THE COURT OF APPEAL FOR SASKATCHEWAN HER MAJESTY THE QUEEN and KEVIN EUGENE McGUIGAN CORAM: The Honourable Chief Justice Bayda The Honourable Mr. Justice Wakeling The Honourable Mr. Justice Sherstobitoff COUNSEL: G. JOSEPHSON for the Appellant C.A. SNELL Q.C., for the Respondent DISPOSITION: Appeal Heard: May 4, 1995 Appeal Allowed: May 10, 1995 On Appeal From: QBCNJ 103/94 J.C. Regina Appeal File: 6597 Reasons by: The Honourable Mr. Justice Wakeling In concurrence: The Honourable Chief Justice Bayda and The Honourable Mr. Justice Sherstobitoff WAKELING J.A. The appellant pleaded guilty to the following charge:That Kevin Eugene McGuigan of Regina between 1 October 1991 and 31 October 1993 at or near Regina did commit numerous assaults on Ashley Bjornson by slapping and striking her with miscellaneous objects, contrary to s. 266 of the Criminal Codeand was sentenced to one year imprisonment and one year's probation. The evidence indicated that the assault consisted of cuffing the eight year stepdaughter rather frequently as a disciplinary measure. There was also an incident where a small paddle was employed and she had been struck with a cookie box. No injury had ever resulted from these assaults. The more grievous conduct was the belittling and sarcastic verbal abuse the appellant directed frequently at the child over her eating habits and consequent weight. At trial, the Crown and defence agreed that it was probably an instance where fine and probation order would create the necessary special deterrence and parental guidance the situation called for. The trial judge was however of the view that the conduct of the accused warranted more severe penalty. We have concluded that the trial judge must have been influenced to substantial degree by the lack of parenting skills displayed by the appellant in the way he mistreated and verbally abused the young girl in manner which was demeaning and destructive of her self image. As offensive as that conduct may be, a lack of parental skill does not constitute a criminal offence and the only thing that the appellant pleaded to was an assault which was not severe and produced no injury. The sentence of one year under these circumstances, even with the record of the appellant, is excessive. In addition, it will no doubt mean the appellant would lose his current employment upon which the family is reliant. We are mindful of the fact the Crown and defence counsel recommended fine and probation, but we must also be aware of the view the trial judge took of the appellant's conduct and accept that some degree of incarceration is appropriate given the position of authority he enjoyed and the existence of his past criminal record even though it does not include similar instances of violence. We therefore conclude the appeal should be allowed and a sentence of 60 days intermittent be substituted for the sentence of one year. The sentence to commence at 5:00 p.m. on Friday May 12th with release each Monday morning after the weekend. The probation order is to remain unchanged except to substitute the word `approved' for `supervised' in the first condition. DATED at the City of Regina, in the Province of Saskatchewan, this 10th day of May, A.D. 1995. WAKELING J.A. concur BAYDA C.J.S. concur SHERSTOBITOFF J.A.
The accused pleaded guilty to a charge of assaulting his 8 year old stepdaughter by slapping her and striking her with a small paddle. The Crown and counsel for the accused agreed that a fine and probation would be appropriate. The trial judge sentenced him to 1 year in prison and 1 year's probation. He appealed his sentence. HELD: Appeal allowed. 1)The force applied was minimal and the child was not injured physically. 2)The sentence imposed would result in the accused losing his employment which would harm his dependents. 3)The Court reduced his sentence to 60 days intermittent.