Court File and Parties

Court File No.: 123933 Date: 2013-03-05 Ontario Court of Justice

Between: Her Majesty the Queen — and — Scott Fiddler

Before: Justice D. DiGiuseppe

Heard: January 25 and February 1, 2013

Oral Reasons delivered: February 1, 2013

Counsel:

• Stacey Hamilton, for the Crown
• Leon Nicol, for the accused Scott Fiddler

DIGIUSEPPE J.:

A. OVERVIEW

[1] Scott Fiddler pled guilty to a charge of robbery, that is stealing property from Steven Grau and using violence towards him. A pre-sentence report was ordered and filed with the court. I heard submissions on sentence on January 25, 2013. The matter was adjourned to today's date for the imposition of sentence.

B. CIRCUMSTANCES OF THE OFFENCE

[2] On October 6th, 2012 at approximately 11 p.m., the victim Steven Grau was walking home in a residential area of Thunder Bay. He was approached by two young men unknown to him, identified as the accused, Scott Fiddler and his co-accused, Ruben Meekis. They asked Mr. Grau for a cigarette and then, without warning and unprovoked, proceeded to rain blows on him, punching him in the head and body repeatedly and knocking him to the ground. While on the ground he was repeatedly punched and kicked in the head and body. Mr. Grau managed to produce a small pocket knife and swung it at his two attackers in an effort to stop the beating. The two continued to punch and kick Mr. Grau, who eventually managed to stab one individual, Mr. Meekis, in the chest area. Mr. Fiddler, who also received a minor cut on the forearm, continued the beating. The two accused then told Mr. Grau that they were taking him to a bank and started to drag him along the ground. He handed over his wallet and managed to break free and run. The accused pursued him but Mr. Grau was able to reach his residence and call police. Both accused were arrested a short time later, both suffering minor knife wounds.

[3] Mr. Fiddler did not dispute these facts, but says he was extremely intoxicated and has no memory of these events. He did, however, speak to police at the police station at approximately 1:15 a.m. the next morning, acknowledging his conduct and wanting to "come clean", as he put it, and explained that he was having a difficult time with his girlfriend. Mr. Fiddler spent seven days in pre-sentence custody before being released on a recognizance on October 12, 2012.

C. IMPACT ON THE VICTIM

[4] The victim, Steven Grau and his mother, Sherri Grau both filed victim impact statements. Mr. Grau suffered swelling, cuts, scrapes and tissue damage to his face, hands and neck. His nose was broken. A blood vessel in his eye burst. He also suffered some economic loss as set out in his statement, including lost cash, ambulance fees, loss of one day's work and damage to a jacket totalling $163.35. Mr. Grau says he incurred other expenses but the Crown is not seeking to advance those expenses in a restitution claim in this court. Mr. Grau was emotionally affected by this offence. I quote from his victim impact statement:

"After the event, it was difficult to leave the house or walk down the street. It made me fearful and untrusting of any strangers walking down the street or in front of my house. Since the incident, I have occasional nightmares about similar events occurring to myself or others. My injuries made me stand out at school, which affected my ability to focus on my studies. I have begun emotional counselling as a result of this incident. Since the incident I feel unable or powerless to protect myself or loved ones."

[5] In her victim impact statement, Ms. Grau described the impact the assault had on her, her son and her family. I will read into the record excerpts from her victim impact statement:

"As a parent, I cannot even begin to know how my son felt when two strangers started beating him for no reason whatsoever and no one was around to help. He thought he was going to die in the neighbourhood he grew up in. The neighbourhood he calls home. The one place he should feel safe was ripped away from him."

[6] Further in the statement:

"We lock our doors all the time now, something we have never done before. We look at people differently than we did before. We are scared of people and places that we never gave a second thought to before. Our lives have been changed upside down. Do we need to move from the neighbourhood? Will we ever feel safe again? Do the assailants or their friends know where we live? Are they going to come after us? We jump at the sound of the neighbour's car alarm going off. The headaches from worrying. The sick feeling I get every time my son leaves the house to go out. You would think he was a child again instead of an adult. My son was not only robbed of his money but so much more; his independence, his freedom to walk day or night by himself without fear, feeling safe in his own home. All of this has been taken away."

[7] It is clear that the assault perpetrated by Mr. Fiddler and his co-accused has had a profound impact, both physically and emotionally, on the victim and his family, the effects of which will prevail long after this case is concluded.

D. CIRCUMSTANCES OF THE OFFENDER

[8] Scott Fiddler is a 20 year old aboriginal youth. He was born in Kenora and raised in Sandy Lake. His family history and personal circumstances are set out in detail in the pre-sentence report. Mr. Fiddler's early years were unremarkable. Although the Sandy Lake community has suffered from the generational impact of the residential school experience, neither Mr. Fiddler's biological mother nor his adoptive mother, his aunt, endured the residential school system. By all accounts, Mr. Fiddler was raised in a loving, safe and supportive family free of abuse or violence. Mr. Fiddler came to Thunder Bay as a young teen to attend high school. School authorities describe him as a cooperative student, respectful of authority and not a behaviour problem. He expects to graduate this year.

[9] Mr. Fiddler is viewed similarly in the community. His only involvement in the criminal justice system concerned a drug possession charge in November 2011 for which he received a conditional discharge and successfully completed his probation term, and a diversion program through the Thunder Bay Indian Friendship Centre in November 2011, which was also successfully completed. Mr. Fiddler has no criminal record.

[10] Since the commission of this offence, Mr. Fiddler has been participating in the John Howard Society Bail Supervision Program. He has been compliant with all the conditions of his bail.

[11] All sources contacted by the probation officer in the preparation of the pre-sentence report, including family, school, and the boarding home where he resides view Mr. Fiddler's participation in this offence or any violent or aggressive behaviour as totally uncharacteristic of him. These sources were shocked and baffled that Mr. Fiddler would commit this type of offence.

[12] The pre-sentence report concluded that, given Mr. Fiddler's positive response to supervision in the past, whether on probation, pursuant to a diversion agreement or while subject to the bail supervision program, he would be a suitable candidate for community supervision in the future.

[13] Mr. Fiddler expressed remorse for his conduct initially when questioned by police, to the probation officer during the preparation of the pre-sentence report and by his guilty plea at a very early opportunity, accepting responsibility for his conduct. I accept his remorse as genuine.

E. POSITION OF CROWN AND DEFENCE

[14] The defence acknowledges that a jail sentence would be appropriate with respect to a crime of this nature but urges the court, given Mr. Fiddler's particular circumstances, to impose a community-based disposition. If a jail sentence is imposed, then it ought to be a sentence that can be served intermittently to allow Mr. Fiddler to complete his school term. The defence submits that a suspended sentence with probation, to include punitive and rehabilitative conditions, or an intermittent sentence, would serve the ends of justice in this case.

[15] The Crown submits that deterrence ought to be a primary sentencing objective for crimes of this nature and proposes a term of imprisonment to be followed by a period of probation with the conditions set out in the pre-sentence report. Given the mitigating factors in this case and given Mr. Fiddler's personal circumstances, the Crown submits that the length of the jail sentence could be tempered. The Crown also seeks a D.N.A. order and a firearms prohibition.

F. THE LAW

[16] The purpose and principles of sentencing are set out in section 718 of the Criminal Code. These purposes and principles include denunciation, specific and general deterrence, separation of offenders from society where necessary, rehabilitation of offenders, reparation for harm to victims, and promoting a sense of responsibility in an offender. Section 718.1 of the Criminal Code requires that sentences imposed be proportionate to the seriousness of the offence and the degree of responsibility of the offender. Section 718.2 of the Criminal Code requires the court to consider any aggravating and mitigating factors, paying particular attention to the circumstances of aboriginal offenders.

[17] Section 718.2(e) of the Criminal Code performs a remedial function in sentencing aboriginal offenders, acknowledging systemic factors that contribute to bringing aboriginal offenders in conflict with the law before the courts, and responding to the inordinate high level of incarceration of aboriginal offenders. While these considerations must be taken into account, the duty of a sentencing judge to impose a fit sentence has not changed. While it is important to consider the particular circumstances of aboriginal offenders and the principles of restorative justice, namely healing and restoration for offenders and victims, the sentencing objectives of denunciation and deterrence must still be given due consideration especially for serious offences.

[18] The balance sought to be struck with respect to these sentencing objectives is described in the case of R. v. Gladue, [1999] S.C.R. 19. At paragraphs 78 and 79 of that decision:

"In describing the effect of section 718.2(e) in this way, we do not mean to suggest that, as a general practice, aboriginal offenders must always be sentenced in a manner which gives greatest weight to the principles of restorative justice and less weight to goals such as deterrence and denunciation… Clearly, there are some serious offences and some offenders for which and for whom separation, denunciation and deterrence are fundamentally relevant. Yet, even where an offence is considered serious, the length of the term of imprisonment must be considered. In some circumstances, the length of the sentence of an aboriginal offender may be less and in others the same as that of any other offender. Generally, the more violent and serious the offence, the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing."

[19] With these principles firmly in mind, I move now to the matter before the court.

G. ANALYSIS

[20] There are a number of mitigating factors in this case. Mr. Fiddler's youth, his lack of a criminal record and his early plea of guilt and continued expression of remorse are all factors which stand in his favour. He comes from a loving and supportive family. Those who know him view this criminal conduct as out of character for him. He has not exhibited violent tendencies in the past. Mr. Fiddler's alcohol consumption was clearly a significant contributing factor to his behaviour on the night in question. The pre-sentence report paints a picture of a young man with strong supports, reasonable insight into his criminal conduct and with the drive and desire to address those factors which contribute to that conduct. Mr. Fiddler has great potential.

[21] On the other hand, the circumstances of this offence cry out for a significant jail term. Mr. Fiddler, along with his co-accused, administered an unprovoked, senseless and vicious beating on Mr. Grau, a beating that has had physical and significant emotional repercussions for him and his family. Although the crime did not involve any significant planning or deliberation, and is best described as a crime of opportunity, it nonetheless targeted a young man in a vulnerable situation, alone, outnumbered on a darkened street. The level of terror experienced by Mr. Grau as he was followed, attacked and beaten was significant and continues to affect him. It is fortuitous that the beating did not result in more serious or even tragic consequences.

[22] In cases of serious crimes involving significant personal violence, the sentencing objectives of denunciation and deterrence take on an overarching significance. Rehabilitation, while important to the offender and ultimately the public, takes on a less prominent role. The balance to be achieved in arriving at a fit sentence, which takes into account the circumstances of the offence and the circumstances of the offender, must address these sentencing objectives in a meaningful way.

[23] Crimes of this nature require a significant jail sentence. If individuals are to be deterred from preying on innocent, helpless victims, a strong message must be sent that offences of this nature will not be tolerated and severely punished. In this case, I have considered the very compelling mitigating factors in tempering what would otherwise have been a much lengthier jail sentence. In my view, the sentence I intend to impose, while serving a denunciatory and deterrent purpose, will also give Mr. Fiddler an opportunity to address those factors that contribute to his criminal conduct and provide the structure and support necessary to assist in his rehabilitation.

H. DISPOSITION

[24] Please stand, Mr. Fiddler. On the charge of robbery, Mr. Fiddler will be sentenced to a term of imprisonment of eight months. Following the term of imprisonment, Mr. Fiddler will be placed on probation for a period of 12 months. The terms of the probation order will be as follows:

1. Keep the peace and be of good behaviour;

2. Report to a probation officer within five working days after your release from custody and after that as required by your probation officer;

3. No contact, direct or indirect, with Steven Grau, except for a letter of apology as directed by this order;

4. Provide a letter of apology to Steven Grau in a form acceptable to your probation officer, to be delivered to Mr. Grau through your probation officer at your expense, within 30 days of your release from custody;

5. Make restitution to Steven Grau in the amount of $163.35 within four months after your release from custody and provide a receipt to your probation officer;

6. Attend and actively participate in such rehabilitative programs for alcohol, drug or substance abuse and anger management as is recommended by your probation officer;

7. Abstain absolutely from the purchase, possession or consumption of alcohol, any other intoxicating substance and any drugs banned under the Controlled Drugs and Substances Act except in accordance with a medical prescription; and

8. Abide by a curfew and be in your place of residence between the hours of 11 p.m. to 7 a.m. the following morning except with the written permission of your probation officer.

[25] The following ancillary orders will issue:

1. Robbery is a primary designated offence. Mr. Fiddler will be required to provide such samples of bodily substances as are reasonably necessary for the purposes of forensic D.N.A. analysis.

2. Pursuant to section 109 of the Criminal Code, Mr. Fiddler will be prohibited from possessing any firearms, ammunition or explosive substance for a period of ten years.

Released: March 5, 2013

Signed: Justice D. DiGiuseppe