R v Genaille, 2017 MBCA 38

Citation: R v Genaille, 2017 MBCA 38 Date: 20170405 Docket: AR16-30-08693 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Mr. Justice William J. Burnett Mr. Justice Christopher J. Mainella BETWEEN: HER MAJESTY THE QUEEN ) W. Y. Martin White ) for the Appellant Respondent ) ) A. C. Bergen- and - ) for the Respondent ) WILLIAM GUS GENAILLE ) Appeal heard and ) Decision pronounced: (Accused) Appellant ) April 5, 2017 HAMILTON JA (for the Court): [1] The accused appealed his sentence of two years’ incarceration, followed by two years’ supervised probation, foraggravated assault.

He, and four co-accused, viciously beat a man for a prolonged period of time. They kicked, stomped and struck thevictim, sometimes with objects. The victim suffered serious permanent injuries. [2] At the appeal hearing, we dismissed the appeal (leave having been given by a judge in chambers), with brief reasonsto follow. These are those reasons. [3] The accused pled guilty, as did the co-accused. Two co-accused received sentences of four years’ incarceration. Another was sentenced to 38.5 months’ incarceration.

The fourth received 18 months’ incarceration followed by three years’ supervisedprobation because there was a causal link between his mental disability and his criminal behaviour. The accused, who is 54 years old,has a lengthy criminal record, which includes violence. The co-accused are in their twenties with little or no criminal history. [4] The sentencing judge accepted that there were significant Gladue factors in this case (lack of formal education,exposure to alcoholism and domestic violence as a child and personal addiction issues) (see R v Gladue, (SCC), [1999]1 SCR 688).

However, he did not accept the accused’s submission that his efforts to turn his life around in the three years after hisarrest, particularly in the context of the Gladue factors, warranted a three-year suspended sentence.

He stated that the offence was soviolent that denunciation and specific and general deterrence were the principal sentencing factors and that a suspended sentence was notappropriate to “send a message either to [the accused] or the general public”. [5] From his review of video that captured some of the assault, the sentencing judge described the accused’s involvementin the beating as “high” and “certainly significant, by his leading the way”.

He held that parity of sentences among the co-accused wasimportant. [6] At the same time, the sentencing judge was also of the view that the Gladue factors “should temper what would be anormal sentence in a case such as this”. He stated that the most recent pre-sentence report “shines a different light upon [the accused]”and considered the fact that the last offence on the accused’s criminal record was in 2005. He emphasized the accused’s demonstratedrehabilitation efforts since his arrest, which he referred to as the accused’s “post-offence conduct”.

In this regard, he noted the accusedhad been making positive lifestyle changes with respect to his alcohol addiction, his relationship with his family and his attitude. [7] The sentencing judge concluded that the post-offence conduct and the Gladue factors warranted a sentence less thanthe “reasonable position” of four years sought by the Crown. [8] The stated grounds of appeal are that: 1. the sentencing judge gave insufficient weight to the Gladue factors, rehabilitation and the principle of restraint;

2. the sentencing judge placed too much weight on the principles of parity, denunciation and deterrence; and, 3. the sentence is harsh and excessive and therefore is demonstrably unfit. [ 9 ] We see no such errors. [ 10 ] The sentencing judge considered all the relevant factors. He did not overemphasize or underemphasize any of them. His balancing of the factors is entitled to deference. The sentence imposed is not “demonstrably unfit”. Indeed, it can be viewed as a lenient sentence for this offence and this offender. The sentence is entitled to deference and appellate intervention is not warranted. See R v Lacasse , 2015 SCC 64 ; and R v Park , 2016 MBCA 107 . JA JA JA