New & Notable: Staying fit regardless of the range

Bruce MacDonald's wife cheated on him.  He was angry.  His anger turned into physical violence.  He was charged.  He pleaded guilty and was convicted.  He was sentenced to five and a half years in jail.  He appealed.  His appeal was dismissed: 2012 BCCA 155.

The facts were succinctly summarized by Smith JA as follows:

The offences involved a deliberate course of persistent conduct by Mr. MacDonald to terrorize and punish Ms. Dubash, his wife of six years, and Mr. Zeeso, her new partner, for Ms. Dubash's infidelity.  The nautre of the offences escalated from uttering threats to kill Ms. Dubash and Mr. Zeeso, followed by his first assault upon Ms. Dubash; they culminated in the events of November 26, 2010, in which Mr. MacDonald breached his conditions of bail (on the assault charge against Ms. Dubash), stalked her home, and ultimately broke into her apartment where he viciously attacked both her and Mr. Zeeso with a baseball bat while they were sleeping [para 8].

These offences began when MacDonald suspected his wife was cheating on him.  He manipulated his son to give up the victim's computer password and he reviewed her emails.  He confirmed his suspicion. Thereafter he began a campaign of threats and verbal abuse of his wife and ultimately called Zeeso and threatened to kill him.  His wife told him she was going to leave him; this sent MacDonald into a frenzy and he attacked her.  He threw her onto the bed, straddled her, punched her in the head and strangled her to unconsciousness.  During the attack he told her he was going to kill her [para 11].

MacDonald was arrested as a result of this attack.  He was released on bail.  He breached, by contacting her, was re-arrested and again was released.

On November 26, 2010 he entered her apartment and entered the bedroom where he found Zeeso and Dubash sleeping.  He attacked them with a baseball bat.  He struck them both several times with the bat.  They were both seriously injured.

On appeal MacDonald argued that the sentence was outside the range of sentences for aggravated assault - a range which fell between 16 months and 6 years: R v Johnson, 1998 CanLII 4838 (BCCA; R v Blin, 1999 BCCA 369; and R v Craig, 2005 BCCA 484 - and contrary to section 718.2.  

With respect to fitness the court cited R v Nasogaulak, 2010 SCC 6 at paras 43-49 wherein the Supreme Court noted that the fitness of a sentence may be considered by looking at ranges, however, a sentence outside the range is not necessarily unfit if it is otherwise in accordance with the "circumstances of hte offence and the offender" and the principles of sentencing.  Accordingly, the court held, that the sentence was at the high end of the range was not determinative or even perhaps instructive.  

Turning to consider the principles and issues, the court rejected the argument that the injuries were not serious enough to warrant the sentence imposed:

With respect, there is nothing in the jurisprudence to support the submission that the extent of the injuries to a determinative of where in the range of sentences the appropriate sentence should fall.  While the extent of a victim's injuries is undoubtedly a relevant factor, it is the circumstances of the assault, including whether the attack was unprovoked, planned or spontaneous, or involved a weapon, that are most relevant to where in the range a particular sentence should fall.  Thereafter, additional aggravating or mitigating factors may increase or decrease the sentence. Fundamental to this balancing process is the overarching principle that a sentence should be proportionate to the gravity of the offence and the degree of responsibility of the offender [para 52].

In the end the court dismissed the appeal.