Court File and Parties
Court File No.: Orangeville 16-881 Date: September 7, 2017 Ontario Court of Justice Central West Region
Between: Her Majesty the Queen — and — David Bruce Davidson
Before: Justice Richard H.K. Schwarzl
Heard on: February 14, June 15, July 10, and August 25, 2017
Reasons released on: September 7, 2017
Counsel:
- Mr. Jeremy Tatum for the Crown
- Ms. Keely Duncan for the Accused
SCHWARZL, J.
REASONS FOR SENTENCE
1.0: INTRODUCTION
[1] On February 14, 2017 the offender, David Bruce Davidson, entered a plea of guilty to robbing Jonathon Pavkovic in Orangeville on July 31, 2016. An extensive sentencing hearing took place over several days. Evidence was led from an eyewitness to the crime as well as evidence from a security manager at the Maplehurst Detention Centre where the offender has been lodged since September 1, 2016.
[2] The Crown recommends a sentence of 18 months less 1:1 credit for time served followed by probation for three years plus restitution, a DNA order, a firearms prohibition, and a section 743.21 communication prohibition.
[3] The defence submits that a sentence of 9 months consisting of 6 months' time already served but credited at a ratio of 1.5:1 followed by probation for 18 months is appropriate. The defence does not oppose the ancillary orders sought by the prosecution.
2.0: CIRCUMSTANCES OF THE OFFENCE
[4] On July 29, 2016 the offender went to the hospital because he was feeling suicidal. He was released without being admitted but was given a prescription for anti-depressants which he did not fill due to his limited personal resources. The next day, July 30, he found himself and his friend Georgia Grillo at a house in Orangeville where he consumed four or five drinks notwithstanding his tender mental state.
[5] At around 4:30 a.m. on July 31, 2016 the offender and Ms. Grillo left from their evening of drinking with the intention of him driving her home. At the time, the offender was a suspended driver who was subject to a licence condition to drive only in an alcohol-free condition. As he drove, he and Ms. Grillo argued. The offender was going fast along a residential street. He caused three pedestrians who were walking on the road to jump out of the way of the car. Those pedestrians were the victim, Jonathan Pavkovic, his girlfriend Amy Davis, and another friend Courtney Fraser.
[6] After passing the pedestrians, the offender turned the car around and stopped to confront the victim who was an acquaintance. Ms. Grillo remained in the car but could see and hear what was happening. I accept her evidence that she saw the angry offender argue with the victim. I accept her evidence that she yelled at the intoxicated offender to get back into the car before he hit Pavkovic. I also accept her evidence that despite her imploring, the offender ignored her and sucker punched Pavkovic in the face. The punch was thrown without warning and without provocation causing the victim to lose consciousness and fall heavily to the pavement striking the back of his head on the kerb.
[7] Having knocked out Mr. Pavkovic, the offender not only failed to offer any assistance but took the opportunity to plunder the prostrate and bleeding victim of his wallet, house keys, and cell phone. The offender then took off with Grillo leaving Pavkovic to his own fate.
[8] The offender's involvement was only revealed when Grillo called the police and told them what happened. The offender was arrested on September 1, 2016 and remained in pre-trial detention until September 7, 2017 for a total of 372 days.
[9] This crime has yielded significant impact on the victim and his family. Mr. Pavkovic required two stitches to repair his lip and 7 staples to close the wound to the rear of his head. He lost $2,000.00 in wages due to his injuries and had to spend $1,400.00 on new locks, keys, and a new phone. He has permanent scars on his head, he endured a concussion, and suffers chronic pain in his elbows from the fall. His mother, Jeanne Pavkovic, now lives in a constant state of fear and vulnerability. Ms. Davis had to give weeks of care to Mr. Pavkovic after witnessing what she called the scariest night of her life.
3.0: CIRCUMSTANCES OF THE OFFENDER
3.1: Personal Circumstances of the Offender
[10] Mr. Davidson is presently 30 years old but was 29 at the time of this crime. He comes before the court with thirteen prior sentencings with twenty convictions dating back to 2003, twelve of which are violent offences. He has served a penitentiary sentence for violence in the past. While incarcerated in the penitentiary he completed a programme designed to reduce the risk of recidivism for violent offenders. He also has a lengthy Highway Traffic Act record.
[11] The offender has three children, aged 13, 8, and 3 with three different mothers. He appears to be presently involved with an old girlfriend, Ms. Phillips, with whom he intends to live when he completes his sentence.
[12] The offender was raised primarily by his mother. His father, who is one-half Plains Cree, has not been in the offender's life since he was a teen. At some unspecified time in his adult years, the offender learned from his paternal uncle of his aboriginal lineage. His uncle is receptive to teaching the offender about Cree culture and traditions if the offender reaches out to him. Since being detained on this charge, the offender has not only undertaken an active interest in his aboriginal identity but has become a practising Muslim.
[13] The offender has been living with Attention Deficit, Hyperactivity disorder since he was a little boy. From an equally early age he has expressed frequent suicidal ideations and has attempted suicide as an adult. He is presently under care for depression. The offender did poorly in school, but through his time in jail he has completed his secondary school diploma with grades in the 80s and 90s.
[14] Mr. Davidson has a long history of substance abuse of all manner of illicit drugs. He also has significant anger management issues.
[15] The offender appears to be at a crossroads in his life wherein he professes to be dedicated to being clean and sober, reconnecting with family in Western Canada, establishing positive peers and pursuing his faith and aboriginal heritage as means of creating and following a path of positive change.
3.2: The Offender's Pre-Trial Custody
[16] Mr. Davidson has spent just over one full year in pre-trial detention. All of his confinement has been spent at the Maplehurst Detention Centre in Milton. For most of his custody, the offender has been in protective custody at his request. This because he expressed concerns for his safety if placed in the general population as he had been a prosecution witness in a homicide trial several years ago.
[17] Those living in protective custody do not lose any privileges assigned to those in the general prison population. However, religious observance in protective custody is restricted to one-on-one services because communal worship cannot be accommodated due to space limits.
[18] During his stay at Maplehurst, the offender has been subject to lockdowns, triple-bunking, and time in a segregation unit. A lockdown means that a prisoner is confined to his cell. Lockdowns can be full or partial. A full lockdown means not being released from one's cell at all, or being released for less than one-half hour, during any given day. A partial lockdown means being kept in one's cell for something less than a full day. The offender was subject to approximately sixty days of lockdown, three-quarters of which were full with the remainder being partial. The vast majority of all lockdowns were caused by staff shortages. No evidence was led as to the impact, if any, of the lockdowns on the offender.
[19] Triple-bunking means having three people sleep in a cell that has only two bunks. One of the inmates must sleep on a mattress on the floor. The offender had to share a cell with two other people on 102 days. No evidence was led as to whether Mr. Davidson ever had to sleep on the floor nor what impact, if any, the triple-bunking had on him.
[20] Segregation means removing privileges from a prisoner including restricting access to the exercise yard to twenty minutes, not being allowed in the day room, and no access to television. The offender was in segregation for forty days. Of these, he was in segregation for 11 days for reasons not his doing. For the remaining 29 days, the offender was placed in segregation as a consequence for three separate acts of misconduct, each of which involved acts of violence including, in one case, violence against a guard. The offender was also found guilty of five other misconducts for fighting or threats but these only resulted in loss of privileges.
4.0: ANALYSIS AND SENTENCE
4.1: Impact on Sentence of the Offender's Aboriginal Status
[21] The offender submits that notwithstanding his recent, and commendable, interest in his personal heritage, his aboriginal status should be considered a mitigating factor in sentence. In support of his position, the offender relies on the recent decision of my brother Justice Crewe in the matter of R. v. Cadotte, [2017] O.J. No. 2361 (O.C.J.). With great respect to this submission, and in full acknowledgement of the systemic and background factors negatively affecting aboriginal peoples generally in the country, in the case before me there is a complete absence of Gladue factors that can be linked to this offence or this offender.
[22] This offender's knowledge of, and participation in, his aboriginal antecedents and culture were very limited up to, and including, the time of this offence. He was not raised in an aboriginal household. He was not aware of his heritage until later in his adult years. While he has reconnoitred his background with his paternal uncle, this exploration has been tentative at best. His uncle reported that he is waiting for the offender to reach out to him so that he may teach him the Cree culture and traditions.
[23] There is no suggestion that the offender was aware of, or influenced by, any Gladue factor so as to warrant any mitigation in sentence for this crime. In other words, the offender's hitherto minimal interest or connection with his Cree background cannot warrant a sentence below the normal range.
4.2: Level of Credit for Pre-Trial Custody
[24] The Crown submits that (a) as the offender is a very dangerous person who has not received early release on past sentences and (b) his past record and his poor behaviour in custody all reduce the likelihood that he would be granted early release in this case. The Crown therefore urges me to not grant this offender any enhanced credit for pre-trial custody.
[25] The offender submits that because he was in segregation for 40 days, subject to lockdowns for nearly 60 days, and triple-bunked for 102 days that this Court can find that he was subject to harsh conditions and may credit pre-trial custody beyond the usual 1.5:1 ratio. However, the offender further submits that when balancing the custodial conditions against his institutional misconducts that he should be credited pre-trial custody at the customary rate of 1.5:1.
[26] With respect to the conditions in custody experienced by the offender, the majority of segregation was the result of his own violent or otherwise poor behaviour. Furthermore, there is no basis upon which to conclude that the lockdowns and/or triple-bunking had any adverse effect upon him. To hold that he suffered from harsh conditions would be the product of speculation, not assessment of evidence. As for being in protective custody, he was there because he wanted to be and his only restriction was being unable to participate in communal worship. Therefore, I do not assess any pre-trial custody as being harsh so as to justify any enhancement beyond the usual standard of credit.
[27] On considering all of the circumstances of this offender and this offence, including the wonton and brutal nature of this heinous crime, his utter indifference to the victim's condition when he robbed him, the obvious failure of past violence prevention counselling, his record for serious violence offences, and his misconduct while at Maplehurst, I conclude that it is unlikely that Mr. Davidson will be granted early release on any sentence I impose. I thus agree with the Crown that credit for pre-trial custody will be assessed at a ratio of 1:1.
4.3: Mitigating and Aggravating Factors
[28] In mitigation of sentence, I take into account a number of elements including the following:
(a) Of primary significance is the plea of guilty prior to scheduling a trial;
(b) The offender's sincere statement of remorse made in court and his unprompted apology to the victim and his family;
(c) The offender's recognition and commitment to address his many serious personal demons and problems including mental illness, substance abuse, and anger management issues; and
(d) The offender's present embracing of his aboriginal heritage and his religious faith as means of creating for himself and others a stable and pro-social future.
[29] There are also a number of aggravating factors including:
(a) This is a very serious and unprovoked violent crime in which the offender viciously attacked his victim and then robbed Mr. Pavkovic while he was totally defenceless and bleeding uncontrollably;
(b) He committed this crime while intoxicated;
(c) He was driving when his licence was suspended and in contravention of one of his licence conditions to be alcohol free whilst driving;
(d) He committed this crime after ignoring the exhortations of Ms. Grillo to withdraw before he hit Mr. Pavkovic;
(e) The offender has a very long criminal record including twelve convictions for violence spread out over the past 14 years;
(f) His prospects of rehabilitation are muted given the failure of past violence-control counselling and his numerous misconducts in pre-trial custody;
(g) He is a dangerous person with considerable prospects of reoffending; and
(h) The impact on the victim and his family has been profound resulting not only in physical scars but considerable damage to their long-term loss of general safety that been replaced by persistent fear.
[30] The maximum penalty for robbery is life imprisonment. This offence was a callous and cowardly crime committed by a dangerous man. Emphasis must be placed on deterrence, both general and specific. However, consideration must also be given, albeit rather optimistically, to an opportunity for rehabilitation. In my view, given all of the circumstances a sentence in the upper reformatory to low penitentiary range is amply justified.
[31] Balancing everything in this case, the following sentence is imposed:
(a) A custodial sentence of 18 months less pre-trial custody of 372 days for a net sentence of 170 days common gaol from today;
(b) Following the offender's release he shall be placed on probation for three years with these conditions in addition to the mandated ones:
(i) Report within two business days of your release to a probation officer and thereafter as required;
(ii) Abstain from communicating, directly or indirectly, with Jonathan Pavkovic, Jeanne Pavkovic, Amy Davis, Courtney Fraser or any other member of their immediate families and refrain from being within 500 metres of any residence, business, school, or any other place or address where you know the person(s) named herein is/are present, or is/are associated with;
(iii) Co-operate with your probation officer. You shall sign any release(s) necessary to permit the Probation Officer to supervise you and you must provide proof of compliance with any term of this Order forthwith on request;
(iv) Abstain absolutely from the purchase, possession, or consumption of alcohol or other intoxicating substances;
(v) Abstain absolutely from the purchase, possession, or consumption of any controlled drug unless you are in lawful possession of a valid prescription in your name;
(vi) Attend and actively participate in such programme of assessment, counselling, or rehabilitation for, but not limited to, addressing mental health issues, substance abuse, and anger management as directed by your Probation Officer. You shall not leave or discontinue such programme unless or until discharged by the Probation Officer or delegate. You shall complete the said programme to the satisfaction of you Probation Officer or delegate;
(vii) Make reasonable efforts to seek and maintain suitable employment and provide written proof of job searches to the Probation Officer or delegate. You shall not change your occupation, vocation, or employment unless (a) you have first given written notice of the change to the Probation Officer or delegate and (b) you have received the written approval of the Probation Officer or delegate prior to any such change;
(viii) Be at, and remain within, your residence or other place approved of by the Probation Officer or delegate at such times and upon schedule as set out in writing by the Probation Officer or delegate, such schedule to be in your possession while not in your residence;
(ix) Reside in or at such place as approved of by the Probation Officer or delegate and do not change your place of residence without first obtaining the written approval of the Probation Officer or delegate;
(x) Not be within the municipal boundaries of the Town of Orangeville except with the prior written permission and upon such conditions as deemed appropriate and set out in writing by the Probation Officer or delegate, such permission to be on your person at all times;
(xi) Make restitution of $3,400.00 to Jonathan Pavkovic to be paid by cash or money order made payable to the Minister of Finance (Ontario) in such manner and upon such schedule approved of by the Probation Officer or delegate to be paid in full within the first year of the Probation Order and you shall produce and show proof of restitution payment(s) to the Probation Officer or delegate within two business days of every payment due date;
(xii) Within ten days of your release from custody, report to a Gladue Caseworker at the nearest Aboriginal Legal Services and thereafter as required by the Gladue Caseworker or delegate;
(xiii) Do not associate or communicate, either directly or indirectly, with any person(s) or class of person(s) named in writing by the Probation Officer or delegate; and
(xiv) Do not attend at any address, place(s) or class of place(s) identified in writing by the Probation Officer or delegate.
(c) A stand-alone restitution order for $3,400.00 in favour of Jonathan Pavkovic;
(d) A primary, in-custody DNA order;
(e) A lifetime firearms prohibition pursuant to section 109 of the Criminal Code of Canada;
(f) A victim surcharge of $200 payable within 60 days; and
(g) An Order pursuant to section 743.21 Criminal Code of Canada prohibiting the offender from any communication of any kind with Jonathan Pavkovic, Jeanne Pavkovic, Amy Davis, Courtney Fraser or any other member of their immediate families while serving the custodial portion of this sentence.
Richard H.K. Schwarzl, Justice of the Ontario Court of Justice