R. v. McIntosh

R. v. McIntosh Court Court of Appeal Date 2004-02-06 Citation 2004 NSCA 19 Docket CAC 201863 Judge/Registrar/Adjudicator Fichaud, Joel E. (Honourable Justice) (CA); Hamilton, M. Jill (Honourable Justice); Glube, Constance R. (Honourable Chief Justice) (CA) Document Type Decision Relations Library Sheet - R. v. McIntosh - 2004 NSCA 19 - 2004-02-06 - Library Sheet Decision Content NOVA SCOTIA COURT OF APPEAL Citation: R. v. McIntosh, 2004 NSCA19 Date: 20040206 Docket: CAC 201863 Registry: Halifax Between: Scott Lawrence McIntosh Appellant v. Her Majesty the Queen Respondent Judges: Glube, C.J.N.S.; Hamilton and Fichaud, JJ.A. Appeal Heard: January 27, 2004, in Halifax, Nova Scotia Held: Appeal from convictions dismissed, leave to appeal sentences granted, but appeal from sentences dismissed, as per reasons for judgment of Hamilton, J.A.; Glube, C.J.N.S. & Fichaud, J.A. concurring. Counsel: Scott Lawrence McIntosh, appellant, in person Dana Giovannetti, Q.C., for the respondent Reasons for judgment: [1] Scott Lawrence McIntosh appeals his conviction and sentence for four offences involving his wife, Noella McIntosh: assault causing bodily harm, s. 267(b) of the Criminal Code, unlawful confinement, s. 279(2), resisting a peace officer, s. 129(a), and, failure to comply with a probation order, s. 733.1(1). A fifth charge against the appellant, sexual assault, was dismissed for want of evidence. [2] The factum of the Crown, the respondent, sets out the relevant history and facts of this appeal as follows: 2. On May 13, 2003, the Appellant appeared before Stewart J. to set a date for trial. The Appellant had been in custody intermittently for a total period of seven months, primarily for psychiatric assessment and to determine fitness to stand trial. The Appellant repeatedly advised Stewart J. that he wished to “cop a plea”, i.e. plead guilty, to at least some of the offences. Stewart J. was not prepared to accept the plea because the appellant, who was unrepresented, offered numerous improper reasons motivating him, such as, that he could not obtain a fair trial or justice, that his stepson needed an operation, that he wanted to leave the country, and so on. 3. The proceeding was recessed so that the Appellant could retain counsel, Mr. Wayne Rideout who had previously represented him. Mr. Rideout was given time to consult with the Appellant and Crown counsel. Mr. Rideout advised the Court that he reviewed Section 606 of the Code with his client and that his client understood that section and was now prepared to enter a plea. It was clear that Crown and defense had reached an agreement with respect to the offences, but not with respect to sentence. 4. Stewart J. carefully questioned the Appellant with respect to the s. 606 criteria and being satisfied allowed the Appellant to enter a plea to each charge. He plead guilty to all of the offences except the offence of sexual assault. The Crown offered no evidence on the sexual offence and it was dismissed. Crown and defense made submissions with respect to sentence and Stewart J. reserved decision. 5. On May 16, 2003 Stewart J. sentenced the Appellant to terms of imprisonment of one year on the assault causing bodily harm, consecutive to concurrent four month terms on each of the other three counts, for a total of one year and four months. In doing so, she allowed a fourteen month or two- for-one credit for the seven months pre-sentence period of detention. Therefore, in effect, the total sentence for the four offences was 30 months imprisonment. The Facts 6. The facts were not seriously in dispute. Stewart J. reviewed them in her reasons for decision as follows: After consuming eight to ten beers at a friend’s cottage or perhaps as many as 24, as she recently advised the Court at Mr. McIntosh’s bail hearing last week, Mrs. McIntosh disclosed her feelings for a mutual male friend of theirs, Richard Gorman, to Mr. McIntosh. This set the tone for the rest of the evening. Having returned to her brother’s, she was located by McIntosh, he forced her into his vehicle and drove her home looking for Gorman on the way. Gorman was at their home on arrival. A physical exchange ensued between McIntosh and Gorman who eventually left and called the police because McIntosh was still yelling. Forcing Mrs. McIntosh into the bedroom, there was a contravention (sic: confrontation) and name-calling between the couple. McIntosh slapped Noella McIntosh across the face twice knocking her glasses off. She kicked him in the stomach with her high heels. She ran outside down the driveway, he caught her and dragged her back into the house and locked the door. When she mentioned the fact that she and Robert (sic: Richard) had been going to AA meetings together, McIntosh “lost it” because she had mentioned his name. McIntosh gave her an upper cut punch to the face causing her to bleed from the lip and the nose and breaking her dentures. When the police arrived, they knocked on the door. McIntosh turned out the lights. She yelled for help, ran to the door in spite of being told not to unlock the door, did so and ran outside to the police. She presented as hysterical, appeared terrified, yelling for help and bleeding profusely from the face area. At this point, pardon me, at the hospital, blood was all over her face, hands, hair and clothing and she was bleeding from both the mouth and the nose and smelled of alcohol. She told police McIntosh back-handed her in the face and hit her again with an upper cut punch. McIntosh resisted arrest. He attempted to strike one officer on the head with his hands, knocked off another’s glasses. He ran into another room and continued to fight with them. He blocked the pepper spray they tried to use and charged towards one of the officers pushing her. At this time Mr. McIntosh was under a probation order imposed for a two-year period, requiring him to keep the peace and be of good behavior. At a bail hearing last week, some of the facts provided by Noella McIntosh in her sworn evidence differed from that of her KGB statement. [3] The grounds of appeal are numerous. Despite the fact the appellant pleaded guilty to the charges against him, he argued that his conviction should be vacated because he had poor legal counsel and would have done a better job representing himself. He argued he is innocent and that if retried his evidence of what happened would be accepted over that of his wife who was drunk at the time. He argued that there would be evidence presented at his trial that would make it impossible for the Crown to prove his guilt beyond reasonable doubt, for example, his wife’s evidence now differs from what she told the R.C.M. Police in her statement and Cpl. McKinley of the R.C.M. Police has admitted in evidence given in court on a family matter that the appellant was not guilty. He argued that the charges should not have been laid against him on the basis of autrefois acquit because of earlier court proceedings held to determine if he was fit to stand trial and because of his diplomatic immunity arising from his inherited title of viceroy. [4] With respect to his sentence, the appellant argued he needs to be home with his alcoholic wife, the victim, to help her and her son. He indicated that her son has many medical difficulties, one of which requires an operation in the United States that only he can arrange. He argued that he is the only person who has been able to teach his stepson anything and that his absence led to his wife’s son being taken from his wife by child protection authorities. He argued he has been discriminated against because he is American, that the prosecutors hate him, that the police beat him up and burned his house down and that it is not possible to get a fair trial in Yarmouth, Barrington or Shelburne. He indicated he wanted to get out of jail so he could return to the United States. [5] The appeal of his convictions cannot succeed unless his guilty pleas are vacated. To vacate his guilty pleas the court must act on “valid grounds”, not on frivolous grounds or grounds apparently lacking in substance: R. v. Bamsey, [1960] S.C.R. 294. A valid ground would be one affecting the validity of the plea or otherwise constituting a miscarriage of justice within the meaning of s. 686(1)(a)(iii) of the Code: R. v. T.(R.) (1992), 10 O.R. (3d) 514 (Ont. C.A.); R. v. Temple (1995), 56 B.C.A.C. 58 (B.C.C.A.); R. v. Clermont (1996), 150 N.S.R. (2d) 264 (N.S.C.A.), paras. 31 to 35. [6] The appellant has not satisfied me that there is any ground on which to vacate his guilty pleas. As stated in the respondent’s factum: 9. . . . The Appellant was represented by counsel. He clearly sought to plead guilty, and by doing so, he benefitted from a plea agreement. There was no suggestion of coercion or oppression. The Appellant was found fit to stand trial. There was initially some concern whether the Appellant’s desire to plead guilty was equivocal or improperly motivated. The learned trial justice proceeded with exceptional caution. The pleas, when entered, were clearly voluntary and unequivocal. Further, the pleas were informed in the sense that the Appellant was aware of the nature of the allegations made against him and the effect and potential consequences of his pleas. On the admitted facts, the Appellant was guilty of each offence. No fresh evidence has been tendered on appeal. Nothing in the Appellant’s lengthy statement of his grounds of appeal provides a proper basis for interfering with the convictions. [7] I agree and would dismiss the appellant’s appeal with respect to his convictions. [8] The standard of review with respect to sentence appeals is one of deference to the trial judge. In the absence of an error of law, a sentence should only be varied if it is demonstrably unfit: R. v. C.V.M. (2003), 213 N.S.R. (2d) 344 (N.S.C.A.). [9] The appellant has not satisfied me that the trial judge made an error of law. She considered the principles of sentencing set out in s. 718 of the Code. She emphasized deterrence which is consistent with the settled principles in spousal assault cases: C.V.M., supra, ¶ 40. [10] Nor has the appellant satisfied me that the sentence imposed is demonstrably unfit. In C.V.M., a sentence of 22 months and three years probation was imposed for spousal assault causing bodily harm. In R. v. W.J.T., 2003 NSCA 108, a sentence of 2 years was upheld in a spousal assault case. In both cases these periods of incarceration were after giving credit two-for-one for remand detention, as the trial judge did here. [11] As stated by the respondent: 14. The only mitigating factor is the admission of guilt through the pleas. Stewart J. doubted that there was genuine remorse and the pre-sentence report was not favourable. 15. There are numerous and serious aggravating factors. The abuse of a spouse and the consequential breach of trust are deemed to be aggravating circumstances (ss.718.2(a)(ii) and (iii), Criminal Code). The assault was sustained and caused injury and terror. The prior criminal history includes an assault on the spouse’s son and attempts to force the spouse to sign false statements concerning the offender’s violence. Additionally, there were multiple offences and the offender clearly has anger management problems which are not likely to resolve in the near future. [12] I agree. [13] For the reasons stated above, I would grant leave to appeal the sentences, but dismiss the appeal as there was no error of law and the total sentence was not demonstrably unfit. Hamilton, J.A. Concurred in: Glube, C.J.N.S. Fichaud, J.A.