The Yukon Court of Appeal has increased the sentence of a Whitehorse man convicted of aggravated assault last year from 10 months to two years of imprisonment.
A three-judge panel released its decision April 5, with one judge offering a dissenting opinion.
Wesley Quash was convicted by a territorial court judge of aggravated assault in January 2018 in relation to a 2016 incident where he slashed another man in the face with a pocket knife, cutting his victim open from ear to chin and leaving him with permanent scarring and nerve damage.
The attack was preceded by a verbal confrontation in a street in Whitehorse’s McIntyre subdivision over how loud the victim had been speaking.
Quash was originally sentenced to 10 months in jail, minus three and a half months for time he had already spent in custody, followed by 30 months of probation.
He was scheduled to be released this month.
The Crown, which had sought a sentence of four to five years, appealed, arguing that the sentencing judge had failed to take into account the impact the injury had on the victim, had relied on the wrong section of the Criminal Code in crafting the sentence, and that the sentence was “demonstrably unfit.”
In their decision, Yukon Court of Appeal Justices Sunni Stromberg-Stein and Barbara Fisher agreed with the Crown’s latter argument, finding that “the 10-month sentence imposed was an unreasonable departure from the principle of proportionality.”
Besides incorrectly identifying the starting point for aggravated assault sentences as six months instead of 16 months, the sentencing judge “minimized the seriousness” of Quash’s crime, they wrote, by placing too much focus on the fact that it was not premeditated as well as “undue weight” on Quash having a “subjective fear of attack” by the victim.
As well, they wrote, the judge placed “undue emphasis” on Quash’s “cognitive limitations s in the absence of evidence that these limitations played a role in his criminal conduct” when assessing his moral blameworthiness.
“The expert evidence did not link Mr. Quash’s cognitive limitations to the offence,” the decision reads. “In fact, the psychological assessment indicated that Mr. Quash had important functional skills and was able to manage his impulses, and it is evident throughout the reasons for sentence that Mr. Quash understood the consequences of his actions.”
Stromberg-Stein and Fisher disagreed with the Crown’s suggested sentence of up to five years’ imprisonment, finding it too long for the circumstances of the case. Instead, they imposed a new sentence of two years’ imprisonment – a net sentence of 20 and a half months, after factoring the time Quash spent in pre-trial custody – followed by the same 30-month probation period.
Justice Peter Willcock, however, offered a dissenting judgement, writing that he would dismiss the Crown’s appeal.
Willcock wrote that he could not find, considering the facts of the case, that Quash’s original sentence was “demonstrably unfit.”
“In my view, the sentence imposed on this 28-year-old member of the Liard First Nation with a limited criminal record and no significant prior custodial sentence was crafted with appropriate regard for the objectives set out in the Criminal Code, most of which were specifically referred to by the judge,” Willcock wrote.
“He appropriately considered Mr. Quash’s limited intellectual capacity in relation both to the circumstances of the offence and in relation to the prospects for rehabilitation and public safety.”
Contact Jackie Hong at firstname.lastname@example.org