R. v. A.H.H., 2016 NSSC 239

SUPREME COURT OF Nova Scotia Citation: R. v. A.H.H. , 2016 NSSC 239 Date: 2016-09-09 Docket: Yarmouth No. 423718 Registry: Yarmouth Between: Her Majesty the Queen v. A.H.H. Library Heading Restriction on Publication: s. 486.4 C.C. Judge: The Honourable Justice James L. Chipman Heard: September 9, 2016, in Shelburne, Nova Scotia Oral Decision: September 9, 2016, in Shelburne, Nova Scotia Subject: Sentencing re. Criminal Code ss. 268, 215(2) (

a) and 221 convictions referable to an infant victim

Summary: [ 1 ] On July 22, 2016, A.H.H. was found guilty of aggravated assault contrary to s. 268 of the Criminal Code , of failing to provide the necessities of life to his son E.H. contrary to s. 215(2) (

a) of the Criminal Code , and of failing to seek medical assistance for his child contrary to s. 221 of the Criminal Code . The decision was subsequently reported ( R. v. A.H.H. , 2016 NSSC 195 ) [ 2 ] The Crown recommended a sentence of four years imprisonment, with a non- communication order with E.H., A.S., Mr. S and Mrs. S; a lifetime firearms prohibition, pursuant to s. 109 C.C.; and a DNA Order. [ 3 ] The Defence position was that a fit and appropriate sentence was two years incarceration followed by three years of probation [ 4 ] Issues: What is the appropriate sentence?

Result: [ 5 ] A.H.H. was sentenced as follows: 1. To 2.5 years incarceration; 2. Pursuant to s. 109 of the Criminal Code , A.H.H. is prohibited from possessing any firearm, any crossbow, restricted weapon, ammunition and explosive substance for life; 3. Pursuant to s. 487.051 of the Criminal Code , the Court ordered the taking of the number of samples of bodily substances from A.H.H. that is reasonably required for the purpose of a forensic DNA analysis; 4. Pursuant to s. 743.21 of the Criminal Code , A.H.H. shall not communicate directly or indirectly with E.H., A.S., Mr. S or Mrs.

S during the custodial period of his sentence; 5. The Court added that, if possible, A.H.H. should have mental health counselling made available to him within the federal penitentiary system; and 6. A.H.H.is to pay a victim surcharge fine for each conviction in the statutory amount; i.e., $600. He has been seasonably employed. He is to pay the fine within six months of his release from custody. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET.

SUPREME COURT OF Nova Scotia Citation: R. v. A.H.H. , 2016 NSSC 239 Date: 2016-09-09 Docket: Yarmouth No. 423718 Registry: Yarmouth Between: Her Majesty the Queen v. A.H.H. Restriction on Publication: s. 486.4 C.C. Judge: The Honourable Justice James L. Chipman Heard: September 9, 2016, in Shelburne, Nova Scotia Oral Decision: September 9, 2016, in Shelburne, Nova Scotia Counsel: Josie McKinney, for the Crown Raymond Jacquard, for A.H.H. Orally the Court: Introduction [ 6 ] On July 22, 2016, I found A.H.H. guilty of aggravated assault contrary to s. 268 of the Criminal Code , of failing to provide the necessities of life to E.H. contrary to s. 215(2) (

a) of the Criminal Code , and of failing to seek medical assistance for his child contrary to s. 221 of the Criminal Code . The decision was subsequently reported ( R. v. A.H.H. , 2016 NSSC 195 ). [ 7 ] I must now sentence A.H.H. for the crimes he committed. In the time since the late May, 2016 trial, I was provided with the following documentation: 1. December 30, 2014 pre-sentence report prepared by Probation Officer Ian L. Goulden, along with accompanying JEIN offender

summary; 2. July 26, 2016 pre-sentence report update prepared by Mr. Goulden; 3. September 2, 2016 Crown brief and attached cases; and 4. September 7, 2016 Defence brief and attached cases. [ 8 ] The Pre-sentence report is dated almost two years ago because A.H.H. initially pled guilty to the ss. 268 and 215(2) (

a) counts. His guilty pleas were subsequently revoked and the trial ensued. [ 9 ] Today I heard from E.H.’s mother, A.S., as she read from a very detailed and heart-wrenching victim impact statement. I also heard from A.H.H., who expressed that he is “very sorry” to E.H. and the S. family. Background [ 10 ] In my decision of a month and a half ago, I introduced the tragic circumstances of this case as follows: [1] On November 4, 2011, A.S. gave birth to a healthy baby boy. Just over three weeks later, his life was irreparably changed.

On November 28, he was airlifted from his home in Shelburne to the IWK Health Centre in Halifax. The 24-day-old boy was experiencing seizures, decreased responsiveness and had bruising to his head. Through various tests, including a CT scan of the head, it was determined the baby was suffering from: • complex skull fracture;

• bilateral extra-axial complex fluids/bodily collections; • tentorial foci bleed; • brain swelling and probably ischemic injury of at least the right occipital region; • combination “highly suspicious for non-accidental trauma”. [2] Given the injuries, the IWK Child Protection Team, Children and Family Services and the RCMP became involved in the matter. The baby’s father, A.H.H., was ultimately charged ..: [ 11 ] A.H.H. entered not guilty pleas and the trial proceeded.

In my decision convicting A.H.H., I made, inter alia , the following findings: [118] On the basis of this evidence from the accused and A.S., together with the medical evidence concerning the type of head injuries sustained by E.H., I find that A.H.H. snapped at the time in question.

He acted out of emotional upset and inflicted excessive force on his innocent, completely defenceless infant son. … [124] Having regard to the evidence in this case, I am satisfied beyond a reasonable doubt that A.H.H. maimed E.H. such that the young boy (who will turn five on November 4 of this year) has been left with a permanent physical and mental disability.

Turning to E.H.’s documented IWK hospital admission on November 28, 2011, there can be little doubt that the aggravated assault had the effect of endangering the infant boy’s life. [125] Given the nature of the catastrophic head injuries in question, I find that they were not occasioned incrementally over days or weeks. On the contrary, it is my finding that the injuries happened in a moment in time, as a result of the force inflicted by A.H.H. .

I come to this conclusion having regard to the medical evidence which causes me to conclude beyond a reasonable doubt that the injuries, which were restricted to E.H.’s head, and of a combined crushing and force nature, were inflicted on one occasion when A.H.H. lost control. … [127] Not only is it my determination that A.H.H. intentionally caused the injuries, I would add that he did nothing to report the injuries until the damage was already brought to the attention of the medical authorities, i.e. hours after E.H.’s November 28 IWK admission.

Given the significance of the trauma he inflicted upon E.H., A.H.H. must have known his baby was hurt, yet he did nothing to alert anyone. Indeed, I further find that after he inflicted the head injury, A.H.H. chose not to disclose it to the baby’s mother or anyone else until he was confronted by the physician at the IWK. Indeed, when A.S. expressed concern about E.H.’s condition to A.H.H. , he dissuaded her from taking the boy to the hospital.

In the result, it is without hesitation that in addition to finding A.H.H. guilty of aggravated assault contrary to s. 268 of the Criminal Code , I find A.H.H. guilty beyond a reasonable doubt of failing to provide the necessaries of life to E.H. contrary to s. 215(2) (

a) of the Criminal Code, and failing to seek medical assistance for his child contrary to s. 221 of the Criminal Code. Positions of the Parties Crown [ 12 ] The Crown submits that the offences committed by A.H.H. are grave. It is their position that the Court should impose a custodial sentence to reflect the seriousness of the offences. They note that a conditional sentence is not available for the offence of aggravated assault. Accordingly, the Crown points out that the only available sentence options in this case are a fine, probation, or custody in an institution. On this point, the Crown relies on R. v.

J.D.B. , 2002 NSSC 102 , wherein Justice Goodfellow referred to the comments of the Ontario Court of Appeal, as follows: [29] In R. v. Cooper, [1985] O.J. No. 138 , Ontario Court of Appeal, this was not a criminal negligence case but rather assault causing bodily harm to a ten and a half month old baby. The child required brain surgery. Cooper, 31, was a former professional football player and the evidence indicated “Shaken Baby Syndrome”. The trial judge’s six month sentence stating the offender could not reasonably foresee the extent of the injuries.

The sentence was doubled and there was reference made to R. v. Boswell (1982) 4 Cr. App. R. (S) 317. At page 318: It is always said in cases like this that the parents, or the one parent, never intended to do it. Of course not. This Court recognizes that. But where one has a helpless child only a few weeks’ old, the only protection which can be given to such a helpless infant is that the law steps in and makes it quite plain that such cases like this have to be met with severe sentences. [ 13 ] Having regard to the aggravating factors and mitigating circumstances, the Crown recommends a sentence, as follows: 1.

Four years imprisonment, with a non-communication order with E.H., A.S., Mr. S and Mrs. S; 2. A lifetime firearms prohibition, pursuant to s. 109 C.C.; and 3. DNA Order. Defence [ 14 ] The Defence emphasizes that the Court found A.H.H. “snapped” at the time in question. He points out that A.H.H. had not shown any inkling of such behaviour in the past. In his submission, the Defence emphasizes the pre-sentence report is generally

positive. The Defence refers to R. v. J.D.B. as well as three other Superior Court cases as support for their position that the Crown recommendation is too severe. The Defence submits that while deterrence and denunciation are primary factors, rehabilitation is also an important factor. In all of the circumstances, it is the Defence position that a fit and appropriate sentence is two years incarceration followed by three years of probation. Analysis and Disposition [ 15 ] The objectives of sentencing are set out pursuant to s.718 of the Criminal Code .

These oft-repeated principles are deterrence, denunciation, separation of the offender from society, rehabilitation, reparation to the victims and promotion of a sense of responsibility for the harm to victims. [ 16 ]

Section 718.2(

a) requires me to consider any aggravating factors or mitigating circumstances in my determination of the nature and extent of sentence. Aggravating Factors 1. A.H.H. committed the crimes on a person under the age of 18 years – s. 718.2(a)(ii.1); 2. In committing the offences, A.H.H. abused a position of trust – s. 718.2(a)(iii); 3. There is evidence that the offences had significant impact on the victim and his mother. In this regard, E.H. (who will turn five on November 4 of this year) has been left with permanent physical and mental disabilities.

Given E.H.’s compromised condition, his young mother will have to provide enhanced care indefinitely to her son – s. 718.2(a)(iii.1); and 4. The evidence confirms A.H.H. has never sought to address the stressors in his life that contributed to his commission of the offences. Mitigating Circumstances 1. A.H.H. did not have an appreciable criminal record; 2. The convictions flow from a single incident of aggression, out of character for the offender; 3. In the approximate 4.5 years since his arrest, A.H.H. has at all times complied with his release conditions; and 4.

At age 28, A.H.H.is a relatively young man with a generally positive pre-sentence report. Guiding Law [ 17 ] As noted by the Supreme Court of Canada in R. v. Ipelee , 2012 SCC 13 at para. 38 , sentencing is a highly individualized process. In addition to taking into account the aggravating factors and mitigating circumstances, I must also consider objective and subjective factors related to A.H.H.’s personal circumstances and the facts pertaining to the case. (See R. v. Pham , 2013 SCC 15 at para. 8 .) [ 18 ] The latest word on sentencing from the Supreme Court of Canada appears in R. v. Lacasse , 2015 SCC 64 .

Justice Wagner’s majority decision begins this way: [1] Sentencing remains one of the most delicate stages of the criminal justice process in Canada. Although this task is governed by ss. 718 et seq. of the Criminal Code , R.S.C. 1985, c.

C-46, and although the objectives set out in those sections guide the courts and are clearly defined, it nonetheless involves, by definition, the exercise of a broad discretion by the courts in balancing all the relevant factors in order to meet the objectives being pursued in sentencing. [2] For this purpose, the courts have developed tools over the years to ensure that similar sentences are imposed on similar offenders for similar offences committed in similar circumstances — the principle of parity of sentences — and that sentences are proportionate by guiding the exercise of that discretion, and to prevent any substantial and marked disparities in the sentences imposed on offenders for similar crimes committed in similar circumstances.

For example, in Quebec and other provinces, the courts have adopted a system of sentencing ranges and categories designed to achieve these objectives. [3] The credibility of the criminal justice system in the eyes of the public depends on the fitness of sentences imposed on offenders. A sentence that is unfit, whether because it is too harsh or too lenient, could cause the public to question the credibility of the system in light of its objectives. [4] One of the main objectives of Canadian criminal law is the rehabilitation of offenders.

Rehabilitation is one of the fundamental moral values that distinguish Canadian society from the societies of many other nations in the world, and it helps the courts impose sentences that are just and appropriate. [ 19 ] Justice Wagner goes on to explain why sentencing judges are best placed to determine a just and appropriate sentence: [11] This Court has on many occasions noted the importance of giving wide latitude to sentencing judges.

Since they have, inter alia , the advantage of having heard and seen the witnesses, sentencing judges are in the best position to determine, having regard to the circumstances, a just and appropriate sentence that is consistent with the objectives and principles set out in the Criminal

Code in this regard.

The fact that a judge deviates from the proper sentencing range does not in itself justify appellate intervention.Ultimately, except where a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, anappellate court may not vary the sentence unless it is demonstrably unfit. [20] In the result, I will sentence A.H.H. with the goal of arriving at a demonstrably fit sentence within the range of similar cases. [21] The Nova Scotia Court of Appeal has said that in cases of violence, such as this one, the primary consideration should be fordeterrence and denunciation.

This principle is codified under s. 718.01 of the Criminal Code: When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primaryconsideration to the objectives of denunciation and deterrence of such conduct. [22] The importance of these factors does not diminish with the passage of time between the crime and the date of sentencing. In R.v. C.S.P., 2005 NSCA 159, Justice Bateman noted at para. 14: Where a crime is one which requires a sentence emphasizing denunciation and general deterrence, as is spousal assault (R. v.

MacDonald(1992), 2003 NSCA 36 , 173 C.C.C. (3d) 235; N.S.J. No. 99 (Q.L.) (N.S.C.A.)), a long passage of time between the commissionof the offence and detection or between conviction and sentence does not lessen the need for such emphasis notwithstanding that theoffender has unblemished conduct during that time (R. v. Spence (1992), 1992 ABCA 352 , 78 C.C.C. (3d) 451; A.J. No. 1129(Q.L.)(C.A.) at pp. 454 - 55). [Emphasis added] [23] It will soon be five years since A.H.H. committed the offences in question.

The fact that he has not committed further offencessince the ones in question does not diminish the importance of denunciation and deterrence. [24] Although A.H.H. has not reoffended since his offences, this does not mean he has been rehabilitated. In this regard, there is noevidence in the pre-sentence report or otherwise of any attempts at counselling to address the underlying causes of the offences, nor theimpact this crime and criminal process has had on A.H.H.

Indeed, the evidence at trial and in the pre-sentence report confirms thatA.H.H. had stressors in his life which he simply ignored. [25] Sections 718.1 and 718.2 of the Criminal Code deal with parity and proportionality. The Crown has submitted, and I agree, thatthe offences committed by A.H.H. are grave. As part of its submission, the Crown provided two decisions of the Supreme Court ofNova Scotia: the aforementioned R. v. J.D.B. and a decision of Justice Cody, R. v. S.M., 2013 NSSC 29. In R. v.

J.D.B. at paras. 18-38,Justice Goodfellow canvasses a host of Canadian Superior Court decisions as a guide for his “difficult and unpleasant task” of sentencingan offender who broke his infant daughter’s ribs. Justice Goodfellow ultimately imposed a sentence of two years imprisonment,followed by one year of probation. [26] In R. v. S.M., Justice Cody sentenced a 44 year-old woman who came before the Court without a criminal record. She hadentered guilty pleas to failure to provide the necessities of life to her infant child along with aggravated assault.

At paras. 47-50, JusticeCody reviewed four Ontario cases which he ultimately found to be, “quite distinguishable on the facts and offender in this case.” (Seepara. 51). He ultimately sentenced S.M. to two years imprisonment and three years probation. [27] The Defence also submitted R. v. J.D.P. along with these cases: 1. R. v. Marks (1994), 91 C.C.C. (3d) (N.L.C.A. 421) (Nfld.) C.A.; 2. R. v. M.G.J., 2012 BCSC 1366; 3. R. v. P.H., 201 MBQB 8; and 4. R. v. Skerry, 2006 PESCAD 5. [28] I referred to R. v. Marks in my decision convicting A.H.H.

At para. 115, I noted: The fact that A.H.H. had not previously demonstrated an inkling of such behaviour does not sway my determination that he committedaggravated assault, contrary to s. 268 of the Criminal Code. In this regard, I am of the view the physical child abuse falls into the secondtype as outlined by Justice O’Neill in R. v. Marks (1994), 91 C.C.C. (3d) (N.L.C.A.) 421 (Nfld. C.A.), at para. 27: (

i) The application of force where a parent or other custodian of a child is immature and is unskilled in matters of child care,and, acting out of emotional upset, frustration or impatience, does not fully appreciate the serious injuries which might result. [29] R. v. M.G.J. involved a severe shaking of a one month old infant by her father. The child suffered catastrophic injuries such thatthey were more severe than E.H.’s injuries. Another important distinguishing feature, acknowledged by the Defence, is that M.G.J.entered a guilty plea to the offence on the first day of trial.

At the close of her decision, Justice Ker provides an appendix of 14sentencing authorities. Justice Ker adopted the joint recommendation and sentenced M.G.J. to two years in prison followed by two yearsof probation. [30] In R. v. P.H., the accused was convicted at trial of aggravated assault and sentenced to a period of 18 months imprisonmentfollowed by three years of probation. P.H. was convicted of intentionally dropping his four month old son onto the floor, causing him tostop breathing temporarily and bleed into the brain.

P.H. did not tell the emergency doctors at the hospital what he had done. [31] The facts of R. v. P.H. are somewhat similar to what is before the Court. Although the injuries to the four month-old were notas serious as what E.H. sustained, there were more aggravating factors as the violent actions of P.H. happened over an extended period oftime.

[32] R. v. Skerry is another tragic case involving heinous actions by a father assaulting his son when his son was between three and13 weeks of age. The Prince Edward Island Court of Appeal overturned the trial judge’s sentence of five months, sentencing Mr. Skerryto 18 months incarceration followed by three years of probation. At para. 28, Justice MacQuaid noted as follows: The third error in principle is that the sentence imposed is not similar to sentences imposed for similar offences committed in similarcircumstances.

In this jurisdiction sentences for offences which involve an assault upon a young child are in the range of two yearsimprisonment. See: R. v. Bulger, [1991] P.E.I.J. No. 126 (P.E.I.S.C.A.D.); R. v. Weiler (1991), (PE SCTD), 92 Nfld.& P.E.I.R. 87 (P.E.I.S.C.T.D.); and R. v. Lockhart 2005 PESCTD 51.

Furthermore, the sentence under review here is inconsistent withboth the circumstances surrounding its commission and the sentencing judge’s assessment of the respondent’s state of mind at the time. [Emphasis added] Disposition [33] In determining the fit and appropriate sentence for A.H.H., I am mindful of all of the above referenced cases, inclusive of the 14referenced in the R. v. M.G.J. appendix.

I have also borne in mind the pre-sentence report, victim impact statement and, more generally,the overriding purposes and principles of sentencing. [34] The Criminal Code provisions in force at the time A.H.H. committed his offences prohibit a conditional sentence order foraggravated assault. (See ss. 742.1, 752). In any event, under both the current and previous provisions of the Criminal Code, aconditional sentence order is not available for aggravated assault. Accordingly, the only available sentence options in this case are afine, probation, or actual custody.

Having regard to the facts of this case, I am of the overwhelming view that a custodial sentence isappropriate. I say this having regard to, among other factors, the following: 1. The tender age of the victim, who was not even one month old when the serious crimes against him occurred; 2. The fact that E.H. was completely defenceless and vulnerable; 3. The position of trust that A.H.H. had over E.H. as his father; and 4. The irreparable, life-altering health consequences resulting to the victim child.

As his mother said in her victim impactstatement, E.H.’s quality of life has been stolen from him. [35] In the result, I refer to the earlier referenced R. v. Boswell and emphasize the below quotation: It is always said in cases like this that the parents, or the one parent, never intended to do it. Of course not. This Court recognizes that.

But where one has a helpless child only a few weeks’ old, the only protection which can be given to such a helpless infant is that the lawsteps in and makes it quite plain that such cases like this have to be met with severe sentences. [Emphasis added] [36] In the result, I have determined that the within sentence must involve a period of federal incarceration. [37] A.H.H., your actions were reprehensible and involved irreparably harming your infant son. Only a few weeks old, E.H. was acompletely defenceless, helpless infant child. Accordingly, the Court must step in.

In particular, I sentence A.H.H. as follows: 7. To 2.5 years incarceration; 8. Pursuant to s. 109 of the Criminal Code, A.H.H.is prohibited from possessing any firearm, any crossbow, restricted weapon,ammunition and explosive substance for life; 9. Pursuant to s. 487.051 of the Criminal Code, I order the taking of the number of samples of bodily substances from A.H.H. that isreasonably required for the purpose of a forensic DNA analysis; 10. Pursuant to s. 743.21 of the Criminal Code, A.H.H. shall not communicate directly or indirectly with E.H., A.S., Mr. Sor Mrs.

S during the custodial period of his sentence; 11. I would add that, if possible, A.H.H. should have mental health counselling made available to him within the federalpenitentiary system; and 12. A.H.H.is to pay a victim surcharge fine for each conviction in the statutory amount; i.e., $600. He has been seasonablyemployed. He is to pay the fine within six months of his release from custody. Chipman, J.