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SENTENCING - Criminal Code offences - Aggravated assault

Tuesday, May 14, 2019 @ 8:29 AM  

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Appeal by the Crown from the sentence of 10 months’ imprisonment, less three and a half months for time served, imposed on the 28-year-old indigenous respondent following his conviction for aggravated assault. The respondent, in an unpremeditated attack, swung his pocket knife at the victim, cutting the victim’s face open from just below the ear to his chin. The victim required surgery to repair the injury. He suffered permanent nerve damage and was left with a large scar. The respondent had a criminal record that included nine convictions. The Gladue report indicated there was an unsubstantiated possibility the respondent had cognitive impairments consistent with Fetal Alcohol Spectrum Disorder. The sentencing judge relied on comparator jurisprudence for assault with a weapon offence. He found the sentencing range for aggravated assault was from six months to six years.

HELD: Appeal allowed. The sentencing judge did not err in considering analogous assault with a weapon cases when sentencing for the within offence. His reasons demonstrated he appreciated the distinction between the offences. The sentencing judge’s error in not considering the impact of the offence on the victim separately from the severity of the injury did not in itself impact the sentence. The 10-month sentence was demonstrably unfit and an unreasonable departure from the principle of proportionality. The sentencing judge minimized the seriousness of the offence and placed undue emphasis on the respondent’s cognitive limitations in assessing his degree of moral blameworthiness without evidence those limitations played a role in his conduct. The appropriate sentencing range for aggravated assault was from 16 months to six years’ imprisonment. A fit sentence for the respondent was two years’ imprisonment, less time served. Dissenting reasons were provided. Sentence: 20 and a half months’ imprisonment; 30 months’ probation -- Criminal Code, s. 268.

R. v. Quash, [2019] Y.J. No. 33, Yukon Territory Court of Appeal, S. Stromberg-Stein, P.M. Willcock and B. Fisher JJ.A., April 5, 2019. Digest No. TLD-May132019004