R. v. Brandon Wyatt Sutherland, 2015 NSSC 354

SUPREME COURT OF Nova Scotia Citation: R. v. Brandon Wyatt Sutherland, 2015 NSSC 354 Date: 2015-12-09 Docket: CRP No. 438562 Registry: Pictou Between: Her Majesty the Queen v. Brandon Wyatt Sutherland SENTENCING DECISION Judge: The Honourable Justice N. M. (Nick) Scaravelli Sentencing Date: December 9th, 2015 Counsel: Patrick Young for the Crown Kimberly Franklin for Mr. Sutherland Orally By the Court: [ 1 ] Brandon Sutherland appears for sentencing following guilty pleas to the offences of assault with a weapon, contrary to

section 267 (

a) of the Criminal Code ; possession of a loaded prohibited firearm without authorization or license, contrary to section 95(1) (

a) of the Code and intentionally discharging a firearm into a place knowing that or being reckless as to whether another person is present in the place, contrary to

section 244.2(3) of the Code. Circumstances of the Offence [ 2 ] On February 19 th , 2015 at approximately 9:30 p.m. the victim attended the residence of the offender and co-offender in Pictou Landing, Nova Scotia. It appears as though the victim had a bat in his possession and the visit may have been drug related. Once inside the victim was assaulted with the bat and a glass bottle stuffed into in sock. The victim was treated at hospital for injuries to his head and released the same evening. [ 3 ] In the evening of February 20 th , the offender and co-offender travelled to the victim’s home.

The offender positioned himself outside of the victim’s bedroom window. The victim was awoken when the offender, using a sawed-off shotgun, fired through the closed window into the bedroom located directly above the victim’s bed. The offender fled the scene. [ 4 ] The following day, the police under search warrant, seized a sawed-off shotgun, ammunition, a sock with a glass bottle inside, and other unsecured firearms in the residence occupied by the offender and co-offender. Circumstances of the Offender [ 5 ] A pre-sentence report has been filed with the court. Mr. Sutherland is 19 years of age.

He is in good health and was employed as a labourer at the time of his arrest in 2015. Mr. Sutherland stated he was under the influence of alcohol at the time and is remorseful for his actions. He is a first time offender. Mr. Sutherland completed his general equivalency diploma while on remand at Northeast Nova Scotia Correctional Facility. He also attended the Options to Anger class and was reported as doing well. While incarcerated he was generally polite and cooperative, however, there were incidents of behavioral issues reported. Sentencing Provisions

[ 6 ] The

section 244 offence of intentionally discharging a prohibited firearm into a place carries a maximum sentence of 14 years imprisonment and a mandatory minimum sentence of 5 years for a first offender. The

section 267(

a) offence of assault with a weapon carries a maximum sentence of 10 years. Possession of a loaded prohibited firearm, contrary to section 95(1)(

a) of the Code carries a maximum sentence of 10 years and a mandatory minimum sentence of 3 years for a first offence. Positions on Sentencing [ 7 ] Mr. Sutherland’s pre-sentence brief submits that the mandatory minimum sentences under

section 244 and section 95(2) of the Code constitute cruel and unusual punishment as sent out in

section 12 of the Canadian Charter of Rights and Freedoms and cannot be justified under

section 1 . However, there is no constitutional challenge before the court. [ 8 ] Mr. Sutherland’s brief suggested a global range of sentence from 3 to 5 years and at sentencing submits a total sentence of 3.5 years satisfies the principle of proportionality. He seeks credit for time served in pre-sentence custody on a 1 to 1.5 basis. [ 9 ] The crown seeks the mandatory minimum sentence of 5 years for the offence under

section 244. Regardless of the constitutionality of the minimum sentence provision, the crown submits a sentence of 5 years imprisonment for the

section 244 offence of intentionally discharging a firearm into a place is a proportionate sentence in this case. For the offence of possession of prohibited firearm contrary to section 95(1)(

a) the crown recommends a sentence of 3 years imprisonment concurrent to the

section 244 offence. The crown recommends a sentence of 6 months imprisonment for the

section 267 (

a) offence for assault with a weapon to be served consecutive to the above offences for total sentence of 5 years, 6 months’ imprisonment. [ 10 ] The crown concedes the offender is entitled to receive 1.5 days’ credit for every day served on remand. Mandatory Minimum Sentences [ 11 ] In R. v. NUR, 2015 SCC 15 , the Supreme Court of Canada held that a mandatory minimum sentence could result in a grossly disproportionate sentence in some reasonably foreseeable cases and would therefore violate the constitutional guarantee against cruel and unusual punishment. In order to determine whether a mandatory minimum sentence violates

section 12 of the Charter , the courts apply a two-step test. First, the court must determine what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing in the Criminal Code . Secondly, the court must ask whether the mandatory minimum sentence requires a judge to impose a sentence that is grossly disproportionate to the fit and proper sentence. Sentencing Principles [ 12 ] The purpose and principles of sentencing are set out in

section 718 of the Criminal Code . The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Aggravating and mitigating circumstances are to be considered. I am also required to consider the rehabilitation prospects of the offender. A sentence should be in a range imposed for similar offences in similar circumstances. [ 13 ] In circumstances involving gun violence, the emphasis has to be on denunciation and deterrence. Aggravating Circumstances [ 14 ] The circumstances of intentionally discharging a firearm are aggravating. Mr.

Sutherland took a prohibited weapon in the nature of a loaded sawed-off shotgun from his residence in Pictou Landing and travelled to the victim’s residence in New Glasgow. He fired through the victim’s bedroom window in a residential neighborhood while the victim slept. These actions were premediated. [ 15 ] The offender was on bail at the time in relation to impaired driving charges from November 2014. Mitigating Circumstances [ 16 ] The offender entered an early guilty plea. He is 19 years of age and is youthful. He does not have a criminal record. He was cooperative with police and is remorseful.

He has accepted counselling services. Cases [ 17 ] In R. v. Clayton , 2013 NSPC 94 , the offender was convicted of discharging a firearm while being reckless to the life or safety of another person, carrying a concealed weapon, careless storage of a revolver, being an occupant of a motor vehicle in which he knew there was a revolver, and unlawful possession of a revolver. After an altercation, he chased the victim on a city street and fired three shots at him with a 32 cal. Revolver. No one was injured. The offender was 23 years of age at the time of the offences.

He had prior convictions for robbery as a youth and threat, assault, threatening and mischief as an adult. At the time of the offences he was on a recognizance with a no-weapons condition. He was sentenced to 6 years imprisonment for reckless discharge of a firearm. [ 18 ] In R. v. Skinner , 2015 NSPC 28 , the offender was sentenced to 5 ½ years for a

section 244 offence. He fired off 6 rounds at parked car which was occupied by individuals. There were other people in the area at the time. The shooting arose from a verbal disagreement between the occupants of two cars. He had 22 prior convictions and three youth convictions for weapon offences. He was 19 years old at the time.

[19] In R. v. Lyta, 2013 NUCA 10, the 22 year old offender fired shots into adjoining residences of two RCMP members while themembers and their families were asleep inside. The offender was an aboriginal and had a minor criminal record. The Court of Appealoverturned the trial judge’s sentence of a 4 year mandatory minimum and imposed a sentence of 5 years imprisonment.

The Court ofAppeal determined that the trial judge gave inadequate weight to the fact that the offender’s attack was on residences occupied byRCMP members nor did he consider the number of shots fired, or over the period of time for which the shots were directed at the homes. [20] In R. v. Abdullahi, 2014 ONSC 72, the offender and an associate exchanged gun shots with another person in a housingcomplex. One of the offender’s companions was shot in the leg. The offender had two convictions for obstructing a peace officer, oneas a youth and one as an adult.

The offender was sentenced to 5 years imprisonment for recklessly discharging a firearm. [21] In R v. Derion, 2013 BCPC 381, the offender was sentenced to 7 years imprisonment for intentional discharge of a firearmrecklessly. Shots were fired into a ground level apartment in a busy downtown Vancouver Street in the middle of a drug purchase. Theoffender fired a weapon and also was injured by return fire. He was 32 years of age and had a lengthy criminal record. The offender wasbound by two weapons prohibition orders at the time of the offence. [22] In R. v.

Nugyen, 2009 ABCA 317, the offender 23 years of age was convicted of possession of a firearm and discharging afirearm with intent to endanger life. He fired five shots from a 45 cal. Pistol into another vehicle in a parking lot of a shopping mall andfired other shots at one of the passengers who was fleeing on foot. Numerous innocent bystanders were present. There were no reportedinjuries. These were the offender’s first convictions as an adult and his youth court convictions were outdated.

The Court of Appealupheld the offender’s sentence to 1 year imprisonment for possession of a firearm and 5 years consecutive for unlawfully discharging afirearm for a total of 6 years. Sentence [23] Mr. Sutherland has a high degree of moral culpability for his actions. Following an altercation from the previous evening hechose to travel to the victim’s residence at night and fire through the victim’s window with a sawed-off shotgun. The public must beprotected from people who decide to settle differences with guns.

Law abiding citizens expect a sentence that demonstrates the courtsstrong condemnation of gun violence. [24] The court’s decision on sentencing must not only emphasize denunciation and deterrence, it must also factor Mr. Sutherland’sprospect for rehabilitation. He is a youthful offender at 19 years of age, he has no criminal record, and he has taken advantage ofopportunities to better himself on remand. He is remorseful. I believe Mr. Sutherland is a good candidate for rehabilitation. [25] I am also mindful that Mr.

Sutherland’s sentence to a period of time in federal penitentiary will be his first custodial sentence. [26] I am of view that an appropriate sentence for the offence under

section 244 is a sentence of 5 years imprisonment. Withrespect to the offence of possession of a prohibited firearm under section 95(1)(

a) I impose a sentence of 3 years concurrent. [27] The crown submits the sentence for these offences should be consecutive to a sentence for assault with a weapon on the basisthat there is no reasonably close nexus between these offences. [28] In R. v.

H.(T)(E), 2011 NSCA 117 , 2011 NSJ 677 (NSCA), the court set out factors to be considered in determiningwhether a sentence should be concurrent or consecutive, namely the time frame within each offence occurred; the similarity of theoffences; whether a new intent or impulse initiated each of the offences; whether the total sentence is fit and proper under thecircumstances. [29] Ultimately a sentence for multiple offences is subject to the principle of totality. In the present case, these offences occurredover a course of two consecutive evenings. In both cases weapons were involved although not the same weapons.

It appears the actionswere a carry-over from the previous evening. While I accept the crown’s recommendation of 6 months incarceration for the possessionoffence under

section 267(a), based on the principle of totality, I have determined the sentence should be served concurrent. In my view5 years’ incarceration is proportionate to Mr. Sutherland’s moral culpability. [30] In terms of credit for presentence remand, Mr. Sutherland has served 292 days in remand. Credit at a rate of 1.5 for everyday served totals 438 days. Therefore, the sentence to be served is 3 years, 294 days. In terms of ancillary orders the court will grantthe mandatory firearms prohibition order pursuant to

section 109 for life. There shall also be a DNA order pursuant to section487.051(2). _________________________________ Scaravelli, J.