Court Information
Court: Ontario Court of Justice Region: Toronto Region Date: August 30, 2019
Parties
Between:
Her Majesty the Queen
— AND —
Damian Hudson
Before: Justice L. Feldman
Heard: August 8, 2019
Reasons for Judgment Released: August 30, 2019
Counsel
For the Crown: A. Penny
For the Accused: C. Bottomley
FELDMAN J.:
Introduction
[1] I found Damian Hudson guilty after trial of aggravated assault and weapons dangerous, but not guilty of attempt murder: see R. v. Hudson, 2019 ONCJ 446. These are my reasons for sentence.
[2] I found as fact that on April 30, 2018, in the course of an altercation with the victim, Narooshan Jude, initiated by him, during which Mr. Jude was yelling at the defendant and also seen pushing him several times, and despite the intervention of Mr. Jude's girlfriend, Chelsea Haywood-Alexander, who attempted to move her aggressive boyfriend out of the way, Mr. Hudson reached around her to stab the victim with a sharp object, likely a knife, in the 'cardiac box' causing him grievous bodily harm. Mr. Hudson had an opportunity to retreat. He did not, but instead lashed out in response to Mr. Jude's provocations to catastrophic effect on his victim.
[3] This followed upon an incident three days earlier during which both parties taunted each other and came to the brink of blows. Mr. Jude was the more aggressive one. I agree with the Crown that on this evidence there is an inference of animus as between the two men.
[4] Tragically, the blow ruptured the lower chamber of the victim's heart. It led to a full cardiac arrest and an 'anoxic brain injury'. As a result of the stabbing, Mr. Jude was without oxygen for 45 minutes. He was considered dead at the scene, but was revived at the hospital. He was in a coma for 3-4 weeks. Because his heart valves were damaged, he had to undergo extensive open-heart surgery. He was hospitalized for over 2 months. He spent the majority of the first year in a rehabilitation centre.
[5] The medical consequences for the victim are life-altering. Mr. Jude has suffered serious memory loss. He requires help from family members to complete the basic tasks of life. He is subject to seizures, will be prone to other heart-related illnesses and suffers from PTSD. He will be cognitively and functionally impaired for life.
[6] As well, the financial consequences for the family are significant. More consequentially, the stress, worry and sense of loss are profound. How do parents cope with the stark reality that their son will live a diminished and dependent life? They must wonder who will look after him when they are gone. As Mr. Jude's father, Anthony, wrote in his victim impact statement, "We want to live in peace, but we can't. We have had so much taken away from us, this will affect us for the rest of our lives".
Personal Circumstances of the Offender
[7] Mr. Hudson is 28. He maintains his innocence.
[8] He has the following extensive criminal record:
| Level and Location of Court | Offence | Disposition |
|---|---|---|
| 08/16/2007 Toronto, Ontario (Youth Justice Court) | Obstruct peace officer s.129(a) CCC | 18 months Probation |
| 09/10/2007 Toronto, Ontario (Youth Justice Court) | Fail to comply with recognizance s.145(3) CCC | 18 months probation on each charge concurrent |
| 11/30/2007 Toronto, Ontario (Youth Justice Court) | (1) Robbery (2) Fail to comply with disposition s.137 YCJA | 4 months & 2 months under community supervision on each charge conc & 18 months probation |
| 07/16/2008 Toronto, Ontario (Youth Justice Court) | (1) Robbery s.344 CCC (2) Disguise with intent | (1-2) 6 months and 3 months under supervision in the community on each charge conc. and 18 months probation |
| 03/02/2010 Toronto, Ontario | Robbery X2 | 8 months on each charge concurrent and 2 years probation |
| 09/08/2011 Toronto, Ontario | (1) Assault with a weapon s.267(a) CCC (2) Pointing a firearm s.87(1) CCC (3) Fail to comply with probation order s.733.1(1) CCC (4) Possession of firearm or ammunition contrary to prohibition order s.117.01(1) CCC | (1) 1 year jail and 3 years probation (2) 1 year concurrent (3) 6 months concurrent (4) 364 days consecutive |
| 07/12/2013 Toronto, Ontario | (1) Possession of a schedule II substance s.4(5) CDSA (2) Possession of a Schedule I substance | (1) 1 day (144 days pre-sentence custody) (2) 1 day concurrent |
| 02/18/2014 Toronto, Ontario | Uttering Threats s.264.1(1)(a) CCC | Suspended Sentence and 2 years Probation |
| 01/21/2015 Toronto, Ontario | Fail to Comply with Probation order s.733.1(1) CCC X2 | 1 days on each charge concurrent (126 days pre-sentence custody) |
| 03/17/2015 Toronto, Ontario | Possession of a Schedule I Substance s.4(1) CDSA | 1 day jail and 1 year probation |
| 04/29/2015 Toronto, Ontario | (1) Fail to Comply with Probation order s.733.1(1) CCC (2) Possession of a Schedule II Substance s.4(1) CDSA (3) Assault Peace Officer s. 270(1)(a) CCC (4) Fail to Comply Probation s.733.1(1) CCC | (1) 30 days (6 days pre-sentence custody) (2-4) 30 days concurrent |
| 06/23/2015 Toronto, Ontario | (1) Possession of a Schedule II Substance s.4(1) CDSA (2) Fail to Comply Probation s.733.1(1) CCC | (1) 1 day and $75 (14 days pre-sentence custody) (2) 1 day concurrent & $1 |
| 05/16/2016 Toronto, Ontario | Fail to comply recognizance s.145(3) CCC | Credit for the equivalent of 90 days pre-sentence custody |
| 05/2/2017 Toronto, Ontario | (1) Break and enter & commit s.348(1)(b) CCC (2) Possession property obtained by crime under $5000 s.354(1) CCC (3) Possession proceeds of property obtained by crime s.354(1) CCC (4) Possession of proceeds of property obtained by crime s.354(1) CCC (5 to 13) Fail to Comply Probation s.733.1(1) CCC X9 (14) Possession of Schedule II Substance s.4(1) CDSA (15) Possession of Schedule I Substance s.4(1) CDSA | (1) 2 months & 2 years probation (2-4) 2 months on each charge conc. (5-13) 30 days on each charge conc. (14) 6 days consecutive (15) 6 days concurrent |
[9] Mr. Hudson is a repeat offender, who has committed assaults, robberies and firearms offences, although the majority of his acts of violence were committed in his earlier years. It is of concern that his response to community supervision has been poor. It is aggravating that at the time of these offences, he was on two probation orders. It is disturbing that he was subject to two Weapons Prohibition Orders, the latter in 2011 for life.
[10] Mr. Hudson is fortunate to have the support of his mother and step-sister with whom he is close. He has had a girlfriend for 6 years. He reports that he does not have too many friends.
[11] Mr. Hudson has had challenges growing up. He was severely impacted by the loss his father when he was 9. He suffers from ADHD and has learning disabilities. He was placed in special education classes, but did not go far in school. His employment has been sporadic. He has more recently been addicted to crack cocaine and smokes marihuana daily. He says he stopped using crack in 2018.
[12] In 2015, the defendant survived being shot 5 times by unknown assailants. The impact on him was debilitating. Following assessment by the Centre for Addiction and Mental Health (CAMH), dated Feb. 21, 2018, Mr. Hudson was diagnosed as demonstrating "classic symptoms of PTSD, including flashbacks, nightmares, hpervigilance and avoidance of stimuli that trigger memories of his shooting". He was also diagnosed with Major Depressive Disorder, for which he is prescribed medication. He says this makes it more difficult for him to cope with his time in custody where there are crowds, loud noise and danger.
[13] It is encouraging that while in custody, Mr. Hudson completed his high school credits. He was described by the program manager as a "determined and capable participant" in the education classes. He, as well, completed a number of life skills programs. Damian has more recently been accepted to community college. These accomplishments are notable and permit an inference that he has taken steps towards his rehabilitation.
[14] It is helpful to have received letters from members of his family and from his girlfriend. His younger sister, Bianca Malcolm, is a child and youth worker. She has seen her brother become a more reserved and anxious person since he was shot. She believes he needs continuing help for his mental health challenges. She is encouraged that he has progressed from public school dropout to high school graduate, now enrolled in a community college.
[15] Mr. Hudson's mother, Joan Malcolm, described Damian's life challenges that include seizures from an early age, learning disabilities and losing his father to cancer at age 9. She is troubled by his struggles with PTSD. Ms. Malcolm says her son has a kind nature. She believes that with proper mental health care he can reach his potential.
[16] Althea Wilson has been Damian's girlfriend for 6 years. She is working towards her Bachelor of Social Work at Ryerson University. She is aware of Damian's hardships. She says he has a determined nature and is motivated to do better. She notes that despite physical ailments from the shooting, he worked long hours to earn money while attending school.
[17] Ms. Wilson is encouraged that Damian has sought help from his family doctor and CAMH for his PTSD that she says has rendered him paranoid and hesitant to be out in public. She is committed to the relationship and believes that with her and his family's support Damian will reach his potential.
[18] In a letter to the court, Mr. Hudson explained his personal circumstances and advocated a sentence of time served. He expressed remorse, I believe genuinely, for Mr. Jude's suffering, but does not admit to being the cause. He says that his anxiety and depression render his incarceration unbearable. He is anxious to be reunited with his mother whom he says has need of him.
[19] Mr. Hudson feels he has changed. He refers to his effort in upgrading his education, and his admission to community college. He explained that while it was hard for him to open up to probation officers, he initiated counselling at CAMH for his addictions. He says he is open to therapy. He asks for another chance.
[20] I acknowledge his effort to better himself and grapple with his demons. I believe he has the potential to reform with professional help and family support.
Positions of the Parties
[21] Ms. Penny, for the prosecution, submits that given these egregious facts, the devastating injuries, the aggravating features and the accused's prior criminal antecedents, a penitentiary sentence is necessary. She says that, on the authorities, a sentence of 5-6 years, less pretrial custody, is warranted.
[22] As of this date, Mr. Hudson has been in pretrial custody for 486 days, giving him a Summers equivalent on a 1.5:1 basis of 729 days or 24 months: see R. v. Summers, 2014 SCC 26 and Code s. 719(3.1).
[23] Mr. Bottomley, for the accused, submits that the equivalent of 2 years of pretrial custody is sufficient. He reminds the court that the victim was the aggressor on two separate days and had the misfortune to pick a fight with someone carrying PTSD. He emphasizes that contrary to the facts in other serious cases relied on by the Crown, Mr. Hudson struck only one blow after having been confronted and provoked. He says his client has shown by his effort to improve while in custody that his rehabilitative prospects are high.
[24] Mr. Bottomley submits, in addition, that any sentence imposed should be mitigated in light of evidence that Mr. Hudson's conditions of incarceration were harsh and that they impacted him adversely.
The Sentencing Principles
[25] The relevant principles are set out in Code s. 718. These involve important objectives, including denouncing unlawful conduct, deterring the offender and others, separating offenders from society, where necessary, and assisting in the rehabilitation of the offender. It is conceded on these facts that the principles of denunciation and deterrence are to be given emphasis over the accused's rehabilitative prospects that I view as more promising than in the past.
[26] A fundamental principle reflected in s. 718.1 is one of proportionality, that is, the sentence imposed must reflect the gravity of the offence and the offender's degree of responsibility.
[27] A third principle set out in s. 718.2(a) contemplates a weighing of aggravating and mitigating circumstances that relate to the offence or offender.
[28] Finally, s. 718.2(b) directs the court to consider sentences imposed on similar offenders for similar offences committed in similar circumstances. It is trite to say that no two cases of aggravated assault are alike and that the range of sentence is wide.
[29] It follows that sentencing is an individualized process within the exercise of judicial discretion: R. v. Nur, 2013 ONCA 677, at para. 73.
The Authorities
[30] In R. v. Tourville, 2011 ONSC 1677, Justice Code reviewed numerous cases of aggravated assault and concluded, at paras. 27-30, that they disclosed a wide range of sentences that, as noted by J. Kelly J. in R. v. Cummings, [2015] O.J. No. 3210 (OSC), at para. 24, "fall into three broad ranges of sentence". While not to be rigidly applied, these categories provide helpful guidelines in arriving at a just and proportionate sentence.
[31] The first two ranges have little application in the case at bar. For instance, the second range holds cases that generally include first offenders who are involved in some form of consent fight where the accused resorts to excessive force leading to a high reformatory sentence. That is not this case.
[32] On the evidence, it would be my view that an appropriate sentence in Mr. Hudson's case would be tending closer to the high end of the range. As described by Justice Code, at para. 30, these cases generally involve recidivists with serious prior criminal records or unprovoked or premeditated assaults with no element of consent or self-defence. It is a material difference in the case at bar that the accused struck only one blow in response to being accosted and provoked.
[33] The cases relied on by the Crown are of limited assistance. As observed by Mr. Bottomley, they generally involve brutal, unprovoked attacks by the accused, often premeditated. For example, in R. v. Pangan, [2014] O.J. No. 3340 (OCJ), the assailant attacked the victim three times leaving him with a severe traumatic brain injury. The alcoholic accused had a lengthy criminal record, including several assaults. He was sentenced to 8.5 years.
[34] In R. v. Dunn, [2002] O.J. No. 864 (OCA), the intoxicated accused, unprovoked, applied substantial force in multiple blows to the head of his friend and left him lying unconscious on the floor. The victim suffered permanent brain damage and is cognitively and physically impaired. A sentence of 9 years was upheld on appeal.
[35] By contrast, Mr. Hudson was confronted twice by the complainant, on the second occasion, assaulted before reacting on the sudden with one blow. In addition, it is probable, given the CAMH diagnosis, that the defendant's disabling anxiety had some bearing on his response to Mr. Jude's aggression: see Pangan, at para. 32, where Downes J. held that a mitigating inference requires evidentiary linkage as between one's mental illness and his or her criminal act. These are material facts that, standing alone, tend to move this case somewhat closer to the mid-range of sentence for cases of this kind.
[36] At the same time, it is troubling that the defendant carried an object, likely a knife, that could be used, and was used, as a weapon. It is aggravating that when he had an opportunity to retreat, he chose instead to answer the provocation by attacking his victim, in an excessive and almost deadly manner, leaving him with catastrophic injuries. Moreover, he is a repeat offender whose record includes convictions for assaultive behaviour and unlawful possession of weapons. And as noted earlier, it is troubling that he was on two probation orders and subject to a lifetime weapons prohibition order. While he has more recently sought assistance for his addictions at CAMH, and shows promise by his considerable effort while in custody, his prior response to community supervision has been poor.
[37] The cases provided by the defence are also of limited assistance because the facts in each are unique. In R. v. Stephens, [2019] O.J. No. 523 (OSC), the accused reacted excessively to relatively minor provocations. He stabbed his victim in the back and repeatedly on his forearms raised to prevent more serious injury to his torso. The victim's liver was lacerated. The accused had a minor criminal record. Relying on the Tourville guidelines, Justice Akhtar sentenced the accused to 3 years.
[38] In Stephens, the injuries, while serious, did not, unlike in Mr. Jude's case, result in catastrophic injuries that left the victim with a dim future. I am mindful that as indicated by Justice Weiler in Dunn, at para. 32, harmful consequences from the offender's actions are to be given significant weight on sentencing.
[39] In R. v. Leslie, 2018 ONSC 41, the accused, a schizophrenic, attempted to set fire to the complainant's bed and then reacted to the victim's attempted punch by stabbing him with a knife repeatedly in his back, neck, face and head as the latter fled. The victim had multiple stab wounds, one of which penetrated his skull to the brain. He required surgery for a compound depressed skull fracture. The defendant had a relatively minor criminal record. He was subject to deportation. In sentencing the accused to 3 years, Justice O'Marra found his culpability to be somewhat diminished by the role his mental health problems played in the commission of the offences. But for this mitigation, it can be inferred that the sentence for this serious attack would have been more severe.
[40] In the case at bar, Mr. Hudson did not initiate the conflict. He was subject to assault and provocation. He struck only one blow. His reaction may in some measure be attributed to the effects of PTSD. Tragically, he chose not to retreat when a third party intervened. He must bear responsibility for the consequences of the choice he made in anger, one that almost cost a life.
[41] In arriving at an appropriate disposition, giving emphasis to the principles of denunciation and deterrence, I weigh, in addition, the defendant's criminal antecedents, the aggravating and mitigating circumstances, as well as the defendant's encouraging prospects for rehabilitation, noted earlier. On these facts and the authorities, a penitentiary sentence on the aggravated assault is indicated. Mr. Hudson will be sentenced to 3 ½ years. He will be sentenced, in addition, to 12 months concurrent on the conviction for possession of a weapon for a purpose dangerous to the public peace. Given the 2 years equivalent, the net sentence will be 1 ½ years. That does not complete the matter.
The Duncan Application
[42] Mr. Hudson applies for further mitigation of sentence beyond the 1.5:1 ratio because he says that while incarcerated he was subject to particularly harsh circumstances that adversely impacted his emotional well-being: see R. v. Duncan, 2016 ONCA 754, at para. 6. It is his onus to adduce evidence in this regard.
[43] In support of his application, Mr. Bottomley tendered documentary evidence from the Ministry of Community Safety and Correctional Services that as at Aug. 8, the defendant had been housed at the Toronto East Detention Centre for 459 nights, 66 of which had him triple bunked in an 8' x 10 ft. two-man cell, although he slept on the floor for only 6 nights. He did not get outside to the yard for fresh air and exercise for 300 of the days. He was subject to lockdown for 37 half-days and 7 full days. He had 3 minor infractions.
[44] The CAMH report indicates that Mr. Hudson experiences nightmares and flashbacks of the attack on him, leaving him "hypervigilant and on edge when he is out in public on his own". He is susceptible to depression.
[45] In his letter to the court, Mr. Hudson wrote that it is difficult for him on the range to be in a crowd of prisoners and where there are loud noises. He says it leaves him anxious and fearful. I accept that the conditions as described in the Ministry document would be more difficult for someone with the defendant's anxiety and vulnerable emotional state to navigate.
[46] In weighing this evidence in mitigation of sentence, I follow the approach taken by my colleague, Justice Wendl, in R. v. Cunningham, 2019 ONCJ 559, not to give credit above the Summers ratio, but to consider the impact of harsh conditions on the fitness of sentence.
[47] Justice Wendl adopted the notion of "collateral consequences credit" described in R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at paras. 46-48, where the court said, in part: "The question is not whether collateral consequences diminish the offender's moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances…".
[48] For example, in R. v. Holman, 2017 ONCJ 727, the defendant was in custody for 409 days, 193 days of which were spent in lockdown, 65 days of which were partial. The court accepted his evidence that the conditions took a toll on his emotions and that confinement during consecutive days was particularly stressful. He was given collateral consequence credit in sentence.
[49] In Cunningham, Justice Wendl, at para. 17, suggests that the evidentiary burden on the applicant need not be onerous and that there can be "no formulaic approach" to the amount of credit provided by the court.
[50] On the evidence, I am persuaded that the difficult circumstances endured by the defendant took a toll on his emotional stability, given his mental condition, and warrants collateral consequence credit of 3 months. In the result, Mr. Hudson will be sentenced to a net sentence of 15 months.
[51] This will be followed by 2 years' probation on the following terms: keep the peace and be of good behaviour; report to a probation officer and thereafter as required; attend for counselling or treatment as directed by Dr. Jameel Razack or as referred by Dr. Razack or her associates; sign any releases that will permit probation services to monitor your compliance; have no contact or communication directly or indirectly with Narooshan Jude, nor be within 10 metres of any place you know him to be; possess no weapons as defined by the Criminal Code. In addition, you will provide a sample of your DNA. You will be subject to a lifetime weapons prohibition under Code s. 109.
Released: August 30, 2019
Signed: Justice L. Feldman