New Brunswick’s High Court Denies Using Parity Principle to alter sentence for armed home invasion

NBCA

New Brunswick’s Highest court has denied invoking the parity principle to reverse a Dieppe, NB man’s conviction for a nightmarish home invasion back in 2016. The Appellant was sentenced to four years in prison in 2017 after pleading guilty to charges including break and enter forcible confinement, uttering a death threat, pointing a firearm and careless storage of a firearm.

The charges stem from an incident with an ex-partner who was living separately from the accused at the time. The appellant showed up twice in the same night, heavily intoxicated, and on his second visit kicked in the door and held the victim at gunpoint for an almost two-hour ordeal. The victim was able to stall long enough for police to arrive, but still sustained injuries in the encounter. The trial judge considered both aggravating and mitigating factors in her sentencing of the appellant including:

  • The appellants grade 12 education
  • His good 30-year record of employment
  • A prolonged battle with anxiety and depression for which medications were prescribed
  • The commission of the offence to place under the influence of alcohol and prescription medication
  • The high risk of injury or death present during the home invasion
  • The appellants’ guilty plea, lack of past criminal record, and expressions of remorse
  • A 30-day psychiatric assessment that showed the appellant was fit to stand trial

“Tonite is the night we die”

On appeal, counsel for the appellant raised an un-pleaded issue: that the sentencing judge failed to apply the parity principle. The parity principle tries to yield a sentence similar to those imposed “on similar offenders for similar offences committed in similar circumstances”. In R v Liebeck the NBCA stated that :

“The precedents invoked must involve (1) similar offenders; (2) similar offences; (3) similar offence-related circumstances. Although our criminal law commands individualized dispositions that reflect the fundamental principle of proportionality, it aspires to achieve rational uniformity through the parity principle”

In the opinion of the court, this case did not offend the parity principle as the appellant could not cite any precedents involving a similar offender in similar circumstances in the province. His situation was one which was uniquely alarming and shocking to the community.

“It is no longer open to question that the courts must be particularly attentive to spousal and family violence, and must express society’s intolerance for this type of violence by means of appropriately severe sanctions. Contrary to the appellant’s contention, the sentencing judge considered rehabilitation, but quite properly declined to let that objective override the need for deterrence and denunciation.”

The appellant further appealed that the sentencing judge did not properly consider mitigating factors such as the appellant’s lack of criminal record, good work record and his remorse for his actions. In rejecting these grounds of appeal, the court noted that cases involving spousal violence and home invasions, rehabilitation is not a primary goal of sentencing. Deterrence and denunciation are the primary sentencing considerations for these types of crimes. In rendering this decision, the NBCA has sent a strong message to future perpetrators of extreme spousal violence, that remorse and rehabilitation will not be enough for these serious, life-altering criminal actions.