Court of Appeal for Ontario

R. v. Dunn

Date: 2002-03-05

Grace Choi, for the respondent;

Leslie Maunder, for the appellant.

(C34284)

[1] Weiler, J.A.: The appellant was convicted of one count of aggravated assault. He seeks leave to appeal and, if leave is granted, appeals his sentence of 9 years' imprisonment. The appellant served 15½ months pre-trial custody prior to being found guilty following a ten day trial before a judge alone. The maximum sentence for aggravated assault is 14 years.

[2] Two issues arise on this sentence appeal:

(i)Did the learned trial judge err by allowing the consequences of the appellant's conduct to overshadow all other factors on sentencing, including various mitigating circumstances?

(ii) Did the learned trial judge err in all the circumstances by imposing a sentence that was close to the maximum sentence available?

Statement of the Facts

[3] Based on the evidence at trial, the appellant and respondent drew up an agreed statement of facts. The following extracts from the agreed statement of facts and from the facta provide the necessary context for the submissions respecting sentence.

[4] The appellant and K.D. were good friends and, in the early months of 1998, while neither of them was working, they spent most of their days together. K.D. often woke up the appellant by coming by his apartment. The two would then go to K.D.'s place and drink.

[5] On July 29, 1998 at around noon, L.T. and the appellant dropped by K.D.'s apartment. L.T. was the appellant's girlfriend at the time. K.D. and the appellant began drinking. At some point they purchased more alcohol, and also went to the grocery store. L.T. prepared a roast dinner, which they all ate. Between the time of their arrival and approximately 7:30 p.m., when the appellant and L.T. left the apartment after K.D. had been assaulted, K.D. and the appellant drank almost 48 beers and a 26 oz. bottle of tequila. Approximately 22 beers and a "good portion" of the bottle of tequila were consumed by the appellant.

The Assault

[6] While there was conflicting testimony as to the exact circumstances of the assault, the trial judge found that at least the following took place. Sometime between 6:00 p.m. and 7:30 p.m., the appellant got angry with K.D. and punched him with his fist a number of times. K.D. ended up lying on the floor where he remained, apparently unconscious, but breathing. The appellant and L.T. left the apartment shortly afterward. They left K.D.'s stereo playing very loudly.

Events After the Beating

[7] The appellant and L.T. left the apartment and went to the appellant's house just down the street, stopping for cigarettes along the way. The appellant purchased the cigarettes by Interac payment, apparently without difficulty.

[8] In the morning, someone knocked on the apartment door. The appellant testified that he assumed it was K.D., because K.D. normally woke him up in the morning. It was, in fact, someone who came to the apartment to pick up the appellant's roommate, and who told L.T. that there were a number of police cars and an ambulance down the street, in front of K.D.'s apartment.

[9] After speaking to the appellant, L.T. arranged for the appellant's friend, T.M. to come by and give them a ride to her place. After meeting up with the appellant and L.T., T.M. drove them to her house, avoiding the police on the way.

[10] While in the car, T.M. noticed that the appellant's hand was severely swollen, with scratches at the knuckles. When she asked the appellant about it, he told her that he had got in a fight with K.D. after they had been drinking. The appellant said that K.D. was at home, breathing, but the appellant was worried that K.D. might not make it, and that he would be up on manslaughter charges. The appellant was visibly upset, crying, shaking, and also appeared scared.

[11] T.M. testified that both the appellant and L.T. smelled of alcohol and had bloodshot eyes.

[12] Once at T.M.'s house, L.T. called the hospital to find out how K.D. was doing. She then asked T.M. if the appellant could borrow some jogging pants. T.M. gave the appellant some pants to wear and, while T.M. was out later in the day, L.T. washed her pants as well as the appellant's jeans.

[13] The appellant called his brother. He told him that he was in trouble, and that his brother might have to visit him in the "big house." Early in the afternoon, T.M., L.T. and the appellant ended up at the appellant's brother's house. The appellant's brother noticed that his hand was swollen, and the appellant told him it was from a fight he had with K.D. K.D. had "pissed him off" and the appellant knocked him down on the ground. K.D. hit his head on the ground. The appellant described one blow - open hand, on the chin, forcing the head back. He said that the guy was still breathing when he left, but also that he was worried about facing manslaughter charges. Later that day, the appellant's brother drove L.T. and the appellant to Simcoe.

[14] D.H. was an acquaintance of the appellant who lived in Simcoe. The appellant testified that he went to D.H.'s house because he thought the police would not look for him there. D.H. came home after work at approximately 6:00 p.m. and found L.T. and the appellant at his house. They stayed the night. The appellant was wearing jeans but nothing else. D.H. noticed that his hand was swollen, and the appellant told him he had got in a fight with K.D. after K.D. tried to sexually assault L.T. while the appellant was in the bathroom. L.T. said that she hit K.D. over the head with a glass and then the appellant came out and saw K.D. on top of her. The appellant said he then "beat the crap out of him." Throughout the evening, as the appellant described events, L.T. said "this is our story and we're sticking to it."

[15] The next morning before 8:00 a.m., T.M. received a call from L.T. T.M. drove and picked up L.T. and the appellant behind the K-mart store in Simcoe. The appellant was not sure where he wanted to go, so T.M. started driving and shortly after was surrounded by the police. All three were arrested. T.M. was released that day without being charged.

The Injuries

[16] Early in the morning of July 30, 1998, K.D. was discovered, by his landlord, lying on the floor of his apartment. He was breathing but comatose. He was bleeding from his nose and mouth. Upon further examination at the hospital, he was found to have a bruised right eye, bruising behind his right ear, bruising at the back of his head, and bleeding from his right ear and nose. The bruise to the eye was the result of a direct impact. There was also a small amount of blood in his pelvis and around his spleen and a bruise to his liver. There were no outward signs of abdominal trauma.

[17] K.D. suffered serious and permanent brain damage. He had brain surgery upon entering the hospital, and stayed in a coma for several weeks. He was moved among facilities, including a rehabilitation hospital. After his condition plateaued, he was moved to a chronic care nursing home, where he was residing at the time of trial. K.D. has lost most of his vision, has difficulty with long-term memory, and requires supervision and assistance for eating, and bathing.

[18] A neurosurgeon testified that K.D.'s injuries were the result of substantial force from multiple blows. He agreed that it may have been as few as three blows to the head that caused the damage to the brain and caused an expanding blood clot in the brain. The delay in treatment likely increased the severity of the injuries that flowed from the expanding blood clot.

[19] An earlier skull fracture that had gone untreated was discovered in the hospital. A small piece of plastic was embedded in K.D.'s scalp, but was completely healed over. This previous injury was estimated to be one to one-and-a-half years old. While it was impossible to say whether this injury had caused any neurological damage based on its appearance upon being discovered, the neurologist agreed that the prior fracture, depending on how serious it was, may have had an impact on the severity of K.D.'s injuries suffered on July 29, 1998.

Information about the Appellant and his Background

[20] The appellant was born and raised in a turbulent and, often times, violent family environment. His father was an alcoholic who was abusive towards the appellant's mother, and their many children. In addition to the physical abuse at home, the appellant was sexually assaulted when he was eight years old.

[21] The appellant began drinking when he was 15 years old. At 16, he moved out of his father's house and in with his girlfriend. He and his girlfriend had one child, [X], but shortly afterward split up.

[22] Throughout his adult life, the appellant has had periods of stability and productivity, interspersed with periods of heavy drinking and cannabis use.

[23] Sometime in 1996, the appellant met his current stable and supportive girlfriend. He was working for a greenhouse company and doing quite well. He continued to drink socially on weekends, but without incident. In early 1998, he lost his job and began drinking heavily again. The relationship ended as a result. It was during this time that the offence at issue on this appeal took place.

The Appellant's Criminal Record

[24] The appellant, who was 28 years old at the time he committed this offence, had a criminal record consisting of eleven prior convictions over a period of approximately eight years, starting from 1990. His record included convictions for assault with a weapon, possession of a weapon and two convictions for uttering threats. His longest sentence of incarceration had been one of 18 months imprisonment for possession of a narcotic for the purposes of trafficking.

The Appellant's Conduct in Custody

[25] According to the appellant's friends and family, since being in custody on this offence, the appellant has expressed a desire to change certain aspects of his life, and to deal with some of his ongoing problems. They described a man who, over the course of more than a year in pre-trial custody, seemed to gain fresh insight into his past and the sources of his destructive behaviour. The appellant confirmed this. The appellant is, for the first time in his life, talking to those he is close with about his past. He has reunited with his former stable girlfriend, who continues to be very supportive.

[26] One of the appellant's brothers is quite close to him. He testified that the appellant has stated he wants to follow in his brother's footsteps by getting counselling, becoming sober, and eliminating violence from his life.

[27] The appellant's son was nine years old at the time of sentencing. The appellant is a gentle and loving father who sees his son whenever he can and, while in custody, keeps in touch with him by mail and telephone.

[28] At the sentencing hearing, the appellant indicated he was very sorry for the injuries he had caused K.D., as well as for what the K.D. family is going through as a result.

[29] While in custody, the appellant has not exhibited behavioural problems. Rather, he has displayed a positive attitude. He has begun a program for cognitive skills, and is wait-listed for corrections programs on Living Without Violence, and Anger and Emotions Management.

The Victim

[30] K.D. is a shell of his former self. He can barely see, has severely reduced intellect, and cannot work or live independently. He lives in a "long-term home" as he needs constant care and help with walking, toileting, getting in and out of the bathtub, and eating. His mother is unable to bring him home for more than a day or two at a time because he needs 24-hour care and her husband is in poor health.

Reasons for Sentence

[31] In her reasons for sentence, the trial judge stated:

"In my view this case is not one of the worst offender; it is not one of the worst offence, in that it has not been committed against a child, it was not premeditated; but it comes very close to being in that group of offences that warrants a maximum sentence. It comes so very close in my view because of the tragic impact on K.D. and on those who love him, because it was a brutal attack on a generous friend, because Mr. Dunn left his friend with complete disregard for his condition."

Submissions and Analysis

[32] The appellant and respondent agree that the harmful consequences that flow from a criminal act are a pertinent consideration on sentencing. As stated by the Supreme Court in R. v. DeSousa, [1993] 2 S.C.R. 944; 1992 80 (SCC), 142 N.R. 1; 56 O.A.C. 109; 76 C.C.C.(3d) 124, at 141:

"Conduct may fortuitously result in more or less serious consequences depending on the circumstances in which the circumstances arise. The same act of assault may injure one person but not another. The implicit rationale of the law in this area is that it is acceptable to distinguish between criminal responsibility for equally reprehensible acts on the basis of the harm that is actually caused. This is reflected in the creation of higher maximum penalties for offences with more serious consequences. Courts and legislators acknowledge the harm actually caused by concluding that in otherwise equal cases a more serious consequence will dictate a more serious response."

[33] The appellant submits, however, that the trial judge erred in principle by allowing the consequences of the appellant's conduct to dominate the sentencing resulting in a sentence that was outside the appropriate range. I would disagree.

[34] The passage quoted above indicates that, in addition to the consequences of the assault on the victim, the trial judge considered the following other factors as contributing to the gravity of the offence: 1) the brutality of the attack; 2) the fact that the person attacked was a "generous friend" of the appellant; and 3) the callousness of the appellant in leaving his friend in such a serious condition. After beating up K.D. in his own home, the fact that the appellant left his friend without medical help was, together with the severity, number and location of the blows, closely linked to the brain damage K.D. suffered. It is a factor that increases the moral culpability of the offender's conduct. Although the appellant was intoxicated at the time, the trial judge found that the appellant "knew what he was doing" and explicitly rejected the appellant's evidence that he was unable to remember the events of the night due to his intoxication. Violence occurring while under the influence of alcohol is not usually a mitigating factor: R. v. Dennis (R.G.), [1993] M.J. No. 104; 1993 14845 (MB CA), 83 Man.R.(2d) 298; 36 W.A.C. 298 (C.A.), at 2 [M.J.]. The trial judge was entitled to place significant weight upon the consequences of the appellant's actions and he did not give it undue weight.

[35] The next issue is whether the sentence is outside the appropriate range having regard to the length of pre-trial custody. In her reasons for sentence, the trial judge carefully and thoroughly considered all of the relevant sentencing principles, including the possibility of the appellant's rehabilitation. In reaching her decision, the trial judge expressly took into account the fact that the appellant had testified that he wanted to turn his life around, had acquired his grade 12 diploma while in pre-trial custody, was willing to attend counselling, and had expressed remorse to the victim's family during the sentencing hearing. She recognized the fact that the appellant's childhood had been "terrible," that there had been violence in his family due to his abusive father, and that the appellant had lacked "nurturing, support and guidance" in his childhood. She considered that the appellant could be rehabilitated, and that he now had several supportive people in his life. The trial judge also took into account the need for denunciation and general deterrence of the type of conduct that had been demonstrated by the appellant, and the need for specific deterrence evidenced by the fact that the appellant's 1996 sentence for an offence of violence "failed to inspire Mr. Dunn to turn his life around." The reasons of the trial judge disclose no error in principle.

[36] The appellant has cited a number of cases in his factum wherein for similar injuries or death, sentences of six to eight years were imposed. The maximum sentence of 14 years was, however, imposed in R. v. Opsitnik (1986), 13 O.A.C. 50 (C.A.). In that case the victim suffered extensive injuries (from which he recovered), when he was stabbed five times by the accused upon confronting the accused's companion about an obscenity shouted in a parking lot. Each case turns on its own specific facts.

[37] The following cases, however, do have some similarities to the instant case and provide guidance as to the appropriate range of sentence. In R. v. Morrow (1986), 12 O.A.C. 159 (C.A.), this court imposed a sentence of 9 years for aggravated assault upon a 63 year-old woman in her own home. She had been kind enough to allow a young girl into her home on the pretext of using the telephone to call a taxi. As the girl left, the accused and another accomplice rushed inside and beat and robbed the victim. The accused in that case was 19 years old, did not have a lengthy criminal record, and had no prior convictions involving violence. He pled guilty to the charge of attempted murder. On appeal, however, a conviction for aggravated assault was substituted and the sentence reduced from 12 years to 9. In R. v. Abfalter, [1986] B.C.J. No. 715 (C.A.), a sentence of 10 years' imprisonment was upheld after the accused, a young man who had been drinking, assaulted the complainant in his own home after he had allegedly made sexual advances towards him, then dumped him in the snow in front of a hospital. The sentencing judge thought it was a miracle the victim survived. The victim was left with a permanent partial disability and damage to his left eye. In R. v. Dennis, supra, the accused went to the home of his girlfriend to pick up his belongings. He was under the influence of alcohol and other drugs at the time. Another woman and a male friend, whose leg was in a cast, were present. During the course of the ensuing argument, the accused continued to strike the male victim with a steel pipe even after he lost consciousness, then dragged him out of the house and left him there. The victim was partially paralyzed as a result of the beating. The accused had a lengthy criminal record spanning 15 years. He served one year in pre-trial custody. The trial judge imposed a term of 9 years' imprisonment, noting that he was taking into account the year of pretrial incarceration the accused had undergone. The sentence was upheld on appeal. In these cases, the common elements are that the victims were assaulted in their own homes, suffered serious injury and the perpetrator showed a callous indifference to whether the victim lived or died afterwards.

[38] Sentences at the higher end of the appropriate range of sentence often include a denunciatory component. As Lamer, C.J., wrote in R. v. C.A.M., 1996 230 (SCC), [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81; 105 C.C.C.(3d) 327, at para. 81:

"The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particular offender's conduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law."

[39] I would not say that the trial judge's sentence in this case was outside the appropriate range of sentence.

Conclusion

[40] I would, therefore, grant leave to appeal sentence but dismiss the appeal as to sentence.

Appeal dismissed.