Ontario Superior Court of Justice
Court File No.: CR-17-0284-00 Date: 2019 05 22
Between: Her Majesty the Queen C. Preswood, for the Crown
- and -
Andrew Campbell, Defendant E. Perchenok, for the Defence
Heard: February 26, 2019
Reasons for Sentence
Bielby J.
Overview
[1] On November 2, 2018, a jury found Andrew Campbell, the offender, guilty of kidnapping, pointing a handgun and assault causing bodily harm.
The Facts
[2] On Saturday, January 3, 2015, in the early morning hours, Jamal Karshe, the victim, attended at the home of Heather Lafleur after a night of bars and drinking.
[3] Upon his arrival he discovered that along with Heather the offender was present in the apartment.
[4] After an exchange of words and being told to leave, the offender, at 3:18 am, left the premises only to return at 4:52 am with a handgun which he pointed at the victim and accused the victim of not respecting him. At one point he emptied the handgun in the presence of the victim, to show to him the gun was loaded.
[5] With the assistance of Ms. Lafleur the victim was tied up. The offender then directed Ms. Lafleur to heat up some oil which was to be poured into victim’s ears.
[6] Once the oil was heated the offender directed Ms. Lafleur to test the temperature of the oil by pouring some of the oil on the victim’s thigh. She did so and the burns, to this day, have left the victim with scars.
[7] Ms. Lafleur was then directed to pour the hot oil into the victim’s ears and she attempted to do so but she ended up pouring it around his ears.
[8] The victim, at some point thereafter with his hands still bound, was driven to a wooded area adjacent to Erindale Secondary School, put on the ground and choked by the offender to the point of unconsciousness. The night was cold and the victim was only dressed in shorts, shoes and his coat was around his shoulders.
[9] The victim awoke around 6:33 am and was able to walk to a gas station, with his hands bound behind his back, where help was summoned.
Circumstances of the Offender
[10] The offender was born on April 26, 1977 and is single. He does not have a criminal record. He has the support of his family. He is self-employed in the scrap metal business.
[11] The offender has three siblings and was primarily raised by his mother. In the Pre-Sentence Report (“PSR”) the offender describes his childhood as wonderful.
[12] The offender continues to reside in his family home.
[13] The offender has a 89 year old grandmother whom he and his mother care for, although it is said that the offender is the person mainly responsible for her care. Being self-employed allows him to be available to help his grandmother when needed. He is concerned about who will care for her if he is incarcerated.
[14] In high school the offender was suspended four times and dropped out of school before graduating. He attempted to attain his secondary school diploma at an Adult Learning Centre but only attended for a few months, having transportation problems.
[15] While it appears the offender has been employed for most of his adult life, he has had a variety of jobs.
[16] The offender describes himself as a social drinker who does not use drugs.
[17] The offender’s mother, Valerie Campbell, confirms the level of commitment maintained by the offender in relation to his grandmother. She confirms that the family is close.
[18] She believes a custodial sentence imposed on the offender would be detrimental to him and the family.
[19] The offender’s half-sister describes the offender as a quiet, laid back person who is always willing and available to help out family.
[20] The PSR notes that the offender still believes he was innocent. He has not shown any remorse and has not accepted any responsibility for his actions.
Impact on the Victim
[21] Within the PSR it is said that the victim was not available for comment at the time the report was written.
[22] The victim has not filed a victim impact statement.
Legal Parameters
[23] Section 279 (1.1) of the Criminal Code dictates that if a firearm is used in the commission of the offence of kidnapping (causing a person to be confined against his will) there is a minimum sentence of 5 years for a first offence.
[24] Counsel for the offender does not challenge the minimum sentence requirement.
[25] The offence of pointing a firearm (s. 87 of the Criminal Code) allows for a maximum sentence of 5 years.
[26] A conviction for an assault causing bodily harm imposes a maximum sentence of 10 years.
Positions of Crown and Defence
[27] The Crown submits that the crime of kidnapping, being s. 267(b) of the Criminal Code, is serious and provides for a maximum sentence of life imprisonment. He submits that the author of the PSR did not seem to consider the seriousness of the offences.
[28] The Crown seeks a sentence of 8 to 9 years in jail, along with a DNA order and a lifetime weapons prohibition.
[29] The kidnapping involved violence, torture and injury.
[30] It is submitted that the only mitigating considerations would be the fact that the offender has no record and has abided by his terms of release.
[31] Aggravating factors include the use of a firearm.
[32] It is submitted that the sentencing principles of denunciation and deterrence are paramount.
[33] Counsel for the offender agrees that denunciation and deterrence are primary but submits that the other principles of proportionality and rehabilitation have to be taken in to account. Counsel submits that the appropriate sentence is in the range of 5 to 6 years.
Case Law
[34] Both counsel noted that if was difficult to find any authorities with similar fact situations. Most cases involve kidnapping for profit.
[35] R. v. Watson, 2008 ONCA 568 ([2008] O.J. No. 3450 (Ont. C.A., paras. 65-72)) is an authority provided by the Crown. The facts are much different and involve a robbery using a firearm, but stands for the principle that use of the firearm does not have to be pleaded in the indictment to apply. That issue is not contested.
[36] R. v. Crawford, 2014 BCCA 175 ([2014] B.C.J. No. 881) is a decision of the British Columbia Court of Appeal. The offender was sentenced by the trial judge to 3.5 years in jail on convictions of kidnapping and extortion. At paragraph 23 the court sets out the multiple criteria that are indicative of the gravity of the offence of kidnapping, including the extent to which there was violence, torture and injury, where guns are used and the circumstances in which the kidnapping ends.
[37] Counsel for the offender provided two authorities. The first is R. v. McKinnon, 2015 BCSC 1370 ([2015] B.C.J. No. 1370) in which one of the offenders pleaded guilty to three counts of kidnapping. She refers to para. 18 therein which states, “it is clear that for offences of this nature involving calculated schemes for violent abduction solely for profit require a sentence emphasizing deterrence and denunciation”. She points out the matter before me did not involve a calculated scheme nor was there a profit motive.
[38] R. v. Morrison-Lonie, 2013 ABCA 190 ([2013] A.J. No. 607) is a decision of the Alberta Court of Appeal. The trial judge believed that a 5 year global sentence was appropriate noting that the offender, who had pleaded guilty, had no record and a positive PSR. The appeal was dismissed.
Mitigating and Aggravating Factors
[39] As indicated, the only possible mitigating factors were the lack of a criminal record and abiding by his terms of release.
[40] The use of a firearm is an aggravating factor as is the violent nature of the offences, including torture and strangulation.
Principles of Sentencing
[41] As noted, the principles of denunciation and deterrence are paramount.
[42] I see very little application of the principle of rehabilitation. There is no remorse or any effort to change, to do better.
[43] The sentences suggested by both counsel do not offend the principle of proportionality.
Decision and Reasons
[44] In my opinion on the charge of kidnapping the appropriate global sentence is 7 years in jail. While the prescribed minimum sentence is 5 years, the violent nature of this offence and the circumstances surrounding it call for a greater sentence.
[45] Without the mitigating factors the sentence range proposed by the Crown would be appropriate.
[46] I accept on a basis of 1.5 that the offender should get credit for 54 days in custody representing 36 days in custody pending bail.
[47] Counsel for the accused submits that the restrictive bail terms ought to be considered. She submits her client was on bail for 47 months and on a 4 to 1 ratio he should get credit for 12 months. There is no fixed formula for the consideration of such credits but I am prepared reduce the sentence by 9 months to allow the offender to be given credit, rounding up, for 11 months.
[48] As a result the offender Andrew Campbell is sentenced, on the kidnapping conviction to a period of incarceration of 6 years and 1 month (73 months).
[49] On the conviction for pointing a firearm the offender is sentenced to 1 year in custody, to be served concurrently with the kidnapping sentence.
[50] For the conviction for assault causing bodily harm the offender is sentenced to 18 months, to be served concurrently with the other sentences.
Ancillary Orders
[51] An order is to issue requiring the offender to provide a DNA sample.
[52] An order is to issue imposing on the offender a lifetime ban on possession any kind of weapon.
