Court File and Parties

Ontario Court of Justice

Date: 2018-11-15

Court File No.: Toronto 4817 998 17-75002451

Between:

Her Majesty the Queen

— and —

Dennis Carl Anderson

Before: Justice Howard Borenstein

Trial heard on: March 27, 28 and 29, 2018

Submissions on Sentence heard on: October 16, 2018

Reasons for Sentence released on: November 15, 2018

Counsel

Mr. Scott Graham — counsel for the Crown

Mr. William Caven — trial counsel for the defendant Dennis Carl Anderson

Mr. Christopher O'Connor — sentencing counsel for the defendant Dennis Carl Anderson

BORENSTEIN, J.:

Introduction

[1] This is the sentencing of Dennis Anderson who was found guilty after trial of assault causing bodily harm. That was the charge that was laid although this could have easily been laid as an aggravated assault. Nonetheless, the charge laid and proved was assault causing bodily harm. The Crown proceeded summarily. The maximum custodial sentence available is 18 months, and that was the Crown's initial sentencing position. However, after the accused's evidence on the sentencing hearing, the Crown reduced its position by one to two months.

[2] The facts of this crime are contained in my Reasons for Judgment. I will not repeat them in detail here. In summary, this was a senseless, violent, unprovoked attack.

Facts of the Offence

[3] The victim, John Thompson, is 53 years old. He seems like a very gentle person. Prior to this attack, his life began to fall apart. He fell on hard times and went to jail essentially by choice. He refused to go for bail and remained at the South Detention Centre for six months because he wanted a place to sleep. There, he met the accused, Mr. Anderson.

[4] Eventually, both he and Mr. Anderson were released from jail. They met for drinks at least once.

[5] About a week before this assault, Mr. Thompson was sleeping on the couch of a friend's apartment. His friend let him stay there on condition that he not to let anyone else into the apartment. Mr. Anderson came to the door with someone else. Mr. Thompson told him he could not let him in.

[6] That should have been the end of the matter.

[7] A week later, this attack occurred. Mr. Thompson was in the Church Street area.

[8] Mr. Anderson walked right up to him. His arms were low down by his side, as if he were pulling a wagon. Then, without warning, he struck Mr. Thompson once, very hard on the left side of his face and walked away.

[9] Given the injuries that occurred, Mr. Anderson probably used a weapon however probabilities are not enough to establish aggravating factors. I was not asked to and will not make that finding.

[10] Nonetheless, the impact of that strike was great. Mr. Thompson immediately fell to the ground. He described feeling a "whoosh of air" go through his brain. He had to hold his face as he got up. He was in lot of pain.

[11] His injuries were extensive and severe. His orbital nerve was severed. He was told not to sneeze or suck through a straw, as his cheek and sinus bones were crushed. He underwent a five-hour surgical operation. He now has a steel plate and bolts around his eye. He has no feeling in part of his face and his top teeth feel permanently frozen.

[12] He contemplated suicide before this incident, and after.

[13] Yet, from his victim impact statement, which he read in court, he clearly has and shows courage, insight and compassion, even to Mr. Anderson. He told Mr. Anderson directly about the impact of this attack. He told Mr. Anderson that he was not there hoping Anderson would get longer jail sentence. It was a remarkably moving victim impact statement.

Personal Circumstances

[14] Mr. Anderson is now 31. He was 29 at the time of this offence. He has a lengthy criminal record, which includes numerous violent offences.

[15] Mr. Anderson was born in Jamaica. He is African Canadian. I have considered the recent Jackson decision and the appendix thereto, and the need to try to reduce the over-incarceration of Black people where appropriate and possible.

[16] His mother came here when he was four. He followed when he was eight. He has ADHD and substance abuse issues and receives ODSP. He spoke of his experiences and disadvantages. I accept his evidence that he has been a drug addict for much of his life, including to crystal methamphetamine and opiates. I also accept that he has made some efforts to deal with this addiction while in custody and on a few occasions, when he was released from custody but has not followed up with few exceptions. He testified that he was high when he committed this attack.

[17] Since being detained on this charge, and apparently another, he has taken 20 one-hour programs at the jail, including some about drug addiction. He has taken this program twice before, while at jail. He has again asked the John Howard Society about any available follow-up support. Recovery from addiction is not a straight line path, but the lack of sustained follow-up has been the problem.

[18] As I listened to his evidence on sentencing and to his further comments before sentence, it is clear that he is bright and articulate and insightful. What he does with those gifts remains to be seen but it will be a decision he will have to make, one way or another.

[19] Mr. Anderson has an extensive criminal record with over 30 entries; including convictions for numerous violent offences; including multiple robberies; and assaults.

Sentencing Positions and Principles of Sentencing

[20] The Crown now seeks a sentence of 16-17 months in jail, less pre-sentence custody, followed by three years probation. The defence submits Mr. Anderson has served more than enough time in jail for this offence; he has nine months of actual pre-sentence custody. The defence submits he should be placed on probation.

[21] Case law presented by the Crown shows a range of 18 months to three years. As the defence points, and the Crown acknowledges, the facts of those cases are different from the case at bar; and sentencing ultimately is a highly individualistic exercise guided by the principles of sentencing and how best to express those principles in any particular case.

[22] A fit sentence must be proportionate to the gravity of the offence and responsibility of the offender. It should be as minimally restrictive as possible consistent with the purposes and principles of sentencing, and it must 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 reparation for harm done to victims or to the community; and

f) To promote a sense of responsibility in offenders, an acknowledgement of the harm done to victims and to the community.

[23] The weight to be given to those factors will vary depending on all the circumstances of the case. Ultimately, a fit sentence should contribute to the protection of the public.

Aggravating and Mitigating Factors

[24] The aggravating factors in this case are clear. The unprovoked violence. The severity of the injuries. The impact of this attack upon the victim. Mr. Anderson's criminal record.

[25] While I accept Anderson was high on drugs at the time of the offence, I do not view that as mitigating the seriousness of this crime. He has been addicted for years and testified that many of the violent entries on his record occurred when he was high on drugs. He has had multiple opportunities to pursue treatment when he leaves custody but has failed to do so to the extent necessary. As I have said, I appreciate that recovery is not a straight-line path. However, if, while high, one knows he has acted criminally violent toward others, he can then hardly claim that mitigates the seriousness of the offence, his culpability or, for that matter, the continued risk he presents. At least not on these facts.

[26] In this case, given the aggravating factors in this case, including the violent unprovoked nature of the attack, and Mr. Anderson's record for violence, specific deterrence and denunciation are the principles of sentencing that require most emphasis. Rehabilitation is still a goal, but will have a lesser role in this case and can be achieved chiefly through probation.

[27] In my view, balancing the aggravating and mitigating circumstances in this case, with the principles of sentencing that need emphasis, a 15-months sentence, less pre-sentence custody, followed by three years probation will be imposed.

Pre-sentence Custody

[28] There is an issue with respect to how much pre-sentence custody should be credited to Mr. Anderson. This sentencing was adjourned repeatedly at the defence request for reasons that have already been placed on the record. First, the defence hoped to get some report. Then, Mr. Anderson changed lawyers. It has been six months since the finding of guilt. He now has nine months of actual pre-sentence custody. The Crown submits Anderson should not get enhanced credit for much of the delay since the finding of guilt, given that he caused the delay. Further, according to the Crown, given Anderson's record, he would unlikely get early release. I decline to accept that submission. He changed counsel. He sought material but never presented it. I will not speculate why. I do not find that he was intentionally delaying this sentencing, and I will not speculate on whether he would get earned remission. I agree with the defence that he should get the usual enhancement for his pre-sentence incarceration. His nine months will be enhanced at 1.5 to one for the usual reasons.

[29] Accordingly, Mr. Anderson will be sentenced to 15 months in jail, less 9 months pre-sentence custody at a 1.5 to 1 enhancement totaling 13.5 months of pre-sentence custody. He will serve a further 1.5 months in jail followed by three years probation on the following terms.

Sentencing and Probation Conditions

[30] In addition to the mandatory terms of probation, he will be subject to the following conditions:

• Report to a probation officer within 48 hours of your release and thereafter as required.
• No contact directly, indirectly or through 3rd parties with the victim; nor to be within 100 metres of anywhere you know him to live, work or happen to be.
• Not to possess any weapons as defined by the Criminal Code.
• Reside at an address approved of by probation.
• Take and actively participate in any counselling as may be directed by probation, including employment counselling and sign all necessary releases to enable probation to monitor your compliance with counselling.

[31] In addition, you will provide a sample of your DNA, and will be subject to a weapons prohibition for 10 years pursuant to s. 110.

Released: November 15, 2018

Signed: "Justice H. Borenstein"