R v Dustyhorn, 2019 SKCA 93

Restriction on Publication An order has been made in accordance with s. 486.4(1) of the Criminal Code directing that any information identifying the complainant shall not be published. Court of Appeal for Saskatchewan Docket: CACR2973/CACR3006 Citation: R v Dustyhorn , 2019 SKCA 93 Date: 2019-09-19 Between: Her Majesty the Queen Appellant/Respondent And David Dylan Dustyhorn Respondent/Appellant Before: Ottenbreit, Caldwell and Barrington-Foote JJ.A. Disposition: Appeal allowed in part – CACR2973 Appeal dismissed – CACR3006 Written reasons by: The Honourable Mr.

Justice Ottenbreit In concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr. Justice Barrington-Foote On Appeal From: 2017 SKQB 174 , Regina Appeal Heard: January 7, 2019 Counsel: David Andrews for the Respondent/Appellant W. Dean Sinclair, Q.C., for the Appellant/Respondent Ottenbreit J.A. I. Introduction [ 1 ] The Crown appeals the global sentence of four years and one month of incarceration imposed on David Dylan Dustyhorn ( R v Dustyhorn , 2017 SKQB 174 [ Dustyhorn ]).

He was found guilty of nine offences under the Criminal Code including arson causing damage to property ( s. 434 ), two charges of assault ( s. 266 ), assault causing bodily harm ( s. 267 (b)), four charges of utter threat ( s. 264.1(1) (a)), and breach of recognizance ( s. 145(3) ). Mr. Dustyhorn has abandoned his appeal against conviction but appeals his sentence. For the reasons hereinafter set forth, the appeal of the Crown is allowed in part. The appeal of Mr. Dustyhorn is dismissed. II. Facts and Background [ 2 ] The offences took place between November 29 and December 1, 2015. On November 29, Mr.

Dustyhorn, who was under the influence of alcohol, got into an argument with his common law spouse, C.K., and slapped her and kicked her in the shins. [ 3 ] The next morning, on November 30, while getting ready to leave her home to attend school, C.K. accidently stepped on Mr. Dustyhorn’s legs while he was sleeping. Mr. Dustyhorn awoke and punched her in the knees. [ 4 ] In the evening of November 30, when C.K. returned home from a friend’s house, C.K.’s children accused Mr. Dustyhorn of mistreating them while C.K. was out. C.K. attempted to deal with that issue but she and Mr. Dustyhorn got into an argument. Mr.

Dustyhorn became angry and grabbed her neck and said he would kill her. [ 5 ] C.K. then contacted her mother to tell her that she was afraid of Mr. Dustyhorn and asked for help. This resulted in C.K.’s friend, M.Q., being sent to their home. After speaking with C.K., M.Q. confronted Mr. Dustyhorn and asked him to leave the house. Mr. Dustyhorn got angry and ultimately said “I’ll slit all your fucking throats” in the presence of C.K.’s children. C.K. then left the house with the children. Mr.

Dustyhorn then grabbed M.Q. by the throat and shoved her into the wall next to the front door with enough force to damage the drywall. [ 6 ] Mr. Dustyhorn began to strangle M.Q. by picking her up by the throat. He continued trying to punch M.Q. in the face as he held her against the wall. She fell to the floor to avoid further blows and was able to make her way to the back door while he continued to punch her. Mr. Dustyhorn stopped punching her and started looking for a weapon. He swung a pot at M.Q., but she was able to avoid it. Mr. Dustyhorn lost his balance.

M.Q. used that opportunity to push past him and run out the front door. [ 7 ] After C.K., her children, and M.Q. fled the home, Mr. Dustyhorn set fire to the house. The fire was noticed by a neighbour, who saw the house burning and woke up his own wife and child and got them out of their neighbouring house. The fire caused damage to the neighbouring houses on either side of C.K.’s home, both of which were occupied. [ 8 ] C.K. and her children lost all their possessions in the fire and had nothing but the clothes they had been wearing when they fled. Within hours of assaulting the women and setting the fire, Mr.

Dustyhorn sent C.K. and M.Q. each a series of threatening social

media messages. Some of them were sent even before C.K. was aware that her house was on fire. Mr. Dustyhorn’s texts to C.K. included the following: “I’ll kill ur kid”, “I hope u burn”, “my whole crew lookin for u n [M.Q.]”, “I can’t wait to see u beg for ur lives”, “U guys r already done”. He also asked, “[h]ow’s the house?” [ 9 ] On December 1, before the police had spoken to C.K., Mr. Dustyhorn also sent a threatening message to M.Q. on social media saying he was going to kill her, watch her die and make her suffer. III.

Decision of the Sentencing Judge [ 10 ] After reviewing the facts, the sentencing judge turned to the circumstances of Mr. Dustyhorn. He noted that Mr. Dustyhorn, who is First Nations, was primarily raised by his mother in a non-Indigenous neighbourhood. It was also noted that Mr. Dustyhorn had significant involvement in structured recreational activities and organized sport as a young child, was an excellent athlete, and was involved in the community, in the school, and in competitive leagues growing up. [ 11 ] The sentencing judge noted that Mr.

Dustyhorn’s involvement with the criminal justice system began in September 2005. He stated that Mr. Dustyhorn had a substantial criminal record including a conviction for manslaughter. [ 12 ] After reviewing the principles of sentencing set out in the Criminal Code , the sentencing judge said the following: [27] In applying these principles, I consider the following factors to be aggravating: • The assaults were committed against Mr. Dustyhorn’s common-law partner.

While the physical injuries were not as serious as sometimes occurs in the case of spousal abuse, the assaults and threats occurred over a period of two days and also involved threats against his common-law partner’s children. Aside from some physical discomfort, C.K. also suffered significant mental distress which lingers to this day. • Mr.

Dustyhorn does have a criminal record which includes crimes of violence against a person, including a robbery committed as a youth which involved shoving the victim; an assault causing bodily harm also as a youth against another student in high school; uttering threats against a convenience store clerk; and most importantly a conviction for manslaughter resulting from his participation in the gang-related activity of “deboarding”. • The assaults and the verbal threats took place in the presence of young children who were required to flee from the violence taking place in their home. • The fact that the property that was damaged by fire was a dwelling house which caused not only the relocation of C.K. and her children but loss of all of their personal possessions, leaving them only with the clothes they were wearing. • The current offences were committed only one month after completion of his sentence for a homicide.

These are all factors which would militate against a sentence in the lower range of sentences for offences of this nature. [ 13 ] Although neither the Crown nor defence mentioned any factors which would be considered mitigating, the sentencing judge took into consideration that Mr. Dustyhorn did complete his GED while he was incarcerated. He also noted that, while being intoxicated during the commission of the offences was not a mitigating factor, by the same token Mr. Dustyhorn had never been offered treatment for substance abuse despite spending more than four years in jail.

He also noted the letters of reference that were provided by Mr. Dustyhorn’s parents and extended family members. [ 14 ] The sentencing judge also took into consideration the statements that Mr. Dustyhorn made to the court when invited to do so during sentencing submissions. He noted Mr. Dustyhorn expressed the disappointment in the way “his life turned for the worse after age 16” (at para 31), and that he regretted becoming a member of a street gang and was aware of how difficult it would be to extract himself from the situation. Mr.

Dustyhorn acknowledged that he grew up in a relatively stable home but noted that there were effects of the residential school system on him and his parents. He admitted he was an alcoholic and expressed an eagerness to take rehabilitative programming while in the penitentiary. He acknowledged that he had messed up but wanted to get help. The Crown requested a 13-year sentence, but the sentencing judge noted Mr.

Dustyhorn feared a sentence of that length “would be a disincentive to earnestly begin his rehabilitation” (at para 31). [ 15 ] The sentencing judge noted the victim impact statement provided by M.Q., who had described the brutal beating she received at the hands of Mr. Dustyhorn and how it had traumatized her and changed her life. [ 16 ] The sentencing judge then reviewed the decisions cited by the Crown with respect to the arson charge. He also noted that defence counsel had asked that the appropriate sentence in this case be a global sentence of 5–6 years less credit for time served.

He considered the totality principle and indicated that he would treat the common assaults on C.K. that occurred on Sunday and Monday evening as separated in time and place from all the other charges and as well treat the arson charge as consecutive. [ 17 ] The sentencing judge noted that he would have to take into consideration the seriousness of the criminal behaviour exhibited by Mr. Dustyhorn, the emotional and physical harm done to C.K. and M.Q., as well as the damage caused to the house that was destroyed and to the neighbouring homes. He also noted that Mr.

Dustyhorn was a relatively young man who had expressed willingness to rehabilitate himself. The sentencing judge concluded: [54] Taking all of the above factors into consideration, I have come to the conclusion that the best interests of society and the administration of justice will be served with a global sentence of six years and four months (76 months) incarceration based on the following sentences for each of the nine convictions:

1. Three months imprisonment for the assault committed on C.K. on November 29, 2015, contrary to s. 266 of the Criminal Code 2. Three months imprisonment for the assault committed on C.K. on November 30, 2015, contrary to s. 266 of the Criminal Code , consecutive to all other sentences imposed. 3. Six months imprisonment for knowingly uttering a threat to C.K. on November 30, 2015 to cause death to C.K., contrary to s. 264.1(1) (

a) of the Criminal Code , consecutive to all other sentences imposed. 4. Six months for knowingly uttering a threat to M.Q. November 30, 2015, to cause death to M.Q., contrary to s. 264.1(1) (

a) of the Criminal Code , concurrent to all other sentences imposed. 5. Six months for knowingly uttering a threat to M.Q. and C.K. on November 30, 2015, to cause death to A.K., B.K. and A.C., contrary to s. 264.1(1) (

a) of the Criminal Code , concurrent to all other sentences imposed. 6. Nine months imprisonment for the assault causing bodily harm committed on M.Q. on November 30, 2015, contrary to s. 267 (

b) of the Criminal Code , consecutive to all other sentences imposed. 7. One month imprisonment for the breach of recognizance committed on November 30, 2015, for failing to comply with a condition thereof, to wit, not possess or consume alcohol or drugs that have not been prescribed for him by a doctor and not enter or be in any place in which the main purpose is the sale of alcohol, such as bars or liquor stores, contrary to s. 145(3) of the Criminal Code , consecutive to all other sentences imposed. 8.

Four years (48 months) imprisonment for having committed the offence on December 1, 2015, of intentionally causing damage by fire to property that was not wholly owned by him, to wit: the dwelling house of C.K. situated at 2212 Broder Street, being the property of Joanne Schnurr, contrary to s. 434 of the Criminal Code , consecutive to all other sentences imposed. 9. Six months imprisonment for knowingly conveying a threat to C.K. by sending various Facebook messages on December 1, 2015, to cause death or bodily harm to C.K. and M.Q., contrary to s. 264.1(1) (

a) of the Criminal Code , consecutive to all other sentences imposed. [55] I am satisfied that a global sentence of six years and four months (76 months) does not offend the totality principle. I am of the view that the sentence imposed in relation to each offence to be just and appropriate when viewed in the aggregate. It is not a crushing sentence considering Mr. Dustyhorn’s record and prospects. (Emphasis in original) [ 18 ] The sentencing judge gave Mr. Dustyhorn remand credit of 27 months calculated at 1.5 to 1. In

summary, after taking the remand credit into consideration, the sentencing judge imposed a sentence on Mr. Dustyhorn of four years and one month. In addition to this he made ancillary DNA orders (ss. 487.051(1) and 487.06(1)), a weapons prohibition order (s. 109), as well as a non-communication order under s. 743.21. IV. Issues [ 19 ] The Crown submits the sentence was not proportionate and therefore unfit. The Crown argues the sentencing judge failed to conduct a proper assessment of the gravity of the offences and Mr. Dustyhorn’s moral culpability.

It also argues the sentencing judge erred in principle in his handling of parity, deterrence and denunciation, as well as Mr. Dustyhorn’s history of violence and gang membership. [ 20 ] In his Notice of Appeal, Mr. Dustyhorn stated that four years incarceration for the s. 434 offence was excessive and not within the sentencing range. However, in oral argument, Mr. Dustyhorn’s counsel essentially submitted that the existing sentence, while high, met the sentencing objectives. V. Analysis [ 21 ] The standard of review in this matter is well-known. An appellate court should not interfere with a sentence unless:

a) the sentence is demonstrably unfit; or

b) the sentencing judge erred in principle, failed to consider a relevant factor or overemphasized an appropriate factor and that error had an impact on the sentence imposed ( R v Lacasse , 2015 SCC 64 at paras 41 and 44 , [2015] 3 SCR 1089 [ Lacasse ]). [ 22 ] In Lacasse , the Supreme Court made clear that there is but one cardinal principle in an appeal based on fitness of sentence: whether the sentence of imprisonment is proportionate to the offender’s moral blameworthiness and the seriousness of the offences: [53] This inquiry must be focused on the fundamental principle of proportionality stated in s. 718.1 of the Criminal Code , which provides that a sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender”.

A sentence will therefore be demonstrably unfit if it constitutes an unreasonable departure from this principle. Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances. Individualization and parity of sentences must be reconciled for a sentence to be proportionate: s. 718.2 (

a) and (

b) of the Criminal Code . [54] The determination of whether a sentence is fit also requires that the sentencing objectives set out in s. 718 of the Criminal Code and the other sentencing principles set out in s. 718.2 be taken into account. Once again, however, it is up to the trial judge to properly weigh

these various principles and objectives, whose relative importance will necessarily vary with the nature of the crime and the circumstances in which it was committed. The principle of parity of sentences, on which the Court of Appeal relied, is secondary to the fundamental principle of proportionality. … [ 23 ] The Court in Lacasse reaffirmed the deference to be accorded to the trial judge: [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, an appellate court may not vary the sentence unless it is demonstrably unfit. (Emphasis added) [ 24 ] Sentencing ranges are primarily guidelines, and not hard and fast rules.

Accordingly, “a deviation from a sentencing range is not synonymous with an error of law or an error in principle” ( Lacasse at para 60 , emphasis added). [ 25 ] The Crown argues the sentencing judge erred by overemphasizing parity to the detriment of a proportionate individualized sentence based on the gravity of the offences and Mr. Dustyhorn’s moral culpability. The Crown also submits specifically that the sentencing judge failed to have proper regard for the fact that Mr.

Dustyhorn was a member of a gang and relied on cases involving offenders who were not members of gangs and whose criminal histories were not comparable. [ 26 ] I begin my analysis by addressing Mr. Dustyhorn’s gang involvement. The Crown makes much of Mr. Dustyhorn’s address to the court about gang life and his difficulties with that life. The Crown points out that Mr. Dustyhorn appeared to make excuses about his connection to gangs and his criminal lifestyle. The Crown suggests the sentencing judge put too positive a gloss on Mr. Dustyhorn’s comments. The Crown suggests that Mr.

Dustyhorn did not actually display an intention to abandon gang life and, as a result, that fact should have increased his moral culpability and increased the gravity of his various offences. [ 27 ] In my view, that aspect of the Crown’s argument has no merit. The Crown overstates the significance of gang involvement in this case. The submissions of the Crown come very close to an assertion that Mr. Dustyhorn should be sentenced for the mere fact that he is a gang member. Mr. Dustyhorn’s gang membership was unrelated to all but one of the offences before the sentencing judge.

Accordingly, the sentencing judge’s reliance on arson and assault cases which did not have a gang component was entirely appropriate. The only offence which can be said to have a tie to gang membership was the threat offence, when Mr. Dustyhorn invoked his gang connections to scare the victims, which took place after the incident in the house. That element of the threat made it more frightening and accordingly increased the gravity of the offence. However, given the lack of connection between Mr.

Dustyhorn’s gang membership and the other offences, it would have been an error for the sentencing judge to focus on similar offences that had a gang related component when addressing the principle of parity in relation to those other offences. [ 28 ] During his address to the court prior to sentencing, Mr. Dustyhorn expressed some regret for being involved with gang life and the difficulties of leaving it. The sentencing judge thoroughly reviewed Mr.

Dustyhorn’s criminal history noting his violent criminal past including his participation in a gang related manslaughter offence for which he received eight years incarceration. The sentencing judge acknowledged that was an aggravating factor. [ 29 ] The sentencing judge took gang involvement into appropriate consideration: [31] In addition, I will take into consideration the statement which Mr. Dustyhorn made to the court when invited to do so during the sentencing submissions. Mr. Dustyhorn expressed deep disappointment in the way that his life turned for the worse after age 16.

He regrets becoming a member of a street gang and is aware of how difficult it will be to extract himself from this situation, especially since he is likely to be housed in a gang unit when he arrives at the Federal Penitentiary. Mr. Dustyhorn acknowledged that while he grew up in a relatively stable home, there was always a lot of alcohol abuse by the adults around him. He says that he now understands the effect which the residential school system had on his parents and aunts and uncles. He said that if he had known that as a young man, he may not have hated his parents or the color of his skin, as he put it.

Mr. Dustyhorn also stated that he was sorry for what he did to C.K. He knows that he is an alcoholic. Mr. Dustyhorn expressed an eagerness to take rehabilitative programming while in the penitentiary. He acknowledged that he has messed up, but wants to get help. He fears that the 13 year sentence requested by the Crown would be a disincentive to earnestly begin his rehabilitation. [ 30 ] My reading of Mr.

Dustyhorn’s evidence about his gang life, his address to the court prior to sentencing, and the treatment of that by the sentencing judge satisfies me that the sentencing judge was alive to the circumstances of Mr. Dustyhorn’s gang affiliation but recognized in him a sense of regret that he was involved in gang life. The sentencing judge was entitled to see Mr. Dustyhorn’s comments in that light and to conclude that Mr.

Dustyhorn, who is a relatively young man, was on the whole expressing a willingness to rehabilitate himself. [ 31 ] I see no error in the sentencing judge’s appreciation of gang involvement in relation to all the offences. In the end, the Crown’s submission in this regard is that there was not enough weight given to this aspect. As noted in Lacasse , matters of weight are for the sentencing judge and do not amount to an error in principle.

Deference must be accorded to the sentencing judge on this issue. [ 32 ] The Crown next submits the sentencing judge erred in principle by failing to emphasize or even mention the objectives of specific deterrence and public protection in addition to the objectives of denunciation and general deterrence. The Crown reiterates its submissions regarding Mr. Dustyhorn’s gang affiliation and criminal history, arguing these factors are highly relevant because they speak to the risk Mr.

Dustyhorn poses to public safety. [ 33 ] While not dwelling on denunciation, deterrence, and public protection, the sentencing judge acknowledged the application of those principles under s. 718 . He noted the arguments of the Crown that those sentencing objectives were primary in this case. I

conclude on this basis that the sentencing judge was alive to the necessity to fashion a sentence that accorded with those objectives. Inregard to the arson offence, I am satisfied he made no error in that respect.

However, I am not satisfied he properly applied thoseobjectives regarding the balance of the offences, as I will explain later. [34] The Crown submits that, in respect of the arson offence, the sentencing judge erred in several respects: by relying on lowercourt cases to determine that the range of sentences for arson that does not involve endangering life is two to five years; by disregardingsentences in excess of five years on the basis that Mr.

Dustyhorn did not set fire to an occupied structure; and by ignoring the domesticabuse aspect of the arson offence. [35] As was made very clear in Lacasse, deviation from a range of sentences is not necessarily an error that is reviewable: “Thefact that a judge deviates from the proper sentencing range does not in itself justify appellate intervention” (at para 11). [36] In assessing the sentence for the arson charge, the sentencing judge reviewed twenty-one decisions proffered by the Crown.The Crown acknowledged they varied widely and admitted that none fit precisely with the set of circumstances facing Mr.

Dustyhorn.The cases involved endangerment to persons (s. 433) and causing property damage (s. 434). The range of sentences in these cases ran thegamut from two years to penitentiary terms and even long-term offender designations. The Crown ultimately suggested eight years forthe arson. [37] The sentencing judge winnowed these down to six cases that he determined were most relevant and reviewed thecircumstances of each and the sentence imposed in some detail. These cases are particularized at paragraph 38 of his decision. Thesentences in these six cases ranged from eighteen months to ten years incarceration.

After reviewing the cases and noting the maximumpenalty for a s. 434 offence was lower than for a s. 433 offence, the sentencing judge concluded the range for arson endangering life wasthree to eight years and two to five years for arson causing damage to property. [38] The Crown submits it was wrong for the sentencing judge to use three Provincial Court decisions as authority for theproposition that a sentence in excess of five years would be too harsh for arson under s. 434. However, I see no indication that he usedthe cases in this way.

Rather, these cases were considered as part of his review of the law to establish the range. The sentencing judgeacknowledged that the maximum penalty for arson under s. 434 was fourteen years. He acknowledged that the principles ofproportionality and parity were in play. [39] Arson cases from this Court include R v Osecap, 1997 SKCA (SentDig) 3, R v Whitehawk, 1997 SKCA (SentDig) 79, R vCrutcher (1983), (SK CA), 29 Sask R 95 (CA) [Crutcher], and R v Poulette, 2017 SKCA (SentDig) 16.

Except forCrutcher, these were all cases under s. 434 and included other offences such as assault causing bodily harm and charges related to afailure to comply with release conditions. The sentences ranged from eighteen months to eight years, the eight-year sentence beingCrutcher, where an apartment building housing thirty residents was set on fire. The other cases varied from two-years-less-a-day toeighteen months incarceration.

The range established by the sentencing judge for arson was consistent with the foregoing cases. [40] The Crown also argues that the sentencing judge failed to adequately consider the fact that the neighbouring house wasoccupied and its occupants were put at risk, and that the setting of the fire was domestic abuse that deprived family members of theirhome and personal possessions. The Crown submits these were all aggravating circumstances. I disagree. [41] At the sentencing hearing, the Crown argued that the fact that Mr.

Dustyhorn had burned the house of his domestic partnershould be seen as an aggravating circumstance. The sentencing judge acknowledged that the fact the victims lost their home and personalpossessions may be an aggravating factor which he could take into account in sentencing for the offence under s. 434. I am satisfied hedid. [42] At the sentencing hearing, Crown counsel also noted that the neighbouring house and its occupants had been put at risk bythe fire. Admittedly, the sentencing judge did not reference that factor in his sentencing decision.

I am not convinced that such a lacunawas an error given the circumstances of this arson. However, even if it were an error, I am not satisfied that it had any impact on thesentence. [43] In short, I am satisfied that with respect to the arson charge, the sentencing judge adequately addressed the aggravatingcircumstances. [44] I am also satisfied the sentencing judge adequately assessed the gravity of the arson and the moral culpability of Mr.Dustyhorn. The sentencing judge acknowledged that the victims lost their home and personal possessions. He clearly reviewed theevidence that Mr.

Dustyhorn committed arson bent on revenge and intended to inflict substantial harm on the victims by depriving themof their home and personal possessions. [45] The sentence for the arson was proportional to the gravity of the offence and Mr. Dustyhorn’s moral culpability in all thecircumstances. It gave proper regard to the objectives of denunciation and deterrence. Based on the standard of review, this Court cannotset aside that sentence. The sentence imposed is fit. [46] I turn now to the remaining offences. The Crown submits the sentences for these offences are not fit.

The Crown argues byrejecting its sentencing recommendation of five years for the intra-family abuse, consisting of assaults and threats, and the bail violation,as “extraordinarily harsh”, the sentencing judge failed to appreciate the gravity and moral culpability with regard to those offencescumulatively. [47] Mr. Dustyhorn argues the sentences for these offences are fit and notes the assault causing bodily harm was not seriousbecause M.Q. required no medical attention.

He also points out he has no previous record of spousal abuse. [48] I find the sentencing judge erred in principle when sentencing for several of those offences. The sentencing judge did not giveproper regard to the objectives of denunciation and deterrence. In my view, the sentencing judge also failed to impose sentences thatwere proportionate to the gravity of the offence and Mr. Dustyhorn’s moral culpability. I will explain.

[49] The Criminal Code mandates that, in sentencing, commission of an offence against a spouse is an aggravating factor(s. 718.2(a)(ii)). Domestic violence has been described by this Court as pernicious and widespread (R v Bear, 2018 SKCA 22 at para 26,[2018] 6 WWR 516). This Court has repeatedly emphasized the need to deal with spousal abuse effectively by approaching it through thelenses of denunciation, deterrence and protection of the public.

In R v Woods, 2008 SKCA 40, 310 Sask R 16, this Court said: [34] Courts across Canada have long recognized the significance of the problems of domestic violence and spousal abuse. For example,in R. v. Lavallee, (SCC), [1990] 1 S.C.R. 852, Wilson J., for the majority of the Supreme Court of Canada, said this at p.872: The gravity, indeed, the tragedy of domestic violence can hardly be overstated. Greater media attention to this phenomenon in recentyears has revealed both its prevalence and its horrific impact on women from all walks of life.

The sentencing goals of deterrence and denunciation naturally play an important role in establishing appropriate societal values andattitudes in relation to this kind of crime. See also: R v L.D.W., 2007 SKCA 79 at para 7, 299 Sask R 156. [50] That said, this Court has also recognized that a sentencing judge need not, as a matter of principle, always and necessarilyemphasize denunciation and deterrence above all else (R v Slippery, 2015 SKCA 149 at para 30, 472 Sask R 181). [51] The sentencing judge appeared to focus on the sentencing for the assault causing bodily harm offence.

While that wasadmittedly the most serious offence apart from the arson, the result of doing so was that proper regard was not had to the remainingoffences, some of which in the context of this case were only slightly less serious. The sentencing judge did little analysis of theappropriate sentencing range for those charges. I am satisfied he did not fully appreciate the gravity of certain of those offences and Mr.Dustyhorn’s moral culpability. [52] The assault on M.Q. was prolonged. She suffered severe bruising to her eyes and face and could barely move her arms thenext day.

The injuries were more than transient or trifling in nature. M.Q. was required to escape to avoid further injury. The threatsmade to M.Q. consisted of her being told her throat would be slit. This occurred just prior to Mr. Dustyhorn’s assault on her. He thenfollowed up this threat by making more threats on Facebook a few days later, indicating that he would kill her and make her suffer. [53] The two assaults on C.K consisted of kicking and slapping. The second and third threats to her were very harsh.

Mr.Dustyhorn’s first threat against C.K. occurred while he was holding C.K. by the neck and slapping her, telling her that he would kill her.His second threat occurred after he had been told by C.K. to leave the house. C.K. and the children were obviously scared of him, yet hethreatened C.K. and M.Q. in the presence of the children that he would slit their throats.

This was followed up the next day withthreatening Facebook messages to C.K., including one which explicitly said that he would kill her kids, and others threatening imminentdeath to C.K. and M.Q., as well as telling C.K. that his fellow gang members would be looking for them. [54] The cruelty, brutality and repetition of the threats to C.K., M.Q., and especially the children, is alarming. That, together withthe domestic abuse aspect of the assaults on and threats to C.K. and the serious and prolonged assault on M.Q., makes these offencesvery grave. Further, Mr. Dustyhorn has high moral culpability.

For these reasons, I conclude the sentences imposed for the last three ofthe four threats and for the assault causing bodily harm on M.Q. are not proportional. The sentencing judge failed to determineproportionality in relation to these offences both on an individual basis and by comparison with sentences imposed for similar offencescommitted in similar circumstances.

The sentences for those four offences are also an unreasonable departure from the sentencingobjectives and principles mentioned and are demonstrably unfit. [55] Accordingly, it is necessary to determine fit sentences for those four offences, and then having done so, to consider theprinciple of totality. In doing so, I am mindful that the sentencing judge determined that some of the sentences would be consecutive. Isee no error in this regard. [56] A short review of germane sentences from this Court will assist in determining the fit sentence for Mr. Dustyhorn.

In all caseswhich follow, this Court dismissed the offender’s appeal. [57] In R v Thompson, 1999 SKCA (SentDig) 39, the accused was convicted of two counts of uttering threats, (s. 264.1(1)(a)). Hewas serving an eighteen-month sentence when he telephoned the victim with whom he had previously been involved in a relationship. Hemade numerous threats including giving “her a licking like the other people who messed with him” and sending her to her family withknives sticking in her back. He also told her that when he was released, he would beat her and kill her with a baseball bat.

The accusedreceived a sentence of one year incarceration consecutive to another sentence being served plus two years’ probation. [58] In R v Munroe, 2005 SKCA (SentDig) 50, the accused was convicted of uttering threats, (s. 264.1(1)(a)). After being releasedfrom jail on another offence, he attempted to make contact with his common law spouse through her sister, the victim in this case. Hecalled the victim and threatened to slit her throat. A few weeks later, the accused called the victim several times in one day.

He continuedto make threats and told her that he would stab her if she did not tell him where his wife was. At the time, the accused was bound by aprobation order. He was sentenced to one year of incarceration. [59] In R v Dwayne Raymond Ilg, 2009 SKCA 76, 331 Sask R 151, the accused was convicted of two counts of uttering threats(s. 264.1(1)(a)). He went to his former common law spouse’s door and became angry when she refused to let him in. He said, “[d]o youwant me to kill you before I leave? I’d like to. I want to.” In light of their past relationship, she was worried the threat would be carriedout.

She pushed the accused out the door and closed it. The second offence occurred three months later when he threatened to kill thewife of a man whom the accused considered responsible for his being banned from a local bar. The accused made threatening gestures to

the complainant’s wife with his fists and said, “Call the cops on me, I’ll fucking kill you.” He later drove to the man’s place of employment and made threats to kill the man. The accused received eighteen months incarceration on the first offence and one year consecutive on the second. [ 60 ] In R v Sunshine , 2016 SKCA 104 , 484 Sask R 259, the offender was convicted of assault causing bodily harm ( s. 267 (b)). The offender and a woman whom he had just started dating were drinking at the residence of the offender’s mother. The two eventually began arguing. The offender elbowed the complainant in the ribs.

He banged her head against the wall a number of times, and then punched the complainant in the face twice and banged her head against a windowsill three times, breaking her nose and fracturing her eye socket in the process. He was sentenced to eighteen months incarceration. [ 61 ] In R v Kearn , 2014 SKCA 15 , 433 Sask R 105, the accused was convicted of assault causing bodily harm ( s. 267 (b) ). He broke the complainant’s nose by head-butting her.

He was sentenced to fourteen months incarceration. [ 62 ] In R v Meyers , 2012 SKCA 98 , 399 Sask R 261, the accused was convicted of assault causing bodily harm ( s. 267 (b)) and two counts of uttering threats ( s. 264.1(1) (a)). The accused punched the complainant many times in the face and yelled that she was “not going anywhere” and that he would “kill her”. Three weeks later, when the accused was released on a recognizance, he called her and threatened to kill her if she showed up for trial. He also told her to watch her back. Injuries to the complainant’s face were significant as a result of the attack.

The offender was sentenced to twenty-seven months incarceration for the s. 267 (

b) offence and received six months concurrent for each of the s. 264.1(1) (

a) charges. [ 63 ] In R v Kittiekaywinnie , 2017 SKCA (SentDig) 28, the accused was convicted of assault ( s. 266 ). He was on a probation order pursuant to a prior assault on his girlfriend and was not to contact her or attend her residence. He obtained keys to her apartment and entered. Their two daughters—aged eighteen months and three months—were present at the time. The accused and his girlfriend had a physical altercation. When the police arrived, she told them she had been beaten by the offender. Her injuries were consistent with being punched in the face.

Blood was dripping from her right upper lip down onto her shirt and her leg. He received ten months incarceration. [ 64 ] In R v Kahpoonapit , 2010 SKCA (SentDig) 2, the accused was convicted of four counts of assault ( s. 266 ). Two of the charges came about because the accused pushed his common law spouse and her sister-in-law. As a result, the sister-in-law had a black eye and was bleeding above her eye. A few months later, he breached his no-contact order with his common law spouse by going to her home. He proceeded to slap her face four times with an open hand. He also kicked her in the head.

He received one year, six months incarceration consecutive, and six months concurrent (x2). [ 65 ] In my view, giving effect to the objectives of denunciation, deterrence and protection of the public, and applying the principle of proportionality, a fit sentence for each of the four offences discussed above shall be as follows: 4. Nine months for knowingly uttering a threat to M.Q. on November 30, 2015, to cause death to M.Q., contrary to s. 264.1(1) (

a) of the Criminal Code , concurrent to all other sentences imposed. 5. Twelve months for knowingly uttering a threat to M.Q. and C.K. on November 30, 2015, to cause death to A.K., B.K., and A.C., contrary to s. 264.1(1) (

a) of the Criminal Code , concurrent to all other sentences imposed. 6. Fifteen months imprisonment for the assault causing bodily harm committed on M.Q. on November 30, 2015, contrary to s. 267 (

b) of the Criminal Code , consecutive to all other sentences imposed. 9. Fourteen months imprisonment for knowingly conveying a threat to C.K. by sending various Facebook messages on December 1, 2015, to cause death or bodily harm to C.K. and M.Q., contrary to s. 264.1(1) (

a) of the Criminal Code , consecutive to all other sentences imposed. [ 66 ] This represents an increase of fourteen months of incarceration. VI. Conclusion [ 67 ] The appeal of the Crown with respect to the above-noted four offences is allowed. The Crown appeal with respect to all of the other offences is dismissed. The appeal of Mr. Dustyhorn is dismissed. “Ottenbreit J.A.” Ottenbreit J.A. I concur. “Caldwell J.A.” Caldwell J.A. I concur. “Barrington-Foote J.A.” Barrington-Foote J.A.