Court File and Parties
Court File No.: 12-7720 Location: London, ON Date: November 27, 2012
Ontario Court of Justice
Her Majesty the Queen -and- Joshua Gratton
Reasons for Decision on Sentence
Before: Justice J.C. George
Matter heard on: November 19, 2012 Reasons delivered on: November 27, 2012
Counsel:
- O'Malley, for accused J. Gratton
- Spangenberg, for Crown
Offence
[1] Nineteen year old Joshua Gratton has pleaded guilty to one count of robbery. His plea was entered on Monday August 13th, 2012 in the Gladue Court, and sentencing submissions were made, again in the Gladue Court, on Monday November 19th, 2012.
Facts
[2] The facts are concerning. Mr. Gratton acknowledges assaulting Dale Groenendyk and in doing so admits saying to him "let me see your pot" (marijuana). He punches him once, taking the small amount of marijuana the victim had in his possession, and runs away. Significant injuries were sustained. The court was told the victim suffered a broken jaw.
[3] There is further context which is relevant to this sentencing consideration:
First, this matter involves one punch, as opposed to a sustained beating. This, I suppose could cut both ways. The crown in its submissions pointed out that this particular one punch caused damage which is more significant than what we often see in more prolonged fights and beatings. It points out as well that given the force of the punch here, the result could have been much worse. This is true and the point is well taken.
Second, this was not a random act. The accused and victim were known to each other and the court was told this was not "out of the blue" so to speak. Mr. Gratton advised, and the Crown did not dispute this fact, that there were events that precipitated this that, although not an excuse or justification, do not reflect well on Mr. Groenendyk. Apparently, some time before this incident, the victim had made sexual advances towards Mr. Gratton's sister and this was in response to that, although the theft of the marijuana makes little sense and doesn't fit well with that explanation.
Third, Mr. Gratton is an aboriginal person, specifically a First Nations person and status Indian. This, of course, requires that I undertake a very different analysis in determining a fit sentence. To this end, I received a Gladue report which was detailed, thorough and which adequately set out Mr. Gratton's life circumstances and background.
Fourth, Mr. Gratton has a criminal record. It is fairly lengthy, and largely related although I do note that several convictions were from when he was a young offender. Indeed the previous robbery conviction, which attracted a 3 month custodial sentence, was as a young offender.
Law – Sentencing Generally & Application of Gladue Principles
[4] It is well known and accepted that trial judges have a broad discretion in the sentencing process. This has been confirmed by higher courts many times, most recently in the case of R. v. Ipeelee; R. v. Ladue 2012 SCC 13, [2012] 2 C.N.L.R. 218. Subject to any statutory rules, mandatory minimum penalties or appellate court guidance, sentencing is a highly individualized process. To use the language in Ipeelee/Ladue - "sentencing judges must have sufficient manoeuvrability to tailor sentences to the circumstances of the particular offence and the particular offender". The statutory rules I'm referring to are obviously those that are set out in sections 718.1 and 718.2 of the Criminal Code.
[5] In Mr. Gratton's instance, the Crown is urging the court to give greater weight to the principles of denunciation and deterrence; while Mr. Gratton's counsel asks that I give considerable weight to the objective of rehabilitation. It is, of course, for the court to determine what weight is to be accorded each sentencing factor, principle or objective, and I am mindful of the fact this is highly variable and dependent upon the accused' particular circumstances.
[6] Section 718.2(e) of the Criminal Code directs that all available sanctions other than imprisonment that are reasonable in the circumstances be considered for all offenders, with particular attention paid to the circumstances of aboriginal offenders. I take from the many cases that have attempted to apply this, in particular R. v. Gladue, [1999] 1 S.C.R. 688 and Ipeelee/Ladue that this means the court should, when it can, be remedial in attempting to address the overrepresentation of aboriginal people in the Canadian criminal justice system. Also, courts should take a more restorative approach when it is possible to do so, which can be a better reflection of the aboriginal view of offenders, offending behaviours and punishment.
[7] These are the steps a sentencing judge must go through, which is not to say in every instance jail can be avoided. Sometimes the need to protect society far outweighs any restorative objectives that are reasonably achievable. Sometimes there is no option other than jail. In fact, this is one of those cases. Mr. Gratton has now been in custody for 218 days (in excess of 7 months) and everyone has quite rightly conceded that given the nature of this offence, together with the prior record, the imposition of a jail sentence is required. The question is whether or not more time is necessary.
[8] The Crown advocates for a sentence in the mid to upper reformatory range, which I suppose is anywhere from 12 months to 2 years less a day. The defence submits a time served disposition is appropriate and that nothing of value is achieved in prolonging the period of incarceration beyond what is only minimally necessary.
[9] To this, I am mindful of the Supreme Court's direction in Gladue which is, when its determined jail cannot be avoided, to carefully consider the length of any custodial disposition. This has been the subject of much controversy over the years with critics often saying that a race-based remission is inappropriate and contrary to our charter values. This concern is directly addressed by the Supreme Court in Ipeelee/Ladue where at paragraph 72 it states:
While the purpose of s.718.2(e) may not be to provide a "remission of a warranted period of incarceration", critics argue that the methodology set out in Gladue will inevitably have this effect. As Professors Stenning and Roberts state: "The practical effect of this alternate methodology is predictable: the sentencing of an aboriginal offender is less likely to result in a term of custody and, if custody is imposed, it is likely to be shorter in some cases than it would have been had the offender been non-aboriginal" (p. 162). These criticisms are unwarranted. The methodology set out by this Court in Gladue is designed to focus on those unique circumstances of an Aboriginal offender which could reasonably and justifiably impact on the sentence imposed.
[10] The aggravating factors here obviously relate to Mr. Gratton's criminal record; history of violence; and the injuries sustained by the victim. This needs to be balanced with the more mitigating features, which includes the fact this was more a crime of opportunity (out of anger and quite unsophisticated) as opposed to something pre-planned; his relative youth; and the seeming desire, as pointed out in the Gladue report, to seek help for the many issues he's currently facing.
[11] In balancing all of the above, I am mindful of the fact Mr. Gratton has directly experienced many of the factors Gladue speaks of (racism, community and family displacement, lack of education and employment, minimal employable skills, early introduction to drugs and alcohol, and becoming a parent at a young age). The report details Mr. Gratton's efforts while in custody which have included him attending Alcoholics Anonymous meetings, participating in a 'goal setting' course, and becoming involved in some aboriginal-based programming, on the rare occasion it became available to him as a remand prisoner.
[12] The remorse expressed seems genuine as well, and he has indicated a desire to become involved with each of Mr. Cornelius and Mr. Hopkins, both counsellors and service providers at the local Native Friendship Center.
Conclusion/Orders
[13] In my view, there is no need to delay his involvement with these folks, who can assist him greatly.
[14] We will note the 218 days pre-sentence custody, which I indicated earlier amounts to a sentence in excess of seven months. There is a statutory bar to the granting of enhanced credit (as he was denied bail primarily on account of a prior record), so I am unable to do that. The endorsement should otherwise be 1 day deemed served. A period of probation is appropriate and the duration of that order will be two years. The terms of the order are as follows:
Statutory terms.
Report to probation today, and thereafter as required.
Not possess, inject, or purchase any drugs, except in accordance with a medical prescription.
Not associate or communicate with anyone named in writing by probation, including Dale Groenendyk.
Not attend at any place indicated in writing by probation, including any known place of residence, education or occupation of Dale Groenendyk.
Take such counselling that's recommended by probation, in particular as it relates to substance abuse. Given Mr. Gratton's desire to become involved with Mr. Hopkins and Mr. Cornelius and in light of his hope to become engaged with other services offered by the N'Amerind Friendship Center, probation will be directed to ensure these are First Nation-based and culturally appropriate, if that can be accomplished.
[15] An order under section 109 of the Criminal Code is mandatory and will be made. I'll hear from counsel as to length, although I believe a lifetime order is required.
[16] This being a primary designated offence, a DNA Order will be made.
November 27, 2012
Justice Jonathon C. George