A provincial court judge 'lost sight' of his job to impose a fit sentence on former Liard First Nation chief Daniel Morris, the Yukon Court of Appeal's chief justice said in a decision released today.

The three-judge panel agreed unanimously to toss out the suspended sentence and two years of probation originally given to Morris for a brutal two-hour assault on his longtime common-law wife last summer near Lower Post, B.C.

Instead, the appeal court imposed a one-year jail term followed by a further two years' probation.

Morris' original sentence had drawn considerable outrage when B.C. provincial court Judge Dennis Schmidt handed it down in February.

Schmidt, who has sat in judgment in northern communities for years, said too many aboriginals sit in Canadian jails, and that jail isn't necessarily the answer to crime.

'It is clear that the sentencing judge considered the aboriginal identity of the offender and sought to give effect to his understanding of traditional aboriginal justice,' wrote chief appeal court Justice Lance Finch. 'However, in doing so, the sentencing judge lost sight of the court's overriding duty to impose a sentence which, given the particular facts of the offence, the offender, the victim and the community, is fit in the circumstances.'

In Morris' circumstances, anything but incarceration would be an unfit sentence, the appeal court ruled.

Schmidt's sentence 'sends a completely wrong message to the victim, the offender and the community,' the judges agreed.

'An incident of brutal spousal abuse by this offender, in the context of a community where spousal abuse is epidemic, and victims are intimidated, clearly called for a sentence that provided some deterrence in a general sense, and more importantly perhaps, denunciation of the conduct,' Finch wrote. 'A term of incarceration is required to give effect to these objectives.'

The appellate judges determined that Schmidt failed to recognize the need for a sentence that both deterred Morris and others as well as denouncing the 40-year-old's behaviour.

Last June, as his relationship crumbled with his wife, Morris had heard she was with her lover. He hunted the pair down, eventually finding them in his wife's car. He threatened the boyfriend off with a gun and proceeded to beat his wife and the mother of his two teenage children for two hours, leaving her in hospital for three days.

'It was a violent and protracted assault which occurred after Mr. Morris spent more than an hour searching for his wife,' Finch wrote. 'He was sober and had the opportunity to contemplate his actions.'

Parliament has 'expressly indicated' that an assault against a spouse is an aggravating factor.

'The sentencing judge failed to appreciate the moral culpability of this offender,' Finch wrote.

Schmidt didn't properly assess how any systemic or background factors related to Morris' aboriginal identity contributed to bringing him before the courts, the chief judge continued.

Morris doesn't have a drug or alcohol problem, nor is there any evidence he suffered a childhood of family breakdown or dysfunction. And though Morris mentioned residential school in his submissions at his February sentencing in Lower Post, 'I do not understand him to say that he had been victimized or abused.'

By law, judges must take into account if an offender has suffered abuses or dysfunction related to being native.

But in Morris' case, those factors don't seem to be present, Finch said.

'On the contrary, Mr. Morris has achieved an impressive level of education and been successful in business,' Finch wrote. 'He became a leader in his community, and a person who was looked to as an example and role model.'

Trained as a carpenter, Morris owned a construction company in Watson Lake for several years, employing up to 23 people. He served as a band councillor with the Liard First Nation for three years and was chief for six years.

He stepped down after being convicted, but not before protest from first nation community members when he simply took a leave of absence first.

A psychological assessment presented at his February sentencing said Morris doesn't take full responsibility for his behaviour, refused to speak about the crime's details, minimized his history of spousal violence and 'showed virtually no empathy for his victims.'

A significant portion of the 18-page written decision examined the traditional aboriginal justice measures Schmidt included in the probation order. It called for Morris to host a potlatch at the direction of elders, organize a men's talking and sharing circle and complete community service hours. Those hours were to be approved by the Liard Aboriginal Women's Society (LAWS) and the Kaska Tribal Council.

At the appeal hearing, Morris said he'd done some work for local elders toward his community hours, but is uncertain how to get that time to count toward his sentence.

'Part of the difficulty in this respect seems to be that, in order to demonstrate its dissatisfaction with the sentence imposed, LAWS refuses to approve any community service the respondent performs,' wrote Finch.

Though he hasn't taken any counselling to date, Morris had agreed to attend a May 26 appointment for an assessment on whether he can get into the spousal abuse program.

A difficulty, the appeal court noted, is that the community is in the process of rediscovering the meaning and process of using the potlatch as a community justice sanction. Community members have been unable to agree on who qualifies as an elder.

And, continued Finch, the Kaska Tribal Council 'does not appear to enjoy the confidence' of Kaska women, noting a letter from LAWS, signed by 50 women, that outlined concerns about the tribal council being involved in the sentence, given Morris' position as chief.

That letter, presented at the sentencing, stated Kaska women feared that aboriginal leadership would use their power to intimidate those who spoke out about family violence.

'A major difficulty here is there is no way for this community to give effect to traditional aboriginal justice and restorative objectives at the present time and in this particular case,' wrote Finch.

The chief appeal court judge noted the Supreme Court of Canada has said a jail term meant to deter and denounce a crime is 'not entirely incompatible with traditional aboriginal notions of just sanctions.'

At the sentencing, people who spoke suggested that temporary banishment or shunning offenders from the community may have been considered under the old ways, Finch wrote.

While Morris' crime started people in the Watson Lake area talking a family violence conference, a talking circle and vigils stemmed from it and started a process of relearning traditional justice methods, it is 'mistaken to impose a sentence with the hope that it will somehow bring a community together, when the appropriateness of such a sentence is a significant source of division within the community,' Finch wrote.

Members of the Kaska nation had disagreed whether Morris should be given jail or if restorative justice measures should be tried instead.

The community's atmosphere was called 'toxic,' with divisions along gender and political lines, the judge noted.

Finch deleted the traditional aboriginal justice measures from the list of probation conditions and ordered that Morris complete his community work service to the satisfaction of his probation officer, not the aboriginal groups.

Morris was also told to provide a DNA sample for the RCMP's national databank, something the sentencing judge had declined to order.