ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 7193
DATE: 20120106

BETWEEN:

HER MAJESTY THE QUEEN – and – KEVIN DARNELL ADDLEY Defendant

Mike Kelly, for the Crown

Kenneth Walker, for the Defendant HEARD: January 5, 2012

Reasons for Sentence

KOKE, J.

Ove r view:

1On October 7, 2011 the accused, Kevin Darnell Addley was convicted by a jury of committing an aggravated assault, contrary to section 268 of the Criminal Code . The victim of the assault was Rayvon Walter Hammerstedt.

The Facts:

Circumstances of the offence

2The assault occurred in the early morning hours of July 8, 2010 in a neighbourhood in the east end of Sault Ste. Marie, Ontario. On the evening prior to the assault, the complainant, Mr. Hammerstedt, who was 16 years old at the time, attended a party with his friend, James Barr. James was also 16 years old. The party broke up around midnight, following which Mr. Hammerstedt and James decided to walk to Mr. Addley’s house, together with a group of their friends. James Barr and Mr. Addley are cousins. Mr. Addley had not attended the party.

3On the way to Mr. Addley’s house, Mr. Hammerstedt and Mr. Barr became involved in an argument, which eventually turned into a physical fight. During the fight Mr. Hammerstedt punched Mr. Barr several times.

4Following this altercation, the group broke up and Mr. Hammerstedt did not continue on his way to Mr. Addley’s house. He found himself alone, in the subdivision, in the early morning hours.

5Mr. Hammerstedt wandered about for a while, and then he saw James Barr and Mr. Addley coming towards him on the street. Mr. Addley was 19 years old at the time.

6Mr. Hammerstedt testified that Mr. Addley approached him and threatened to “shank” him unless he got down on his knees and apologized to his cousin James Barr. Mr. Hammerstedt testified that he did as he was told, and as he was about to apologize Mr. Addley took a sidestep and struck him in the face with either his knee or his leg. As Mr. Addley did this he heard James Barr yelling “do it” and the next thing Mr. Hammerstedt recalls is waking up in the hospital.

7Mr. Porter, who was sitting on his porch in the early morning hours of July 8, 2010, testified that he saw three individuals on the street several houses away. One of the individuals was on his knees, and the other two were standing. He saw that the taller of the two individuals who were standing struck the person who was kneeling in the face, with either a knee or a punch. The person who was kneeling fell over, following which he was repeatedly kicked by the two other individuals. After they finished kicking the person on the ground, the two individuals ran away.

8Mr. Porter identified the person who had been kicked as Mr. Hammerstedt.

Circumstances of the Offender

9Mr. Addley was born on February 16, 1991 and is now 20 years old. A pre-sentence report was submitted to the court which revealed that Mr. Addley is the youngest of three children born to Melody Cooper and Darnell Addley. His parents divorced when he was three years old.

10Mr. Addley’s mother is reported to have left his father due to his excessive drinking and abusive behaviour of her. When Mr. Addley’s parents separated, his mother moved with the children from Edmonton to Sault Ste. Marie where her family resided. They returned to Edmonton a year later. His parents attempted to reconcile on and off again over the next six years.

11Mr. Addley moved back to Sault Ste. Marie with his mother about six years ago.

12Mr. Addley admits that he has had issues with alcohol and drugs in the past. His father advised that he was involved with illicit drugs in Edmonton, and this was one of the reasons Mr. Addley and his mother moved back to Sault Ste. Marie. Mr. Addley admits to having been addicted to Oxycontin for a period of about two years, which ended about nine months ago. His mother states that he sold most of his personal belongings to support his habit.

13Records of the Addictions Treatment clinic in Sault Ste. Marie confirm that Mr. Addley was referred there by staff of the Sault Area Hospital In-Patient Psychiatry Department in October 2009. An initial assessment confirmed that he had been using alcohol and some illicit drugs. Suicidal thoughts and mood changes were also identified. Mr. Addley confirmed that he has attempted suicide on two occasions, once when he was 12 or 13 and again when he was 17.

14Mr. Addley claims that he now consumes alcohol only in a controlled fashion, mindful of his parent’s histories of drinking to excess, and there is no basis to suggest that this is not the case

15The pre-sentence report indicates that Mr. Addley’s mother identified her son as struggling with depression in his childhood and stated that she made an effort to engage him with mental health professionals as a youngster. In Edmonton he was seen by a child psychologist and was prescribed medication, which he eventually stopped taking because of the side effects.

16Mr. Addley admits that he has had an anger management problem in the past. He is of First Nations descent and he informed the author of the pre-sentence report that he participated in a First Nation activity overseen by a native elder in the Sault Ste. Marie area when he was about 14 years old, and he has not had any anger management issues since that time.

17Mr. Addley’s mother advised the author of the pre-sentence report that her father was born on the Magnetawan First Nation east of Georgian Bay, and that he was taken from his home at an early age and transported to a residential School in Spanish, Ontario. He apparently experienced physical, sexual and mental abuse there and eventually ran away at age 14.

18According to Mr. Addley’s mother, her father developed a serious alcohol abuse problem and his marriage to her mother ended when she was 14 years old. She states that her father struggled to show an emotional connection with his family.

19Mr. Addley’s mother is a recovering alcoholic. Although she states that she has had her alcohol issue under control for about six years now, Mr. Addley’s aunt related that his mother has probably struggled with alcoholism more recently than that.

20Another aunt noted that her sister seems to have developed this problem while she and her children were still residing in Edmonton. She recalled that Mr. Addley and his other sister were often left at home without parental supervision for extended periods of time.

21Mr. Addley experienced difficulties in school and there is a suggestion that he may have some form of attention deficit disorder. He has not completed high school and has received only 19 of the 30 credits required to graduate. He is presently taking some high school classes but his attendance is poor. He is interested in taking a course in underwater welding at the Northern Institute of Technology and advises that his father has agreed to look after the funding.

22It would appear that Mr. Addley is not afraid of work. He is reported to have had a number of part time jobs, which include a job at MacDonald’s when he was 14 years old, at a hunting lodge during the summer of 2010 and as a bartender this past summer.

23Mr. Addley is described by various family members as basically a gentle, creative individual who enjoys writing, music, poetry, working out and spending time with friends during his leisure time. The violent behaviour which led to the charges is viewed as out of character.

24This is the first time Mr. Addley has appeared in court as an adult offender. In January 2008, when he was 17 years old, he was convicted of driving while his ability was impaired, mischief involving less than $5000, and theft over $5000. He was sentenced to 18 months probation and as part of his probation he was required to complete 70 hours of community service. He is reported as having completed the hours successfully and he demonstrated good participation in the various programs.

Impact on the Victim

25Mr. Hammerstedt sustained numerous injuries in the assault. Dr. Timothy Best, who gave evidence at trial, testified that Mr. Hammerstedt broke numerous bones around his eye and eye socket. Dr. Best operated on Mr. Hammerstedt. The surgery required him to enter the floor of the eye socket and insert small plates and screws. Fortunately, the surgery was successful,

26Mr. Hammerstedt filed a victim impact statement. In his statement he reports that his life changed drastically after the assault.

27He reports that he has metal plates holding part of his face in place, and he cannot see as well as he did before. Also, he cannot be near bright lights because these give him a headache and as a result he was forced to drop out of a welding course at school.

28Mr. Hammerstedt complains that he now experiences difficulty sleeping. He states that he is lucky to get two to three hours of sleep in a three day span. He has nightmares in which he relives the assault, and wakes up terrified, shaking and in a cold sweat.

29Because he is sleep deprived, he finds he is more easily agitated and has difficulty concentrating in school.

30Mr. Hammerstedt complains that he is also experiencing trust issues, and feels paranoid around people. He is afraid to go out alone, and he prefers that his friends come to his home to visit him. When he does go out, he feels a need to be accompanied by someone, even if he is only going to the store near to his house. He no longer goes for walks, runs or bicycles alone. He reports that the assault has devastated his confidence, and he finds that he is second guessing himself and has lost his sense of adventure.

31Mr. Hammerstedt’s father, Eric Hammerstedt, also filed a victim impact statement. In his statement he confirms that his son is no longer the “social butterfly” he once was, and he now prefers to stay at home and if his friends wish to see him they come to the house.

32Eric Hammerstedt reports that the incident has affected the entire family. He advises that all of the family members are having trouble sleeping and are tense. He reports that his wife is experiencing post traumatic stress syndrome, for which she requires medication. She questions her son as to where he is going and when he will be home when he goes out, and she is anxious and nervous until he returns.

Legal Parameters

33The law provides that a person who commits an aggravated assault is liable to imprisonment for a term of up to 14 years.

Positions of Crown and Defence

34The Crown asks this court to impose a custodial sentence of two years in a federal institution, followed by three years of probation. In support of its position, the Crown points to the violent and unprovoked nature of the offence, and the serious injuries suffered by Mr. Hammerstedt and inflicted on his family. The Crown argues that although rehabilitation should be a consideration, in the circumstances of this case, denunciation and deterrence should be the paramount sentencing considerations.

35The defence submits that a custodial sentence of 12 months to 18 months in a provincial institution, followed by a period of probation, is appropriate in the circumstances of this case. In support of its position the defence points out that Mr. Addley was only 19 years old at the time the offence was committed, and this is the first time he has been convicted of a crime of violence.

36The defence asks that the court give substantial weight to the objective of rehabilitation and reminds the court that section 718.2 (e) of the Criminal Code requires that the court consider all available sanctions other than imprisonment that are reasonable in the circumstances, with particular attention to the circumstances of aboriginal offenders such as Mr. Addley.

Case Law

37I have been provided with various cases by counsel. The case of R. v. MacDonald , which is a 2010 case of the Ontario Court of Appeal, is a case in which the accused was convicted of aggravated assault, and sentenced to 12 months imprisonment, followed by 12 months probation. Mr. MacDonald had thrown a beer bottle at the complainant, striking him in the face and knocking him unconscious. The complainant suffered lacerations and an injury to his jaw.

38The trial judge held that even though Mr. MacDonald was a youthful first offender, the degree of violence required that denunciation and deterrence operated as paramount sentencing objectives. The Court of Appeal upheld the sentence.

39The Crown also brings to my attention the case of R. v. Kanthasamy, a 2007 decision of the Ontario Court of Appeal. In this case, the accused, who was 20 years old, together with a friend who was also 20 years old, was convicted of aggravated assault. The offence involved the two accused attacking the victim, a stranger, with machetes, for no apparent reason. The victim was left with serious, life altering physical and psychological injuries.

40The trial judge considered the youthful age of the two accused, together with the fact that they were reasonably well educated and had work histories, to be mitigating factors. He noted that in the circumstances the rehabilitation of the two offenders was to be viewed as a primary objective, and he balanced this with the objectives of denunciation and specific and general deterrence. The two accused were sentenced to a term of imprisonment of 7 years and 6 months. This sentence was upheld at the Court of Appeal.

41The case of R. v. Tourville , which is a 2011 decision of the Ontario Superior Court, involved a 26 year old man of Aboriginal heritage. Mr. Tourville was convicted of aggravated assault. He had engaged in a fight with the victim outside of a bar, during which he pulled out a knife, which he used to inflict serious injuries to the victim.

42Mr. Tourville was a first time offender. A Gladue report was prepared in relation to his sentencing, which mentioned abandonment, physical and psychological abuse, and exposure to drugs and alcohol at an early age.

43The trial judge noted that the accused, being an aboriginal offender, had an interest in restorative justice related to his heritage. On the other hand, the severity and number of injuries suffered by the victim required a deterrent and denunciatory custodial sentence of some significance. The accused was sentenced to 21 months imprisonment, followed by two years probation.

Mitigating and Aggravating Factors

44I accept that the following are mitigating factors in the circumstances of this case:

(a) Mr. Addley was only 19 years old at the time of the assault;

(b) Although Mr. Addley has a youth record for driving while impaired, mischief under $5000 and theft over $5000, he has never been sentenced to a custodial term;

(c) This is the first time that Mr. Addley has been convicted of a crime of violence;

(d) Mr. Addley has demonstrated a willingness to work;

(e) I observed throughout the trial proceedings, as well as during these sentencing proceedings, that a considerable number of Mr. Addley’s family members and friends were in attendance. It would appear that Mr. Addley has a supportive family and community behind him.

(f) Mr. Addley has demonstrated compliance with the terms of his interim release order, and previously with respect to the terms of his probation.

45I view the following as aggravating factors:

(a) The attack on Mr. Hammerstedt was violent and clearly premeditated. Mr. Addley inflicted severe injuries to Mr. Hammerstedt. It was also cowardly, in that Mr. Hammerstedt was outnumbered 2 to 1 and Mr. Hammerstedt was about three years younger than Mr. Addley;

(b) After inflicting these injuries on Mr. Hammerstedt, Mr. Addley chose to leave him out on the street alone, in the early morning hours. If it had not been for the fact that some good Samaritans happened by, who were able to provide assistance quickly, the consequences to Mr. Hammerstedt may have been far more severe.

Discussion

46Mr. Addley used extreme violence to carry out this assault. I accept therefore that the objectives of denunciation and deterrence should be considered important objectives in the circumstances of this case. However, Mr. Addley is relatively young. Also, this is the first time he has been convicted of an offence of violence and he has not previously served a custodial sentence. I find I am therefore compelled to give considerable weight to the objective of rehabilitation as well and to balance this objective against the objectives of denunciation and deterrence.

47In my view, the Crown’s request that I sentence Mr. Addley to a two year term in a federal institution does not adequately meet the objective of rehabilitation.

48Mr. Addley is only 20 years old. When I consider Mr. Addley’s family history and the circumstances of his upbringing, what stands out to me above all else is the apparent absence of any positive role models in his life. This is not surprising. Mr. Addley’s maternal grandfather was part of Canada’s now discredited residential schools program. It is now generally accepted that the problems associated with this program are generational. Students who went through this program did not receive the nurture and parenting that they required, and when they became parents themselves they did not possess the requisite skills to parent themselves.

49I note that Mr. Addley’s maternal grandfather developed a serious alcohol problem and his marriage to Mr. Addley’s maternal grandmother ended when Mr. Addley’s mother was 14 years old. He is reported as also having had difficulties forming an emotional attachment to his family. Mr. Addley’s mother is a recovering alcoholic and it is reported that she left Mr. Addley’s father because he had issues with alcohol. She took Mr. Addley and his siblings with her when she left. We see therefore that Mr. Addley was raised largely by his mother, who no doubt loved him very much but whose ability to parent was affected by her own issues.

50If I accept the Crown’s position, then the people who will be in a position to influence Mr. Addley for the next two years of his life, his potential role models, will be comprised of prisoners who are incarcerated in a federal prison. These are all people who have been convicted of serious offences. These are not the people I wish to have Mr. Addley exposed to at this time of his life.

51Mr. Addley is still young, and he is impressionable. There is no evidence before me to suggest that he is a fundamentally a violent person. His actions may very well have been out of character. I believe that he can mature and develop into a productive and valued member of this society but I do not envision that this will happen if he is placed in a federal prison environment for the next two years. Such a sentence would not be in his interests or in the interests of society.

52Mr. Addley’s crime calls for a custodial term, but this should not be for two years and it should be served in a provincial institution, preferably in a location which is as close to Sault Ste. Marie as possible, so his family can provide him with some support while he is in custody.

53Unfortunately, the people to whom Mr. Addley will be exposed in a provincial institution will not be ideal role models either. However, they are likely to have been convicted of less serious offences and possibly they will include fewer career criminals. Hopefully, a lengthy period of probation will provide Mr. Addley with an opportunity to receive some guidance and direction for his life.

54I am sentencing Mr. Addley to a custodial term of 18 months in a provincial institution, followed by three years of probation.

55Additionally, I am ordering the following ancillary relief:

(a) A 10-year weapons prohibition under section 109(2) (a) of the Criminal Code and a lifetime prohibition for those items under section 109(2) (b);

(b) Mr. Addley is to provide a DNA sample pursuant to s. 487.051;

56The terms of Mr. Addley’s probation are to include:

(a) no communication or association with Mr. Rayvon Hammerstedt;

(b) not to come within 50 metres of Hammerstedt, his house, place of employment or educational institution he attends;

(c) report as directed by probation officer; and

(d) attend for whatever assessment, counselling or treatment he is directed to attend with respect to substance abuse or anger management

E.J. Koke J.