Crown argues N.S. man convicted in nail-gun shooting should get harsher sentence

The Crown is appealing the sentence given to a Nova Scotia man convicted of shooting a man in the back with a nail gun in 2018, saying the sentence handed down by the trial judge "does not reflect the gravity of the offence."

Shawn Wade Hynes of Trenton, N.S., shot Nhlanhla Dlamini in the back with a framing nail at a construction site in Pictou County in September 2018. Dlamini suffered a punctured lung and had to spend four days in hospital due to his injuries. Hynes was arrested shortly after the incident.

Hynes was found guilty of assault with a weapon and criminal negligence causing bodily harm. He received an 18-month conditional sentence and 12 months of probation in April 2021.

At a sentencing hearing last year, Hynes's lawyer argued his client's charter rights would be violated if he was sent to jail, a sentence that was required under federal mandatory minimum sentencing provisions.

At the time, the Crown argued that even if Hynes's charter rights are infringed by the mandatory minimum, the infringement was reasonable because of the need for deterrence.

Chief Crown attorney Mark Scott argued Thursday before the Court of Appeal that the trial judge, Del Atwood, erred in law in his assessment of the appropriateness of a conditional sentence for this type of offence.

Scott said Hynes should not have been given a conditional sentence. If he were to commit a similar crime, the impact on the victim, who is Black and comes from "a historically disadvantaged community," as well as the community itself, would be large.

"It doesn't take an awful lot of mental brainpower to see that not only will the effects that were felt here be felt, but it's repetition would make it more profound," Scott told the three-member appeal panel. "We submit that that was a consideration that the trial judge was mandated to undergo, and he did not at all."

Scott said there was an overemphasis on rehabilitation. He noted even though the judge ordered an 18-month conditional sentence followed by 12 months of probation, only 12 of the 18 months of the conditional sentence involved house arrest.

"There was no other punitive aspect of the conditional sentence order after that 12 months have passed," Scott said.

House arrest 'no laughing matter,' defence says

Defence lawyer Zeb Brown said he thinks the current sentence is serious and that even 12 months of house arrest is "no laughing matter."

Scott said Hynes has completed his house arrest without any incidents, saying the conditional sentence supervisor "spoke highly of Hynes's compliance."

The appeal panel also addressed concerns about the incident being racially motivated. Dlamini alleges the nail-gun incident was the culmination of racism and bullying.

The panel said they saw no evidence of race having a direct role.

Scott said the Crown believes incarceration would deter others from committing similar crimes.

"People who are young and vulnerable and from marginalized communities trying to make their way can very much be the target of this kind of serious and dangerous behaviour, so that speaks to an exemplary sentence."

The Court of Appeal reserved its decision and will issue a ruling at an unspecified date.

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