S.C.C. 02288 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION Clarke, C.J.N.S., Hallett and Matthews, JJ.A. BETWEEN: ROGER KENNETH PORTER and HER MAJESTY THE QUEEN Respondent Deborah M. Gass for the appellant William D. Delaney for the respondent Appeal heard: October 16, 1990 Judgment delivered: October 16, 1990 THE COURT: Appeal against sentence allowed and sentence varied to twelve months imprisonment for offence of aggravated assault causing bodily harm (Criminal Code, s. 268(1)) per oral reasons for judgment of Clarke, C.J.N.S.; Hallett and Matthews, JJ.A. concurring. The reasons for judgment of the Court were delivered by: CLARKE, C.J.N.S.: The appellant applies for leave to appeal from sentence of two years less one day and an order of two years probation imposed on May 8, 1990, by the Honourable Judge MacDonnell. The appellant entered guilty plea to charge of aggravated assault contrary to Section 268(1) of the Criminal Code. The offence was committed at Joggins where, late in the evening and while intoxicated, the appellant fired shots from his 12‑gauge shotgun, first at the mobile home wherein the parents of his estranged wife lived and, second, at his brother‑in‑law, who was injured in the leg. The latter was admitted to hospital for treatment. The appellant contends the trial judge erred by placing undue emphasis on general deterrence and failing to adequately consider the circumstances of the offence and the offender. Aggravated assault is serious offence for which the Code provides maximum penalty of fourteen years. The acts of the appellant placed the lives of several persons at risk, particularly that of his brother‑in‑law. After reviewing the record and the remarks of the trial judge at sentencing and after considering the submissions of counsel, we' are of the opinion that the trial judge imposed a sentence which fails to adequately reflect the special circumstances of the offender. Accordingly, we grant leave to appeal and allow the appeal by varying the sentence to twelve months incarceration. The other orders issued by the trial judge will continue. C.J.N.S. Concurred in: Hallett, J.A. Matthews, J.A. CANADA PROVINCE OF NOVA SCOTIA CAM 6710 IN THE SUPREME COURT OP NOVA SCOTIA APPEAL DIVISION on appeal from THE COUNTY COURT JUDGE'S CRIMINAL COURT OF DISTRICT NUMBER FIVE HER MAJESTY THE QUEEN v. ROGER KENNETH PORTER HEARD BEFORE: The Honourable Judge B. J. MacDonnell, J.C.C. PLACE HEARD: Amherst, Nova Scotia DATE HEARD: May 8, 1990 COUNSEL: C. Ellis, Esq., for the Prosecution D.M. Gass, for the Defendant APPEAL ON SENTENCE S.C.C. 02288 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION BETWEEN: ROGER KENNETH PORTER and HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT OF CLARKE, C.J.N.S.
Appellant, who was intoxicated, fired shots at the mobile home where the parents of his estranged wife lived and at his brother-in-law, who was injured. 2 years less a day plus 2 years probation varied to 1 year incarceration with two year probation and firearm prohibition - trial judge placed undue emphasis on general deterrence and failed to adequately consider the special circumstances of the offender.