfld. C.A.); R. v.

Roberts, 2019 NLCA 43 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT O'Flaherty, J.: INTRODUCTION [1] On February 23, 2021, B.P., the partner of Terrance Connors (the “Offender”) was moving from 29 Bunkerhill Road inFortune, Newfoundland and Labrador (NL), across the street to 44 Bunkerhill Road.

She was the registered owner of both properties.The Offender had been drinking heavily that day and when he left 44 Bunkerhill Road having threatened to burn down his partner’scurrent dwelling house at 29 Bunkerhill Road, B.P. contacted the Royal Canadian Mounted Police (RCMP) in Marystown, NL forassistance. While officers were on their way to the location, the RCMP received a call from the 13-year-old daughter to report that theOffender had returned to 44 Bunkerhill Road and was assaulting her mother.

According to the witness statements obtained, the assaultinvolved pushing and pinning B.P. to the wall, and the 17-year-old son was forced to intervene to prevent the Offender from continuingthe assault [2] The Offender was arrested by the RCMP and held in custody overnight. On the following day, February 24, 2021, he wasbrought before the Provincial Court in Grand Bank, where he was released by a judge on the following conditions: 1. You must keep the peace and be of good behavior 2. You must not contact or communicate directly or indirectly, in any manner with [B.P], [C.P.] and [C.P.] 3.

You must not enter and remain away from the following places or geographic areas: 29 Bunkerhill Road & 44 BunkerhillRoad, Fortune, Newfoundland and Labrador 4. You must not possess or consume alcohol [3] On February 28, 2021, the Offender was again drinking heavily. Despite these clear release conditions, he went back to 44Bunkerhill Road and a confrontation with his partner, B.P., occurred. B.P. and the children left the house at about 4:45 p.m. and shereported the matter to the RCMP.

While on their way to 44 Bunkerhill Road to locate the Offender, the police officers received a reportthat the house was fully engulfed in flames. When they arrived at 44 Bunkerhill Road, at about 5:30 p.m., the police officers wereadvised that 29 Bunkerhill Road had also been set on fire. The officers determined the house had been broken into and set afire but thenew owners had managed to extinguish the fire before the house was extensively damaged.

The Offender was located at another houseon Bunkerhill Road, intoxicated, and he confessed to setting both houses on fire. [4] Informations were laid separately in relation to the assault and uttering threats on February 23, 2021, and in relation to thearson offences, the break and enter, and the breach of release conditions on February 28, 2021. The Crown elected to proceed byindictment.

The Offender elected trial in this Court. [5] In relation to the incident on February 23, 2021, by a Bill of Indictment dated March 24, 2021, the Accused was charged withthe following two offences: On or about the 23rd day of February, A.D. 2021 at or near Fortune, in the Province of Newfoundland and Labrador, did commit anassault on [B.P.], contrary to

Section 265 of the Criminal Code and punishable by

section 266 of the Criminal Code; On or about the 23rd day of February, A.D. 2021 at or near Fortune, in the Province of Newfoundland and Labrador did by word ofmouth knowingly utter a threat to [B.P.] to burn the real property of [B.P.], to wit: her dwelling house contrary to

section 264.1(1)(

b) ofthe Criminal Code and punishable by

section 264.1(3) [6] In relation to the incident on February 28, 2021, by a second Bill of Indictment dated March 10, 2021, the Accused was

charged with the following six offences: On or about the 28th day of February, A.D., 2021 at or near Fortune, in the Province of Newfoundland and Labrador, did intentionally or recklessly cause damage by fire to a dwelling house, the property of [S.L.], situate at 29 Bunkerhill Road, Fortune, Newfoundland and Labrador contrary to

Section 434 of the Criminal Code and punishable by

section 434 of the Criminal Code ; On or about the 28th day of February, A.D., 2021 at or near Fortune, in the Province of Newfoundland and Labrador did break and enter a certain place to wit: the residence of [S.L.], situate at 29 Bunkerhill Road, Fortune, Newfoundland and Labrador with intent to commit an indictable offence therein contrary to section 348(1) (

a) of the Criminal Code ; On or about the 28th day of February, A.D., 2021 at or near Fortune, in the Province of Newfoundland and Labrador did being at large on a judicial release order given to a Judge and being bound to comply with a condition of that release order, to wit; remain away from 29 Bunkerhill Road, Fortune, Newfoundland and Labrador, without lawful excuse failed to comply with that condition, remain away from 29 Bunkerhill Road, Fortune, Newfoundland and Labrador contrary to section 145(5) (

a) of the Criminal Code ; On or about the 28th day of February, A.D., 2021 at or near Fortune, in the Province of Newfoundland and Labrador, did intentionally or recklessly cause damage by fire to a dwelling house, the property of [B.P.], situate at 44 Bunkerhill Road, Fortune, Newfoundland and Labrador contrary to

Section 434 of the Criminal Code and punishable by

section 434 of the Criminal Code ; On or about the 28th day of February, A.D., 2021 at or near Fortune, in the Province of Newfoundland and Labrador did being at large on a judicial release order given to a Judge and being bound to comply with a condition of that release order, to wit; remain away from 44 Bunkerhill Road, Fortune, Newfoundland and Labrador, without lawful excuse failed to comply with that condition, remain away from 44 Bunkerhill Road, Fortune, Newfoundland and Labrador contrary to section 145(5) (

a) of the Criminal Code ; On or about the 28th day of February, A.D., 2021 at or near Fortune, in the Province of Newfoundland and Labrador did being at large on a judicial release order given to a Judge and being bound to comply with a condition of that release order, to wit; no contact or communication directly or indirectly with [B.P.], without lawful excuse failed to comply with that condition, no contact or communication directly or indirectly with [B.P.], contrary to section 145(5) (

a) of the Criminal Code ; [ 7 ] The Offender consented to be remanded in custody on February 28, 2021, and was later denied bail. He was arraigned on April 1, 2021, and entered not guilty pleas on all charges. On September 29, 2021, Mr. Connors was re-arraigned and entered guilty pleas on all charges on both indictments, and convictions were entered. [ 8 ] An Agreed Statement of Facts was entered on September 29, 2021, and read as follows: February 23, 2021 at 8:21 p.m. [B.P.] reported that her partner Terrance Connors had threatened to burn down her residence at 29 Bunkerhill Road in Fortune, NL.

He had left the residence at 44 Bunkerhill Road and she was unsure if he was headed to her other residence at 29 Bunkerhill Road in Fortune. They were in the process of moving from 29 to 44 Bunkerhill Road. As police were enroute a call was received from [C.P.], daughter of [B.P.], that the Accused had returned and was assaulting her mom. [B.P.] called again to report that she and the children had left the residence and were safe. [B.P.] provided a statement that the Accused had been drinking and around 3:30 p.m. he had started to cause problems, pushing her and throwing things around.

He was spoken to by the police about his behavior and left the residence only to return again and threaten to burn down 29 Bunkerhill Road. When she tried to leave the residence, after she called the police, the Accused blocked their exit and pinned her to the back of the closet in the porch. He has grabbed clothing around her collar bone and she had marks on her chest from struggling with him. Her 17 year old son [C.P], pulled Connors off her. The family went to [R.W.] house to wait for the police to arrive. Statements were obtained from [C.P.] (age 13) and [C.P.] confirming these events.

Police attended at 44 Bunkerhill Road and located the Accused asleep on the couch. He was arrested for assault and uttering threats, given his

Section 10(

b) rights to counsel. He declined to speak to counsel and understood the police Caution. Connors advised police he had consumed 30 to 40 beer that day. Terrance Connors was released on February 24, 2021 on a Release Order with the following conditions: 1. You must keep the peace and be of good behavior 2. You must not contact or communicate directly or indirectly, in any manner with [B.P.], [C.P.] and [C.P.] 3. You must not enter and remain away from the following places or geographic areas: 29 Bunkerhill Road & 44 Bunkerhill Road, Fortune, NL 4.

You must not possess or consume alcohol February 28, 2021 at 4:46 p.m. [B.P.] called the Marystown RCMP to report that the Accused was breaching his release conditions as he

was at her house at 44 Bunkerhill Road and he was drinking, she had left the residence. Police immediately departed Marystown for Fortune speaking with [B.P.] en-route to obtain additional details. The Accused had attended at the residence intoxicated and refused to leave so the rest of the family had left. At 5:18 p.m. police were advised of a 911 call that the house at 44 Bunkerhill Road in Fortune was fully engulfed in flames. When they arrived at 5:27 p.m. the house [B.P.] had just purchased and moved into was on fire.

Police were advised that 29 Bunkerhill Road, which [B.P.] had just sold to [S.L.] and [R.P.] had also been set on fire. Cst. Barker located [R.W.] at the scene and he advised that Terrance Connors had admitted to him that he had set both the fires. He had called 911 after Connors made that admission and had driven over to find the house at 44 Bunkerhill Road on fire. Cst. Barker walked over to 29 Bunkerhill Road and saw the window in the front door had been broken out and there was a significant blood trail into the house and outside the door in the snow. The corner of the porch was blackened with fire damage.

It appeared that entry had been gained to the residence by breaking the glass in the door and a fire had been set in the corner of the porch of the residence. [C.L.], the father of [S.L.], had found the fire in the porch and had along with a neighbor put the fire out with snow. The window in the door was broken when he arrived at the house. [S.L.] and [R.P.] advised they had bought 29 Bunkerhill Road the previous Friday and had just left the house after moving in the last of their belongings. They had locked the door with the deadbolt before they left and the glass in the door was not broken. Cst.

Bradley Layman collected blood samples from inside 29 Bunkerhill Road on February 28, 2021. The blood collected from the porch floor at 29 Bunkerhill Road was submitted to the RCMP Forensic Lab for DNA testing, along with a blood sample taken from Terrance Connors pursuant to a search warrant on March 2, 2021.

The finding of the lab was that the blood sample from the floor matched the known blood sample from the Accused. “The estimated probability of selecting an unrelated individual at random from the Canadian Caucasian population with the same profile is 1 in 150 quadrillion.” Police received information that Terrance Connors was at 32 Bunkerhill Road. Cst. Barker and Cpl. Mackinnon attended at the residence. There was a trail of blood leading to the residence in the snow. The Accused was located seated at the kitchen table with a bottle of Lambs rum. He immediately stated he had set fire to both the houses. Cpl.

Mackinnon arrested Terrance Connors for arson, break and enter and breach of release conditions. That was when police noticed that the Accused’s hand was cut and bleeding. He was immediately given his

Section 10(

b) rights and the police Caution and again stated he had set both houses on fire. Police noticed a strong odor of alcohol from the Accused’s breath. The owner of 32 Bunkerhill Road, [T.P.] provided a statement to police. He was at home and Terrance Connors came into his house saying he had set two houses on fire. Connors had shown up about forty minutes before police arrived. [T.P.] had helped [C.L.] put out the fire at 29 Bunkerhill Road with snow. [R.W.] provided a statement to Cst. Barker. Terrance Connors showed up to his house and told him he had set two houses on fire.

Connors stated he set 44 Bunkerhill Road on fire by taking burning junks of wood out of the wood stove and placing them around the house. [R.W.] had immediately left the house on Bayview Street in Fortune and gone into 44 Bunkerhill Road where he saw a blanket on fire with wood on it. He had tried to put it out but was unsuccessful. While Cpl. Mackinnon was transporting Terrance Connors in his police vehicle to the Grand Bank Hospital, the Accused repeatedly admitted to drinking alcohol and setting the fires at the two houses. Cpl. Mackinnon turned on his audio recorder capturing these admissions.

The Accused’s hand was treated by the doctor at the hospital and he was found fit for incarceration. During the trip from the hospital to the Marystown RCMP detachment the Accused was again told he was being recorded and he continued to admit burning the houses and the he screwed up because his kids now have nowhere to live. While he was being booked into cells at the detachment he again stated he had set the fires. March 1, 2021 Terrance Connors provided a video recorded Caution Statement to Cst. Mitchell at the Marystown RCMP detachment.

In the statement he admitted being at [B.P.]’s residence while she was there in breach of his release conditions, assaulting the week before by throwing her across the kitchen and drinking alcohol in breach of his conditions. Terrance Connors mindset was that if he could not live in the house she would not live in the house. The first house he went to was at 44 Bunkerhill Road. He could not remember how he set the fires but thinks he must have broken the window to get into 29 Bunkerhill Road as he had cuts on his hand.

Photographs of the damage to the residence at 29 Bunkerhill Road in Fortune are attached as Appendix A. Photographs of the damage to the residence at 44 Bunkerhill Road in Fortune are attached as Appendix B. This property was found to be a total loss and has been demolished as it has to be re-built. The family cat was killed in the fire at 44 Bunkerhill Road. [ 9 ] On November 24, 2021, I heard submissions on sentencing from the Crown and the Defence in relation to the convictions for both incidents. The purpose of today’s hearing is to provide my decision on the fit sentence for the Offender. discussion The Purpose, Objectives, and Principles of Sentencing [ 10 ]

Section 718 of the Criminal Code , R.S.C. 1985, c.

C-46 , (the “ Code ”), provides that the fundamental purpose of sentencing is “to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society.” [ 11 ] This fundamental purpose is achieved by imposing sanctions on offenders that have one or more of the following objectives: ▪ denouncing unlawful conduct; ▪ deterrence of the offender and other persons from committing offences; ▪ separation of offenders from society, where necessary; ▪ assisting in the rehabilitation of offenders; ▪ to provide for reparations of harm done to victims, or the community; and ▪ to promote a sense of responsibility in offenders and acknowledgment of harm done to victims and the community. [ 12 ]

Section 718.1 provides that “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

Section 718.2 further provides that a sentence should be increased, or reduced, to account for any relevant aggravating or mitigating circumstances. In

section 718.2(

a) a number of deemed aggravating circumstances are enumerated.

Section 718.2 goes on to provide the following guidelines for arriving at a fit and proper sentence: (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. [ 13 ] The purpose, objectives, and principles of sentencing set out in s. 718 et seq. of the Code , as interpreted by the courts, provide the framework for the imposition of a fit sentence on the Offender. Application of the Sentencing Principles [ 14 ] Applying these sentencing principles to the facts and circumstances in this case I consider a number of factors to be aggravating: 1.

The Offender has a criminal record that includes prior convictions for arson, assault, and breach of court orders; 2. The incident on February 23, 2021, involved an assault against the Offender’s partner. While no injuries were reported the assault and threat both occurred in the presence of teenage children who were forced to become involved by contacting the police and protecting their mother, which could only have been a traumatic experience; 3. The incident of February 28, 2021, resulted in the constructive total loss of the family’s dwelling house, which caused the relocation

of the family, the loss of their personal belongings, and the death of the family pet, and an estimated loss in the amount of $563,000 to the property insurer; 4. The neighboring house had been put at risk by the fire ; 5. In a continuation of the Offender’s intention to damage or destroy the real property of his partner at 29 Bunkerhill Road, the new purchaser of that property suffered property damage and inconvenience; and, 6.

The offences were committed while bound to comply with judicial release conditions, all four of which were breached by the Offender. [ 15 ] I consider the following factors to be mitigating in this case: 1. The Offender has entered guilty pleas, saving the necessity of a trial and the further victimization of B.P. and the children by having to testify; 2. The Offender has expressed his sincere remorse and has accepted his responsibility for all the offences, without reservation; and, 3.

The Offender is a hard-working and productive worker, and the employer of the Offender will continue to employ him upon his release from prison. sentencing positions of parties The Crown Sentencing Submission [ 16 ] The Crown argues that an appropriate overall sentence in the circumstances of these offences and for this Offender is imprisonment for eight years, along with two ancillary orders, a mandatory DNA order and a mandatory firearms prohibition.

In relation to the February 23, 2021, incident, the Crown submits that a period of imprisonment of six months for the assault and a period of imprisonment for four months for uttering the threat to burn the house down, served concurrently, are appropriate.

In relation to the February 28, 2021, incident, the Crown submits that a minimum period of imprisonment of at least four years is appropriate for the arson causing damage to the property at 44 Bunkerhill Road, that the minimum sentence for the arson causing damage to the property at 29 Bunkerhill Road is three years, consecutive, and that for the break and enter with intent at 29 Bunkerhill Road the proper sentence is 12 months, served concurrently.

Finally, the Crown argues that the breach of bail condition charges should each attract a sentence of two months imprisonment, to be served consecutively for a further six months. Essentially the Crown says that Mr. Connors should be sentenced to six months for the incident on February 23, 2021 and seven and one-half years for the incident on February 28, 2021. [ 17 ] In relation to the February 23, 2021, incident the Crown points out, quite correctly, that s. 718.2(a)(ii) mandates that intimate- partner violence be considered an aggravating factor in sentencing Mr.

Connors on these offences. [ 18 ] In relation to the February 28, 2021, incident, the Crown emphasized that in sentencing an offender for arson the authorities are clear that the primary considerations are general deterrence and denunciation because the nature of the crime is such that a fire is unpredictable and endangers the property and lives of third parties and first responders, regardless of the intentions of the offender. [ 19 ] The Crown tendered evidence establishing that an insurer was in the process of concluding a claim settlement with B.P. in relation to the total loss of 44 Bunkerhill Road and personal belongings destroyed in the fire.

While the claim has not been finalized, the loss was reserved at in excess of $563,000 for replacement cost, contents, and additional living expenses. The Crown also pointed to evidence that the house on the adjoining property had some heat and smoke damage on its siding. This evidence was not challenged by the Offender. [ 20 ] The Crown tendered the prior criminal record of the Offender, which was admitted. There are fifteen prior convictions on the record, grouped in three clusters of charges.

The first set of charges was dealt with in Yorkton, Saskatchewan, on November 19, 2003, the second set in Grand Bank, Newfoundland and Labrador, on November 14, 2007, and the third set in Grand Bank, Newfoundland and Labrador, on June 13, 2012, as follows: Conviction Date & Location Charge(s): Dispositions: 2012-06-13 Grand Bank, NL CCC 1985 Sec 255.1 Impaired driving/failure or refusal to provide breath sample Prohibition on Driving 12 months CCC 1985 Sec 253(

b) Operation of a vehicle while impaired by exceeding 80mg Fine $1000 CCC 1985 Sec 145(5)(

b) Failure to appear or comply with Appearance Notice Fine $500 2007-11-14 Grand Bank, NL CCC 1985 Sec 176(1)(

a) Causing a disturbance Jail 6 months (time served)

CCC 1985 Sec 145(4)(

a) Failure to appear or comply with a summons Jail 6 months (time served) CCC 1990 Sec 433 Arson with disregard for human life Conditional Sentence 12 months concurrent CCC 1985 Sec 266(b) (x2) Assault CCC 1985 Sec 265(1)(b) (x2) Assault Jail 6 months (time served) CCC 1995 Sec 430(1)(

b) Mischief relating to property – less than $5000 Jail 6 months (time served) CCC 1985 Sec 430(1)(

a) Mischief by damaging property Jail 6 months (time served) 2003-11-19 Yorkton, SK CCC Sec 253(

b) Care or Control over 80mgs Driving Prohibition 1 year $1600 fine CCC Sec 129(

a) Obstruction CCC Sec 430(4) Mischief under $5000 CCC Sec 266 Assault CCC Sec 145(5) Failure to Appear Conviction Date & Location Charge(s): Dispositions: [ 21 ] One of the November 14, 2007, convictions was for arson, which the Crown submitted arose from a dispute and a desire for vengeance by the Offender. The Offender has also previously breached release orders.

The Crown submits that these are highly aggravating factors, in particular the fact that the Offender has a prior record for arson. [ 22 ] The Crown requested a firearms prohibition order under s. 109 of the Code and an order under s. 487.051(1) of the Code that the Offender be required to provide samples of bodily substances for the DNA data bank upon request. Both are mandatory based on the offences committed by the Offender. The Defence Sentencing Submission [ 23 ] The Defence took no issue with the mandatory firearms prohibition order or the DNA order.

The Defence requested a waiver of the Victim Fine surcharge due to the lengthy period of incarceration. The Defence points out that the Offender has been in pre-sentence custody since February 28, 2021, and that he is entitled to 1.5 days’ credit for each day served. [ 24 ] The Defence argued that the pre-sentence report was positive and that the Offender has suffered both from an alcohol addiction and a drug problem for many years.

In terms of the record placed in evidence the Defence accepted that the Offender’s record was “significant and related” but submitted it was also a dated record with the last convictions being almost 10 years ago, and the arson conviction being 14 years ago when the Offender was 23 years old.

The Defence pointed out that in both cases the Offender was heavily intoxicated and recognizing this fact he is now undergoing counselling and treatment for his alcohol addiction in pre-sentence custody. [ 25 ] In terms of his prospects for rehabilitation, the defence submitted that the Offender was a very good worker, hard-working, dependable, and likeable.

He has the support of B.P. with whom he has had a relationship for many years. [ 26 ] In terms of the period of imprisonment for the incident on February 23, 2021, the Defence submitted that the Offender was pushing B.P. and throwing things around but there were no injuries, and an appropriate sentence for that offence is three months. In relation to the February 28, 2021, incident the Defence submitted that a global sentence of 2-3 years imprisonment would be a fair sentence.

Finally, the Defence pointed out that the Offender is back in school and attending counselling at the facility in Bishop’s Falls and that if the Court was prepared to sentence him to two years less a day he could continue with this programming. The Sentencing Exercise [ 27 ] In R. v.

Boudreault , 2018 SCC 58 , at paragraph 58 , the Supreme Court of Canada emphasized that “sentencing is first and foremost an individualized exercise, which balances the various goals of sentencing, while taking into account the particular circumstances of the offender, as well as the nature and number of his or her crimes.” To the same basic effect, in R. v. Lundrigan , 2012 NLCA 43 , at paragraph 24 , our Court of Appeal confirmed that a fit sentence is “one that takes account of the circumstances of the offences and the offender.”

[ 28 ] I will turn now to consider the circumstances of the offences, and then the circumstances of the Offender. The Offences [ 29 ] The crimes committed in this case are grave. The most serious of the offences for which convictions have been entered in this case are the two charges of arson causing property damage under s. 434 of the Code . Arson causing property damage carries a maximum sentence of 14 years imprisonment. Break and enter with intent to commit an indictable offence in a dwelling house under s. 348(1) (

a) carries a maximum sentence of life imprisonment. Objectively, these are considered serious crimes in the Code . [ 30 ] The Offender has also been convicted of the offence of assault, which is punishable by a maximum sentence of imprisonment for five years, and the offence of uttering a threat to burn real property, which is punishable by a maximum sentence of imprisonment for a term of two years.

These crimes are less serious, but as noted above, they involved abuse by the Offender of his intimate partner, which is deemed an aggravating factor by s. 718.2 (a)(ii) of the Code . [ 31 ] Finally, the Offender has been convicted of three breaches of release conditions, which were all committed within 4 days of the release of the Offender. While the sentences for these offences are not as serious as the substantive criminal acts, they are nonetheless important from the perspective of the purpose of sentencing, which is to promote respect for the law in a just, peaceful and safe society.

The Circumstances of the Offender and the Pre-sentence Report [ 32 ] A key consideration in the determination of a fit sentence is the circumstances of the Offender and the prospect that Mr. Connors may be rehabilitated. After all, as Rowe J.A. noted in R. v. Lundrigan (at para. 24 ), “[i]t is important to recall that the best protection for society is that the offender not re-offend.” [ 33 ] Mr. Connors is 37 years old and has a Grade 7 education.

He became involved in drugs and alcohol early in life and the impact of that development has echoed down the years in the relationships he has struggled to form and his episodic involvement in the criminal justice system. [ 34 ] He has a number of marketable skills and is a hard worker. Most recently he has started his Fishing Master Class IV at the Marine Institute. P.S., his employer, confirms that he has been working for him for six to seven years and he is dependable, hard-working and gets along well with others. He is willing to hire him back.

Overall, based on the pre-sentence report, and the expression of remorse, I accept that Mr. Connors has good prospects for rehabilitation. In order to return to his employment and re-establish a life with his partner and children he will need to address, and master, the alcohol issue that has had such a negative influence on his life to this juncture. The Range of Sentences for Similar Offences and Offenders [ 35 ] Both the Crown and the Defence acknowledged that the offence of arson is fortunately not a common offence in the province and therefore the number of rulings is much lower than for many other offences.

The parties made reference to rulings from other provinces that echoed many of the same principles of sentencing applied by our Courts. [ 36 ] I turn now to a review of the sentencing rulings for similar offences and offenders both in the province and outside. I would however echo the comments of Noel, J. in R. v. Green , 2021 NLSC 139 , at para. 52 , to the effect that no two cases are ever really alike and the case law operates as a guide to the exercise of my discretion: 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. [ 37 ] The Crown referred the Court to the following arson cases in support of its position that the Offender should receive a sentence of 7 years total imprisonment on the arson charges, 4 years on the arson in relation to 44 Bunkerhill Road and 3 years on the arson in relation to 29 Bunkerhill Road: i. In R. v. Wiseman , 2020 NLSC 107 , a decision of this Court, a 25-year-old offender set his residence on fire while involved in a stand-off with the police.

The offence was spontaneous and impetuous rather than planned and deliberate. The offender was deemed a high risk to reoffend, he had an extensive record for violent crime, and he was on parole at the time of the offence. He expressed remorse for the offences and pleaded guilty to the offence. The principle of general deterrence was emphasized and the presence of alcoholism and drug addiction was not considered a mitigating factor. The offender was sentenced to 30 months for arson; ii. In R. v.

Fitzgerald , 2010 NSPC 73 , a decision of the Nova Scotia Provincial Court, the offender was angry about his neighbor spreading rumors about him and set his neighbor’s home on fire with a Molotov cocktail, killing four of his pets in the process. The neighbor’s home was attached by a party wall to another residence which was occupied at the time. The offence was planned and deliberate and the offender pleaded guilty, albeit mid-trial, and had an extensive criminal record.

The offence involved endangerment of persons as well as damage to property and the Court imposed a sentence of five years imprisonment on the arson charge; iii. In R. v. Dustyhorn , 2017 SKQB 174 , the offender was a 27-year-old aboriginal man who had a criminal record dating back to when he was 15, including for manslaughter, for which he had just been released. The offender was a gang member who assaulted his partner and children and threatened to kill his partner and children.

He also committed a brutal assault on a third party who came to the assistance of his partner and after they escaped the house, the offender intentionally set the house on fire. His intoxication during the offences was not a mitigating factor. The Court found that there was no evidence that the house was occupied, or the offender was reckless about whether it was occupied, so the offence involved property damage and not endangering life.

The sentencing judge found that the range of sentence for arson in an unoccupied dwelling was two to five years, and sentenced the offender to four years for the arson charge, and a global sentence of six years and four months. On appeal the sentence of four years for arson was upheld as a fit

sentence, however the sentence for the assault was increased; iv. In R. v. Green (1997), 1997 ABCA 219 , 200 A.R. 307, 1997 CarswellAlta 494 (Alta. C.A.), a sentence of 5 yearsimprisonment was upheld on appeal in relation to a carefully planned, vengeful arson in which the offender set fire to the home of hispartner’s parents. The offender showed no remorse for the act and he posed a continuing risk to his former partner and her family; and, v. In R. v. Crocker, 2013 NLTD(G) 1, the offender pleaded guilty to break and enter at a medical clinic in Trout River, NL andthe theft of prescription medication.

The Crown sought a sentence of 3-4 years and the defence submitted that two and one-half to threeyears would be appropriate. The offender was 30 years old, had a Grade 10 education, and had no source of income. His psychiatristconfirmed that he struggled with alcohol and drug addiction and mental health issues. The offender had a short and unrelated record.

TheCourt found that the offender’s guilty plea was a mitigating factor and sentenced him to three years imprisonment. [38] The Defence made comments on the cases submitted by the Crown and referred the Court to the following case in support ofits position that the Offender should receive a sentence of 2 to 3 years imprisonment: i. R. v. Parsons, [2020] N.J. No. 213, 2020 CarswellNfld 269 (N.L. Prov. Ct.), a case in which a forty-two year old woman setfire to her business to fraudulently obtain the proceeds of the insurance coverage. [39] I have considered the decisions above, and in addition I have reviewed R. v.

Rowsell (2002), (NL SC), 210Nfld. & P.E.I.R. 226, 630 A.P.R. 226 [(N.L.S.C.(T.D.)), in which Leblanc, J. reviewed the sentences for arson in this province andconcluded at paragraph 13 that an appropriate range at that time was two years less a day to six years imprisonment. More recently, inR. v. Fewer, 2019 NLSC 221, O’Brien, J. sentenced the offender to two years imprisonment for intentionally or recklessly causingdamage by fire to a shed following an alcohol-fueled argument with a neighbor.

In Fewer, the aggravating factors included the use of anaccelerant and the very close proximity of other buildings to the shed. [40] Based on my review of the arson cases cited, it appears that convictions for the offence of arson attract stiff sentences in thisprovince, usually at least two years imprisonment. All arson cases contain a common theme that emphasizes the need for the principlesof general deterrence and denunciation to be foremost. This supports the view that any sentence I impose on Mr.

Connors must addressthe objectives of protection of the public and deterrence of other persons from committing arson. [41] In analyzing the fact patterns in the cases submitted I conclude that the offences and circumstances in this case resemble mostclosely those in Dustyhorn.

In both cases the arson resulted following an argument in which the offender was heavily intoxicated, theburning of the house occurred after the children and partner had left, the offender had committed violence towards the family in the daysprior to the incident, the fire placed neighboring properties at risk, and the offender had a prior record for serious criminal conduct. InDustyhorn a sentence of four years imprisonment was imposed and upheld by the Saskatchewan Court of Appeal in 2019.

Overall, I findthat Dustyhorn is a reasonable comparator because it is a recent case on similar facts, which has undergone scrutiny and was upheld onappeal. [42] This sentencing involves multiple offences, which occurred over two separate days. When sentencing for more than oneoffence, our Court of Appeal has established a framework that involves a “three-step approach”: R. v. Roberts, 2019 NLCA 43. The firststep is to arrive at a fit and appropriate sentence for each offence.

Step One: A Fit and Appropriate Sentence for Each of the Offences [43] In arriving at fit sentences for each of the offences I have considered the seriousness of these crimes and that the manner ofcommission of these crimes was aggravating. I have also considered their significant impact on the victims. I have found the informationcontained in the pre-sentence report and Mr. Connors’ statement of assistance in taking account of the circumstances of the Offender,and I have concluded that the prospects for the Offender’s rehabilitation are positive.

The Offender impresses me as someone who isaccepting full responsibility for his actions and exhibited genuine remorse. His prior related record heightens the need for specificdeterrence and protection of the public from the Offender, however as the Defence points out it is a dated record, the arson charge is 14years old, and the authorities caution sentencing judges not to over-emphasize the existence of a prior record. [44] The incident on February 23, 2021, must be analyzed in isolation first to determine the fit sentence, and I find I must not beunduly influenced by what occurred four days later.

The incident was serious, it involved intimate partner violence and the involvementof the children was frightening and traumatic for both of them. [45] The setting of 44 Bunkerhill Road afire four days later was a dangerous, destructive and wanton act, which although impetuousrather than pre-planned, was foreshadowed by the threat on February 23, 2021, to burn down 29 Bunkerhill Road. I have already outlinedthe serious impact of this act on the victims and the loss to the insurer.

Proceeding from this grave offence to breaking in andentering 29 Bunkerhill Road and setting another fire, in an apparent continuation of the intention to damage the property of his partner,was a second dangerous and destructive act which fortunately was stymied by the quick action of the new owners of the property.

I mustalso sentence the Offender on the breach of release conditions as the offences on February 28, 2021, were committed in flagrantviolation of the conditions of a recent Court order. [46] Taking into account the submissions of experienced counsel, the specific circumstances of the offence and this Offender, andthe range of sentences and the rulings in similar cases, all viewed through the lens of the objectives and principles in s. 718 et seq., I willimpose the following sentences. I. For the incident on February 23, 2021: 1. A sentence of three months imprisonment for the assault on B.P.; and, 2.

A sentence of one month for threatening to burn the property of B.P. at 29 Bunkerhill Road.

II. For the incident on February 28, 2021: 1. A sentence of four years imprisonment for arson causing damage to property at 44 Bunkerhill Road; 2. A sentence of two years less a day for arson causing damage to property at 29 Bunkerhill Road; 3. A sentence of 12 months imprisonment for break and intent with intent at 29 Bunkerhill Road; 4.

A sentence of two months imprisonment for each of the three breaches of the release conditions. [47] 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. Step Two: Are Concurrent Sentences Appropriate in This Case? [48] The question of whether multiple sentences should be served consecutively, or concurrently, and the circumstances in whichconcurrent sentences may be ordered was addressed in R. v. Crocker (1991), (NL CA), 93 Nfld. & P.E.I.R. 222, 292A.P.R. 222 (Nfld.

C.A.), by Goodridge, C.J., who summarized the law on this point as follows: 41 In

summary, consecutive sentences should be imposed unless there is a valid reason not to do so. Each sentence should be anappropriate one for the offence. Concurrent sentences may, but are not required to be, imposed where multiple convictions arise out ofseveral offences which constitute a single criminal adventure, and may also be imposed to achieve proper totality for multipleconvictions. [49] In this sentencing a key issue is whether the offences committed in 44 Bunkerhill Road and the offences committed in relationto 29 Bunkerhill Road on February 28, 2021, are part of a single criminal venture.

In this regard, I must apply the law as set out in aseries of cases by the Court of Appeal, most recently in Roberts, to the facts of this case. [50] In Roberts the question arose in the context of the finding of the sentencing judge that robbery, weapon possession, face maskand assault offences all arose out of a single criminal venture and that the resulting sentences should be ordered to be served concurrentlywith each other.

The Court of Appeal discussed the applicable law as follows: 44 We would observe, however, that it is not the simple fact that offences occurred at the same time that necessarily determines thatthey amount to a single criminal venture. As Rowe J.A. observed in R. v. Newhook, 2008 NLCA 28, 276 Nfld. & P.E.I.R. 190 (N.L.C.A.), it may be that two offences, following "hard on the heels" of one another may be considered "sufficiently distinct in their nature"that they should not be considered to be a single criminal venture.

Thus, in that case, a brutal assault and the subsequent kidnapping of ahome occupier following a break and enter of a dwelling were not considered to be part of a single criminal venture related to the breakand enter. 45 Further, this Court in R. v. Frampton, 2018 NLCA 23 (N.L. C.A.) observed in obiter that the offences of being masked and armedin the commission of a robbery might as a matter of general principle be considered as separate offences and not as a single criminalventure.

We would add the caveat, however, that a consideration as to whether this should be so in a given case would be affected bywhether there might be "double punishment" involved if the facts of being armed and masked were factors already taken into account insetting the level of sentence for the robbery offence itself, as it appears that it might have been in the current case. (See O'Quinn, atparagraph 20; R. v. Bourgeois, 2018 NLCA 13 (N.L.

C.A.) at paragraph 38). 46 It is also worth noting that even if factors such as temporal connection, similarity of victim and connections between offences(Bourgeois, at paragraph 36; R. v. Flynn, 2018 NLCA 61 (N.L. C.A.), at paragraph 22) or the nature of the offences (O'Quinn, atparagraph 18) might be indicative in a given case, of a single criminal venture, concurrent sentences are not the inevitable result (Martinat paragraph 25; O'Quinn at paragraph 21; R. v. Murphy, 2011 NLCA 16 (N.L. C.A.) at paragraph 27). The Court still has a discretion tomake them consecutive.

It might consider doing so if, for example, the offences are sufficiently distinct in nature that one or more ofthem cannot be said to amount to merely a particular method of carrying out another offence (Bourgeois, paragraph 37; Newhook,paragraph 17) or they consist of some other element that specifically merits special recognition as a separate delict (R. v. Mahoney, 2018NLCA 16 (N.L. C.A.) at paragraph 37), or where for policy reasons they should be treated separately (Murphy).

Furthermore, section718.3(4) of the Code, as discussed later in these reasons, would also require the sentencing judge to consider making the sentenceconsecutive in the circumstances indicated in that provision. 47 One might be tempted, therefore, if sitting at first instance and after hearing full argument, to conclude that robbery, followed by adistinct serious physical assault, as opposed to the usual threats employed to influence the turning over of the robbed items, could beconsidered sufficiently distinct in nature to justify the assault with a weapon charge not being considered part of the single criminalventure, with the result that a consecutive sentence would be imposed.

In like manner, depending on the factors taken into considerationin setting the robbery sentence, the offences of being armed and wearing a face mask might be considered to be separate offences,leading to all remaining sentences to be served consecutively. [51] There is no real dispute about the proper approach to the incident on February 23, 2021. I find that both the assault and thethreat were motivated by the Offender’s anger or frustration with his partner. There is no distinction in the nature or timing of the

actions, and the assault and the threat were together part of the same criminal venture.

I conclude that the sentence for the threat should be served concurrently to the offence of assault, and I further conclude that the overall incident of February 23, 2021, should be seen as separate and distinct from February 28, 2021, because of the four day gap, and that the sentences imposed for the latter incident will be served consecutively to the three months for the incident of February 23, 2021. [ 52 ] The Defence submitted that the offences on February 28, 2021, involved the same motivation, namely the Offender’s intention to damage his partner’s real property on Bunkerhill Road in Fortune, the same offences, arson, and occurred on the same day one right after the other.

As such the Defence submitted that all of the offences committed by the Offender on February 28, 2021, constituted one criminal venture and that I may impose concurrent sentences. [ 53 ] I have considered this issue carefully. I find that I agree with the submission of the Defence that the offences in 29 Bunkerhill Road were, in effect, a continuation of the offences in 44 Bunkerhill Road, based on them both being targeted at B.P., both being the same act of setting the property afire, and because of the immediacy of the acts in both places, taking place within minutes of each other.

As such I am satisfied that they together constituted one criminal venture and that concurrent sentences may be imposed based on the authorities. [ 54 ] I also find that there is no reason to exercise my discretion to order that the sentences, or any of them, be served consecutively.

I find that the offences in relation to 44 Bunkerhill Road and in relation to 29 Bunkerhill Road on February 28, 2021, are so closely connected as to constitute one single criminal event and concurrent sentences will be imposed for the offences. [ 55 ] Finally, I must then take “one last look” at the combined sentence through the lens of the principle of totality. Step Three: Totality of the Sentence [ 56 ] I am satisfied that a total sentence of seven years and six months, were all sentences to be served consecutively, would be a crushing sentence considering Mr.

Connors’ prospects. [ 57 ] In my view a global sentence of four years and nine months (57 months) does not offend the totality principle, and is in fact in accordance with that principle. I am of the view that the sentence imposed is just and appropriate when viewed in the aggregate. It is not a crushing sentence. [ 58 ] Taking all of the above factors into consideration, I have come to the conclusion that the best interests of society and the administration of justice will be served with a global sentence of four years and nine months incarceration based on the following sentences for each of the convictions: 1.

Three months imprisonment for the assault committed on B.P. on February 23, 2021, contrary to s. 266 of the Code ; 2. One month imprisonment for uttering a threat to burn the property of B.P. on February 23, 2021, contrary to s. 264.1 of the Code , to be served concurrent to the sentence imposed for assault; 3. Four years imprisonment for intentionally causing damage by fire to the property of B.P. at 44 Bunkerhill Road, on February 28, 2021, contrary to s. 434 of the Code , to be served consecutive to the three month aggregate sentence imposed for the offences on February 23, 2021; 4.

One year imprisonment for the break and enter into 29 Bunkerhill Road on February 28, 2021, contrary to s. 348(1) (

a) of the Code , to be served concurrent to all other sentences imposed; 5. Two years less a day imprisonment for intentionally causing damage by fire to the property of S.L. at 29 Bunkerhill Road, on February 28, 2021, contrary to s. 434 of the Code , to be served concurrent to all other sentences imposed; 6. Two months imprisonment for failing to comply with a condition of the judicial release order of February 23, 2021, to wit, remain away from 44 Bunkerhill Road, Fortune, contrary to s. 145(5) (

a) of the Code , to be served consecutive to all other sentences imposed; 7. Two months imprisonment for failing to comply with a condition of the judicial release order of February 23, 2021, to wit, remain away from 29 Bunkerhill Road, Fortune, contrary to s. 145(5) (

a) of the Code , to be served consecutive to all other sentences imposed; and, 8. Two months imprisonment for failing to comply with a condition of the judicial release order of February 23, 2021, to wit, have no contact or communication directly or indirectly with B.P., contrary to s. 145(5) (

a) of the Code , to be served consecutive to all other sentences imposed. disposition [ 59 ] I have decided that the Offender shall be sentenced to serve a total sentence of 57 months imprisonment, less 440 days for the 293 days of pre-sentence custody he has already served. [ 60 ] Under s. 487.051(1) of the Code I order that the Offender be required to provide samples of bodily substances for the DNA data bank upon request. [ 61 ] Under s. 109 of the Code I order a mandatory firearms prohibition order. [ 62 ] Given the length of the sentence of incarceration, the victim fine surcharge shall be waived.

_____________________________ Peter A. O'Flaherty Justice