R. v. Barnsdale, 2012 MBCA 56

Citation: R. v. Barnsdale, 2012 MBCA 56 Date: 20120529 Docket: AR 11-30-07674 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Martin H. Freedman Madam Justice Holly C. Beard Mr. Justice Alan D. MacInnes B E T W E E N : HER MAJESTY THE QUEEN ) C. A. Vanderhooft ) for the Appellant Appellant ) ) U. B. Goeres - and - ) for the Respondent ) BRENT BARNSDALE ) Appeal heard: ) April 27, 2012 (Accused) Respondent ) ) Judgment delivered: ) May 29, 2012 BEARD J.A.

THE ISSUE 1 The Crown seeks leave to appeal a sentence of two years’ imprisonment followed by three years’ supervised probation imposed on the accused as a consequence of his plea of guilty to one charge of aggravated assault. The Crown argues that the sentencing judge overemphasized the principle of rehabilitation, and underemphasized the gravity of the crime and the moral responsibility of the accused, resulting in an unfit sentence. THE FACTS 2 The accused, who was approximately 28 years of age at the time of this offence, was a close friend of the victim. He was in a relationship and had one child.

He had no criminal record. 3 On the night in question, the victim was visiting the accused at the accused’s apartment. The accused was the caretaker of the building in which he lived. They were discussing the recent break-up of the victim’s relationship. They also played video games, drank beer and smoked marijuana. Later, the victim left and returned with some cocaine. The accused told him to leave and they argued and scuffled. The victim shoved the accused, who responded by leading him out of the apartment. Upon leaving the building, the door locked and the victim, standing outside, began banging on the door.

The accused came to the door, opened it and threw a full bottle of beer at the victim, hitting him in the face, breaking his glasses and injuring his eye, which was bleeding and later required surgery. 4 The accused returned briefly to his apartment. Although it was late, he went outside to shovel snow and work off his anger. The victim was still standing on the public sidewalk and talking on the telephone when the accused came around to the front of the building.

Without moving towards the accused, the victim shouted: “You’re fucking dead.” The accused advanced several meters towards the victim and hit him in the head with the shovel. As the victim was falling, he hit him at least two more times, knocking him out and causing catastrophic head injuries. 5 The accused was immediately remorseful, calling 911 for help and staying with the victim until the police and emergency services arrived. He admitted his actions to the 911 operator several times and entered a plea of guilty in court, albeit not until 16 months after the assault.

He was released on bail and had not been charged with any offences while awaiting the disposition of

the matter. 6 The victim suffered severe brain trauma, including having part of his skull removed for several weeks due to brainswelling, during which time he had to wear a hockey helmet. He was hospitalized for ten weeks and underwent two major surgeries,following which he had to relearn how to walk, talk, eat and use the washroom. He required physical, speech and occupational therapyand had major memory problems. He still suffers from seizures and depression, for which he must take medication and deals withmultiple medical specialists. He cannot work because of his short-term memory problems.

The prognosis is that he will suffer from theeffects of this brain injury for the rest of his life. THE SENTENCING JUDGE’S DECISION 7 This was a very serious crime, as conceded by the accused, and there is no doubt that he bears a very high degree ofmoral responsibility. The victim has been seriously, and permanently, injured as a result of the brutal assault. The judge’s reasonsclearly recognize these facts. 8 The judge considered and rejected the accused’s request for a 90-day intermittent sentence and two years’ supervisedprobation as not sufficiently reflective of the principle of denunciation.

He considered and rejected the Crown’s request for a four- tofive-year sentence as not sufficiently responsive to the principle of rehabilitation. He crafted a sentence which, in his view, took intoaccount both such principles. The two-year term of imprisonment was sufficient, he concluded, to express denunciation, and the three-year term of supervised probation was designed to account for the prospect of rehabilitation. ANALYSIS 9 The principles governing our review of a sentence are set out in many cases, one of the most recent, and clearest, beingR. v.

L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, where LeBel J. said (at paras. 14-15): In its past decisions, this Court has established that appellate courts must show great deference in reviewing decisions of trial judgeswhere appeals against sentence are concerned. An appellate court may not vary a sentence simply because it would have ordered adifferent one. The court must be “convinced it is not fit”, that is, “that ... the sentence [is] clearly unreasonable” (R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227, at para. 46, quoted in R. v. McDonnell, (SCC), [1997] 1 S.C.R. 948, atpara. 15).

This Court also made the following comment in R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500, at para. 90: … absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appealshould only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. …. Owing to the profoundly contextual nature of the sentencing process, in which the trier of fact has broad discretion, the standard ofreview to be applied by an appellate court is one based on deference.

The sentencing judge has “served on the front lines of our criminaljustice system” and possesses unique qualifications in terms of experience and the ability to assess the submissions of the Crown and theoffender (M. (C.A.), at para. 91). …. 10 I have considered the submissions of the parties and the cases that they have provided – principally R. v. Besaw (D.),2004 MBCA 196, 190 Man.R. (2d) 266; R. v. Herzog (D.M.), 2004 MBCA 193, 190 Man.R. (2d) 262; and R. v. Hogg (E.T.), 2004MBCA 114, 184 Man.R. (2d) 317.

Keeping in mind that every case is different on its facts, I see the present case, in terms of theseriousness of the accused’s role in the attack, as coming somewhere between Besaw and Herzog, on the one hand, and Hogg on theother. This case is more serious than Besaw and Herzog because it involves two separate aggravated assaults, one with a beer bottle andthe other, coming later, with the shovel.

In both assaults, the accused was not under attack and had the option of walking away, butchose violence instead. 11 This case is, however, less serious than Hogg because it does not have the degree of planning and premeditation thatoccurred in Hogg. In considering the four-year sentence given in Hogg, however, it is important to remember that that was the sentenceoriginally requested by the Crown at the trial, so the Crown felt bound to that sentence on appeal.

While it is not directly so stated, onecould read this court’s decision as saying that, but for that agreement, the court would have imposed a higher sentence. 12 To say that the custodial portion of the sentence of two years in this case is low would be an understatement. If thatwere the only sentence imposed, it would be “lenient to excess,” to borrow the phrase from Hogg (at para. 9). In this case, however, thesentencing judge added a further sentence of three years’ probation.

He said that “the penitentiary term would apply the principles ofSection 718 to 718.2 and would give him the benefit of all the positive things included in the pre-sentence report” and that theprobationary term would “address the remaining underlying difficulties that he may have and would benefit from direction in attendingto” – that is, to assist him with the continuation of the rehabilitation that he had begun.

13 Counsel for the accused advised that, by the date of sentencing, the accused had already completed an assessment and counselling at the Addictions Foundation of Manitoba and continued with regular weekly counselling at the Men’s Resource Centre. He had abstained from using alcohol and drugs throughout the two years that he was on bail. 14 Thus, well before the sentencing, he had already begun his rehabilitation to deal with some very long-standing addiction and mental health issues.

This added component of supervision for three years following his incarceration cannot be overlooked in determining the fitness of the sentence, particularly given the difficulties the accused experienced in his childhood and youth and the fact that he had no criminal record. In this case, the term of probation is not a way of shoring up an otherwise unfit sentence; rather, it is a meaningful and useful provision which is very important to dealing with the accused’s various issues and ensuring, as far as possible, that there is no future violence.

In this case, there is every reason to believe that the accused will continue to follow through with the counselling in a substantive and meaningful way. 15 It also must be said that the accused was immediately remorseful, from the discussion that he had with the 911 operator, and continued to be so through his various statements and up to the sentence hearing. 16 Thus, while the Crown argued that the judge underweighed denunciation and overweighed rehabilitation, it is clear that in reaching his decision, the judge did not overlook any relevant factors.

The weight that he decided to give to the two factors discussed above is owed considerable deference by this court, just as is the ultimate sentence. 17 The Crown urged on us that this case was very much like Hogg , but, as I have already stated, there are important factual differences, especially in the spontaneity of the assault here as compared to the planned and very deliberate nature of the assault in Hogg .

The main difference is that, in Hogg , the court was able to intervene because the sentence under review, which was a community- based sentence, was found to be unfit – the court described it as “lenient to excess” (at para. 9). 18 In

summary, while, in my view, the sentence is low and is not one that I would have imposed, I cannot say that, when the whole sentence is considered within the circumstances of this case, it is so low as to be unfit. The judge took into account the relevant factors and committed no error in principle. This court cannot interfere with a sentence that is neither unfit nor the result of an error in principle simply because we think that the sentence that the judge imposed was low. DISPOSITION 19 For these reasons, I would grant leave to appeal, but dismiss the Crown’s appeal. J.A. I agree: J.A. I agree: J.A.