R. v. Henry

R. v. Henry Court Court of Appeal Date 2002-03-12 Citation 2002 NSCA 33 Docket CAC 172423 Judge/Registrar/Adjudicator Cromwell, Thomas A. (Honourable Justice); Roscoe, Elizabeth A. (Honourable Justice) (CA); Chipman, David (Honourable Justice) Document Type Decision Relations Library Sheet - R. v. Henry - 2002 NSCA 33 - 2002-03-12 - Library Sheet Decision Content Date: 20020312 Docket: CAC 172423 NOVA SCOTIA COURT OF APPEAL [Cite as: R. v. Henry, 2002 NSCA 33] Roscoe, Chipman and Cromwell, JJ.A. BETWEEN: HER MAJESTY THE QUEEN Appellant - and - TROY ANDREW HENRY Respondent __________________________________________________________________ REASONS FOR JUDGMENT __________________________________________________________________ Counsel: Dana W. Giovannetti, Q.C. for the Appellant Gregory S. Hildebrand for the Respondent Appeal Heard: February 6, 2002 Judgment Delivered: March 12, 2002 THE COURT: Leave to appeal is granted and the appeal is allowed as per reasons for judgment of Roscoe, J.A.; Chipman and Cromwell, JJ.A., concurring. ROSCOE, J.A.: [1] The respondent, Troy Andrew Henry, was found guilty of manslaughter contrary to s. 236(b) of the Criminal Code by Justice Robert Wright after a trial by judge alone. Justice Wright sentenced the respondent to a term of imprisonment for two years less a day to be served as a conditional sentence in the community, and subject to certain conditions, including house arrest and community service, to be followed by a further period of two years probation. [2] The Crown applies for leave and, if granted, appeals the sentence, submitting that the sentence inadequately reflects the objectives of denunciation and deterrence, and that the sentence is inadequate having regard to the nature of the offence committed and the circumstances of the offence and the offender. Decision under appeal: [3] The trial judge, in his reasons for sentence, which are reported at (2001), 194 N.S.R. (2d) 248, set out the facts, beginning at § 4, as follows: [4] On or about December 4, 1999 as Mr. Henry was leaving the Palace, a downtown bar, at closing time in the early morning hours, he saw Mr. Johnstone strike a young woman, Rebecca Ryder, twice after she had pushed or shoved him. Mr. Henry immediately intervened by pinning Mr. Johnstone against the wall and admonishing him for hitting a woman. Mr. Johnstone, who was in a state of intoxication, purportedly responded with an obscenity. Mr. Henry, who was not under the influence of alcohol, then let him go but at the same time, kept his eye on Mr. Johnstone as he left the Palace and began to walk up Brunswick Street. Mr. Henry decided to follow him, and upon catching up to him at or near the intersection of Sackville Street, tapped him on the shoulder to get his attention. When Mr. Johnstone turned around, Mr. Henry punched him once on the jaw. Mr. Johnstone fell backwards and struck his head on the pavement and it was that blunt head trauma that caused his death. Mr. Henry then pulled Mr. Johnstone fully back up onto the sidewalk area off the roadway and saw that he was unconscious. There were many people about and with the attention being attracted, Mr. Henry abruptly left the scene to walk back toward the Palace a short distance away. By the time he got there, he saw that the police had arrived at the scene where Mr. Johnstone was lying. [5] One of the bystanders to the incident, Michael Doyle, overheard Mr. Henry say to Mr. Johnstone as he was about to punch him, "this is what you get for hitting a girl", or words to that effect. [4] In his reasons for conviction, which are not reported, the trial judge made further findings respecting the respondent’s behavior after the assault. Referring to the evidence of Rebecca Ryder, he said: The next thing she knew a few minutes later the accused drove up Prince Street with his roommate and offered Ms. Ryder and her friends a ride home. This apparently came about by reason of the fact that one of the friends that Ms. Ryder was with that evening was Colin Neiforth who had been talking briefly with the accused inside The Palace just before closing time. In any event, Ms. Ryder testified that on the way home in the car the accused said that he couldn’t believe what had happened, that a guy had hit a girl and that he took care of it. [5] Although the respondent denied making that statement, Justice Wright found: I accept the evidence of Ms. Ryder that the accused made the statement while driving home in the car that he “took care of it”. . . [6] Mr. Henry testified that he pursued Mr. Johnstone in order to make a citizen’s arrest and that he acted in self-defence when Mr. Johnstone took a swing at him. The finding of fact by the trial judge respecting this evidence was: None of these explanations given by the accused has any ring of truth whatsoever. [7] At the sentencing hearing, Mr. Henry made the following remarks: The only thing I have to say is that I’m sorry for the family and friend’s losses of Mr. Johnstone. I live this every day. I don’t sleep well. It’s the first thing I think about when I wake up and it’s the last thing I think about when I try to go to sleep. I may not have handled the situation in the best way, but that’s not here nor there [inaudible due to distance from mic]. That’s all I have to say. [8] In the reasons for conviction, the trial judge found that the motivation in committing this assault was a form of vigilante justice, stating: The accused’s actions are simply not consistent with his stated purpose. What his actions are consistent with is a desire to exact some form of vigilante justice against Mr. Johnstone as retribution for his having assaulted a woman and for the smugness and expletives with which the accused was met when he first restrained Mr. Johnstone up against the wall at The Palace. I am satisfied beyond a reasonable doubt that he set out to do so by pursuing Mr. Johnstone up Brunswick Street, tapping him on the shoulder without saying a word to get him to turn around and then sucker punching him in the face without any punch being first thrown or attempted by Mr. Johnstone. I simply do not believe the accused when he says that upon tapping Mr. Johnstone on the shoulder Mr. Johnstone turned and immediately took a wild swing, which the accused blocked, before landing his own punch to the jaw of Mr. Johnstone. I find that the accused was the aggressor in this incident and that there is no credible evidence of self-defence before me. [9] Mr. Henry is 31 years old and is self-employed in the computer business. He operates his business out of his residence. He is described in the pre-sentence report as physically healthy and single, and he has no criminal record or history of alcohol or substance abuse. As indicated by the Crown counsel in his factum, there are two noteworthy points discussed in the pre-sentence report. One, is that the respondent’s father was physically abusive resulting in him being protective of his mother and sister, and women in general. The other is the issue of remorse. While the respondent indicated that he is “distraught” concerning the death of Mr. Johnstone, he also believes that he “reacted justly” and “that the victim swung at him”. The author of the report concluded that: Although “guarded”, the offender did express remorse for the victim; however, not for his reaction to the events of December 4, 1999. [10] In the sentencing judge’s reasons for concluding that a sentence of two years less a day would be appropriate, the apparent underlying rationale is found in the following statements: [13] . . . An important feature of this case which distinguishes it from many other manslaughter cases is the fact that Mr. Henry neither meant to cause the death of Mr. Johnstone nor even to cause serious bodily harm to him . . . . . . [22] Having regard to the individual facts of this case, most notably that no intention has been attributed to Mr. Henry to have caused even serious bodily harm to Mr. Johnstone by his actions, and that he has no criminal record whatsoever, I have concluded that the need for denunciation and deterrence can be adequately addressed without the imposition of a penitentiary term. In other words, the two significant mitigating factors were the lack of intention to cause death or serious bodily harm and the lack of a criminal record. Standard of review: [11] The standard of review on a sentence appeal is, as most recently articulated by Bateman, J.A. in R. v. Bratzer, [2001] N.S.J. No. 461, beginning at § 6: § 6 In passing sentence a judge is exercising a statutorily authorized discretion under the Criminal Code: 718.3(1) Where an enactment prescribes different degrees or kinds of punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts a person who commits the offence. § 7 As with other discretionary decisions, the standard of review on appeal is a deferential one. This standard has been articulated in a number of ways. It was neatly expressed by Macdonald, J.A. of this Court in R. v. Cormier (1975), 9 N.S.R. (2d) 687 at p. 694: 20 Thus it will be seen that this Court is required to consider the “fitness” of the sentence imposed, but this does not mean that a sentence is to be deemed improper merely because the members of this Court feel that they themselves would have imposed a different one; apart from misdirection or non‑direction on the proper principles a sentence should be varied only if the Court is satisfied that it is clearly excessive or inadequate in relation to the offence proven or to the record of the accused. § 8 More recently, in R. v. Shropshire, [1995] 4 S.C.R. 227; [1995] S.C.J. No. 52 (Quicklaw) (S.C.C.) Iacobucci J., for a unanimous court, said: [46] . . . An appellate court should not be given free reign to modify a sentencing order simply because it feels that a different order ought to have been made. The formulation of a sentencing order is a profoundly subjective process; the trial judge has the advantage of having seen and heard all of the witnesses whereas the appellate court can only base itself upon a written record. A variation in the sentence should only be made if the court of appeal is convinced it is not fit. That is to say, that it has found the sentence to be clearly unreasonable. § 9 Similarly, in R. v. C.A.M., [1996] 1 S.C.R. 500; [1996] S.C.J. No. 28 (Quicklaw) (S.C.C.), Lamer, C.J.C. said, for a unanimous Court, at p. 565‑566: [90] Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. Parliament explicitly vested sentencing judges with a discretion to determine the appropriate degree and kind of punishment under the Criminal Code . . . [91] . . . The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community. The discretion of a sentencing judge should thus not be interfered with lightly. §10 This deference reflects a recognition of the unique qualifications of front line judges and is equally applied whether the sentence arises after a trial or from a guilty plea. As explained by the Court in R. v. C.A.M., supra: [91] This deferential standard of review has profound functional justifications. As Iacobucci J. explained in Shropshire, at para. 46, where the sentencing judge has had the benefit of presiding over the trial of the offender, he or she will have had the comparative advantage of having seen and heard the witnesses to the crime. But in the absence of a full trial, where the offender has pleaded guilty to an offence and the sentencing judge has only enjoyed the benefit of oral and written sentencing submissions (as was the case in both Shropshire and this instance), the argument in favour of deference remains compelling. A sentencing judge still enjoys a position of advantage over an appellate judge in being able to directly assess the sentencing submissions of both the Crown and the offender. A sentencing judge also possesses the unique qualifications of experience and judgment from having served on the front lines of our criminal justice system. Perhaps most importantly, the sentencing judge will normally preside near or within the community which has suffered the consequences of the offender's crime. As such, the sentencing judge will have a strong sense of the particular blend of sentencing goals that will be "just and appropriate" for the protection of that community . . . Analysis: [12] In my opinion, the sentencing judge erred in principle in imposing the sentence in this case. In concluding that a term of imprisonment of less than two years was appropriate, he overemphasized restorative objectives and gave little regard to the principles of denunciation and general deterrence. As a result, the sentence is clearly inadequate and excessively lenient. [13] The purpose and objectives of sentencing and the principles to be considered are set out in the following provisions of the Criminal Code: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a 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 a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community . 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. (emphasis added) 718.2 A court that imposes a sentence shall also take into consideration the following principles: (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, . . . . . . (b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (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. [14] Under certain conditions, a judge may order that a sentence be served in the community: 742.1 Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court (a) imposes a sentence of imprisonment of less than two years, and (b) is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purposes of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the offender’s complying with the conditions of a conditional sentence order made under section 742.3. [15] Guidance in the application of these provisions has been provided by the Supreme Court of Canada in R. v. Proulx, [2000] 1 S.C.R. 61; 140 C.C.C. (3d) 449. Commencing at § 58, Lamer, C.J. for the court explained how the first step in the process should be undertaken: . . . In my view, the requirement that the court must impose a sentence of imprisonment of less than two years can be fulfilled by a preliminary determination of the appropriate range of available sentences. Thus, the approach I suggest still requires the judge to proceed in two stages. However, the judge need not impose a term of imprisonment of a fixed duration at the first stage of the analysis. Rather, at this stage, the judge simply has to exclude two possibilities: (a) probationary measures; and (b) a penitentiary term. If either of these sentences is appropriate, then a conditional sentence should not be imposed. [59] In making this preliminary determination, the judge need only consider the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 to the extent necessary to narrow the range of sentence for the offender . . . [16] Here, the sentencing judge erred in concluding that a penitentiary term of two years or more imprisonment was not appropriate. Sentences for the offence of manslaughter cover a very wide scope, from suspended and conditional sentences, to life imprisonment. The range of appropriate sentence is probably more extensive than for any other offence, presumably because the offence covers such an expansive array of methods of commission. A statement made by this court almost 50 years ago in R v. Gregor (1953), 31 M.P.R. 99 is still valid: It may be said of manslaughter, differing in that respect from other crimes, that the legal limits of possible sentences is very great. There are cases of manslaughter where the line between crime and accident is narrow and where a sentence of a few months' imprisonment is appropriate. On the other hand, there are cases where the proper sentence approaches or reaches the legal limit of imprisonment for life. Different cases involve different facts, as varied as are the actions and the thoughts of man and it is always difficult to determine the punishment appropriate under the circumstances. No one case can be an exact guide for another. [17] A more contemporary expression of that view is found in R. v. Creighton (1993), 83 C.C.C. (3d) 346 (S.C.C.) where McLachlin J., as she then was, stated at p. 375: . . . Murder entails a mandatory life sentence; manslaughter carries with it no minimum sentence. This is appropriate. Because manslaughter can occur in a wide variety of circumstances, the penalties must be flexible. An unintentional killing while committing a minor offence, for example, properly attracts a much lighter sentence than an unintentional killing where the circumstances indicate an awareness of risk of death just short of what would be required to infer the intent required for murder. The point is, the sentence can be and is tailored to suit the degree of moral fault of the offender. This court acknowledged this in Martineau, at p.362: “The more flexible sentencing scheme under a conviction for manslaughter is in accord with the principle that punishment be meted out with regard to the level of moral blameworthiness of the offender.” It follows that the sentence attached to manslaughter does not require elevation of the degree of mens rea for the offence. [18] Despite the broad variety of fit sentences for manslaughter, the majority do fall within a four to ten year length, as Cromwell, J.A. noted in R. v. Lawrence (N.A.), (1999) 172 N.S.R. (2d) 375 at § 14 : [14] In my opinion, there is not a four to 10 year “range” for manslaughter if the word “range” is used to suggest that manslaughter sentences ought generally to fall within those limits. Cases from this and other courts of appeal emphasize that manslaughter is an offence that may be committed in an exceptionally wide variety of circumstances and for which the legal limits of possible sentences are very great: see, e.g. R. v. MacPhee (1977 ), 20 N.S.R. (2d) 520; 27 A.P.R. 520 (C.A.); R. v. McNeil (J.B.) (1998), 168 N.S.R. (2d) 59; 505 A.P.R. 59 (C.A.). These factors combine to make it unusually difficult to establish any benchmark or range of fit sentences for such offences: see R. v. Selig (T.A.), [1994] N.S.J. 436; 134 N.S.R. (2d) 385; 383 A.P.R. 385 (C.A.), at para 13. As Kelly, J., said in R. v. Smith (B.W.), [1986] N.S.J. No. 424; 77 N.S.R. (2d) 142; 191 A.P.R. 142 (T.D.), this court has observed that the great majority of cases in fact receive sentences between four and ten years, but the court has not held that manslaughter sentences should be restricted to or ought to fall within that range. The court has, for example, upheld sentences of 20 years and 15 years respectively in R. v. Julian (1973), 6 N.S.R. (2d) 504 (C.A.) and R. v. Gregor (1953), 31 M.P.R. 99 (C.A.). I do not accept the appellant’s argument that 10 years sets the upper limit, or that the period of between four to 10 years defines the acceptable range for manslaughter sentences. [19] A significant distinguishing factor between cases where a low or non-penitentiary term is appropriate and those where a lengthy sentence is imposed for manslaughter is the moral blameworthiness or fault of the offender (Creighton, supra). The court, while of course giving due weight to all the principles of sentencing must assess the extent of moral blameworthiness in a particular case, and should consider where on the spectrum, from almost accident to almost murder, the particular offence falls. Obviously, the nearly equivalent to murder offences will, in general, attract a sentence higher than the majority, for example Julian, supra, and those closer to an accidental killing will generally fall below the average, for example, R. v. Owens, [1986] B.C.J. No. 401 (B.C.C.A.). As noted in R. v. Myette (1985), 67 N.S.R. (2d) 154 at § 47: The offence of manslaughter carries a maximum sentence of life imprisonment. The range of sentences imposed in Nova Scotia has been from suspended sentence (e.g., R. v. Cormier (1974), 9 N.S.R. (2d) 687 (N.S.C.A.)), to twenty years' imprisonment (R. v. Julian (1973), 6 N.S.R. (2d) 504 (N.S.C.A.)). Lenient sentences have been imposed only where very strong mitigating factors exist or where the act, though culpable, was close to being an accident. In the great majority of manslaughter cases sentences range from four to ten years. (emphasis added) [20] Examples of strong mitigating factors that have influenced courts to be lenient in the imposition of sentence in manslaughter cases are: - long term abuse of accused by victim: R. v. Dunlap (1991), 101 N.S.R. (2d) 263 (C.A.) - 1 year R. v. Drake, [1995] O.J. No. 4375 (Gen. Div.), online: QL (OJ) - suspended sentence R. v. Cormier (1974), 9 N.S.R. (2d) 687 (S.C.(A.D.)) - suspended sentence - battered woman syndrome: R. v. Phillips, [1992] O.J. No. 2716 (Gen. Div.), online: QL (OJ) - 2 years less a day R. v. Bennett, [1993] O.J. No. 1011 (Prov. Div.), online: QL (OJ) - suspended sentence - impulsive act or immediate reaction to perceived or actual wrong by victim: R. v. Kipling (1992), 83 Man. R. (2d) 6 (C.A.) - 2 years less a day R. v. McLeod (L.S.) (1994), 132 N.S.R. (2d) 118 (C.A.) - 4 years R. v. Whynot (1996), 147 N.S.R. (2d) 111 (C.A.) - 5 years - mental illness of accused: R. v. Johnstone (1980), 38 N.S.R. (2d) 313 (Prov.Ct.) - 18 months R. v. Valiquette (1990), 60 C.C.C. (3d) 325 (Qc.C.A.) - suspended sentence - extreme stress or provocation: R. v. Hardy (1976), 29 C.C.C. (2d) 84 (Qc.Sup.Ct.) - suspended sentence R. v. Stone, [1999] 2 S.C.R. 290 (S.C.C.) - 7 years (4 years plus 18 months pre-trial custody) - concern about childcare duties of accused: R. v. Henry (1977), 39 C.R.N.S. 45 (Qc.C.A.) - suspended sentence - poor family background, abuse as child: R. v. Desjarlais, [1980] 4 W.W.W. 676 (Alta. C.A.) - 2 years less a day - self-defence: R. v. Simonson (1982), 43 N.B.R. (2d) 617 - 9 months - genuine remorse: R. v. King, [1999] N.S.J. No. 318 (S.C.), online: QL (NSJ) - 5 years R. v. Costa, [1996] O.J. 299 (Gen. Div.), online: QL (OJ) - 14 months - youth of accused: R. v. Torres (1998), 126 Man.R. (2d) 278 (C.A.) - 3½ years - ready admission of responsibility - voluntary surrender to police: R. v. McLeod (L.S.) (1994), 132 N.S.R. (2d) 118 (C.A.) - 4 years R. v. King [1999] N.S.J. No. 318 (S.C.), online: QL (NSJ) - 5 years [21] In many of these cases where a lenient sentence was imposed, there was more than one mitigating factor. For example, in Costa, the offender, who was 21 years old, admitted responsibility at an early opportunity and was found to be genuinely remorseful. There is no finding by the trial judge here that the respondent is remorseful. While generally, lack of remorse should not be found to be an aggravating factor, (see R. v. Upson, 2001 NSCA 89) here it is not a mitigating factor. It is a neutral factor. [22] None of the mitigating factors listed above is present here. In this case, one of the reasons given by the sentencing judge for leniency was that the respondent “neither meant to cause the death of Mr. Johnstone, nor even to cause serious bodily harm to him”. With respect, since it is the absence of intent to cause death that defines the offence of unlawful act manslaughter, clearly it cannot reasonably be considered a mitigating factor. The lack of a criminal record in manslaughter cases is not exceptional either. Standing alone, it is insufficient cause for extraordinary leniency or to distinguish this case from the majority. The emphasis on these two factors, in the absence of any other mitigating circumstances, combined with the lack of consideration of the existent aggravating factors, resulted in a failure to assess the moral blameworthiness of the offence. [23] There are several aggravating factors in this case which establish the moral fault and are accurately described in the Crown’s factum: This was a cowardly attack. The Respondent had time to compose himself and contact the police if he felt that justice needed to be meted out. Instead, he chose to become a vigilante, a predator. He silently approached the smaller and very intoxicated victim from behind and sucker-punched him . . . This was not a fair fight and the Respondent was not looking for a fair fight or any fight. His objective was to strike an unanswered blow. There was no element of self-defence. That notion was simply a lie told by the Respondent to the trial Court. Further, the Respondent was not provoked in any sense recognized by law. It is said that he is unusually protective of women. Clearly, he was not acting in protection of any woman. The precursive events included his intervention on a woman’s behalf, but that event was over. Obviously, what lay behind his attack was an anger that he chose not to control. Additionally, it would appear that at least part of his motivation was a desire to impress that woman. Instead of rendering assistance to the victim, he immediately sought out the woman and announced that he “took care” of the guy who hit her. [24] The offence in this case is very comparable to two Nova Scotia cases: R. v. Graham, [1997] N.S.J. No. 139 (S.C.); and, R. v. King N.S.J. No. 318 (S.C.); and two appellate decisions: R. v. Merkle, [1998] A.J. No. 1124 (Alta. C.A.); and, R. v. Hanifan, [2001] O.J. No. 1576, and in my opinion, given that there are no exceptional circumstances or strong mitigating factors, the sentence should be similar. [25] In Graham, the offender and the victim, who were friends, were both intoxicated. The offender punched the victim who fell over backwards striking his head on a cement step which caused his death. The authorities were told it was an accident, but three years later the truth was revealed. The offender, who had a record of three prior offences pled guilty to manslaughter and received a sentence of four years. [26] In King, again, both the accused and the victim were intoxicated and engaged in fist fighting. The victim fell on the pavement and as a result of hitting his head lost consciousness. The offender left him there where he later died from asphyxiation. Mr. King had an old unrelated criminal record. He pled guilty and was remorseful. The sentence imposed was five years. [27] In Merkle, the victim died as a result of falling and hitting his head after he was blind-sided by a single blow, delivered in retaliation, but not in self-defence. The brief memorandum of the court’s judgment does not reflect whether the offender had a criminal record. The Crown appeal of a three and one-half year sentence was dismissed. [28] In Hanifan, the victim and the offender who were both drinking argued about a game of pool. When the victim left the premises, he was punched in the face by Hanifan, and knocked to the ground, striking his head on the pavement. He suffered head injuries which caused his death. The offender had a criminal record. The Court of Appeal dismissed his appeal from a six year sentence. [29] In Proulx, supra, Lamer, C.J.C. noted at §106: . . . there may be certain circumstances in which the need for denunciation is so pressing that incarceration will be the only suitable way in which to express society’s condemnation of the offender’s conduct. This is one of those cases. The aggravating circumstances of this case, especially the respondent’s continued notion that his action was justified, and the predatory callousness of his intentional assault on a smaller, intoxicated man, demonstrate a moral blameworthiness that places this offence well beyond the near accident point on the spectrum. A sentence that emphasizes deterrence and denunciation is required. As Pugsley, J.A. remarked in R. v. G.A.M., [1996] N.S.J. No. 52 at § 93: The sentence imposed by this Court should reflect society's recognition of the unique gift of life and the seriousness with which we view the actions of those who trivialize that gift by taking it from another. [30] I conclude that the sentencing judge erred in imposing a sentence that was not "fit", in that it was excessively and manifestly lenient, and did not appropriately reflect denunciation and general and specific deterrence. [31] I would grant leave to appeal, allow the appeal, and substitute a term of incarceration of four years, and give credit for nine months served pursuant to the conditional sentence, so that the balance remaining as of this date is 39 months. I would affirm the prohibition imposed under s. 100(1) of the Code and revoke the orders for community service and probation imposed by the sentencing judge. Roscoe, J.A. Concurred in: Chipman, J.A. Cromwell, J.A.