Docket: CACR2317 Brian Deforest Appellant - v. -, 2014 SKCA 43

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 43 Date: 2014-04-17 Between: Docket: CACR2317 Brian Deforest Appellant - and - Her Majesty the Queen Respondent Coram: Ottenbreit, Caldwell, and Whitmore JJ.A. Counsel: Trent Edward Forsyth, for the appellant Anthony Gerein, for the respondent Appeal: From: QBC 22/12, J.C. of Melfort Heard: April 17, 2014 Disposition: Appeal dismissed (orally) Written Reasons: April 22, 2014 By: The Honourable Mr. Justice Whitmore

In Concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Mr. Justice Caldwell Witmore J.A. [1] The appellant was convicted of breaking and entering a dwelling house and committing the indictable offence of assault contraryto s. 348(1)(

b) of the Criminal Code R.S.C., 1985, c. C-46. He was sentenced to three years incarceration and some ancillary orders. Theappellant sought leave to appeal his sentence and the Court dismissed the appeal. This judgment follows upon that dismissal andprovides written reasons for the dismissal. [2] In the early morning hours of 9 January 2012 the appellant drove to the complainant’s home in Bjorkdale Saskatchewan. Theappellant and the complainant had been in a common law relationship for a number of years and had a two year old daughter, Sierra.

Theappellant called the complainant twice at her home, but she declined to answer the calls, knowing it was the appellant calling. [3] Very shortly after the calls the complainant heard banging on the door and the appellant yelling at her to let him in, supposedly tocheck on their daughter. [4] The complainant did not let the appellant in and telephoned her parents, who lived nearby, for assistance. The appellantcontinued to bang at the door and then started to crawl through a window into the house. Despite the complainant’s attempts to block hisentry, the appellant forced his way into the house.

Once he had gained entry, he started choking the complainant demanding to knowwhere their daughter was. [5] This commotion woke Sierra and the complainant went to calm her daughter. When she had calmed Sierra down, she told theappellant to leave, whereupon he grabbed the complainant, pushed her to the ground, and kicked her in the genital area. [6] The appellant then left the property. The complainant’s father stopped the appellant for a brief period, but the appellant departedwithout further incident. [7] The complainant suffered scratches and abrasions to her face.

She testified that she bled from her genital area and that it hurt tosit for approximately five days after the incident. [8] The appellant testified at trial denying the allegations and testifying that he was somewhere else at the time of the incident.

Thetrial judge did not accept the evidence of the appellant, convicted the appellant, and sentenced the appellant to three years incarceration. [9] The appellant submits that the offence of which he was convicted is not analogous to a “home invasion,” as contemplated in thejurisprudence relied upon by the trial judge in sentencing the appellant. [10] The appellant further submits that the personal circumstances of the appellant were not given enough weight, in that there is noevidence the appellant failed to deal with any alcohol and anger management issues, his criminal record is not particularly relevant as itconsists of breaches of court orders and there are no violent crimes in his background. [11] This Court, in R. v.

Campeau, 2009 SKCA 3, 245 C.C.C. (3d) 258, makes it clear that s. 348.1 of the Code is not restricted to homeinvasions where robbery is the motive. At para. 24 of Campeau, this Court said the following: “The submissions by the parties suggestthat uncertainty exists as to whether a ‘home invasion’ for the purposes of s. 348.1 is synonymous with a ‘home invasion robbery.’Simply put, it is not.” [12] The aggravating factor contained in s. 348.1 is clearly applicable.

Even if the appellant did not know the home was occupied whenhe commenced banging on the door, he certainly knew the complainant was at home by the time he entered the home. The complainantwas attempting to restrain him from entering the house through the window. [13] While the facts in this case may not amount to a home invasion and robbery, it is certainly a home invasion within the meaning ofs. 348.1 of the Code. The trial judge made no error in referring to other home invasion cases.

The trial judge does not appear to havebeen unduly influenced by the seven to 10 year range for sentencing invasions set out in R. v. Pelly, (SK CA), 83Sask. R. 239, 9 W.C.B. (2d) 765. [14] R. v. G.J., 2011 SKCA 133, 377 Sask. R. 129 is also a case of home invasion in the context of a domestic dispute. The seven yearsentence in R. v.

G.J. indicates that although it is a domestic dispute situation, and not a robbery, a lengthy term of incarceration is notautomatically ruled out. [15] This case may be distinguished on its facts from some of the more violent home invasions involving robbery, but the sentences inthose cases are much greater than the appellant’s sentence (see R. v. Pelly, supra and R. v. Payne, 293 Sask. R. 31, 2007 SKCA 28). [16] The appellant’s criminal record is relevant, but would likely have weighed more heavily against him if it contained violentoffences.

It cannot be said that the trial judge overemphasized the appellant’s record. [17] Further, it is a reasonable inference from the actions of the appellant and from his criminal record that he has anger issues. The trialjudge was entitled to draw that inference.

[ 18 ] The emphasis by the trial judge on denunciation and deterrence is entirely appropriate. This Court has always emphasized denunciation and deterrence as primary factors in home invasion cases. [ 19 ] In considering other cases of home invasion, this sentence is reasonable in all the circumstances, and is within the range of sentences imposed upon similar offenders for similar circumstances, albeit at the low end of the range. The trial judge committed no error in principle and the sentence cannot be said to be demonstrably unfit.

Leave to appeal is granted and the appeal is dismissed. [ 20 ] The sentencing judge was hopeful that the rehabilitative aspects of the sentence would be effective. The appellant should be commended for the steps he has taken, as so well-articulated by his counsel. This Court in turn hopes that Mr. Deforest will continue with the improvements to his behaviour and attitude that he has commenced.