Aggravated assault
R. v. Comerford
- Below the Crown's ask
Sentence and the Crown's position
What the law allows
Devin Andrew Wesley Comerford pleaded guilty to aggravated assault for joining in the beating of a homeless man in a Kelowna alleyway, in which the victim was kicked, punched and struck with a wooden cane. The Crown sought 18 months' incarceration followed by 18 months' probation; the defence sought a conditional sentence of 15 to 24 months. Justice Weatherill imposed 16 months' incarceration followed by 18 months' probation, finding that denunciation and deterrence required a custodial sentence rather than a conditional sentence order.
In the judge's words
1While I am mindful of the principles of rehabilitation, proportionality, parity, and restraint, I consider that what occurred in this case requires denunciation and deterrence as a key factor in determining a fit and proper sentence for you both. For substantially the reasons articulated by Ms. O'Neil on behalf of the Crown, which frankly I entirely agree with, I am not persuaded that a conditional sentence order would be a fit and proper sentence in this case. In my view, what is required is a custodial sentence.
The record
- Convicted of
- Aggravated assault (CC 268)
- Prior convictions
- 0 prior convictions1
- At the time of the offence
- Not stated1
- Defence asked for
- 15 months conditional sentence1
- Appeal
- Not yet checked
- Counsel
- Crown: P. O'Neil
Defence: G.J. Gray
Sources
- R. v. Comerford, 2023 BCSC 851 Court decision, CanLII, March 24, 2023
[25] The Crown asserts that a fit sentence for both offenders is 18 months' incarceration to be followed by 18 months' probation.
[25] … They submit instead that a 15‑ to 24‑month conditional sentence order under s. 742.1 of the Code would be appropriate, to be followed by a period of probation.
[1] THE COURT: Messrs. Comerford and Gaubert are both before me today for sentencing. On September 12, 2022, both men entered guilty pleas to the offence of aggravated assault, contrary to s. 268 of the Criminal Code, R.S.C. 1985, c‑46 [Code].
[37] Third, neither offender had a criminal record at the time of the offence.
[53] While I am mindful of the principles of rehabilitation, proportionality, parity, and restraint, I consider that what occurred in this case requires denunciation and deterrence as a key factor in determining a fit and proper sentence for you both. For substantially the reasons articulated by Ms. O'Neil on behalf of the Crown, which frankly I entirely agree with, I am not persuaded that a conditional sentence order would be a fit and proper sentence in this case. In my view, what is required is a custodial sentence.
[58] … I determine that a fit, just, and proportionate sentence for you both would be a period of 16 months' incarceration, to be followed by a period of 18 months' probation. That is the sentence I impose on each of you.
- Criminal Code, s. 268 Record, Justice Laws Website
- R. v. Comerford, 2023 BCSC 851 Court decision, Courts of British Columbia