R. v. Hunt, 2018 ONCA 480

Court of Appeal for Ontario

Date: 2018-05-23 Docket: C63586

Judges: Strathy C.J.O., Watt and Epstein JJ.A.

Between

Her Majesty the Queen Respondent

and

Wilson Hunt Appellant

Counsel

Deepa Negandhi, for the appellant

Philippe G. Cowle, for the respondent

Heard: April 27, 2018

On appeal from: the sentence imposed on March 8, 2017 by Justice Robert Kelly of the Ontario Court of Justice.

Reasons for Decision

1The appellant seeks leave to appeal his sentence of four years' imprisonment (with credit of 743 days for time served in custody) on his convictions for assault with a weapon, assault, and possession of a weapon for a dangerous purpose. A charge of unlawful confinement was stayed. His co-accused, his cousin Andrew Hunt, was convicted of aggravated assault, assault with a weapon, possession of a weapon for a dangerous purpose and uttering death threats. Andrew was also sentenced to four years' imprisonment.

2The appellant makes two primary submissions. First, he asserts in oral argument that the sentence was unfit, having particular regard to the role that he played in the assault in comparison to Andrew, the absence of evidence that he injured the complainant, and his lower level of moral culpability.

3Second, in his factum, he submits that the sentencing judge should have reduced the sentence pursuant to R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, due to alleged Crown misconduct.

4We are not persuaded by either submission.

Fitness of Sentence

5In our view, the sentence was fit. The complainant was, in the sentencing judge's words"beaten to a pulp" and left with extensive injuries after a joint attack by the cousins. The two had armed themselves with weapons – a machete in the appellant's case and an imitation handgun and cheese knife in Andrew's – and knocked on the complainant's door in the early morning of October 21, 2015. The complainant knew that Andrew was angry with him for an alleged affair with Andrew's wife, but invited them in because the appellant was his long-time friend whom he believed meant him no harm.

6He was wrong. Within a few seconds of entering the complainant's apartment, the appellant set upon him, grabbed him by the throat and held him against the wall. A brutal attack followed. While the appellant delivered the "first big punch" and continued to punch and torment the complainant with the machete throughout the attack, the sentencing judge found that Andrew's "level of violence was far greater".

7In the course of the assault, Andrew threatened the complainant with the imitation handgun and cut him repeatedly with the cheese knife. The appellant hit the complainant on the top of the head with the machete – hard with the flat part and softly and more "carefully" with the sharp edge. The appellant was present for and participated in most of the attack, although he departed before it ended with the complainant's fortuitous escape.

8While the sentencing judge could not find that the appellant actually wounded the complainant, he found that he played a significant role in the attack. The appellant initiated the assault, continued to participate in it and was present for most of it.

9The sentencing judge identified a number of aggravating factors, including that:

• the complainant was attacked in the sanctity of his own home, where he was entitled to feel safe;
• there was a breach of trust – the complainant only let the cousins into his apartment because he believed the appellant, his long-time friend, would do him no harm;
• the cousins acted in concert to mount an unprovoked attack on a man who had no chance to defend himself; and
• there was a measure of premeditation to the attack, which occurred moments after the cousins entered the complainant's apartment.

10The sentencing judge considered the relevant sentencing principles, including parity and proportionality, and gave separate consideration to the conduct and circumstances of both the appellant and Andrew.

11The appellant claims that in sentencing him to four years' imprisonment, the sentencing judge treated him in the same way as Andrew, who was convicted of aggravated assault. We disagree.

12While the cousins received the same sentence, the sentencing judge considered the individual circumstances of each in arriving at their sentences. He identified significant mitigating factors in favour of the appellant, but also noted many aggravating factors, including his lengthy criminal record containing multiple violent offences and breaches of court orders. The appellant's record included a penitentiary sentence of three and one-half years in 2010 for a vicious attack on his domestic partner. He was recommitted in August 2013 as a statutory release violator, and re-released in November 2013. The attack on the complainant occurred some two years later. The sentencing judge observed that the appellant's lengthy criminal record was marked by serious violence, raising the need for a sentence that gave proper attention to specific deterrence.

13The sentencing judge expressly recognized the parity principle and described a number of common aggravating factors as between the cousins, as well as some differences. Andrew clearly played a greater role in the infliction of the complainant's injuries and continued the assault after the appellant had departed. On the other hand, Andrew had what the sentencing judge described as a "relatively minor record with no previous violence." It was his first sentence of imprisonment.

14In our view, the sentencing judge considered the relevant principles and gave appropriate consideration to the application of those principles. The sentence is fit.

Crown Misconduct Argument

15The appellant's submission based on Nasogaluak is that the sentencing judge erred in failing to reduce his sentence due to late disclosure causing a delay in the appellant's mid-trial bail hearing. The appellant claims that the Crown's delay in providing documentation, which resulted in a two-week adjournment of the bail hearing, caused him prejudice. The prejudice alleged is that the delay in addressing the bail application (which was ultimately unsuccessful) "caused unnecessary and prolonged uncertainty for the appellant and his family that he supported."

16The bail hearing was delayed when defence counsel refused to permit the Crown to rely on police synopses to prove the facts of the appellant's previous offences. The Crown attempted to obtain alternative sources of evidence to prove the same information. On the date of the bail hearing, the Crown produced a transcript of the appellant's guilty plea and a police officer's notes relating to a prior offence. This resulted in an adjournment to enable defence counsel to review the additional evidence. The respondent submits that the additional evidence was consistent with the synopses originally produced by the Crown.

17In the view of the sentencing judge, the alleged misconduct did not have anything to do with the circumstances of the offence or the offender so as to warrant consideration in sentencing: see Nasogaluak, at paras. 3 and 49. We agree. Moreover, even if the late disclosure can be described as state misconduct, it does not rise to the level of being a mitigating factor in this case.

Pre-Sentence Custody Calculation

18Finally, the appellant submits that the sentencing judge miscalculated the time attributable to pre-sentence custody. The respondent concedes there was a minor error: the appellant's sentence should be reduced by 13 days to reflect 504 days' pre-sentence custody with credit of 1.5:1. This gives a credit of 756 days, rather than the 743 days credited by the sentencing judge. We accept the appellant's submission.

Disposition

19For these reasons, we grant leave to appeal sentence, and allow the appeal to the extent of reducing the appellant's sentence by 13 days. Except to that extent, the appeal is dismissed.