Sentence takes into account finding ex in bed with another guy

The Alberta Court of Appeal has concluded that a 90-day jail sentence, to be served on weekends, is appropriate punishment for an aggravated assault — in part because the accused had no prior record and finding his ex-girlfriend in bed with another man caused him to “snap.”

“The sentencing judge did not err in finding the sentence proportional to the gravity of the offence,” said the three-judge panel in its decision in R v. Wesslen,  released yesterday.

The Crown was seeking a term of 12 to 18 months in jail to be imposed against Allen Wesslen, following his conviction for aggravated assault and assault with a weapon.

The 90-day sentence and two years probation was an appropriate sentence, given all the circumstances, says Jillian Williamson, who represented Wesslen at the Court of Appeal.

“A lengthy period of incarceration is not always the answer,” says Williamson, a lawyer at Der Burgis in Calgary.

Sentencing must address the twin goals of rehabilitation and of protecting society as the Supreme Court of Canada has said, she notes.

The appeal court heard that Wesslen attended a house party in Calgary in November 2012 and had consumed a substantial amount of alcohol.

His ex-girlfriend was at the party and after opening the door to a room in the house, he saw her in bed with another man. Wesslen started to close the door, but after hearing what he thought was laughter or a “snarky comment,” he went back inside and grabbed a plastic CD stand. Wesslen hit the man on the head and struck his former girlfriend when she tried to intervene.

The man in the bed had to undergo several surgeries and a plate was later inserted into his skull. He was left with nerve damage and the court heard it is estimated that it will take at least five years to fully recover from his injury.

Wesslen pleaded guilty at an early stage and was classified as a low risk to re-offend. Provincial Court Judge John Bascom listed other mitigating factors such as the fact that the assault was spontaneous and Wesslen was not armed with a dangerous weapon, such as a broken bottle or knife.

The “provocative scene” that he found his ex-girlfriend in, and Wesslen’s belief he was being laughed at, caused him to “snap” and feel “heartbroken,” Bascom concluded.

The Court of Appeal stated the trial judge properly applied the principles of sentencing. It described the assault as “spontaneous” and carried out with a weapon that was only a “weapon of opportunity.”

The Crown’s argument that the domestic violence context of the assault was not properly considered, was rejected by the appeal court panel of Justices Ronald Berger, Patricia Rowbotham, and Brian O’Ferrall.

“In this case there was not evidence that the respondent and his former girlfriend were in a domestic relationship,” said the panel.

The ex-girlfriend suffered minor injuries in the assault. The Court of Appeal said the trial judge was correct in not spending much time on this part of the offence.

“That assault was part of the assault upon the complainant as it occurred when she chose to come to his defence,” the panel stated.

The terms of probation included an order for counseling and a 10 p.m. curfew for the first 12 months

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