Court File and Parties

Ontario Court of Justice

Date: 2016-01-06

Court File No.: Peterborough 14-1642

Between:

Her Majesty the Queen

— and —

Levi Broderick

Before: Justice S. W. Konyer

Heard on: January 4, 2016

Reasons for Judgment released on: January 6, 2016

Counsel:

• Mr. F. Schwalm — counsel for the Crown
• Ms. J. Hiland — counsel for the accused Levi Broderick

Reasons for Judgment

KONYER J.:

Introduction

[1] Levi Broderick has entered a guilty plea to one count of aggravated assault upon Chad Thomas. The issue that I must determine is the appropriate length of sentence. Both the Crown and defence agree that a period of custody is appropriate, and they agree that Mr. Broderick is entitled to credit for pre-sentence custody. The Crown seeks a global sentence in the range of 18-24 months less pre-sentence custody, while the defence argues that a sentence of 12 months less pre-sentence custody is fit. These are my reasons for sentence.

Sentencing Principles

[2] I must impose a sentence that is proportionate to the gravity of the offence, and one that takes into account the degree of responsibility of the offender. Counsel agree that the paramount sentencing principles in this case are denunciation of Mr. Broderick's unlawful conduct, the deterrence of Mr. Broderick and others from engaging in similar conduct, and reparation to Mr. Thomas for the harm done to him.

Facts of the Offence

[3] This offence is manifestly serious. Mr. Broderick is the uncle of Mr. Thomas' domestic partner, Andrea Broderick. There is apparently some history of animosity between Mr. Thomas and members of his partner's extended family. On August 25, 2014, Mr. Thomas became involved in a verbal dispute with Ms. Broderick's great-grandmother which occurred in public in the neighbourhood where they all lived at the time. It is agreed that Mr. Thomas became upset over the way the great-grandmother, who is also the accused's grandmother, was looking at him, and that he told her "don't look at me you fucking cunt."

[4] Apparently, this matter was reported to the police, who spoke to Mr. Thomas and told him to stay away from the great-grandmother. The following day, at about 4:30 p.m., Mr. Thomas was walking on a public bicycle and pedestrian path in the neighbourhood when he was set upon by Mr. Broderick. Although the details of the assault remain unclear because Mr. Thomas lost consciousness at some point, it is clear that he was the victim of a serious beating at the hands of Mr. Broderick. Fortunately, he regained consciousness and was able to walk back to his residence. Mr. Thomas had visible wounds to his head and face, his jaw was broken on both the left and right side, and he spent the night in hospital.

Victim Impact

[5] Mr. Thomas testified at the sentencing hearing. He underwent surgery on the same date as he was assaulted, and had metal pins installed in his jaws to set the broken bones. These pins were to have been removed after three months, but apparently the cost of the surgery to remove the pins, some $713.00, is not covered by OHIP. Mr. Thomas, who is supported by ODSP, has been unable to afford this procedure and the pins remain in his jaws today, some 18 months later.

[6] Mr. Thomas still suffers from numbness and occasional pain in his jaw to this day. Unsurprisingly, he remains afraid of Mr. Broderick, and is afraid to walk the streets in the neighbourhood where he was attacked. Fortunately, he has moved from the area and does not suffer from any permanent disability or limitation as a result of this assault.

Gravity of the Offence

[7] Clearly this was a serious assault, and the injuries inflicted upon Mr. Thomas meet the definition of "wounding" so as to constitute an aggravated assault. Not only did Mr. Broderick inflict a severe beating, he did so against a weaker victim who made no efforts to defend himself. His actions were vicious and cowardly. They resulted in serious injuries to his victim. His actions occurred in broad daylight in a well-used public space in a residential neighbourhood. They rightly deserve to be strongly condemned.

Motive and Culpability

[8] Counsel have argued about how I ought to characterize Mr. Broderick's motive for carrying out this assault. The defence says that he was provoked by the words uttered to his grandmother, while the Crown argues that Mr. Broderick's actions were a form of vigilantism as he took the law into his own hands after being dissatisfied with the police response. In my view, neither characterization fully captures Mr. Broderick's conduct. Although he was understandably upset over Mr. Thomas' vulgar and offensive language, he did not react suddenly in the heat of the moment. Nor do I think he was acting as a vigilante. Mr. Broderick was not taking the law into his own hands, for there is no law against vulgarity that would justify his extreme conduct. In my view, it is clear that Mr. Broderick simply felt entitled to lay a beating on Mr. Thomas for the offensive words uttered by Mr. Thomas to his grandmother. Accordingly, he bears a high degree of personal responsibility for this assault.

Credit for Guilty Plea

[9] Mr. Broderick is entitled to credit for his plea of guilty, although that credit is significantly reduced by the circumstances in which the plea occurred. Mr. Broderick left the jurisdiction after the assault on Mr. Thomas, and took no steps to surrender himself on this matter. He has entered a plea on the first day scheduled for his trial after the prosecution took the necessary steps to marshall the evidence against him. Although some time and expense has been saved as a result of his decision to plead guilty and not require the Crown to lead the evidence at trial, the savings are minimized by the timing of his plea. Similarly, though I accept that he is somewhat remorseful for his assault upon Mr. Thomas, the effect of his remorse is also lessened by his decision to plead guilty only when faced with the inevitability of being convicted at trial.

Criminal Record and Personal Circumstances

[10] Mr. Broderick also has a significant criminal record. Although it is true that he has no previous convictions for crimes of violence, he has been sentenced numerous times for criminal acts, and has been given numerous opportunities to mature and make pro-social decisions in his life. He is now 36 years of age and shows little sign of having learned any positive lesson from his numerous involvements with the criminal justice system. On the other hand, he has a history of gainful employment and supports a family that includes young children.

Summary of Sentencing Factors

[11] In summary then, Mr. Broderick has pled guilty to a serious crime of violence which resulted in significant injuries to his victim. His level of moral culpability for his conduct is high. He is a mature offender with a significant previous record. He is entitled to some credit for entering a guilty plea, which is lessened by the timing of his plea. In those circumstances, I am in agreement with both counsel that denunciation and deterrence are the paramount sentencing principles. A significant period of incarceration is necessary for the sentence to be proportionate to the seriousness of the crime and Mr. Broderick's degree of responsibility.

Sentence Imposed

[12] Having said all of that, however, I am of the view that separating Mr. Broderick from society for a period of one year is a just and proportionate response to his offending behaviour. Though he was injured significantly at the time, Mr. Thomas recovered and has no major lasting effects. The lack of prior convictions for crimes of violence and the fact that Mr. Broderick supports a family dictates that I ought to use restraint and impose the shortest jail term necessary to achieve the goals of denunciation and deterrence. I am of the view that the loss of Mr. Broderick's liberty for one year is sufficient to denounce this unlawful behaviour and to send the message to Mr. Broderick and others that serious acts of deliberate violence will warrant severe consequences.

Pre-Sentence Custody Credit

[13] Accordingly, the sentence that I would have imposed but for the pre-sentence custody is one of 12 months jail. Mr. Broderick is entitled to credit for pre-sentence custody from his arrest on May 29, 2015 to today's date, less 45 days for the period when he was serving a sentence imposed for unrelated matters in September 2015. Although defence counsel has urged me to deduct only 30 days to reflect the probable amount of time that Mr. Broderick would have actually served with credit for earned remission, I decline to do so. The actual sentence was one of 45 days jail. That is the period that Mr. Broderick was under sentence, and that is the period which should be deducted. I intend to give him enhanced credit for the remainder of his pre-sentence custody in part because of the fact that he does not earn remission for pre-sentence custody. In my view it would be inappropriate for me to credit him for time that is really earned remission on another sentence.

[14] In the result, the pre-sentence custody for which he is entitled to credit is 178 days. I am prepared to enhance his credit at the rate of 1.5 days for each day served, or 267 days. This leaves 98 days jail for Mr. Broderick to serve. Even if the time remaining was less than 90 days, I would not have directed that Mr. Broderick serve the remainder on an intermittent basis, as this would be inconsistent with my determination that the appropriate sentence is one of 12 months jail.

Probation and Conditions

[15] In addition, I am placing Mr. Broderick on probation for three years with conditions designed to make reparations to Mr. Thomas for the damage inflicted on him and to ensure the future protection of Mr. Thomas. In addition to the statutory conditions, Mr. Broderick, you are to:

• Report in person to a probation officer within 2 working days and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision. Your reporting requirement ends when you have satisfied your probation officer that you have paid the restitution in full;

• Cooperate with your probation officer. You must sign any releases necessary to permit the probation officer to monitor your compliance and you must provide proof of compliance with any condition of this Order to your probation officer on request;

• Do not associate or communicate, in any way, by any physical, electronic or other means, or be in the company of Chad Thomas;

• Do not be within 100 metres of any place where you know Chad Thomas to live, work, go to school, frequent or any place you know him to be;

• Make restitution of $713.00 to Chad Thomas to be paid in full by May 1, 2017. If you are unable to make any restitution payment for any reason, you must notify your probation officer in advance. All restitution payments are to be made by cash or a certified cheque or money order payable to the Minister of Finance through any criminal court office for payment to the victim/aggrieved party.

DNA Order

[16] I will also grant the Crown's request for a DNA order.

Weapons Prohibition

[17] I will also make a weapons prohibition order pursuant to section 109 of the Criminal Code prohibiting Mr. Broderick from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for life.

Victim Surcharge

[18] Finally, I am imposing a victim surcharge in the amount of $200. Because it is more important in my view that he make reparations to Mr. Thomas, I will extend the time to pay the surcharge to 18 months.

Released: January 6, 2016

Signed: Justice S. W. Konyer