The Court of Appeal of Yukon has toughened the sentence of a man convicted of aggravated assault resulting from a knife attack in the McIntyre subdivision.

The 30-page was released last Friday.

The panel was split. Justices Sunni Stromberg-Stein and Barbara Fisher felt Wesley Quash’s sentence should have been longer than 10 months.

Justice Peter Willcock believed the original sentence was adequate.

The knife attack took place on Oct. 14, 2016. Steven Smith was walking in McIntyre while intoxicated.

Quash asked him to stop being loud. Smith objected and walked toward Quash, who slashed Smith across the face with a folding knife.

Smith suffered a cut from his ear to his chin. It was deep enough that his teeth could be seen through his cheek.

Quash was sentenced by Judge Michael Cozens to 10 months in jail with 3 1/2 months’ credit for time served followed by a 30-month probation term on Dec. 6, 2018.

Both the Crown and Quash appealed the sentence.

The Crown argued that Quash should have been sentenced to four to five years in jail. It based this argument on several factors, including:

• the sentencing judge not properly considering the impact of the attack on Smith as an aggravating factor;

• the judge went against the parity principle; and

• the sentence can be demonstrated to be unfit.

Quash applied to have fresh evidence added, based on an affidavit from his father, Robin Jackie Quash. The father stated his son financially supports him.

Both Stromberg-Stein and Fisher felt this was not new information. They explained that the judge had this fact in front of him at the time of sentencing.

Stromberg-Stein and Fisher recognized that Cozens did review Smith’s injuries as well as Quash’s circumstances. They also noted that he recognized that the range for sentences for an aggravated assault can go from a fine, to a suspended sentence or up to 14 years in jail.

The sentencing judge found that the range in the Yukon for such an offence is six months to six years. He felt that Smith’s injuries swung the pendulum toward the higher end, but Quash’s circumstances moved it toward the lower end.

“He was mindful of the need for denunciation, deterrence, and proportionality and also considered that rehabilitation was important in this case,” Stromberg-Stein and Fisher said in the decision.

Cozens felt Quash’s responsibility needed to be weighed related to his “significant cognitive deficiencies and limitations.”

He concluded that Quash could not be held accountable for the knife attack in the same way he would have if he did not have cognitive disabilities.

Both justices explained that the appellate court can only change a sentence from the territorial court if there is an error in principle or it’s proved to be unfit. With that in mind, they went over each Crown argument.

The justices pointed out that Cozens did not refer to a portion of the information regarding the financial and personal impacts on Smith in his reasons.

They said there was only a vague statement of “the harm caused to Mr. Smith.”

They explained these impacts need more than just an acknowledgment. They added that sentencing judges need to consider evidence of significant impacts on victims of crimes as aggravating factors. They said there is clear evidence of these impacts in this case.

“The judge considered the severity of the injury as an aggravating circumstance but not specifically the impact of the offence on Mr. Smith,” Stromberg-Stein and Fisher said in the decision.

They felt the sentencing judge made a mistake. That said, they did not hold it against Cozens because he did accept that the attack did severely impact Smith.

They then moved to the Crown’s second point.

The justices said aggravated assault is the highest level of assault in the Canadian Criminal Code. This means the victim was either wounded, maimed, disfigured or otherwise had his or her life put in danger.

They add that generally, a sentencing judge may not have to consider sentences for a lesser offence. This is because there are multiple sentences imposed for aggravated assault.

They felt that Cozens was not wrong to look at the lesser assault offences provided he was aware of the differences between cases.

“The judge recognized that Mr. Quash was being sentenced for the offence of aggravated assault, not for assault with a weapon or assault causing bodily harm, and he appreciated the distinction between these offences,” Stromberg-Stein and Fisher said in the decision.

This left the last point, determining if the sentence was fit.

Stromberg-Stein and Fisher felt that the lack of premeditation in the knife attack would push the sentence to the lower range.

That said, they argued that the level of violence and the severity of the injury do not allow the sentence to stay at the low range.

They added that there was a lack of evidence that Quash’s cognitive disabilities played a role in the attack.

They explained that these limitations do not automatically reduce moral blameworthiness. For the reduction to apply, the limitations must have played a role in the crime.

They pointed out that Cozens did not assess this role. They said he just assumed the cognitive issues factored in. They added that there was expert evidence that did not link Quash’s disabilities to his actions.

While Stromberg-Stein and Fisher felt the sentence was unfit, they did not agree with the Crown’s request for four to five years in jail. They believed two years followed the original 30-day probation was appropriate, and denied Quash’s request to add the fresh evidence.

Dissenting, Justice Willcock said Cozens made no mistakes in his sentencing.

“The judge took into account the relevant mitigating and aggravating factors; although the sentence is outside the normal range for similar offences, that does not mean that it is a demonstrably unfit sentence,” Willcock said in the decision.

He explained that the severity of Smith’s injuries was central to the Crown’s sentencing submissions.

He added that Cozens spoke of these injuries at length in his decision. This includes references of physical trauma, emotional trauma, nerve damage, visible scarring and debilitating physical damage.

Willcock felt Cozens did properly consider these impacts as aggravating and he had no doubt the judge was aware of the injuries. He added that the judge placed much weight on Quash’s rehabilitation prospects.

He felt Cozens clearly and correctly ruled that Quash’s disabilities affected his ability to act rationally when Smith approached him the day of of the offence.

Willcock added the sentence did not violate any of the principles nor objectives outlined in the Criminal Code.

He explained that the Court of Appeal is not supposed to re-weigh whatever mitigating and aggravating factors exist in a particular case. He said the court’s role is instead to respect a sentencing judge’s discretion.

“Unlike my colleagues, I cannot say the judge failed to impose a sentence that was just an appropriate given the moral blameworthiness of the offender,” Willcock said in the decision, believing the appeal should have been dismissed.