Court Information

Ontario Court of Justice

Date: 2016-07-15

Court File No.: Durham Region 998 14 12023

Parties

Between:

Her Majesty the Queen

— and —

David Lang

Hearing Information

Before: Justice De Filippis

Heard on: July 5, 2016

Reasons for Sentence on: July 15, 2016

Counsel:

• M. Newell, counsel for the Crown
• S. Samet, for the defendant

Reasons for Sentence

De Filippis, J.:

Conviction and Facts

[1] The defendant was found guilty of assault causing bodily harm, threat to cause bodily harm, and weapons dangerous. The facts of the matter are set out in my reasons for judgement; R. v. Lang, 2016 ONCJ 204. For the present purposes, it will suffice to note the following:

[2] The victim was living with a woman, Ms. Baldwin, who had previously been in relationship with the defendant. On the day in question, Ms. Baldwin drove the defendant to her home so he could retrieve his martial arts equipment. Before doing so, she told the victim not to be present for this event. He declined to leave as he was sick and in withdrawal from drug use. Ms. Baldwin was frustrated that the victim still lived with her as she had asked him to leave several days earlier.

[3] On arrival at the residence, the defendant confronted the victim about his continued residency with Ms. Baldwin. At the start of this dispute, the defendant held an axe in hand. He dropped that weapon and forcibly attempted to escort the victim out of the home. When the victim resisted, the defendant punched him once in the side of the face. The victim fell back onto the bed. He removed a knife from his pant pocket. The blade was still folded into the handle and the parties "wrestled over it for about 30 seconds". The defendant took the knife away and placed the victim in a headlock. The latter said, "You have broken my jaw, let me go". The defendant walked downstairs, followed by the victim. He went out the front door, threw the knife into the snow bank, and left. The defendant threatened the victim with more violence if he contacted the police.

[4] The victim declined to provide an impact statement. However, I know from his testimony at trial that he suffered a broken jaw that required surgery to repair. A scar remains on his face.

Sentencing Submissions

[5] The Crown, relying primarily on the extent of the injuries, suggests that the defendant be sentenced to jail for three to six months. The Defence, relying primarily on the defendant's difficult childhood, seeks a conditional sentence order.

Offender Background

[6] The defendant is 34 years old and has a grade eleven education. He was found guilty of assault and failure to comply with a recognizance in Youth Court many years ago. The defendant has six siblings. His mother was addicted to crack cocaine and alcohol. She was "in and out of jail and neglected her children. She physically abused the defendant. The Children's Aid Society became involved when the defendant was seven years old and he eventually became a Crown Ward, until the age of 15. Since then, he has generally been on his own.

[7] The defendant has struggled with substance abuse but this now appears to be under control. At the time of these events he was employed part time as a cook. He now works in this capacity full time and his employer provided me with a letter of support. I understand he is well regarded by the mostly elderly customers at the restaurant and his productivity and work ethic are much appreciated.

Conditional Sentence Analysis

[8] Section 742.1 of the Criminal Code lists four criteria that a court must consider before deciding to impose a conditional sentence: (1) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment; (2) the court must impose a term of imprisonment of less than two years; (3) the safety of the community must not be endangered by the offender serving the sentence in the community; and (4) a conditional sentence must be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2. The first two criteria are not obstacles in this case; the only issue is the third and fourth pre-requisites.

[9] The requirement in s. 742.1(b) that the judge be satisfied that the safety of the community would not be endangered by the offender serving her sentence in the community looks to the risk posed by the specific offender. It is not a consideration of whether the imposition of a conditional sentence would endanger the safety of the community by providing insufficient general deterrence or undermining general respect for the law. Two factors should be taken into account: (i) the risk of the offender re-offending; and (ii) the gravity of the damage that could ensue in the event of re-offence.

[10] There nothing to suggest that Mr. Lang would endanger the safety of the community if his sentence was served under house arrest. His misconduct was with respect to a specific individual. It is his first adult conviction. He has registered for an anger management program. The defendant works up to six days a week and will be under house arrest, when not so employed. In this regard, it is of some relevance that I rarely impose conditional sentences without the electronic supervision program. Thus, I have greater confidence that the provisions of house arrest will be observed and this mitigates the risk of harm to the community. The real issue is whether a conditional sentence is in accord with the principles of sentencing.

Sentencing Principles

[11] Section 718 of the Criminal Code provides as follows:

The fundamental purpose of sentencing is 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;

(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 and to the community.

[12] In R. v. Huh, 2015 ONCA 356, the Court of Appeal set aside the conditional discharge granted to a young first offender and substituted a six month jail sentence. The assault bodily harm in that case was much more violent and caused brain damage. The Court noted as follows:

11 The Crown submits that the sentence imposed in this case was manifestly unfit. We agree. The sentence was not proportionate to the gravity of the offence. The conditional discharge did not reflect the degree of violence of the respondent's assault, the seriousness of the injuries he inflicted on the victim, or the applicable sentencing principles.

12 We adopt the observation in R. v. Wood (1975), 24 C.C.C. (2d) 79 (C.A.), at para 4: "[i]n cases of violence resulting in injury the requirement of general deterrence to the public militates, in almost every case, against the grant of a conditional discharge, notwithstanding considerations personal to the accused." In our view, a conditional discharge does not meet the public interest in this case. While a discharge may have been in the interest of the appellant, in this circumstance, it was not in the public interest. Accordingly, leave to appeal the sentence is granted, and the sentence appeal is allowed. It now falls to this court to impose what we deem to be an appropriate sentence.

[13] In this case, the most important principles are denunciation and deterrence. Such considerations require that jail be considered. However, as the Supreme Court of Canada has observed, a conditional sentence can meet the demands of denunciation and deterrence in the right circumstances (see R. v. Proulx, 2000 SCC 5).

[14] I am of the view that a conditional sentence would be consistent with the fundamental purposes and principles of sentencing set out in the Code. This penalty does not minimize impact of crime on the victim. House arrest, while not the same as jail, is a substantial restriction on liberty. In this case, a conditional sentence appropriately balances the interests of the offender and the community.

Sentence Imposed

[15] The defendant is sentenced to a six month conditional sentence. The first four months will be under terms of house arrest. For the final two months, he will be subject to a curfew between 10 PM and 6 AM. Exceptions to the house arrest and curfew will permit the defendant to work. This will be followed by probation for one year. The terms of the conditional sentence and probation include the duty to report, take counselling as directed, and refrain from any contact with the victim. This sentence will run concurrently on all counts. The defendant will provide a sample of his DNA and be subject to a five year weapons prohibition. He will pay the applicable victim fine surcharges.

Released: July 15, 2016

Signed: "Justice J. De Filippis"