R v Beardy, 2018 MBCA 52

Citation: R v Beardy, 2018 MBCA 52 Date: 20180502 Docket: AR17-30-08915 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Mr. Justice William J. Burnett Mr. Justice Christopher J. Mainella BETWEEN: her majesty the queen )R. N. Malaviya and )M. A. Hazelton Appellant )for the Appellant ) - and - )T. L.

Mariash)for the Respondentcolton dakota beardy ) )Appeal heard and (Accused) Respondent )Decision pronounced: )May 2, 2018 On appeal from 2017 MBPC 32 mainella JA (for the Court): [1] The Crown seeks leave to appeal the accused’s sentence of 17 months’ imprisonment for break and enter and commitassault; 12 months’ concurrent for assault; and three months’ consecutive for failure to comply with a condition of an undertaking, to befollowed by one year of supervised probation.

The Crown argues that the judge made several errors in principle which caused him toimpose a demonstrably unfit sentence. [2] We do not agree. The judge understood that the sentencing starting point for house breaking is two years’imprisonment (see R v Duerksen, 2012 MBCA 41 at para 4). He properly rejected the accused’s request for a suspended sentence basedon exceptional circumstances. There is nothing in the manner in which the housebreak was committed and/or the accused’s personalcircumstances that could meet that high threshold.

The judge correctly did not “conflate ‘sympathetic circumstances’ with ‘exceptionalcircumstances’” in imposing sentence (R v Burnett, 2017 MBCA 122 at paras 27-33); this was not a case of exceptional circumstances. [3] The judge considered the relevant aggravating and mitigating factors, including that, while this was a situation ofdomestic violence, it was not analogous to a home-invasion robbery. The accused, while intoxicated and in a jealous mood, broke intohis ex-girlfriend’s residence and assaulted her and her boyfriend. He cut himself badly breaking into the residence.

The degree ofviolence he caused was less serious than what occurred in R v Turtle, 2006 MBCA 148. Unlike in Turtle, the accused did not use aweapon to physically injure anyone (for a discussion of the facts in Turtle, see R v Abraham, 2008 CarswellMan 107 at para 58 (ProvCrt)). Also, unlike Turtle, the accused surrendered to police without incident.

While we agree that the sentence is lenient, perhapsoverly so as a punch inflicted on the boyfriend broke his nose, we are not persuaded that it amounts to a substantial and marked departurefrom the accepted starting point that would permit this Court to vary it (see R v Houle, 2016 MBCA 121 at para 11). [4] At the end of the day, while another judge may not have, it was open to the judge here to place significant weight onthe accused’s youth, lack of a serious prior record, sincere remorse, demonstrated efforts at rehabilitation after his arrest, meaningfulGladue factors (R v Gladue, (SCC), [1999] 1 SCR 688) and the fact that this incident, in 2015, was the culmination of adifficult period in the accused’s life after being evacuated to Winnipeg in 2011 from his community due to flooding. [5] Accordingly, although leave to appeal sentence is granted, the appeal is dismissed.

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