R. v. Hernandez, 2014 ABCA 311

Keywords: Criminal law; domestic violence; overemphasis and under emphasis of relevant sentencing factors; standard of review on appeal of sentence; rehabilitation; deterrence; denunciation

Synopsis: The Respondent, Ms. Hernandez, and her common-law husband (the “Complainant”) separated. Upon separation Ms. Hernandez asked the Complainant for a $10,000 loan which he declined. The next evening Ms. Hernandez set a trap in the Complainant’s home by spreading oil and scattering insulin-filled, uncapped, and exposed hypodermic syringes on his floor. The Complainant arrived home and slipped on the oil but managed to avoid falling on the exposed needles. Ms. Hernandez then confronted him and again demanded money which the Complainant again refused to give. Ms. Hernandez responded by stabbing the Complainant in the back of his neck with a syringe telling him it was filled with insulin and infected with Hepatitis C (Hernandez worked as a nurse and had stolen the needle [which she acknowledged contained 5 cubic centimeters of insulin] from her employer). After she stabbed him, Ms. Hernandez blocked the Complainant’s attempt to call police. The Complainant was taken to hospital with pain in his shoulder, low blood sugar levels, and fearing he was infected with Hepatitis C. Medical personnel later confirmed he was not infected. Ms. Hernandez was charged with intent to cause death or bodily harm through the setting of a trap and assault by the use of a weapon (syringe). After entering a plea of guilty to her charges she was sentenced to 6 months prison and two years probation. The Crown appealed to the Alta.C.A. arguing an appropriate sentence fell within a range of 18 to 24 months.

Importance: Picard, J.A. writing for the Court noted that appellate courts must accord deference to sentencing judges and interfere only in case where a sentence imposed is demonstrably unfit. A sentence is said to be demonstrably unfit if it reveals an error in principle, a failure to consider a relevant factor, or the over or under emphasis of appropriate sentencing factors (R v Shropshire, 1995 CanLII 47 (SCC), [1995] 4 SCR 227 at para 46; R v M(CA), 1996 CanLII 230 (SCC), [1996] 1 SCR 500 at para 90). Picard, J.A. acknowledged the sentencing judge correctly stated the law and was alive to relevant factors, but “erred in the application of some of them” (at para. 6). The Sentencing judge dismissed the risk created by the syringe as a weapon when used to aggressively stab the back of the Complainant’s neck and did not give adequate weight to the risks created by Ms. Hernandez and instead relied too heavily on the fact that her conduct did not result in long-term physical injury to the victim. The sentencing judge failed to deal with the associated mental stress caused and that she had stopped the Complainant from calling emergency services. Picard J.A. found the evidence demonstrated Ms. Hernandez had planned the attack the day prior and used her position as a nurse to steal material. She had breached her duty of trust by entering his home during the night and attacking him from behind. The Court held her actions must be analyzed using the paramount considerations of specific and general denunciation and deterrence. Picard, J.A. noted the Alta. C.A. specifically held in R. v. Evans, 1997 ABCA 165, at para. 12, there is a “special need to deter violence in the circumstances of separation” (at para. 14). Picard, J.A. noted the sentencing judge allowed rehabilitation (although an important sentencing goal) to overtake and neutralize the requirement of denunciation and deterrence, and concluded:

In the result, bearing in mind the need for proportionality, the sentence arrived at by the sentencing judge is demonstrably unfit. Leave to appeal is granted and the term of incarceration is increased to 18 months on each count concurrent, followed by two years of probation, with the ancillary orders as to DNA and the s. 109 mandatory weapons prohibition to remain in place” (at para. 18).

Counsel for Appellant: Melanie Hayes-Richards (Specialized Prosecutions Branch, Edmonton)
Counsel for Respondent: Matthew Pagels (Dunlap & Ziv LLP, Edmonton)

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