Court Information

Ontario Court of Justice

Between: Her Majesty the Queen — and — Kevin Palmer

Before: Justice A.J. Hall

Reasons for Judgment released on: June 17, 2015

Counsel:

• T. Edward, for the Crown
• L. Galway, for the accused Kevin Palmer

Introduction

[1] On 2 October 2014 Mr. Kevin Palmer was before me for the purposes of a preliminary inquiry. Mr. Palmer elected to change his mode of trial, and entered a plea of guilty to one count of aggravated assault.

[2] Mr. Palmer is before me today for sentencing; he has been in custody since October 17, 2013.

Overview of the Facts

[3] On 19 April 2013, Mr. Palmer went to the residence of his mother whom he visits basically once a month. Mr. Palmer's mother resides with her daughter.

[4] The victim and her daughter were getting ready for bed when Mr. Palmer arrived at the residence. Mr. Palmer while in the residence, was searching for something, when asked by his mother what it is he searching for, he became incensed and responded with "don't ask me that".

[5] Mother and daughter went off to bed. Mr. Palmer went to the kitchen to prepare boiling water to cook oatmeal. A short time later instead of making oatmeal Mr. Palmer went to his mother's bedroom, where she was sleeping, and poured the hot water from a saucepan on his mother's face and chest area.

[6] While the mother screamed in pain from the injuries inflicted on her, Mr. Palmer began to rant and rave saying: "you always hated me", "you did this to yourself", and that they are "not his family".

[7] The victim was transported by ambulance to Scarborough General Hospital, where she received treatment for second degree burns to her chest, shoulders, and face.

The Defence's Position

[8] Counsel for the defence submitted, that the Mr. Palmer is now well aware of his mental health challenges. Once released he will continue to seek help to address those challenges, with the assistance of his probation officer, and the John Howard Society.

[9] Counsel for the defence submitted further, that the range of sentence with respect to this type of offence starts from suspended sentences coupled with probation to lengthy periods in the penitentiary. In other words the sentencing range is quite wide.

[10] Counsel for the defence urged me to take note that Mr. Palmer has served the equivalent of 28 ½ months in custody. In her view this is sufficient time, such a sentence according the defence counsel, would adequately satisfy the principles of denunciation and deterrence.

[11] I am urged by the defence counsel to suspend the passing of sentence, and imposed a period probation for two years.

[12] In the alternative; if I am of the view that additional time in custody is necessary: the defence counsel recommended the time should be no longer than an additional 14 days.

Crown Counsel's Position

[13] Given the very serious nature of this offence, Mr. Palmer should be given credit equivalent of 28 months in pretrial custody, plus an additional 20 months in custody for a total sentence of (4) four years. This sentence would satisfy the principles of denunciation, specific and general deterrence, and rehabilitation.

[14] The crown submitted as well, that the Mr. Palmer should be placed on probation for three years. The probation order should include the following terms no weapons as defined by the criminal code, DNA order and a section 109 order for 10 years.

Circumstances of Mr. Palmer

[15] Mr. Palmer will be 24 years of age in July of this year. In 1996 he and his mother emigrated from Barbados to Canada, to pursue the prospect of a better life for both of them.

[16] Mr. Palmer was raised primarily by his mother; his biological father had never played a meaningful role of his life.

[17] Mr. Palmer has four half siblings on his father's side of the family, but there were never any significant contact with them. The Mr. Palmer has a half-sister on his mother's side of the family with whom he's closer.

[18] Mr. Palmer has never had a good relationship with his mother. He felt ignored by her, he perceived himself to be a burden to his mother. Mr. Palmer felt he was unwanted child.

[19] From Mr. Palmer's perspective: communication between him and his mother was a major challenge. Mr. Palmer told forensic psychiatrist Dr. Julian Gojer, "he recalls that his mother was emotionally, spiritually and physically abusive to him". Mr. Palmer reported also that at age 16 he was sexually abused by a former employer.

[20] Mr. Palmer reported he was kicked out of his home by his mother, at 14 years of age, and has been living on his own since 17 years of age.

[21] This was contradicted by the presentence report, on page 4, para 4 the Mr. Palmer reported to the probation officer: that upon turning 18 years of age he moved out on his own.

[22] Mr. Palmer reported to the probation officer that he lived at two different youth support housing locations before his arrest. He supports himself by working part-time to supplement funds received from Ontario works.

[23] Mr. Palmer became eligible for Ontario disability support program due to his mental health issues. (See presentence report page 4).

[24] The probation officer noted the following with respect to the Mr. Palmer mental health:

"the subject divulged that he was referred to a psychiatrist through the youth program and attended only three sessions to date. He reported that he was prescribed antidepressants and further counseling for this issue. However, the subject noted that he did not follow up with the counseling nor taken the medication. The subject eluded his lack of motivation and feeling of the being "lost" for not following up with any counseling".

Dr. John Langley from the Department of Psychiatry of Michaels Hospital confirmed the Mr. Palmer was referred to him by the staff of youth house he resided: due to poor function, social withdrawal and possibly depression.

Mr. Palmer disclosed to Dr. John Langley that his mother was never available when he was young and that he raised himself. The Mr. Palmer expressed "feelings of out of place", "lost all sense of what's going on", and that he heard "whisper".

It was the impression of this physician that the Mr. Palmer was experiencing "chronic dysthymia and avoidance personality disorder". Dr. John Langley last saw the Mr. Palmer April 4 2012.

[25] Dr. Julian Gojer a forensic psychiatrist assessed the Mr. Palmer and prepared a psychiatric report that that is now part of the record of this proceeding.

In that report Dr. Julian Gojer noted:

That Mr. Palmer reported "that he has been hearing voices since his childhood. The voices are both male and female and are not familiar to him. The voices talk about him and make him feel helpless. At times this scares him. He knows that the voices of talent to do something, but does not know exactly what they are asking of him." (Page 4 of psychiatric report)

"Mr. Palmer is a difficult person to assess. I have had the benefit of collateral information and even when reviewing all the material, a firm diagnosis is not possible. It is likely he suffering from a psychotic illness often unspecified nature. His history of child abuse also has left him with some feature of posttraumatic stress disorder with associated features of anxiety and depression".

"Mr. Palmer's actions do not appear to have been driven by command hallucinations and he justifies actions as being retributive for the abuse he suffered. This leads me to conclude that he has unresolved anger towards his mother". "I am not able to conclude that he has a personality disorder or rate him on the standard risk assessment tools, but at a clinical level I have serious concern about his mental stability and without treatment see him as at least a moderate risk to the community and a high risk to harm his mother". (Page 10 and 11 psychiatric report)

[26] Mr. Palmer told Dr. Julian Gojer that he does not want to take medication. Before me, this position changed, he testified that he was willing to take medication to address his mental health challenges.

[27] Mr. Palmer in his testimony as well, acknowledged that his actions with respect to his mother on the night in question were not right. In his words "I wish I could take it back".

Mr. Palmer has attended a number of secondary schools and adults learning centers in Toronto, however: he is six credits short to meet requirements for his high school diploma. While incarcerated Mr. Palmer is currently enrolled in the business administration program at Centennial College.

[28] In addition Mr. Palmer has completed successfully 21 programs covering various subject areas, such as anger management, goal setting, and problem-solving to name a few.

[29] These programs were offered by the correction services.

Mr. Palmer told Dr. Julian Gojer he has no intention of pursuing a career in this field, he simply took the courses to pass the time in custody.

Victim Impact Statement

[30] Regrettably no victim impact statement was ever presented to me. As a result of this failure, I am unable to determine the long-term effects of the injuries to the victim. I can only surmise the pain and anguish the Mr. Palmer's mother must have experienced after having boiling water poured on her while asleep in her bed.

Aggravating Factors

[31] The victim was in her home sleeping in her bed when she was attacked by Mr. Palmer.

[32] The attack on a victim was unprovoked.

[33] Mr. Palmer has a criminal record, however: he has never spent any significant period of time in custody.

[34] The victim had to be taken to hospital for treatment for her injuries.

Mitigating Factors

[35] Mr. Palmer is a young person being 24 years of age.

[36] Mr. Palmer pleaded guilty without necessity preliminary inquiry and a trial saving substantial judicial resources.

[37] Mr. Palmer's plea of guilt spared the victim the need to testify and relive the traumatic experience.

Governing Principles

[38] The principles of sentencing are set out in sections 718, 718.01, 718.02 of the Criminal Code. The main principles governing this sentencing are:

1. the principle proportionality, meaning the fitness of the sentence must reflect the gravity of the offence and the degree of responsibility of the offender;

2. the other principles, deterrence and denunciation of the offender's conduct.

3. And finally the principle of rehabilitation, particularly given the youthful age of the offender, this principle must remain in sharp focus.

[39] From the case law presented to me with respect to sentencing cases dealing with the offence of aggravated assault, the cases point to the bottom end of the range, were suspended sentences.

[40] In the middle of the range the sentences were between 18 months to two years less a day in custody, while at the high end of the range the sentences were 4 to 6 years in the penitentiary.

[41] Unfortunately none of the cases presented to me dealt with the fact situation similar to the case before me.

Sentence to be Imposed

[42] Mr. Palmer is not a first time offender; his family background is sad and painful.

[43] Since his early years the relationship with his mother has been plagued with mistrust, disappointments and even hate.

[44] His biological father for all intent and purpose is an absentee father; that has neglected his role as a parent from the information provided to me.

[45] Mr. Palmer's troubled background coupled with his mental health challenges has made his young life a difficult and sad.

[46] He has committed a very serious offence, and must be given a sentence that emphasizes denunciation and deterrence.

[47] At the same time I must not lose sight of his rehabilitative potential.

[48] The assault was a very serious and unprovoked attack on his mother while she was sleeping in her bed. The nature of this assault brings it closer to the high end of the sentencing range.

[49] After careful consideration of all the circumstances of this case, I have concluded the appropriate sentence is one of 3 ½ years. Once the custodial portion of the sentence is completed Mr. Palmer will be on probation for two years. I shall outline the terms of the probation below.

[50] I've taken in consideration the pretrial custody of 20 months and allowing credit at the rate of 1.5 for one basis. The credit assessed then would be equivalent of 30 months. Mr. Palmer will then serve a sentence of an additional 12 months in custody.

[51] I strongly recommend that the custodial portion of the sentence be served at the St. Lawrence Valley correctional and treatment centre. This necessary for Mr. Palmer to received treatment for his illness and the necessary counseling.

[52] In my view, the protection of the public necessitates that Mr. Palmer serves his sentence in this treatment facility.

Terms of Probation Order

The Statutory Terms

[53] Not to possess any weapon as defined by the criminal code.

[54] Reside at a residence approved of by your probation officer.

[55] Not to have any contact with your mother Rachel Palmer.

Ancillary Orders

[56] Mr. Palmer I order that you provide a sample of your DNA for analysis and to be stored in the databank scheme.

[57] I imposed a section 109 of the Criminal Code: weapons prohibition order for 10 years.

Conclusion

[58] As a result of a guilty plea to one count of aggravated assault Mr. Palmer you are sentence to the equivalent of 42 months or 3 ½ years noting enhanced credit at 1.5 for one basis for the 20 months pretrial custody you have observed.

[59] Mr. Palmer you are sentenced to serve in custody an additional 12 months. After the custodial term is completed you be placed on probation for two years. The terms I indicated earlier and the ancillary orders were indicated earlier as well.

[60] Given Mr. Palmer's mental health issues, I strongly recommend again the custodial portion of the sentence be served at St. Laurent's Valley Correctional and Treatment centre.

I wish to thank both counsels for the invaluable assistance.

Released: June 17, 2015

Signed: Justice A.J. Hall