Court File and Parties

Court File No.: Region of Durham 998 10 13279

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Kevin Little

Before: Justice J. De Filippis

Reasons for Sentence on: 16 April 2012

Counsel:

• Mr. Trbojevic for the Crown
• Mr. Donnell for the Defendant

Reasons for Sentence

De Filippis, J.:

Facts of the Offence

[1] Kevin Little was found guilty after trial of assault causing bodily harm to Blake Fruitman. The events in question occurred during a birthday party at a rented cottage. The victim arrived with his partner, Ida Ung, around 10 or 11 PM. The offender had arrived earlier with his fiancé, Courtney Parker. Ms Parker had previously dated the victim. On arrival, the victim and Ms Ung went to the backyard where about 25 people gathered around a pit fire. In the following hour, he consumed a beer and "a shot". The victim and his partner decided they would spend the night at the cottage and walked to their car to obtain pillows. When he reached the front of the cottage, the victim was approached by a friend, "Kosta", and asked if he had ever "date raped" a woman, as somebody at the party had made this accusation. One of the organizers of the party, Mr. Martin, joined the conversation and told the victim he must leave immediately. The latter protested but did as he was told. As he and Ms Ung walked towards their car, the offender appeared and asked the victim what his name was. After the complainant gave his name, the offender suddenly punched him in the jaw. The victim fell to the ground and stood up as the offender came towards him again. Other people intervened and as the victim and Ms Ung drove away, the offender shouted "I'm gong to fucking kill you…you're dead". He also told Ms Ung she should be careful lest he rape her. As they drove away, the defendant repeatedly spat out blood. En route to the hospital, Ms Ung called police and reported the incident.

Victim Impact

[2] The victim is 24 years of age. He is a student at Seneca College and works part time at the Apple Store. As a result of the assault, his jaw was broken in four places and two teeth were chipped. The medical response included the insertion of four steel plates, wires to his jaw, and strong medication to manage pain. He could not eat solid foods or talk for several months. The victim reported that he continues to experience headaches and pain in his jaw. Chewing can sometimes be difficult and he occasionally drools without noticing it because his bottom lip remains numb. The victim also reported he experiences flashbacks of the assault that makes him feel angry and fearful. He stated that this change in his personality caused his girlfriend to leave him.

Offender Background

[3] The offender is 25 years old and employed with an electrical company. He was raised in a good and stable family. However, in 2005, while still a youth, he was found guilty of dangerous driving causing death. I understand that the offender was injured in this accident and that he still suffers emotionally because of the death. Indeed, sentencing in this matter was adjourned at the offender's request so he could provide a psychological assessment. This was not done because, according to Defence counsel, the offender did not have the money or time to arrange it. Counsel also advised that, contrary to what the offender told the author of the pre-sentence report, he now believes he may have an "alcohol problem". The offender's relationship with Ms Parker is a strong one and they have a young child. He continues to benefit by the support of his partner and family.

Submissions on Sentence

[4] The Crown argues that the appropriate range of sentence in this case is six to nine months in jail because of the need to denounce and deter an act of vigilantism. Defence counsel accepts that denunciation is the most important principle and submits this can be met by a conditional discharge with community service. If jail is required, counsel suggests that it be served on weekends in the intermittent range. In support of these submissions, both counsel provided me with case law with respect to sentences for assault causing bodily harm. These are helpful in illustrating how other courts have applied the principles of sentencing but the result in each case is greatly influenced by the factual context.

Sentencing Principles

[5] The purpose and principles of sentencing is defined in section 718 of the Criminal Code as the maintenance of a just, peaceful and safe society by the imposition of sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community;

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

Application to Facts

[6] There is no evidence before me to show that the victim had previously committed any crime against Ms Parker. I have been told that although no official complaint was made by her and no charges were laid, she is adamant that she was sexually assaulted by him. That allegation cannot justify the offender's conduct. In any event, even if the victim is guilty of such a crime, the court must send a strong message that 'street justice' will not be condoned. To do otherwise makes the community unsafe and undermines respect for the rule of law. Moreover, the specific facts of this case are aggravating: The victim had done nothing to inflame the situation; on the contrary, he was leaving the premises as instructed. The attack by the offender was calculated, quick, and unprovoked. He caused significant injuries, some of which continue to this day. The only evidence of remorse is Defence counsel's statement in submissions on sentence that his client is "sad for all involved in this matter".

Rejection of Alternative Sentences

[7] Both counsel are correct in pointing to denunciation as an important factor and I also accept the Crown's submission that deterrence must is equally significant. The application of these principles to the facts of this case means that incarceration is required. In coming to this conclusion, I am mindful that section 718.2(e) of the Code mandates that sanctions other than imprisonment that are reasonable should be considered for offenders. It follows from these observations that I reject a conditional discharge - such a sentence is clearly contrary to the public interest.

[8] Incarceration can be served in a jail or in the community under terms of house arrest. Although counsel did not discuss the option of a conditional sentence, I have considered and rejected it. Section 742.1 of the Code lists four criteria that a court must consider before deciding to impose a conditional sentence: (1) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment; (2) the court must impose a term of imprisonment of less than two years; (3) the safety of the community would not be endangered by the offender serving the sentence in the community; and (4) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2. A conditional sentence is available for this offence, but it is not appropriate; the principles of denunciation and general deterrence require jail. Moreover, I am of the opinion that these principles are not met by an intermittent sentence of 90 days or less.

Sentence

[9] In all the circumstances of this case, a fit sentence is one of four months in jail. That will be followed by a period of probation for a period of one year on the statutory terms as well as term that the offender not associate or communicate directly or indirectly with the victim or Ms Ung. In addition, he is ordered to provide a sample of his DNA and abide by a prohibition order, pursuant to s.110 of the Code a period of ten years.

Released: 16 April 2012

Signed: "Justice J. De Filippis"

Footnote

[1] See R v Little 2011 ONCJ 590