Court Information

The Ontario Court of Justice

Date: 2016-07-15

Court File No.: Durham Region 998 15 10950

Parties

Between:

Her Majesty the Queen

— And —

William Wood

Judicial Officer and Counsel

Before: Justice De Filippis

Heard on: July 7, 2016

Reasons for Sentence on: July 15, 2016

Counsel:

• Mr. D. Slessor — counsel for the Crown
• Ms. L. Levine — for the defendant

Reasons for Sentence

De Filippis, J.:

[1] The defendant pled guilty to assault causing bodily harm. He had been at a house party where he, along with others, consumed alcohol. He laughed when he saw the victim slip and fall. In response, the victim attacked the defendant but the latter quickly got the upper hand. He repeatedly punched the victim in the head until he fell to the ground, unconscious. The victim was taken to hospital by air ambulance. His principal injury was a broken orbital bone that required plastic surgery.

[2] In an impact statement the victim advised me that he missed one week of school and that it took several more weeks for the bruising to go away. He complains of continued tenderness in the eye socket and random headaches.

[3] The defendant, now 19 years old, was 18 at the time of this offence. He has no criminal record and is registered to attend college in September. I received letters of support from teachers and employers; the defendant is described as polite, hardworking and reliable. The defendant was exposed to a high level of destructive conflict between his parents over many years of acrimonious separation and divorce proceedings. He has dealt with this by abusing alcohol and reported that he was intoxicated at the time of this offence.

[4] The Crown submitted that a 90 day jail sentence is appropriate and does not oppose an order that it be served on weekends. Counsel pointed to the serious injuries in justification of this submission. The Defence argued that there should be a conditional discharge so that this young man is spared the consequences of a conviction. I reject both positions. The injuries inflicted by the defendant persuade me that a discharge is contrary to the public interest. Moreover, jail is not needed to address the principles of sentencing. In my opinion, a conditional sentence is fit and proper in this case.

[5] Section 742.1 of the 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.

[6] 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 two factors; (i) the risk of the offender re-offending; and (ii) the gravity of the damage that could ensue in the event of re-offence. I am confident that a conditional sentence followed by probation, with counselling terms will address this risk. In addition, it is of some relevance that the house arrest will be monitored by the electronic supervision program. This will mitigate any risk. The real issue is whether a conditional sentence is in accord with the principles of sentencing.

[7] 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.

[8] In R v Huh 2015 ONCA 356, Court of Appeal set aside the conditional discharge granted to a young first 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.

[9] 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).

[10] 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 the crime on the victim. As I have noted in the past, 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.

[11] The defendant is sentenced to a four month conditional sentence. The first two months will be under house arrest. This effectively means he is confined to his home for the summer until the start of school (or shortly thereafter). For the next two months, the defendant will be subject to a curfew between 10 PM and 6 AM. Exceptions to the house arrest and curfew will permit him to work and/or attend school. 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. 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"