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SENTENCING - Denunciation - Health (incl. mental health) - Domestic abuse

Monday, September 21, 2020 @ 9:27 AM  

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Appeal by the Crown from sentence of four years’ imprisonment for attempted murder. The respondent attacked her former spouse’s wife with a knife. The respondent held her former spouse and his new wife responsible for the fact that she had not seen her daughter for two years. She clearly told the police that her intention was to kill the victim. She had been thinking about killing the victim for a few weeks and left home with a knife with the intention of going to kill the victim. The only documentary medical evidence describing the respondent’s mental health was a two-page discharge record signed by a psychiatrist when the respondent was discharged from the psychiatric unit of a hospital in 2011 following a suicide attempt. She was diagnosed with major depressive disorder and alcohol dependent. From 2010 to 2011, following the breakdown of her marriage, the respondent experienced mental health and alcohol addiction problems that prompted her to attempt suicide twice. After 2011, she consistently took the medication prescribed and followed the treatment plan and reported that there had never been a problem. She was sober for six years and worked as a nursing assistant for 24 years. The Crown argued the sentencing judge erred by considering the respondent’s mental health problems as a significant mitigating factor without proof of a link between those problems and the commission of the offence.

HELD: Appeal allowed. Sentence was varied to eight years’ imprisonment. The judge erred in principle by considering the respondent’s mental health problems as a significant mitigating factor. The presence of a mental illness did not automatically constitute a mitigating factor. The mere fact that the respondent gave incriminating statements to the authorities could not, in and of itself, support the existence of mental health problems. These were informed statements, admissible and probative evidence of guilt for the crime of attempted murder. There was no evidence the respondent was out of touch with reality due to mental illness at the time of the offence or at any other time. The commission of an offence which was not driven by a mental disorder, but rather by hatred, resentment and a desire for revenge, could not be a mitigating factor. Since the judge considered the respondent’s mental illness was a mitigating factor, she failed to give due weight to the objectives of denunciation and deterrence. The respondent planned her attack on the victim, and there was no doubt that she intended to kill her. She was able to stab her with the knife in three places. The fact that she failed in killing the victim or injuring her more seriously did not diminish her moral blameworthiness. The actions were taken in a domestic violence context. Sentence: Eight years’ imprisonment.

R. v. Pond, [2020] N.B.J. No. 181, New Brunswick Court of Appeal, K.A. Quigg, B.L. Baird and L.A. LaVigne JJ.A., August 13, 2020. Digest No. TLD-September212020001