J. IN THE SUPREME COURT OF NOVA SCOTIA Citation: R. v. Pinch, 2005 NSSC 122 Date: 20050512 Docket: CRSK 237154 Registry: Kentville Between: Her Majesty the Queen v. Steven Lee Pinch Defendant Judge: The Honourable Justice Donald M. Hall Heard: May 12, 2005, in Kentville, Nova Scotia Release of Written Decision: May 25, 2005 Counsel: Shane Parker, Crown Attorney Robert Stewart, for the Defendant By the Court: [1] The accused, Steven Lee Pinch, had previously entered guilty pleas to five counts contained in an indictment. There are eight counts in the indictment but the crown has withdrawn action on the remaining counts other than those that we are dealing with today. [2] The first count the accused has pled guilty to is the number two count in the indictment. The charge, as framed, was originally charge of aggravated assault under section 268(2) of the Code but the accused pleaded not guilty to that charge but guilty of the included offence of being party to unlawfully causing bodily harm to James Stuart Eustace contrary to section 269(a) of the Criminal Code. That was accepted by the Crown and the Court. [3] The second count is number three in the indictment, that the accused:on or about the 12th day October, A.D. 2004 at or near Aldersville in the County of Lunenburg, Province of Nova Scotia, did break and enter the dwelling house of James Eustace and did commit therein an indictable offence contrary to Section 348(1)(d) of the Criminal Code. The previous offence also occurred at Aldersville in the County of Lunenburg. [4] The fourth count, which is the third count to which the accused pleaded guilty, is that he:on or about the 12th day October, 2004, at or near Aldersville in the County of Lunenburg, Province of Nova Scotia, did break and enter the shed of Brian MacNutt and did commit therein an indictable offence contrary to section 348(1)(e) of the Criminal Code. [5] The fifth count, which is the fourth count to which a guilty plea has been entered, is as follows that he:on or about the 12th day of October A.D. 2004 at or near Berwick, in the County of King, Province of Nova Scotia, did break and enter the dwelling house of Dorothy Benedict and did commit therein an indictable offence, contrary to section 348(1)(d) of the Criminal Code. [6] And finally count six, that he:on or about the 12th day of October A.D. 2004, at or near Waterville in the County of Kings, Province of Nova Scotia, did break and enter the dwelling house of Roger Quirk and did commit therein an indictable offence, contrary to section 348(1)(d) of the Criminal Code. [7] The facts have been outlined in considerable detail by counsel for the Crown, Mr. Parker and Mr. Stewart, counsel for the accused, acknowledges that he is substantially in agreement with the facts as stated by crown counsel. Accordingly will not go into recitation of the facts in any detail but just simply state that, as understand it, what took place here was that the accused met up with the co-accused, Adam Best, and woman named Grace Parker, at the residence of man named Joey States, on October 11, 2004. That was the first time the accused had met these people. On the next day, it appears it was at the suggestion of Mr. Best, they journeyed to Aldersville where Mr. Best said there was stash of goods that they could get and sell and use the proceeds to buy drugs or for other purposes. Apparently they drove off in Ms. Parker’s motor vehicle with Mr. Pinch driving. They first arrived at the MacNutt residence early in the morning of October 12. They went up to the residence where there was shed located. The accused and Mr. Best broke into the shed and removed number of items and property. As understand it, they then returned to Kentville with the property where it was stored for future disposition. [8] Following that, they returned to the Aldersville area with Mr. Pinch driving and went to the residence of James Eustace. They parked the car on the highway and both the accused and Mr. Best walked up long driveway to the residence of Mr. Eustace. The accused had never been there before and was not aware of who lived there or if anyone lived there. The co-accused, Mr. Best, apparently was carrying metal pipe of considerable length with him as they proceeded to the Eustace residence. At the Eustace residence Mr. Best put his shoulder to the door of the residence and caused it to open and simultaneously triggered an outside light. At that point Mr. Eustace came to the door and within very short period of time he was struck number of blows on his head and body by Mr. Best with the metal pipe. These blows caused very serious physical injuries to Mr. Eustace, as indicated in the photos that were presented in court by Crown counsel. [9] As understand it and think this is not disputed, when the light came on Mr. Pinch started to run to leave the premises, however, he did not go far and he was at the corner of the building and did observe Mr. Best striking Mr. Eustace. Shortly thereafter, the two entered the premises and removed number of items of property including some money and believe prescription drugs. Mr. Pinch saw that the accused was in either conscious or semi-conscious state and observed him long enough to see that he was still breathing and apparently did reach for the telephone to call for help but did not complete the action and did not call and did not lend any assistance to Mr. Eustace. The parties then left the Eustace residence and, take it, returned to the residence of either Mr. Best or Ms. Parker, it is immaterial. [10] Later that day, in the afternoon of October 12, they then proceeded to the Berwick area where they broke into two more residences and stole number of items of property from both the residence of Ms. Dorothy Benedict as set out in the fifth count, and the property of Mr. Quirk as set out in the sixth count. [11] It seems that later that day the accused was driving Ms. Parker’s vehicle and for whatever reason went off the road and the vehicle upset. The police arrived eventually to lend assistance to him and he was taken to hospital. In the course of the investigation of the accident the police discovered number of items that appeared to have been stolen from the properties mentioned above. As result the accused was confronted by the police, as to being participant in the breaks and the thefts. He apparently quite readily acknowledged his involvement and, as stated by crown counsel and concurred with by defence counsel, Mr. Pinch, the accused, co-operated fully with the police including testifying against Mr. Best at his trial. As have already indicated he did plead guilty number of weeks ago and as result an extensive trial has been avoided. [12] have had the benefit of reading pre-sentence report and of hearing submissions by counsel. The pre-sentence report was prepared back in November of last year in connection with two other offences that the accused was awaiting sentence on at that time. However, am satisfied and take it counsel are satisfied, that it is sufficiently current so as to provide the required information for the court on this occasion and that nothing significant has occurred since the preparation of that report. must say that found this pre-sentence report to be one of the best prepared reports of that nature that have had the opportunity of reading during my years on the bench and involvement in the criminal justice system as lawyer. It seems to me that the writer of the report, Mr. MacInnes, has assessed the situation of the accused very fairly and objectively. [13] The report indicates that the accused is now 23 years of age, that he has a Grade X education and that he has had sporadic employment over his adult years at his employment as a labourer. The report also indicates, to my mind, that the accused had less than perfect upbringing as child and undoubtedly fair amount of instability in his years beginning particularly when he was in adolescence, which is probably one of the most difficult stages and important years in the development of young person. [14] Crown counsel has pointed out that the accused has previous criminal record. noted, reference to charge of mischief in June of 2002, and fine of $400.00 was imposed. In March of 2003 conviction for theft, take it for goods under the value of $5,000.00, where fine of $100.00 was imposed. In August of 2004 he was convicted of break and enter under s. 348 of the Code and of breach of an undertaking, for which he was sentenced to four weeks imprisonment. In September of 2004 he was convicted of theft and possession of stolen goods and breaking and entering, for which he received total fine of fifteen days. In February of 2005 he was convicted of being unlawfully in possession of prohibited weapon and also of possession of stolen goods, for which he was sentenced to total term of 90 days in jail for these offences. Those are the offences for which the pre-sentence report was prepared. [15] The general principles of sentencing are set out in some detail in ss. 718, 718.1 and 718.2 of the Criminal Code. Section 718 says: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community. [16] want to refer just very briefly to decision of former Chief Justice of this province, Chief Justice McKinnon, in decision that he rendered in 1971, the case of R. v. Grady (1973) N.S.R.(2d) 264. Much of what Chief Justice McKinnon said at that time is reflected in the principles of sentencing set out in the Code that am referring to. Chief Justice McKinnon said at paragraphs and 6: .It has been the practice of this court to give primary consideration to protection of the public, and then to consider whether this primary objective could best be attained by (a) deterrence, or (b) reformation and rehabilitation of the offender, or (c) both deterrence and rehabilitation. He goes on at to quote from decision of Chief Justice Culliton. He said at paragraph 6: Chief Justice Culliton notes at page 309 (of another case he was referring to): The real problem arises in deciding the factor to be emphasized in particular case. Of necessity, the circumstances surrounding the commission of an offence differ in each case so that even for the same offence sentences may justifiably show wide variation. He goes on to say in paragraph 7: It would be grave mistake, it appears to me, to follow rigid rules for determining the type and length of sentence in order to secure measure of uniformity, for almost invariably different circumstances are present in the case of each offender. There is not only the offence committed but the method and manner of committing; the presence or absence of remorse, the age and circumstances of the offender, and many other related factors. For these reasons it may appear at times that lesser sentences are given for more serious offences and vice versa, but the court must consider each individual case on its own merits, even if the different factors involved are not apparent to those who know only of the offence charged and the penalty imposed. [17] To go on with the sections of the Criminal Code that are applicable here. Section 718.1 says in part: 718.1 sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender Section 718.2 states in part: 718.2 court that imposes sentence shall also take into consideration the following principles: (a) sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, (b) sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. [18] Another provision of the Code which is referred to by counsel and must be given consideration here is s. 348.1 which states: If person is convicted of an offence under any of subsection 279(2) or section 343, 346 and 348 in relation to dwelling-house, the court imposing the sentence on the person shall consider as an aggravating circumstance the fact that the dwelling house was occupied at the time of the commission of the offence and that the person, in committing the offence, (a) knew that or was reckless as to whether the dwelling-house was occupied and (b) used violence or threats of violence to person or property. It appears that the provisions in the latter two paragraphs are cumulative. [19] Turning briefly to the range of sentence, would point out that the maximum sentence for an offence of being party to causing bodily harm under s. 269(a) is ten years. The maximum sentence for breaking and entering dwelling house under s. 348.1(b) is life imprisonment and for breaking and entering property other than dwelling-house under s. 348.1(e) is ten years. So, in three of these charges that the accused has pleaded guilty to the maximum penalty potentially is life imprisonment, whereas in the other two the maximum penalty is ten years. [20] Further, as to the range of sentence, Mr. Parker, on behalf of the Crown, has quite properly pointed out that in decision of the Nova Scotia Court of Appeal, in R. v. Harris, the court stated that an appropriate range for offences involving home invasions, which would be the case here, particularly with respect to the Eustace property, the appropriate range is eight to ten years imprisonment. The court certainly must take that into account in determining the proper sentence in this case. [21] Mr. Stewart referred to two cases respecting credit that is to be given for an accused person co-operating with the police. The first one that he referred to is R. v. Kirby, 1981 CanLII 3363 (ON SC), 1981 CarswellOnt 1266, 61 C.C.C.(2d) 544, decision of Judge Grayburne of the then Ontario County Court. In paragraph 24 of that decision Judge Grayburne said the following: More recently in the case of R. v. Lowe, which was decided in 1997, and is reported in 66 Cr. App. R. 122, Lord Justice Roskill speaking on behalf of the Court of Appeal, Criminal Division, at p. 125, said as follows: It must therefore be in the public interest that persons who have become involved in gang activities of this kind should be encouraged to give information to the police in order that others may be brought to justice and that, when such information is given and can be acted upon and, as here, has already been in part successfully acted upon, substantial credit should be given upon pleas of guilty especially in cases where there is no other evidence against the accused than the accused's own confession. Unless credit is given in such cases there is no encouragement for others to come forward and give information of invaluable assistance to society and the police which enable these criminals and these crimes are all too prevalent, not only in East London, but throughout the Country to be brought to book. Those are the considerations this Court has to have in mind. [22] Then in the decision of R. v. John Doe, 1999 CanLII 15051 (ON SC), 1999 CarswellOnt 4491, 142 C.C.C.(3d) 330, decision of Justice Hill of the Ontario Superior Court of Justice, and might point out as counsel are probably aware, Justice Hill in his previous career was one of the leading prosecuting counsel in the Province of Ontario and was certainly outstanding in his field. He said at paragraph 19 of that decision: An alleged offender's willingness to cooperate in the investigation or prosecution of others, or the extent to which he or she has already done so, is relevant to both the public interest in continuing prosecution of the accused or, if immunity is not granted, to plea agreements respecting the appropriate sentence: Report of the Attorney-General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions (the Martin Committee Report) (1993), (chaired by the Honourable G.A. Martin, Q.C.) at pages 100, 303. [23] In this case the Crown has recommended to the court that the appropriate sentence, having regard to all of the circumstances and with particular regard to the low end of the range suggested by the Court of Appeal in Harris, that the proper sentence is period of six years incarceration. In addition, Mr. Parker proposes that there should be DNA order and that there should be life long prohibition from the possession of weapons and so forth under s. 109(1)(a) of the Criminal Code. [24] Mr. Stewart on behalf of the accused has urged the court to impose sentence of two years to maximum of four years and he, on behalf of the accused, does not oppose the other two dispositions proposed by Mr. Parker. [25] There are number of special considerations that go for and against the accused that must be taken into account in this instance. First, on the plus side, it is acknowledged that he readily admitted his culpability and co-operated fully with the police, including testifying at the trial of his co-accused and, as counsel have indicated, the co-accused was found guilty yesterday of similar counts in this matter. So, it can be said that the co-accused was successfully prosecuted and undoubtedly the co-operation and testimony of Mr. Pinch contributed to the success of the prosecution. [26] As well, the court must take into account that the accused has pleaded guilty to the counts that are before the court. He did not plead guilty initially, but think that is understandable in view of the fact that he was initially charged with count of attempted murder and also aggravated assault, both of which the Crown consented to abandoning. He did plead guilty before the matter was actually going to trial. [27] The normal credit as the experts tell us, and the jurisprudence for an accused pleading guilty at reasonable stage of the proceeding, is credit of 25 percent off the penalty that would otherwise be imposed. [28] Another factor that considered, as have indicated, it seems to me that the accused did not have the best guidance in his early years and that he had an unfortunate and unstable home environment throughout his most formative years. As well, he has spent seven months already in custody respecting these matters. The credit that is given for pre-trial confinement or custody is often taken at two for one or in some cases it has been suggested that three for one is the appropriate factor. In any event, seven months is fairly lengthy period of time for person to be in custody and, as understand it, in this case the accused, because of his co-operation with the police has had to be in protective custody virtually throughout his initial confinement. Indeed, Mr. Stewart pointed out that he has already been the recipient of some threats as result of his co-operation with police authorities. think it is fair to say, and don't believe counsel dispute this and it is confirmed to some extent by the pre-sentence report, that the accused is more of follower than leader and, particularly in these cases, he was not the main driving force or the main perpetrator of the offences. [29] On the down side however, the court must take into account the very serious nature of the attack on Mr. Eustace and the very serious consequences that flowed from that, the assaults on his person, and the fact that even though Mr. Pinch apparently felt that he should call for aid, he, in the end, declined to do so, probably out of sense of self preservation, but at no time did he make any other attempt to alert the appropriate parties to obtain assistance for Mr. Eustace. Indeed both Mr. Pinch and Mr. Best, as well as the victim himself of course, are fortunate that Mr. Eustace did survive the onslaught. Otherwise they would be facing very, very serious charge; much more serious charge than they are and, mind you, these are serious enough. [30] also have to take into account, as directed by s. 348.1 of the Code, the fact that at least one of these dwellings was occupied at the time the break and enter occurred. As well, Mr. Pinch has criminal record. must say that it seems fairly extensive and it obviously was escalating, but to the point when, after the time when these offences were committed and for which he now has criminal record, they basically could be referred to for the most part as relatively minor property offences, and, as Mr. Stewart characterized them as “petty theft”. Also, the weapons charge involved knife not firearm which, to my mind, is less serious than if it had been firearm or spring loaded knife or something of that nature. [31] In attempting to rationalize the range sanctioned by our Court of Appeal for sentences of home invasion, would accept, as Mr. Parker suggests, starting point at the low end of eight years. From that one should deduct a credit of two years at 25 percent for the fact of Mr. Pinch pleading guilty. A further credit, however, should be given for the time already served which, depending on which factor one chooses to use, either the two for one or three for one, would amount to another 14 to 21 months. Now, am not going to be able to rationalize this completely and don't think should, but also have to have in mind the very extensive benefit to the Crown as the result of the accused's co-operation with the authorities in admitting his own guilt and in assisting in pursuing the prosecuting of the co-accused, Mr. Best. To my mind a further reduction of one and one-half years would be justified. Counsel have suggested that the court should simply impose the penalty globally rather than trying to separate and determine an appropriate sentence with respect to each count. am satisfied that, in the circumstances, that is appropriate here because certainly the principle of totality would apply. [32] As I have indicated, I have concluded ,therefore, that the appropriate sentence in this case, having regard to all of the factors that I have mentioned, is that the accused serve a term of four years and six months in a federal institution. That sentence, without giving the credits as have for the time already served, would be very close to the sentence proposed by Mr. Parker for the Crown. At the same time have taken into account the factors emphasized by Mr. Stewart. [33] In addition will grant the so called DNA order as proposed by the Crown and will order that under s. 109.1(a) of the Criminal Code that the accused be prohibited from the possession of weapons, explosives and so forth set out in that section for the rest of his life. Donald M. Hall, J.
The 23 year old defendant pled guilty to two counts of breaking and entering a dwelling house and one count of breaking and entering a shed. He cooperated with the police and provided evidence against his co-accused. He had a previous criminal record, which included convictions for mischief, theft, break and enter, breach of an undertaking and possession of stolen goods. Defendant sentenced to four years imprisonment; in assessing the appropriate sentence, the court allowed a credit for time already served (which was served virtually throughout in protective custody), a credit of 25% for the fact that the defendant had pled guilty and a further reduction of one and a half years for the defendant's assistance in pursuing the successful prosecution of his co-accused.