R v Nicholson, 2020 NLSC 41

After considering a Pre-Sentence Report and the offender’s Indigenous background, the Court imposed a sentence of six years incarceration for the combined offences committed.

Indigenous Law Centre – CaseWatch Blog

Rocky Jed Nicholson was sentenced for break and enter into a dwelling and committing an indictable offence therein, disguise with intent, aggravated assault and assault with a weapon. Following conviction, a date for sentencing was scheduled but later postponed to allow sufficient time for the completion of a Pre-Sentence Report with a Gladue perspective. The Court was tasked with deciding whether the sentences to be imposed should be served concurrently or consecutively, having regard to whether or not any of the offences relate to a single criminal venture. The overall global sentence is six years imprisonment to be served concurrently.

Section 718.1 of the Criminal Code provides that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The Court looked to the Supreme Court of Canada’s consideration of the circumstances of Aboriginal offenders in R v Gladue, (1999), 1SCR 688 [“Gladue”]. Judges may take judicial notice of the broad systemic and background factors affecting Aboriginal people generally, but additional case-specific information will have to come from counsel and from a pre-sentence report (Gladue). In the offender’s case, he was noted to have had a “horrendous upbringing” marred by his Cree father’s substance abuse issues, violence, and criminal lifestyle. At a young age, his father was a heroin dealer who often tested his drugs on Mr. Nicholson, which resulted in him becoming addicted to the drug. When the offender was 18-years-old, he shot and killed his father in self-defence. Afterwards, he assumed a role in his father’s drug business and actively used heroin.

The Pre-Sentencing Report indicated that he commenced counselling during prior incarceration, was prescribed Methadone and no longer uses drugs. Since moving to Newfoundland and Labrador, he has been living a productive life with his family. The offender claimed to be fluent in the Carrier language and has incorporated native cultural traditions into his daily family and community life.

Crown counsel noted that the offender entered the home with a baseball bat, thereby increasing the odds that the consequences of his actions would be fatal. The Court found that the offender was reckless as to whether the dwelling house was occupied and used violence causing an injury, which is an aggravating factor. The Court considered the offender’s strides towards rehabilitation, but the fact remained that he was before a court having committed a significant, violent offence, fifteen or sixteen years after getting out of prison and with strong family support. There was no true expression of remorse for the harm done to the victims. The Court found a predominance of aggravating circumstances: 1) the dated but serious criminal record; 2) the planned and pre-meditated nature of the home invasion in which the occupants were present; and 3) the use of weapons and force that actually caused injuries and had the potential to inflict life-threatening injuries. Sentences for break and enter and assaults committed in the course thereof were ordered to be served concurrently in all cases presented to the Court. All sentences were ordered to be served concurrently.

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