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Conditional Sentence Order and Suspended Sentences

The following are some cases where Courts have made Conditional Sentence Orders or Suspended Sentences for charges of assault causing bodily harm, or assault with a weapon, and aggravated assault. The cases and the descriptions have been taken from CanLii and Quicklaw.

Conditional Sentence Orders

R. v. Sim- 2004 ABCA 349

Appeal by the Crown from the sentence imposed on the accused Sim. Sim was convicted of break and enter, assault with a weapon and uttering threats to cause serious bodily harm. He was 18 when he committed the offences and 19 when he was sentenced. Sim broke into a residence in search of the complainant. The complainant was alleged to have sexually assaulted a girl who was a friend of Sim. He found the complainant and assaulted and threatened him. Sim received a suspended sentence, two years probation and a 10-year firearms prohibition. The judge was satisfied that the requirements of denunciation and deterrence would be satisfied by a suspended sentence. Sim did not have a prior record.

HELD: Appeal allowed. The sentence was set aside and was replaced with a conditional sentence of one year of imprisonment. The sentence was demonstrably unfit. It did not meet the legitimate requirements of deterrence and denunciation. However, the court recognized the importance of rehabilitation for this youthful offender.

R. v. Stewart – [2005] A.J. No. 1942

Sentencing hearing following the accused’s guilty plea to charge of assault causing bodily harm — Accused swung his goalie stick with two hands towards the head of another hockey player during a hockey game — The blade struck the victim just above the mouth cutting it and knocking out three teeth and their roots — Counsel submitted joint submission — Counsel suggested 12 month conditional sentence — Accused had prior record including conviction on a drug charge and impaired driving — Accused was 51 years of age and had been married for 33 years — Accused had continuous work history and was a correctional officer for 25 years — Accused was semi-retired — He was actively involved in the community — Court heard victim impact statement — HELD: Accused received one year conditional sentence — Accused was not a danger to the community — Primary sentencing objectives were general deterrence and denunciation and rehabilitation — Accused expressed remorse — Accused was ordered to perform 150 hours of co mmunity service — $200 victim fine surcharge

R. v. Dooley- [2005] A.J. No. 1367

Offender pleaded guilty to assault causing bodily harm — The complainant sustained scarring on her face which required plastic surgery — Costs of plastic surgery would be $3,100 — Offender had paid the complainant $500 — Offender had no prior criminal record and was remorseful — A conditional sentence was appropriate — Sentence: Three month conditional sentence, $2,600 compensation order.

R v Perepelecta, 2004 ABPC 88 (CanLII), the accused was charged with aggravated assault in a case involving a beer bottle. The court found that the accused’s offence was “best characterized as an impulsive act as opposed to premeditated or planned.” It went on to say at para 25:

She did not deny her assault of the victim, just her legal motive or responsibility for it. Ms. Perepelecta’s relative degree of moral culpability is thereby at the minimum end on the scale of fault for this type of offence, and an appropriate sentence should reflect this.

[32]           Based on the various factors that the court outlined, it concluded that a 12-month conditional sentence would be a fit and proper sentence in that case.

 In R v Neuberger, 2014 ABPC 275 (CanLII),

Assault causing bodily harm Redman PCJ was dealing with a road rage incident in which the accused and two others beat up the victim. The accused continued to beat the victim even when the victim was down. Redman PCJ convicted the accused of assault causing bodily harm. The Crown was seeking a sentence of 7 to 12 months incarceration. The accused was seeking a conditional sentence order. The accused had positive pre-sentence report and Redman PCJ held that a conditional sentence would impose hardship on accused’s family and employment. He found that there was an element of pre-meditation, it was an unfair fight with 3 against 1, and there were multiple blows struck when complainant was on ground. He imposed a $5,000 fine, which was suitable punishment in the circumstances. He found that denunciation and deterrence were important principles although specific deterrence was not necessary as accused was not community safety risk and assault was an aberration from his normal behavior. He also said that the accused’s conduct had to be denounced and sentence had to serve as substantial warning to others that this type of behaviour would not be tolerated.

R. v. Burlington, 2008 ABPC 136

The Accused has pled guilty to a charge of assault causing bodily harm. While intoxicated in a bar, he hit the victim in the face with a beer bottle. The bottle broke, and the victim sustained serious personal injury. The matter is before the Court for disposition, and the issue is a fit sentence. For the reasons that follow, the Accused is sentenced to 12 months’ imprisonment to be served in the community, pursuant to a Conditional Sentence Order (CSO).

R. v. Knoblauch, 2000 SCC 58 (CanLII), [2000] 2 S.C.R. 780. In that case, the accused pled guilty to illegal possession of explosives and possession of a weapon for a purpose dangerous to the public peace. He had a lengthy history of mental illness and of dangerous handling of explosives. The Supreme Court of Canada restored the decision of the trial judge who imposed a conditional sentence, which was to be served in a locked, secure psychiatric facility, at his request. In referring to its earlier decision in Proulx, the Court stressed that dangerous offenders were not excluded from consideration for conditional sentences (para. 26). Further, despite the accused’s history, the risk of re-offending while serving the conditional sentence was no greater than it would be if the accused was ordered to serve his sentence incarcerated.

R. v. Perepelecta, 2004 ABPC 88 

[23]            Having reviewed numerous cases from other jurisdictions and Alberta, I recognize that where the offence is committed by an offender with a criminal record, where the nature of the attack is relatively brutal or premeditated, and the injury to the victim severe, a sentence of incarceration is likely to flow.  I find these cases distinguishable from the present one, in part, because Ms. Perepelecta is a first offender, and because her assault of the complainant was not premeditated and not completely unprovoked.  She did not break the bottle and use it as a knife-like weapon.  The assault itself was an instantaneous reaction in a tense situation and consisted of a single blow with a bottle.  The injuries suffered by the complainant while serious, were, nevertheless,  less severe than those suffered in the cases where the offenders intended to injure their victims.

ll of the circumstances and having particular regard to this offender and the nature of the offence, I find that the appropriate sentence is one to be served in the community.  The length of sentence and the conditions prescribed shall be appropriate so as to satisfy the objectives of denunciation and deterrence in these unique circumstances.  Accordingly, I sentence Ms. Perepelecta a term of imprisonment of 12 months, but as I am satisfied that the serving of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 of theCriminal Code, I am ordering that Ms. Perepelecta serve the sentence within the community subject to the following principal conditions that she:

Suspended Sentences

R. v. Perry- 2011 ABPC 221

Sentencing of Perry who was found guilty of assault causing bodily harm and mischief. In June of 2009, Perry entered into a heated verbal argument with the victim over the use of a batting cage in a public park. Both were coaches of their sons’ baseball teams. While the victim’s back was turned, and he was kneeling down engaged in picking up his baseballs, Perry approached him from behind and with a low undercut, punched the victim in his face. The victim consequently sustained an injury to his nose, requiring constructive surgery, and time off work. Counsel for the Crown sought a short, sharp period of intermittent incarceration. The Crown submitted that an intermittent sentence with two years’ probation would be an appropriate sentence as the primary sentencing factors were deterrence and denunciation. The Crown pointed to the aggravating factors being the severity of the victim’s injuries and the context of the offence. In mitigation, the Crown noted Perry’s positive pre-sentence report, positive character references and his lack of criminal record. The Crown took the position that a conditional discharge would not be appropriate because denunciation and deterrence were paramount sentencing factors. On the other hand, defence counsel did seek a conditional discharge, indicating that, but for this incident, Perry was of exemplary character. The defence argued that Perry was a responsible and active member of his church and his community, who had already paid enough of a price by being penalized by release conditions for over two years; suffering adverse publicity; and being frozen out of coaching for two years.

HELD: Perry given suspended sentence and one year probation. Taking all of the aggravating and mitigating factors into consideration, as well as the pre-sentence report, the case law cited and the arguments presented, a conditional discharge was not appropriate in all the circumstances of the case. Perry had not been provoked, and so a suspended sentence, with the attendant conviction registered, could be structured to combine both the requisite deterrent and rehabilitative requisites mandated by the circumstances. The entering of a conviction was an important factor in this case. Sentence: Suspended sentence; one year probation.

R. v. Yaholnitsky- 123 A.R. 151

The accused was sentenced after pleading guilty to charges of assault and assault causing bodily harm to his two daughters, aged 12 and 16. The 44-year-old accused hit each of his daughters on the buttocks with a wooden tennis racquet after they had been arguing with their mother about cleaning up their rooms. Both daughters suffered bruising to their legs, one had a broken finger, and the other a swollen knuckle. Both of the daughters wrote letters for the bail review hearing supporting family reunification. Neither they nor their mother wished the accused to be jailed. The Crown argued that the offence warranted incarceration.

HELD: The accused received a suspended sentence and a term of probation. The court agreed with the case law stating that courts should not tolerate child abuse and should send strong messages of deterrence. However, this case had unusual aspects which could not be overlooked. This was a single occurrence of a controlled, culturally learned disciplinary technique. The father, who quickly realized that the extent of the discipline had been excessive, apologized and sought immediate psychological help for himself and his family. According to the psychologist, the offender had been rehabilitated and would likely never offend again. Further, if this offender were jailed, the whole family would suffer financially and psychologically. The court considered whether the principle of general deterrence required incarceration, and determined that in this particular case, with its unusual circumstances, it did not.

R. v. C.R.P. -2009 ABPC 32

Sentencing of the accused for sexual assault. The accused pleaded guilty. The 17-year old complainant, a friend of the accused’s daughter, had been riding her horse at the accused’s acreage. After she finished riding, the accused engaged her in some unwanted discussion about sex. After he stood up to leave, he momentarily touched her vaginal area outside her clothing. The accused, 59, was married and had children. His family was supportive. The accused had been sexually abuse as a child. Since this offence occurred, the accused, of his own volition, had been attending counseling. The accused had a 1984 conviction for sexual assault and a 1977 conviction for indecent exposure after he urinated outside a drinking establishment.

HELD: Sentence suspended for two yeas. This was an assault at the very low end of the sexual assault continuum. Although this was not a parent-child or analogous trust situation, the accused did breach an element of trust with respect to this victim in that she was entitled to expect that she would be safe in his company while attending at the acreage to ride her horse. The prior record was dated and not weighed. The accused was not a recidivist, he did not represent a danger to the community and was clearly rehabilitable. The court considered the accused’s immediate guilty plea and cooperation with police, as well as the remorse shown. The circumstances of the offence and its consequences were not so egregious as to demand prison to achieve denunciation and deterrence. Denunciation and deterrence could also be served by this accused living in the community under the terms of community supervision. Suspending the passing of sentence for a period of two years subject to terms of a probation order appropriately addressed the principles of sentencing, including the primary objectives of denunciation and deterrence. Sentence: Two-year suspended sentence; DNA order.

Categories: Conditional Sentence Orders, Suspended Sentences
 
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