R. v. Hales, 2014 NSSC 408

SUPREME COURT OF Nova Scotia Citation: R. v. Hales , 2014 NSSC 408 Date: 20141107 Docket: Hfx No. 417950 Registry: Halifax Between: Her Majesty the Queen v. Dustin Brian Hales Decision as to Parole Ineligibility Date Judge: The Honourable Justice Patrick J. Duncan Heard: November 7, 2014, in Halifax, Nova Scotia Written Decision: November 17, 2014 Counsel: Mark Heerema and Peter Dostal, for the Crown Eugene Tan, for the Defence By the Court: Background [ 1 ] Christine Cline died on November 18, 2011, from blood loss caused by receiving some 18 stab or incision wounds. In addition, Ms.

Cline suffered blunt force trauma to her head and minor bruising and cuts on her arms and hands indicative of an attempt to defend herself against the attack. [ 2 ] On October 16, 2014, following a Resolution Conference, Dustin Brian Hales entered a plea of guilty of the charge that: He on or about the 18th day of November, 2011, at or near Dartmouth, in the County of Halifax, in the Province of Nova Scotia, did commit second degree murder on the person of Christine Cline, contrary to s. 235(1) of the Criminal Code . [ 3 ] In accordance with s. 745 (

c) of the Criminal Code , I sentenced Mr. Hales to life imprisonment. That

section stipulates that: 745. Subject to

section 745.1, the sentence to be pronounced against a person who is to be sentenced to imprisonment for life shall be…

(

c) in respect of a person who has been convicted of second degree murder, that the person be sentenced to imprisonment for life withouteligibility for parole until the person has served at least ten years of the sentence or such greater number of years, not being more thantwenty-five years, as has been substituted therefor pursuant to

section 745.4; [4] The matter of setting the parole ineligibility period was set over to today’s date at the joint request of counsel. Evidence [5] I have reviewed an Agreed Statement of Fact that has been read into the record today, as well as the Victim Impact Statement,also read into the record today, and which had been prepared by Christine Cline’s mother, Kathleen McCartney. Counsel have alsoprovided written submissions together with supporting case law which I have read. In addition I have heard oral submissions of counseltoday and finally I have heard from Mr.

Hales himself today. [6] I want to thank counsel for the able way in which they approached the resolution to this matter and for the materials that havebeen provided in the submissions today. They were very helpful to me. Although I don’t intend to refer to all the detail in the writtenmaterials that are before me they form part of the public record and I have considered those factors and that information in addition tothose things that have been said today. Position of the Parties [7] The Crown and defence have jointly recommended that Mr. Hales be ineligible for parole for a period of 17 years.

Theysubmit that this is a fit and proper penalty having regard to the circumstances of the offence, the circumstances of the offender and therange of sentences meted out in comparable cases. [8] The parties agree as well that I should grant a Firearms Prohibition order in accordance with s. 109. I will speak to thespecifics of that at the end of my decision. There will also be a DNA Order pursuant to s. 487.05(1) of the Criminal Code, which ismandatory: [9] In relation to the requirement that a court consider a Victim Surcharge, the defence has requested that I exempt Mr. Hales frompayment of such a surcharge.

The Crown has taken no position. Again, I will speak to that at the end of my decision. Legal Principles [10] Beginning with s. 745.4 - that

section guides the court as to the factors that must be considered in determining whether tosubstitute the 10 year minimum parole ineligibility period with a greater period. The

section says: 745.4 Subject to

section 745.5, at the time of the sentencing under

section 745 of an offender who is convicted of second degree murder,the judge who presided at the trial of the offender…may, having regard to the character of the offender, the nature of the offence and thecircumstances surrounding its commission, and to the recommendation, if any, made pursuant to

section 745.2, by order, substitute forten years a number of years of imprisonment (being more than ten but not more than twenty-five) without eligibility for parole, as thejudge deems fit in the circumstances. [11] In this case there was no jury and so there is no jury recommendation for me to consider. [12] A review of the cases provides guidance as to how these factors are to be construed. [13] In R. v Shropshire (SCC), [1995] 4 S.C.R. 227 (at para. 29) the court observed that s. 745(

c) contemplates a

“broad range of seriousness reflecting the varying degrees of moral culpability” that the circumstances of each case presents. [ 14 ] In more recent years the courts have had the benefit of a statutorily defined set of principles of sentencing to guide them as set out in s. 718 - 718.2 of the Criminal Code . The provisions in s. 718 address the fundamental purpose of sentencing “to contribute to respect for the law and the maintenance of a just, peaceful and safe society”.

In fulfilling this purpose the court is told to impose sentences that speak to a balancing of the objectives of denunciation, general deterrence, specific deterrence, rehabilitation of the offenders, the need for reparations to victims or the community and the role that sentencing plays in promoting a sense of responsibility in offenders and the acknowledgement of the harm caused. [ 15 ]

Section 718.1 requires that a sentence be proportionate to the gravity of the offence and the offender’s degree of responsibility.

Section 718.2(

b) states that sentences “should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.”

Section 718.2(

d) requires that an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances.

Section 718.2(

a) includes a series of “deemed aggravating circumstances” that a court must consider if they exist in the case. [ 16 ] In Shropshire , supra Iacobucci J., after enumerating the three statutorily prescribed factors, held that denunciation can be considered under the criterion "nature of the offence"; and that concerns over the possible future dangerousness of the offender could be considered under the "character of the offender" criterion (see para. 19).

As parole ineligibility is part of the "punishment", and thereby an element of sentencing policy, deterrence is also relevant in justifying an order under s. 745.4 (see Shropshire , supra, paras. 21-23 ). [ 17 ] Beveridge J.A., writing in R. v. Hawkins 2011 NSCA 7 addresses the principles of sentencing in a second degree murder case. Beginning at para. 39 he states: 39 The theory of specific or individual deterrence is that the sentence imposed will be sufficiently punitive that the offender will be convinced it is not worthwhile to commit that or any further offences.

Any offender convicted of second degree murder is sentenced to life imprisonment.…. 40 …subject to a grant of clemency, the only way an offender will be released into the community is by the National Parole Board. It is wrong to assume that the Board will not fulfill its mandate to ensure that an offender will only be conditionally released when it is safe and appropriate to do so. Hence, the public is still protected (see R. v. Nash , supra , at para. 4).

I fail to see how concern over individual deterrence would have a role in extending the period of parole ineligibility to segregate this offender from society. [ 18 ] Justice Beveridge accepted that there is a role for setting “an increased period of parole ineligibility to express denunciation and the community's revulsion over the offence” and “some scope for general deterrence” but that deterrence should not be overemphasized as being of paramount significance. (see at para. 42) [ 19 ] Imposition of a sentence that is consistent with others that arise from similar circumstances is a sought for result.

It is a difficult task as no two cases are identical. In R. v. Doyle (1991), 108 N.S.R. (2d) 1 (A.D.) Chipman J.A. stated: [42] …I have examined the cases referred to us by both counsel. Comparison with other cases is a difficult exercise. Attempts to seek similarities with or differences from other murders committed by other people can be very frustrating and counterproductive. We are not dealing with an exercise of reviewing "comparables" such as is done in a property appraisal.

In exercising the discretion under s. 744 of the Code, other cases are no more than a rough guide for the sentencing judge in identifying the types of aggravating or mitigating circumstances that other courts have relied on as relevant in applying the guidelines. The circumstances of this case are such that when viewed in the context of the other cases referred to, it was egregious by any standard. … [43] While no hard and fast conclusion can or should come from any one of them, a sense of direction definitely emerges from the large number of cases reviewed.… Analysis

Nature and circumstances of the offence [ 20 ] The circumstances of the offence have been outlined by the Crown and I do not need to repeat them. However, there are a number of aggravating factors to consider in the manner in which this crime was carried out and that are important in assessing an appropriate sentencing response. [ 21 ] The offender and the victim were husband and wife, and parents to three children. Their relationship was broken down and Ms. Cline was pressing for custody of the children and financial support. Mr.

Hales has been described variously as a person who harbored violent thoughts toward his wife, but also as being subjected at times to physical aggression from Ms. Cline, who I am told, was substantially larger than him. Mr. Hales was anxious about losing the children. He feared that the victim was alienating the children from him. These facts speak to his motivation, and, in fact, to deal with these issues he and his co-offender, who has already been sentenced in this matter, made a plan to lure Ms. Cline to a secluded place where Mr. Hales would confront her. [ 22 ] The evidence of what Mr.

Hales’ intention was toward Ms. Cline at that time is, somewhat, left to speculation. Ms. Cline is not here to tell us what occurred. Mr. Hales is the only person who can truly tell us what his intentions were. We know this much. The meeting was planned and the confrontation premeditated. Mr. Hales was armed with weapon that was used in the attack on Ms. Cline. During the confrontation he struck her and used the knife that he brought with him to repeatedly stab her. The defence has pointed out that all but one of the stab wounds would be consistent with hesitation during the attack. But by his guilty plea Mr.

Hales has admitted that he at some point formed the requisite intention to commit an unlawful and unjustified homicide. [ 23 ] The victim bled to death, this was not an instantaneous death. [ 24 ]

Section 718.2(a)(ii) makes it an aggravating factor that this crime was

an act of abuse upon the offender’s spouse. The planning and premeditation involved in the commission of this crime is an aggravating factor. Mr. Hale’s active attempt to conceal the crime is an aggravating factor. [ 25 ] Mr. Hales took away the mother to his three children. It was a selfish act committed with total disregard for the welfare of his children. These children will now be raised with the knowledge that their father killed their mother and that as a result they will be raised by someone other than their parents. [ 26 ] Ms.

McCartney, in her victim impact statement, brings home the enormity of the impact of her daughter’s premature and violent death on her, on the victim’s sister, and in particular on the children who have been left without a parent to care for them. She speaks to the breach of trust that Mr. Hales committed and the resulting damage to the children. [ 27 ] This was a brutal and senseless act that society denounces in the strongest terms. Domestic violence, especially this ultimate form of violence, the murder of a spouse, requires a meaningful penalty.

It is clear that not only denunciation but general deterrence is a significant factor that must be emphasized in such cases. Circumstances of the offender [ 28 ] Mr. Hales was 36 at the time of the commission of the offence and is now 39. He is not a young person. He has no criminal record and was employed in the Navy for 10 years prior to the commission of this offence. He has no addiction issues - no substance abuse, no alcohol abuse history. He showed commitment in his earlier life to improving his education. [ 29 ] It seems difficult to understand how a person with this background could be capable of such

an act. His background is a contrast to many persons who commit such serious crimes and to some extent it distinguishes him from others. It suggests that he is capable of living in a law abiding manner and contributing to society through gainful employment. However, he has created a situation for himself that means it will be a number of years before he can hope to return to society.

I have heard described the impact on him of the premature death of his father and the death of his grandfather, both of whom he was close to. [ 30 ] There is information before me that suggests that he may have suffered some trauma after participating in the cleanup of New Orleans after the Hurricane Katrina disaster. It has been submitted that he has suffered from acute anxiety and depression. I fully expect that he will have these and any other mental health issues assessed and treated as necessary during the period of his incarceration. That

will be an aspect of his long term rehabilitation into society. [31] He has accepted responsibility as indicated by his guilty plea and has begun, as much as his circumstances allow for, to makeplans for his rehabilitation through his participation in therapy and programming since being incarcerated. That is a positive factor. [32] On the whole of the information that has been submitted Mr. Hales presents as someone who may one day be in a position torejoin society as a positive and contributing member. Whether that is so is a matter that will be addressed by appropriate authorities whenthe time comes.

Remorse [33] While it took some considerable time for him to do so, Mr. Hales has now expressed his regrets to family and to the public forhis conduct. It is important to assess whether it is true remorse or a simple incantation offered in hopes of gaining some advantage in thesetting of the parole eligibility date.

The Crown questions the sincerity, if you will, of the expressions of remorse pointing to postoffence conduct, wherein he took up residence with his co-accused and the children for a period of time after the murder and before theirapprehension. [34] Also the guilty plea that has been entered did not come immediately but only some two years after the fact.

On the other handhis expression of remorse at this stage having regard to the joint recommendation, which he knows because I told him in court the lastday I am not bound by, but he knows there is probably not much to gain today by giving the expressions of remorse that he did. I amsatisfied that it is genuinely offered.

He did enter a guilty plea in sufficient time that it resolved issues of cost and inconvenience towitnesses being brought in, and to the use of the court time. [35] He also, I am told, admitted to facts that may or may not have been provable depending on the approach and reliability ofCrown witnesses - some facts which I am quite confident were seen as the aggravating factors in this matter. [36] Courts are always in a difficult position trying to assess the sincerity of an expression of remorse.

I would say that in this casethe statement made in court today was eloquent, it was more thoughtful than many I have heard over the years from both sides of thebench, and I am not in a position to say it is insincere. I would not suggest that. It may very well be that it is as sincere as it sounded and Iam prepared to accept that. In a circumstance like this, while it is important to express remorse, and I hope that it is communicated to andaccepted by the victim’s family in this matter, your future conduct will tell us whether you are truly remorseful.

Joint Recommendations [37] The parties have asked me to accept their joint recommendation as to penalty. [38] In the case of R. v. G.P. 2004 NSCA 154, Bateman J.A. reviewed the approach that a sentencing court is to adopt in consideringa joint recommendation of counsel. At paragraphs 13- 15, she held: 13 This Court recently considered the sentencing judge's obligation when assessing a joint sentence submission. In R. v. MacIvor(2003), 2003 NSCA 60 , 215 N.S.R. (2d) 344; [2003] N.S.J.

No. 188 (Q.L.), Cromwell, J.A., writing for the Court, said: [31] …It is not doubted that a joint submission resulting from a plea bargain while not binding on the Court, should be given veryserious consideration. This requires the sentencing judge to do more than assess whether it is a sentence he or she would have imposedabsent the joint submission: see, e.g., R. v. Thomas (O.) (2000), 2000 MBCA 148 , 153 Man. R. (2d) 98; 238 W.A.C. 98 (C.A.)at para. 6. It requires the sentencing judge to assess whether the jointly submitted sentence is within an acceptable range - in other words,whether it is a fit sentence.

If it is, there must be sound reasons for departing from it: see, for example, R. v. MacDonald, 2001 NSCA 26, [2001] N.S.J. No. 51, L.W. et al., supra; R. v. Tkachuk (E.A.) (2001), 2001 ABCA 243 , 293 A.R. 171; 257 W.A.C.171; 159 C.C.C. (3d) 434 (C.A.) at para. 32; R. v. G.W.C. (2000), 2000 ABCA 333 , 277 A.R. 22; 242 W.A.C. 22; 150 C.C.C.(3d) 513 at paras. 17-18; R. v. Bezdan, 2001 BCCA 215 , [2001] B.C.J. No. 808; 154 B.C.A.C. 122; 252 W.A.C. 122 (C.A.), atparas. 14-15; R. v. Thomas, supra, at paras. 5-6; R. v. B.(B.), [2002] N.W.T.J.

No. 15, 2002 CarswellNWT 17 (C.A.) at para. 3; R. v.Webster (D.) (2001), 2001 SKCA 72 , 207 Sask. R. 257; 247 W.A.C. 257 (C.A.) at para. 7.

[32] Even where the proposed sentence may appear to the judge to be outside an acceptable range, the judge ought to give it seriousconsideration, bearing in mind that even with all appropriate disclosure to the Court, there are practical constraints on disclosure ofimportant and legitimate factors which may have influenced the joint recommendation. [33] …Many of the relevant authorities were reviewed by Fish, J.A., writing for the Court, in R. v. Verdi-Douglas (2002), (QC CA), 162 C.C.C. (3d) 37 (Que.

C.A.): … [43] ….Appellate courts, increasingly in recent years, have stated time and again that trial judges should not reject jointly proposedsentences unless they are 'unreasonable', 'contrary to the public interest', 'unfit', or 'would bring the administration of justice intodisrepute'. ... [51] ….[The] shared conceptual foundation [of these various formulations of the principle] is that the interests of justice are wellserved by the acceptance of a joint submission on sentence accompanied by a negotiated plea of guilty -- provided, of course, that thesentence jointly proposed falls within the acceptable range and the plea is warranted by the facts admitted. [39] Returning for a moment back to Justice Batemen’s decision in MacIvor, supra, she also highlighted from R. v.

Sinclair (2004),2004 MBCA 48 , 185 C.C.C. (3d) 569; [2004] M.J. No. 144 (Q.L.) (Man. C.A.), a Manitoba Court of Appeal decision, a list offive points that summarized the position of the courts with respect to acceptance of joint submissions. I don’t intend to read them into therecord - I have reviewed them. They reinforce what I have already said. Fitness of Joint Recommendation [40] In making an assessment of the fitness of the proposed disposition courts consider the range of sentences imposed in cases withsimilar circumstances. [41] In R. v.

Nash 2009 NBCA 7, Robertson J.A. in discussing the ranges of sentencing imposed in second degree murder cases,observed at para. 54: ...more often than not, trial and sentencing judges work with three time frames when fixing the period of parole ineligibility: (1) 10 to 15years; (2) 15 to 20 years; and (3) 20 to 25 years. In practice, the third time frame is reserved for the "worst of offenders" in the "worst ofcases".

The first is reserved for those offenders for whom the prospects of rehabilitation appear good and little would be served byextending the period of parole ineligibility other than to further the sentencing objectives of denunciation and retribution. The secondtime frame is reserved for those who fall somewhere in between the first and third.

Obviously, these time frames are not cast in cementand represent a basic starting point for analysis. [42] The submissions of the Crown and of the defence are consistent with the view that the circumstances of this offence and of Mr.Hales place his case in the second of these time frames, that is, of 15-20 years. The question then becomes where does Mr. Hales’ casefall? [43] R. v. Doyle, supra, which I referred to previously and R. v.

Baillie (1991) (NS CA), 69 CCC (3d) 116; 107NSR (2d) 256 (NSCA) are two Nova Scotia cases which provide a clear indication that the proposal is within the range of sentenceoutcomes for such offences as previously defined by our Court of Appeal.

[44] In Doyle, supra, case the offender shot his wife while she was sleeping. He was convicted of second degree murder following atrial. On appeal his Parole Ineligibility period was raised from 10 years to 17 years. Factors that were noted by the court, similar in somerespects to this case, included the element of premeditation and spousal violence, as well as the breach of trust.

There was the additionalaggravating factor in that case of there being an expressed lack of remorse. [45] In Baillie, supra, the offender strangled his wife to death while the children were in the home, knowing that the children woulddiscover her body. The offender was convicted of second degree murder after trial. On appeal the Parole Ineligibility period was raisedfrom 13 to 17 years. [46] Other cases that have been presented to me include R. v. Hutchison 2014 NSSC 155 , R. v. Wristen (ON CA),[1999] O.J. No. 4589, R. v. Getson 2011 NBQB 51 and R. v. Purdy 2007 BCCA 602.

Cumulatively these cases support a conclusion thatthe proposed disposition in this case is a fit and proper one and consistent with other decisions in like circumstances. Conclusion [47] Dustin Hales has been found guilty of second degree murder and I have sentenced him to imprisonment for life. That is themaximum sentenced allowed by the law. I have concluded that Mr. Hales will not be eligible for parole for a period of 17 years.

I notefor the record that the offender has been in pre-trial custody, I am told, from November 24, 2012, and I am confident that the correctionalservices will confirm that and make the appropriate calculations in accordance with the requirements under

section 746(

a) CC whichgoverns the calculation of time. [48] As to the Ancillary Orders: I order that Mr.

Hales be subject to a Firearms Prohibition Order made pursuant to s.109(2) of theCriminal Code and that he be prohibited for life from possession of any prohibited firearm, restricted firearm, prohibited weapon,prohibited device or prohibited ammunition; and prohibited for a period of 10 years following release from imprisonment frompossession of any firearm, other than a prohibited firearm or restricted weapon and possession of any crossbow, restricted weapon,ammunition and explosive substance. [49] A DNA Order pursuant to s. 487.05(1) of the Criminal Code is ordered. [50] As to the issue of the Victim Fine Surcharge: the offence occurred in 2011 prior to the 2013 legislative changes so there is adiscretion afforded to the court under the previous s. 737(5) of the Criminal Code to exempt the offender from payment of a victimsurcharge.

Having regard to the lengthy period of incarceration, including the fact that he has been in custody for the past two years Iconclude that it would be a hardship on Mr. Hales or his dependents to make such a payment and so I exempt him for having to do so. Duncan, J.