Court File and Parties

Court File No.: Central East - Newmarket 4911-15-07400, 4911-15-03999

Date: 2016-04-07

Ontario Court of Justice

Between:

Her Majesty the Queen

— And —

Kyle Caster

Heard: February 1, March 18, 2016

Before: Justice Peter Tetley

Reasons for Sentence

Released on April 7, 2016

Counsel:

• Paul Attia, for the Crown
• Malcolm McRae, for the defendant Kyle Caster

TETLEY J.:

Background

[1] On February 1, 2016, Kyle Caster entered a plea of guilty to the offence of aggravated assault of Michael McGrail, contrary to section 268(2) of the Criminal Code.

[2] Kyle Caster also entered a plea of guilty to the offence of breach of probation contrary to section 733.1(1) of the Criminal Code. By his plea, the defendant acknowledged that he failed to report to a probation officer within seven days of the issuance of the order, and thereafter as directed, in accordance with the terms of a January 19, 2015 order of probation imposed by Minden J., a judge of the Superior Court of Justice in Newmarket.

[3] An Agreed Statement of Facts was filed in support of the plea to aggravated assault. By acknowledging these facts, 25 year old, Kyle Caster, confirmed that on September 22, 2015, he assaulted Michael McGrail, aged 54, during the time that both men were residents at the Blue Door Men's Shelter in East Gwillimbury.

[4] Prior to the assault occurring, Mr. McGrail had expressed his concerns to the defendant in relation to the issue of cleanliness in the shelter and related matters. These concerns had also apparently been reported to the shelter staff. On the date of the aggravated assault, Mr. Caster had been asked by the Blue Door staff to leave the shelter. The defendant believed that he had been unfairly maligned by Mr. McGrail and was upset by the fact he was now being requested to reside elsewhere and was being displaced from his temporary residence at the shelter. Before taking his leave, Mr. Caster encountered Mr. McGrail. The referenced assaultive conduct occurred shortly thereafter.

[5] The incident was captured on video and a copy of the video recording was filed with the Court as an exhibit on sentence. The video discloses the defendant administering a series of 11 forceful punches to the head of Michael McGrail. The first blow was of sufficient force to knock Mr. McGrail to the ground. Thereafter, Kyle Caster can be seen to situate himself astride the prone body of the complainant where an additional 10 punches, all delivered in rapid order, can be observed. These blows were directed at Mr. McGrail's face as he lay on his back on the ground.

[6] Once the punches stop, the defendant is observed to briefly move away from Mr. McGrail's unmoving body. The defendant is then captured as he returns and administers one final blow, a forceful kick to the side of Mr. McGrail's body, as the complainant lay motionless on the grass.

[7] Photographs of Mr. McGrail's injuries were filed as exhibits during the sentencing hearing. These photographs provide graphic evidence attesting to the severity of the physical beating in issue in this case.

[8] Medical records filed during the sentencing hearing confirm that Mr. McGrail sustained a number of significant injuries as a consequence of the assault. These injuries include numerous fractures to his nasal bones, fractures to the walls of his sinus and acute fractures of the sixth and seventh ribs and "questionably" his eighth and ninth ribs.

[9] In his February 1, 2016 victim impact statement, Michael McGrail states that as a result of the aftermath of the physical injuries he sustained, he cannot lay on his left side and was required to sleep sitting up in a chair for more than a month following the assault. Mr. McGrail further advises that he had been informed that he was in need of facial reconstruction to repair what he described as "my broken upper jaw", but was advised against it due to the fact that he has no teeth (I note the medical records that were filed during the sentencing hearing do not appear to disclose confirmation of a broken jaw). Mr. McGrail has also experienced bouts of insomnia since the assault, including a period where he reportedly went seven nights without sleep. Mr. McGrail expresses fear for his continuing safety, while expressing concern that the defendant "may seek me out hoping to hurt me further".

The Defendant's Criminal Antecedents

[10] Kyle Caster's criminal record is as follows:

Date	Offence	Disposition
2009-10-22 Pembroke, ON	Assault with a weapon	Suspended sentence and 12 months' probation (7 days pre-sentence custody)
2011-07-22 Ottawa, ON	(1) Fail to attend court (2) Fail to comply with probation order	5 days, probation for 12 months (2 days pre-trial custody) Five days, probation for 12 months concurrent
2012-04-17 L'Original, ON	(1) Fail to comply with recognizance (2) Fail to attend court x 2	10 days 5 days
2015-01-19 Ottawa, ON	(1) Assault with a weapon (2) Mischief	Held for two years on an NCR finding. Final disposition – a suspended sentence and three month period of probation plus a section 109 order for 10 years. Suspended sentence and three months' probation.
2015-05-04 Ottawa, ON	(1) Assault with a weapon (2) Fail to comply with probation order	23 days, 9 months' probation and mandatory sec. 109 firearms prohibition for life (15 days pre-trial custody). 23 days concurrent

Sentencing Submissions

Position of the Crown

[11] On behalf of the Crown, Mr. Attia seeks the imposition of a net sentence of two years less a day following consideration of the period of pre-trial custody of 199 days (September 22, 2015 to April 7, 2016). The Crown does not oppose the according of enhanced credit at a rate of 1.5 to 1 in relation to the pre-trial custody period. This calculation would result in a total pre-trial custody period of 299 days (199 x 1.5 = 298.50) or the equivalent of 10 months. The Crown therefore submits that a sentence equivalent to a 34-month penitentiary term be imposed when consideration is given to the period of pre-trial custody that the defendant has already served from the date of the offence to today's date (September 22, 2015 to April 7, 2016).

The Position of the Defence

[12] On behalf of Mr. Caster, Mr. McRae seeks a sentence of 9 to 12 months, less credit for accumulated pre-trial custody. Once pre-trial custody is considered, this sentencing proposal, if accepted, would effectively result in the imposition of a sentence ranging from a time served disposition (suspended sentence and probation) to a sentence of approximately 60 days' duration. As Mr. McRae notes, the difference in sentencing positions as between counsel is significant and constitutes a disparity of proposed sentences of approximately two years.

[13] Mr. McRae submits that portions of the period of the pre-trial custody were particularly difficult as the correctional institution in issue was "locked down" for extended periods of time while the defendant was subject to pre-trial detention.

Psychological Assessment

[14] A psychological assessment of the defendant was conducted by Dr. Tania Stirpe and Dr. George Stones. A 20-page report outlining the results of that assessment was filed by the defence as an exhibit during the sentencing hearing.

[15] The defendant was born in Prince Edward Island and is currently 26 years of age. He has two older sisters and a step-brother. His parents divorced in 2013 and his mother has remarried. Mr. Caster enjoys a positive relationship with his siblings and his parents although he has limited contact with his father.

[16] The psychological report reveals that Mr. Caster was bullied at school and was an above-average student until he dropped out mid-way through grade 11. Thereafter, "he has tried to make his own way in the world, with mixed results".

[17] Mr. Caster initially moved to Ottawa after leaving his parent's home in Eganville. He was reported to have led what was described as "a rather marginal and, at times, chaotic existence". This period of Mr. Caster's life was characterized by binge drinking and persistent and often excessive use of street drugs that often "provoked episodes of bizarre behaviour that culminated with criminal charges in 2009 and 2012, with a series of admissions to psychiatric facilities in Ottawa, Newmarket and Whitby".

[18] The report reflects the fact that Mr. Caster was a heavy user of cannabis which was described as a "precipitating factor in Mr. Caster's often erratic behaviour and recurrent bouts of significant psychiatric decompensation".

[19] Between January, 2013 and January, 2015, Mr. Caster was an in-patient at the Ontario Shores Centre of Mental Health in Whitby. This period of hospitalization followed a finding of Not Criminally Responsible in relation to several criminal charges, as noted in his criminal record, resulting in placement on a forensic ward. The release from the mental health centre in 2015 followed appellate review and an overturning of the NCR finding.

[20] Mr. Caster attributes "his recurrent psychiatric decompensation to heavy, persistent use of a range of street drugs". These street drugs include THC and cannabis. He reports use of illicit substances beginning when he was just 11 years of age.

[21] These street drugs have led to Mr. Caster being diagnosed, in the not too distant past, as manifesting "drug induced psychosis", with his often bizarre behaviour attracting police intervention and the laying of criminal charges. He is presently prescribed three psychiatric medications to deal with issues of anxiety and depression and to help him sleep.

[22] Mr. Caster acknowledges what is described as a "long-standing history of poly-substance abuse and binge drinking". This combination of drugs and alcohol has often resulted in Mr. Caster being intoxicated. As a consequence, he has often been found to act out or manifest behaviours that have resulted in police intervention.

[23] At the time of his assault of Mr. McGrail, Mr. Caster reported that he was "broke, homeless and unemployed, and desperately needed the stability and support of the hostel services". At the time he was endeavouring to secure employment and after a period of a week of what he described as "harassment" by Mr. McGrail, he "...just spazzed out...".

[24] In the summary of the assessment report, the authors of the report conclude that the "sudden and short-lived assault occurred during a highly stressful of Mr. Caster's life, and by his account represented the culmination of a week of being badgered, bullied and goaded by the complainant". Mr. Caster advised that "...under the weight of poverty, pervasive tension and climate of uncertainty borne by homelessness and hostel life...", he "...just snapped". Mr. Caster was assessed as representing a moderate risk "for general and violent recidivism". He is amenable to treatment and is a good candidate for therapeutic intervention to address what is defined as a "Cannabis Use Disorder" and issues relating to his referenced "psychiatric instability" and "depressive symptomatology".

[25] Mr. Caster is viewed as a young man with potential who has lacked focus and attention since his teen years. He has a sporadic employment history and has previously qualified for receipt of the Ontario Disability Support Program for psychiatric reasons.

[26] In the concluding portion of the comprehensive psychological assessment, the authors of the report conclude that Mr. Caster's "risk and needs" can be managed by way of community supervision, with treatment focused on addressing his history of substance abuse, his limited education and sporadic employment, mental health challenges and financial issues.

[27] A letter of support was filed by Tayler Baljer. Ms. Baljer is 23 years of age and employed on a full-time basis at a local retail store. She has been involved in a relationship with the defendant over the past year and has remained supportive of the defendant through the period of pre-trial detention.

Applicable Sentencing Considerations

Relevant Statutory Provisions

[28] Sections 718, 718.1 and 718.2 of the Criminal Code have application in all criminal sentencing decisions. The fundamental purpose of sentencing in a criminal case is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society. The applicable aspects of these provisions are as follows:

Purpose and Principles of Sentencing

Purpose

718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by 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; and

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

Fundamental principle

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Other sentencing principles

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor,

(ii) evidence that the offender, in committing the offence, abused the offender's spouse or common-law partner,

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,

(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,

(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization,

(v) evidence that the offence was a terrorism offence, or

(vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act

shall be deemed to be aggravating circumstances;

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[29] These principles direct that "just sanctions" be imposed with the objective of denouncing unlawful conduct and deterring offenders from committing offences. As a last resort, when necessary, a just sentence may include separating offenders from society. The sentence must also focus on rehabilitating offenders while promoting a sense of responsibility for the harm done to those victimized.

[30] In determining a "just sanction", the Court must be mindful of the seriousness or "gravity of the offence" and the "degree of responsibility of the offender". In practical terms, this means that the sentencing judge must impose a sentence that is proportionate or commensurate to the gravity of the offence and the moral blameworthiness of the offender. A sentence cannot be grossly disproportionate to the offence committed or the harm done to the extent that it is viewed as excessive. A sentence of that nature would violate the principle of proportionality which is a fundamental principle of sentencing as referenced in section 718.1.

[31] Finally, as far as the applicable statutory provisions governing the determination of a "just sanction" are concerned, the Court must take into consideration any relevant aggravating or mitigating circumstances. I will turn to that consideration in greater detail shortly.

[32] Section 718.2 also directs that the sentencing judge consider the impact of the offence on those victimized and mandates that the resulting sentence "be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances". A penal sanction, or a sanction resulting in "deprivation of liberty", should only be contemplated if "less restrictive sanctions" are deemed to be inadequate or inappropriate.

Mitigating Circumstances

[33] In mitigation of sentence, the following considerations have been noted:

• The defendant's plea of guilty – this is a tangible and meaningful sign of remorse;
• The defendant's unsettled personal circumstances at the time of the offence;
• The defendant's established history of mental health issues and noted personal challenges;
• The fact the defendant enjoys the support of members of his immediate family and has formed a relationship of some duration with Ms. Baljer;
• The lack of premeditation prior to the assaultive conduct;
• The relatively favourable prospects for rehabilitation;
• The absence of involvement of any weapons during the course of the assault;
• The remorse expressed by the defendant as reflected in the psychological assessment report.

Aggravating Features

• The violent and unrestrained nature of the assault;
• The significant age difference between the accused (aged 25 at the time) and the victim Michael McGrail (aged 54);
• The significant physical injuries sustained by Mr. McGrail including a fractured nose and broken ribs;
• The aftermath of the assault, which has occasioned bouts of insomnia and continuing discomfort to the victim;
• The defendant's criminal record, which includes three previous convictions for assault-related offences over the course of the previous six years (assault with a weapon x 3).

[34] On behalf of Mr. Caster, Mr. McRae cited and filed four authorities; R. v. Berry, [2015] O.J. No. 2002, a decision of Morgan J. of the Ontario Superior Court of Justice; R. v. Hunter, [2015] O.J. No. 253, a decision of Cornell J. of the Ontario Superior Court of Justice; R. v. Wesslen, 2015 ABCA 74, [2015] A.J. No. 202, a decision of the Alberta Court of Appeal; and R. v. Taha, [2014] O.J. No. 5448, a decision of Lahaie J., of the Ontario Court of Justice.

[35] Each of these sentencing decisions involve consideration of the offence of aggravated assault or aggravated assault and assault with a weapon, resulting in dispositions ranging from a suspended sentence and probation to 90 days imprisonment.

[36] I have reviewed and considered each of these decisions and conclude these authorities to be of limited assistance in the determination of an appropriate penalty here given the significant difference between the personal circumstances and criminal antecedents of the defendant and the individuals referenced in these sentencing judgments.

[37] In that regard, I note that the defendant in R. v. Berry was a first offender who pushed his victim occasioning a near catastrophic head injury. While the consequences of this offence are significant, the moral blameworthiness of the defendant was not.

[38] As noted in Berry, the aggravated assault occurred when the victim was pushed by the defendant. The victim hit his head and suffered severe injuries as a result, with Morgan J. concluding that the situation under consideration was comparable to that in R. v. Desgagne, 2013 ONSC 6319 (S.C.J.), where Ratushny J., dealing with the case involving a similar circumstance concluded at paragraph 28:

While the accused is certainly responsible for his actions and the harm he caused, the extent of that harm was unintended, so that the degree of his moral blameworthiness for it is somewhat diminished...[i]t is a tough balance to achieve a proportionate sentence in these misfortunate and tragic circumstances.

[39] Accordingly, I do not find either the circumstances of the offence or the personal circumstances of the offender to be analogous to the situation under consideration here.

[40] R. v. Hunter, involved consideration of an individual with a significant criminal record that included two previous convictions for assault. The offence of aggravated assault related to the smashing of a beer bottle on the complainant's face that occasioned the bottle to explode. The assault resulted in what was described as "a serious injury in the form of a permanent facial scar". There was no provocation for the incident and the victim was unarmed.

[41] In concluding that a 90-day intermittent sentence was an appropriate penalty, the sentencing judge relied on two Ontario Court of Appeal decisions; R. v. Peters, 2010 ONCA 30, 265 O.A.C. 148 (ONCA), and R. v. Jacko, 2010 ONCA 452, 101 O.R. (3d) 1 (ONCA).

[42] In R. v. Peters, the Ontario Court of Appeal upheld a suspended sentence plus three years' probation that had been imposed by the trial judge in circumstances where the accused struck the victim's head with a beer bottle, causing two lacerations to the victim's face that required 21 stitches to close. One year after the assault, the victim reported that he she was still experiencing pain and headaches. The facial scar was reported to have remained visible.

[43] The accused in that case was 26 years of age at the time she entered her guilty plea and did not have a prior criminal record as an adult. The accused was an aboriginal person and a Gladue Report confirmed her difficult upbringing, an upbringing characterized by violence and alcohol abuse.

[44] R. v. Cooper involved consideration of a 19 year old offender who had, in concert with three others, engaged in a serious home invasion. The offender "Jacko" had a criminal record for assault and aggravated assault, possession of property obtained by crime and four convictions for breach of recognizance. The trial judge sentenced Jacko to four years imprisonment. On appeal, Jacko's sentence was reduced to a conditional sentence of two years less a day. In imposing this sentence, the Court of Appeal observed that the trial judge failed to accord sufficient weight to the accused's aboriginal heritage and to the recommendations of a sentencing circle.

[45] While Hunter did not involve an aboriginal accused, the sentencing judge applied the principles referenced by the Court of Appeal, in two sentencing decisions involving aboriginal offenders, in determining that a 90-day intermittent sentence was appropriate.

[46] I do not view Mr. Caster's circumstances as presenting an analogous situation. Mr. Caster comes from a relatively stable home environment. His recent past has been characterized by instability, but I fail to see how it could be viewed as akin to the systemic difficulties that had been recognized by the Supreme Court of Canada in Gladue. In my view, the case at bar does not fall within the "exceptional" category referenced by Cornell J. in Hunter. I am not confronted by a situation involving a singular act, with serious consequences, committed by an individual from an unstable home environment who is concluded to have suffered a turbulent childhood.

[47] In R. v. Wesslen, the respondent struck a man with a plastic CD stand. The man was in the company of his former girlfriend at the time. The complainant sustained a serious injury to his head as a consequence that required several surgeries and the installation of a plate into his skull to repair. The complainant was left with a scar and nerve damage. The respondent did not have a criminal record.

[48] After reviewing the applicable sentencing considerations, the sentencing judge concluded that the circumstances leading to the assault were provocative and, as a result, the respondent's moral blameworthiness was reduced. The 90-day intermittent sentence imposed at the time of the plea was concluded to be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[49] In addition to the fact that the respondent was a first offender, the Court of Appeal considered the assault to be spontaneous and of short duration. The weapon used was a "weapon of opportunity". It is difficult to describe the assault in issue in this sentencing decision in the same manner.

[50] In R. v. Taha, Lahaie J. of the Ontario Court of Justice in Ottawa, considered a circumstance where a security guard at a night club punched the complainant about the head and pushed him down a flight of stair. These acts caused significant injuries when the complainant was cut after falling through some glass at the bottom of the stairs. The complainant was left with a visible scar on his forehead and what were described as "debilitating headaches". Medical procedures were required and the complainant was left to struggle with emotional, physical and financial issues as a result of the assault. Mr. Taha was found guilty after trial of the offence of aggravated assault. He was 26 years of age and did not have a criminal record. He was gainfully employed and had a positive pre-sentence report.

[51] In imposing what was termed a "lenient sentence in the circumstances", Her Honour noted what she described as "the unique circumstances of the offence", that had occurred at the defendant's place of employment during the course of his duties as a bouncer. The complainant was intoxicated at the time.

[52] In rejecting the defendant's assertion of self-defence, Lahaie J. noted his actions to be "...very serious". She reached the conclusion that the defendant had acted violently and intentionally, with the defendant enjoying superiority of both size and strength over the complainant.

[53] A 90-day intermittent sentence followed by a two-year period of probation was concluded to be appropriate given what were described as "the unique circumstance of this offence" and Mr. Taha's personal attributes. The defendant was not believed to represent a significant risk, as far as repetition of like conduct was concerned, with a more punitive sentence concluded to potentially increase the risk of recidivism, adversely affecting the defendant's prospects for rehabilitation.

[54] Again, Mr. Taha's first-offender status and the circumstances of the offence in issue are viewed as markedly different than those in issue before me.

[55] The Crown cites a singular authority, R. v. Tourville, 2011 ONSC 1677, a decision of Code J. of the Ontario Superior Court of Justice. The case involved consideration of a 28 year old first offender of aboriginal heritage. Accordingly, section 718.2(b) of the Criminal Code and the principles annunciated in R. v. Gladue, (1999), 133 C.C.C. (3d) 385 (S.C.C.) were determined to be relevant to the sentencing hearing. Those principles, as noted previously, have no application to the determination of sentence in Mr. Caster's case.

[56] Following a jury trial, Mr. Tourville was convicted of aggravated assault and assault with a weapon following a knife attack on an individual who intervened in a dispute involving the defendant and his ex-girlfriend and her mother. As a consequence of the assault, the complainant sustained nine knife wounds and underwent six weeks of physiotherapy. As a result, he missed 10 weeks of work and was left with visible injuries to his face and head, occasioning some nerve damage and psychological impact.

[57] In reviewing the applicable range of sentence in cases of this kind, Code J. noted that the defence of aggravated assault, contrary to section 268 of the Criminal Code, carries a maximum sentence of 14 years' imprisonment. Cited cases were noted to disclose what was described as "a wide range of sentences". At the bottom end of the range, Code J. references at paragraph 27 of his sentencing judgment, the aforementioned case of R. v. Peters, as it featured a 26 year old aboriginal offender with no prior adult record, who received a suspended sentence and three years' probation on a guilty plea to aggravated assault.

[58] In what was cited as the mid-range of cases, where high reformatory sentences had been imposed between 18 months to two years less a day, Code J. notes at paragraph 28, that these cases generally involve first offenders, a consensual fight, and resort to excessive force: see R. v. Chickekoo, (2008) 79 W.C.B. (2d) 66 (OCA); R. v. Moreira, [2006] O.J. No. 1248 (SCJ); R. v. Basilio, (2003), 175 C.C.C. (3d) 440 (OCA).

[59] The factual circumstances in issue in each of these cases are reviewed in detail at paragraph 29 of the Tourville decision. They include consideration of an aboriginal accused in Chickekoo, with a prior criminal record that included a conviction for assault, who caused "severe, life threatening and permanently disfiguring" injuries to the head and face of the victim as a result of an assault with a broken beer bottle during a fight.

[60] Moreira involved an assault with a knife where the victim was slashed. The offender was 19 years of age at the time and a first offender when the offence was committed.

[61] In Basilio, the accused stabbed the victim from behind causing "life threatening injuries" to the chest, diaphragm and liver. In both Basilio and Moreira, the defendants were also convicted of weapons offences in relation to their possession of a knife. In Basilio, the defendant received a sentence of two years less a day which the Court of Appeal described as being "lenient". In Chickekoo, a sentence of 18 months was characterized by the Court of Appeal as being at the "lower end" of the appropriate range. In Moreira, a sentence of 21 months and three years' probation was imposed.

[62] Finally, Code J. identifies cases at the high end of the sentencing range where sentences of four to six years' imprisonment have been imposed. These cases, in general terms, involve individuals with serious previous criminal records or "unprovoked" or "premeditated" assaults, absent the element of consent or self-defence. Examples of these circumstances can be found in the following cases: R. v. Scott, [2002] O.J. No. 1210 (C.A.); R. v. Thompson, [2005] O.J. No. 1033 (C.A.); R. v. Vickerson, (2005), 199 C.C.C. (3d) 165 (ONCA); R. v. Pakul, [2008] O.J. No. 1198 (C.A.).

[63] Mr. Attia submits that the appropriate sentence in this case falls somewhere between the high end of the mid-range of cases cited by Code J. in Tourville, where high reformatory sentences have been imposed and a low-end penitentiary disposition. This submission is predicated on the presence of so many aggravating factors, including the significant age difference between the defendant and the complainant, the size and power disparity that the defendant enjoyed over the complainant, the significant injuries, sustained as a consequence of the assault, and the continuing negative consequences of the assault on the physical and emotional well-being of the complainant as referenced in the complainant's victim impact statement. The Crown also notes as an aggravating consideration, the unrestrained, repetitive and exceedingly violent nature of the assault by the defendant upon his helpless victim, punctuated by an after-the-fact gratuitous kick to the side of the prone, unmoving and vulnerable victim.

[64] The fact the defendant has been convicted of the offence of assault with a weapon on three separate occasions, over the previous six years, is submitted as demonstrating a propensity for violence mandating the imposition of a deterrent custodial disposition of significant duration.

Analysis and Conclusion

[65] In determining a just sanction in this matter, I am mindful that the sentence to be imposed must reflect the gravity of the offence and the degree of responsibility of this particular offender. That fundamental sentencing principle of proportionality, previously referenced in this sentencing judgment, is statutorily recognized in section 718.1 of the Criminal Code.

[66] The case law that has been cited reflects significant disparity in the assessment by various judges in various factual situations, in a variety of courts, as to the application of the proportionality principle. While I accept, as a general proposition, the range of sentence delineated by Code J. in Tourville, the cases cited by the defence and certain of the pronouncements by the Court of Appeal that have been previously referenced in this sentencing judgment, reflect an inconsistency in application of this sentencing principle.

[67] In large measure, this inconsistency can be attributed to the weight that various judges have attached to the various mitigating and aggravating circumstances of the offence or offences that they were considering, plus their assessment of the degree of responsibility of a particular offender. In the end, sentencing in the criminal process, within an appropriate range of disposition, remains an individual exercise that must be tailored to meet the circumstance of the particular offence and consideration of the personal circumstances of the offender who has acknowledged committing an offence.

[68] I have referenced the reasons why I reject the sentencing range proposed by the defence, that would effectively lead to the imposition of a relatively modest additional period of incarceration, or alternatively, the suspension of sentence and an extended period of probation on consideration of the equivalent of 10 months of pre-trial custody. On the other end of the sentencing scale, I conclude that the sentence proposed by the Crown, a sentence that would see a further period of incarceration of two years less a day imposed on consideration of the aforementioned period of pre-trial custody, to be too severe given my assessment of the personal circumstances of the defendant.

[69] The defendant has an extensive psychiatric history and has been hospitalized for extended periods of time, in the not-too-distant past, as a consequence. He has been diagnosed as having a mixed personality disorder and has compounded the fragile state of his mental health by habitually abusing both drugs and alcohol. The defendant has been homeless. This may have been a motivating consideration in his decision to assault the complainant, who he believed may have been complicit in effecting his expulsion from the Blue Door Shelter. Although these considerations in no way minimize the violent acts of the defendant that ensued, they may assist in helping to understand the defendant's motivation for those actions.

[70] In determining a sentence in the reformatory range to be appropriate, giving consideration to the mitigating and aggravating circumstances previously cited, the sentencing principles referenced in the cited case law, and the noted statutory provisions, I have also considered the fact that the longest custodial disposition imposed on the defendant is a sentence of 23 days. I appreciate the defendant spent two years in a psychiatric facility following the NCR finding, but his criminal record reflects only modest custodial dispositions up to this point in time.

[71] Based on consideration of the custodial dispositions served by the defendant to date, the contemplated term of imprisonment here brings into consideration what has come to be known as the "jump" principle: see R. v. M(D.A.), [1996] A.J. No. 602 (ABCA); R. v. Duguay, [1979] B.C.J. No. 1753 (BCCA); R. v. Robitaille (No. 2), [1993] B.C.J. No. 1404 (BCCA).

[72] Application of this principle does not fetter a judge's discretion to determine an appropriate individual sentence: R. v. McDonald, 2006 ABCA 289, [2006] A.J. No. 1600 (ABCA), at paragraph 9. The sentencing judge must however take into consideration the particular circumstances and/or aggravating or mitigating factors of each case. If circumstances warrant, the mitigating effect of the "jump" principle may be of lesser significance where a longer sentence is warranted in order to maintain sentencing proportionality.

[73] In R. v. Blair, [2005] A.J. No. 1680 (ABCA), at paragraph 10, the court notes as follows:

The "jump" principle, or the principle of incremental sentencing, cannot trump the proportionality principle in the circumstances of these offences committed by this offender. In any event, the extent of the jump is difficult to assess in the absence of information concerning the circumstances and gravity of the previous offence and the sentencing factors present at that time.

[74] In Blair, a large "jump" between an offender's previous sentence of 90 days in jail and 18 months' probation for spousal assault and a new sentence of 16 months' incarceration followed by two years' probation, was upheld on review.

[75] I cite the "jump" principle, although it was not referenced in counsel's submissions directly, to inform the defendant that I have considered the fact that the sentence that I constitute to be "a just sanction", on consideration of all of the factors previously referenced, is conceded to be a marked departure from any of the sentences the defendant has previously received.

Disposition

[76] Having considered the factual circumstances of the offence, the impact of the offence on the victim of the assault, the applicable sentencing principles, the cited case law, the mitigating and aggravating circumstances noted, and the submissions of counsel, I conclude a sentence of 20 months' imprisonment to be an appropriate and just sanction for the offence of aggravated assault. This period of incarceration will be reduced by according enhanced credit to the defendant for the period of time he has spent in pre-trial custody, which I calculate to amount to a credit of 10 months. The remnant of time to be served is therefore 10 months. A custodial sentence of 90 days is imposed on the breach of probation charge. This sentence is concluded as being warranted given the defendant's history of non-compliance with court orders, including two previous breach of probation convictions. This sentence to run concurrently.

[77] The custodial portion of the sentence shall be followed by a period of three years' probation. In addition to the statutory terms, which require the defendant to keep the peace and be of good behaviour, to appear before the Court as directed, and to notify the Court or his probation officer of any change of name, employment or occupation, the following probationary terms will apply:

(i) Mr. Caster will be required to report to a probation officer forthwith upon his release from custody and thereafter as his assigned probation officer may direct;

(ii) He will be required to reside at an address approved of by his probation officer and not change that address without the prior written permission of his probation officer;

(iii) He shall have no contact, either directly or indirectly, with the named complainant, Michael McGrail, or any member of Mr. McGrail's immediate family;

(iv) He will not attend within 100 metres of any known place of residence, place of employment or the place where Michael McGrail may attend school;

(v) He will attend for such assessment and counselling as his probation officer may direct to address issues of substance abuse, mental health and education and employment initiatives;

(vi) Mr. Caster will execute all necessary releases of confidential information to his counsellor or doctors in favour of his probation officer to enable the probation officer to monitor the counselling initiatives as the counselling continues;

(vii) Mr. Caster shall not discontinue any directed counselling without the prior written permission of his probation officer;

(viii) Mr. Caster shall not possess any weapons as that term as defined by the Criminal Code.

[78] As the offence of aggravated assault is a primary designated offence within the provisions of section 487.04 of the Criminal Code, Mr. Caster shall provide a sample of his DNA for profiling purposes.

[79] In addition, Mr. Caster shall be subject to a section 109(1)(a) firearms prohibition order for life (by application of section 109(3) of the Code).

[80] I have not prohibited Mr. Caster from consuming alcohol as the psychological report filed during the sentencing hearing confirms that this issue is best addressed by counselling.

[81] Before I conclude, I wish to thank both counsel for their helpful submissions and the materials filed during this sentencing hearing. I am indebted to them for their assistance in the adjudication of this matter.

Justice P.D. Tetley

Released: April 7, 2016