COURT FILE NO.: CR-10-12475-00
DATE: January 6, 2012
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Crown
– and –
JOHN BROOK
Defendant
Ngai On Young, for the Crown
Anthony Bryant, for the Defendant
SOSNA J. (GIVEN ORALLY)
[1] The following are the oral reasons in this sentence hearing. If written reasons are requested I reserve the right to amend and expand these reasons where necessary. Further if I do not make specific reference to the totality of submissions advanced by either the Crown or Defence counsel, it is not to be construed that those submissions had not been considered.
[2] On October 19, 2011 after a jury trial, John Brook was found guilty of attempted murder, using a firearm while committing an indictable offence, pointing a firearm, and possession of a firearm while prohibited. A companion count of aggravated assault was stayed because of the jury finding on attempted murder.
[3] On this date at the request of both the Crown and Defence, the count - use of a firearm, is stayed.
[4] A sentencing hearing was scheduled for November 1, 2011. Counsel for Mr. Brook was involved in a longer than anticipated jury trial that date, and the matter of sentence was adjourned to this date, January 6, 2012.
REVIEW OF THE TRIAL EVIDENCE
[5] The incident leading to the present jury findings occurred on April 25, 2009. On that date shortly before 10:30 p.m., Brook an admitted drug dealer, shot Timothy Hill, also an admitted drug dealer, several times at a rural side road in the Township of Uxbridge.
[6] It was acknowledged at trial that Brook owed Hill between $2000 and $12,000 for marijuana and cocaine he had purchased from Hill in the preceding months. In order to repay that debt, Hill was to receive 15 trays of marijuana cloned plants that Brook had cultivated north of Uxbridge.
[7] Through earlier text and telephone messages Brook and Hill agreed to meet on Concession 5 in Uxbridge to finalize that transfer. Both travelled to that location alone in their separate vehicles.
[8] Hill testified that Brook arrived with no marijuana trays and after exiting his car, Brook immediately began firing a handgun at him while he Hill waited by the open door of his van to receive the marijuana trays. He testified that he was shot multiple times at the back of his van and as he fled from Brook down the length of his van. He testified that Brook pursued him and that he fell in a ditch already wounded. He testified that Brook then shot him at close range shattering his left leg. He testified he scrambled from the ditch and that Brook continued to shoot in his direction while he sought cover in an adjacent bush area. In total he estimated that Brook fired 15 to 20 shots at him.
[9] Brook then fled the scene in his own car but not before he took the keys out of the ignition of Hill’s van and locked the doors.
[10] Hill testified despite bleeding extensively he was able to return to his vehicle but found his van locked and the keys missing from the ignition. However he had a spare set of keys on his keychain, was able to enter the van, have access to a cell phone, and phone 911 and two friends for assistance. He left the scene looking for immediate help. The 911 operator instructed him to pull over to a stop. Within moments his two friends arrived. They applied pressure to stop Hill’s bleeding. Shortly thereafter the police and ambulance arrived.
[11] Hill was taken to the Uxbridge Cottage Hospital and then transferred by air ambulance to St. Michaels Hospital in Toronto where he underwent surgery.
[12] Exhibit 12 - an Admission of Fact introduced at trial, setting out Hill’s injuries notes that “The significant injuries included multiple gunshot wounds.” In summary those injuries included:
(a) Gunshot wound to the outer back of the chest (posterior thorax)…The bullet and fragments were located in the right lateral chest wall…No organ or vascular injuries were identified.
(b) …another gunshot wound in the left rear buttock…The bullet travelled through the left rear buttock and was located in the left pelvic area…No pelvis fracture was identified. No organ injuries were identified.
(c) …another gunshot wound which caused a fracture of the left leg below the knee. The upper left fibula was shattered into a number of pieces…The injury required a cast and crutches.
(d) … “an injury to the right index finger with a wound on the inner (radial closest to the thumb). Another injury… In the right index finger in the upper joint closer to the outer… side of the hand and grazing the middle finger. The index finger and middle finger required surgery and removal of dead tissue. The prognosis is that there will be poor function of the index finger.” Hill testified these injuries occurred when he covered his head with his hand to shield himself from the shots fired at him.
Further in Exhibit 12 it was admitted that “There were laceration type injuries (gauges to the back of the head…and chin. There was also an injury to the right ear.” At trial Hill testified these were gunshot wounds that grazed his facial area. In his Victim Impact Statement he wrote “I was shot six times in total. One bullet through my chin, one bullet through my right ear.”
[13] Despite the number of injuries, they were noted in Exhibit 12 not to be “life threatening.”
[14] On June 5, 2011 a bullet was removed from Hill's left hip and provided to the Durham Regional Police who submitted it to the Centre of Forensic Sciences. Exhibit 27, another Admission of Fact at trial noted the bullet to be “a .22 calibre bullet fired from a 0.22 calibre firearm.” The firearm used was never found by the police during their investigation.
[15] There were no independent witnesses to the shooting. Hill admitted at trial that he initially lied to both the 911 dispatcher and later in statements to the police that he was shot in a road rage incident and was unable to identify his assailant. He claimed he did so because of his fear of reprisal and because the shooting was directly related to his own drug trafficking activities.
[16] John Brook testified that he shot Hill in self defence claiming that it was Hill, and not him, who had possession and who first, brandished the gun at the scene.
[17] He denied bringing a weapon to the meeting. He testified that while he was in the process of handing over the trays of marijuana, Hill unexpectedly produced and pointed a handgun at him. A physical struggle between them for control of the weapon ensued and the gun discharged. During the struggle the right rear window of Hill's van was shattered. Exhibit 2AA introduced at trial is a color photograph of Hill's van depicting a hole in the driver rear window.
[18] Brook testified that after Hill broke free from the altercation he believed that Hill was intending to get another gun from his van as he ran towards the driver’s door. By that time Brook was in possession of the original weapon. Brook admitted firing that weapon in the direction of the fleeing Hill but denied aiming it at him. He testified that after Hill had disappeared into the bush he continued to fire the pistol into the air in order to empty the gun of its bullets. He denied firing it at Hill's direction after Hill was concealed in the bush.
[19] Brook testified he threw the gun away into the ditch, removed the keys from Hill's van and locked the doors to prevent Hill from re-entering the van to pursue him. He then left the scene, admitting that he was not injured in the altercation.
[20] Brook denied that he removed the keys and locked Hill's van in order to have Hill bleed out at the scene. He further denied attempting to kill Hill in order to eradicate the drug debt between them.
[21] It was further admitted in Exhibit 27 that Hill's van was examined by the police on April 26, 2009. That examination found that “There was no bullet damage to any of the interior or exterior of the van. No bullets or bullet fragment were found inside the van.”
[22] The following day Brook fled the jurisdiction to Hamilton with the help of a friend, William Machesney. Machesney was subsequently charged and convicted of being an accessory after the fact.
[23] At trial Machesney confirmed that he was aware of the drug debt between Brook and Hill. He testified that the night before the shooting Brook advised him that he planned to meet with Hill over the drug debt the next day.
[24] He also confirmed text messages between himself and Brook immediately before and after the shooting. These text messages will be detailed later in these reasons.
[25] Brook was arrested on May 7, 2009 and then later released on May 14, 2009. As a result of further police investigation Brook was re-arrested on May 28, 2009 on the charges before the Court.
THE OFFENDER
[26] A Pre-sentence Report was not requested for the sentencing hearing. John Brook is 27 years of age and the father of a young child, age 3. At the time of his arrest he was living in a common-law relationship. He has a limited education; a few credits short of a grade 12 Diploma and no specific trade. At trial he admitted that for financial reasons he supplemented his income by trafficking drugs.
[27] Brook has an extensive criminal record filed as Exhibit 3 in this hearing. The record begins in 1998 when he was found guilty as a young offender, and continues virtually unabated until his last convictions on May 5, 2010, relating to incidents of break and enter and possession of break-in instruments which occurred on April 14, 2009. Although the May convictions postdate the shooting of Hill on April 25, 2009, I consider the May convictions to be part of Brook’s previous record relevant for sentencing purposes.
[28] Given the length and contents of this previous record it is important that it be detailed. It reads as follows:
Brook was originally found guilty as a young offender on 1998-03-25 for offences of fail to comply with disposition and sentenced to 15 days secure custody and probation for two years, and convicted of break, enter and theft (2 counts) and sentenced to 50 days secure custody on each charge consecutive and 10 days open custody sentence. Even as a youthful first offender he received sentences of both secure and open custody.
On 2000-09-11 convicted of fail to comply with undertaking and fail to comply with disposition and sentenced to time served (7 days).
On 2000-12-04 convicted of assault and sentenced to 19 days secure custody and probation 23 months and (time served 8 days) and convicted of theft under $5,000 and fail to comply with undertaking and possession of property obtained by crime under $5,000 and sentenced to 19 days secure and probation for 23 months on each charge concurrent and concurrent.
On 2001-02-02 convicted of fail to comply with conditions of undertaking given by an officer in charge and sentenced to time served (4 days secure custody) and probation 12 months concurrent with probation.
On 2001-09-07 convicted of fail to comply with undertaking and sentenced to time served (21 days) and probation for 12 months, and convicted of fail to comply with undertaking and sentenced to probation for 12 months concurrent.
On 2002-02-12 convicted of mischief under $5,000 and sentenced to 15 days secure custody and probation for 18 months.
On 2003-06-10 convicted of uttering threat and sentenced to 5 days and probation 18 (8 days pre-sentence custody) and convicted of fail to comply with disposition and sentenced to 5 days and probation for 18 months concurrent.
On 2003-09-09 convicted of fail to comply with recognizance and sentenced to a suspended sentence and probation for 2 years and (9 days pre-sentence custody) and convicted of assault and sentenced to suspended sentence and probation for 2 years, and convicted of break and enter with intent, carrying concealed weapon and fail to comply with recognizance and sentenced to suspended sentence and probation 2 years and (45 days custody) on each charge concurrent.
On 2004-07-09 convicted of fail to comply with undertaking and sentenced to 8 days and (3 days pre-sentence custody) and convicted of fail to comply with probation order and sentenced to 8 days consecutive and (4 pre-sentence custody).
On 2004-09-24 convicted of assault, uttering threats, mischief under $5,000, assault with a weapon, theft under $5,000, fail to comply with recognizance and sentenced to 15 days and (18 days pre-sentence) and probation 2 years on each charge concurrent.
On 2005-03-03 convicted of theft under $5,000 and possession of property obtained by crime under $5,000 and sentenced to 4 months on each charge, and convicted of fraud under $5,000, fail to comply with probation order, aggravated assault (2 chgs), and assault cause bodily harm, and sentenced to 4 months on each charge and consecutive, and convicted of forcible entry, fail to comply with probation order (2 chgs), overcome resistance by attempting to choke, suffocate or strangle another person, robbery, theft under $5,000 and sentenced to 2 months on each charge consecutive and consecutive, and convicted of uttering threats and sentenced to 1 month consecutive.
On 2010-05-10 convicted of break, enter and commit and possession of break in instruments and disguise with intent and sentenced to 1 day and (4 months pre-sentence custody) on each charge concurrent
[29] In summary, Brook has been convicted of 15 counts involving breaches of court orders, and eight convictions for violent offences not including two counts of threatening. As candidly noted by his counsel, since being first convicted as a young offender, Brook has spent half of his life in custody. The most recent convictions for violence were registered on March 3, 2005. Brook was 20 years old. He received a penitentiary sentence of 39 months.
[30] On his guilty pleas to those offences which included aggravated assault, assault bodily harm, forcible entry, choking, robbery, and uttering threats amongst other offences, Brook did not deny the following facts. A transcript of the guilty plea was filed as Exhibit 4 for these proceedings.
[31] On October 27, 2004 Brook and several other males chased a black male who was walking down the street in Uxbridge. The victim was struck from behind with an unknown blunt object. While fleeing he heard the males yelling “Fucking niggers - we don't want fucking niggers in our town.” The victim fled to the apartment of another black male. The accused and his confederates armed with a knife smashed the apartment door gaining entry again yelling “You fucking niggers we don’t want you in our town.” The occupant of the apartment fought and the assailants fled. In resisting the attack the occupant of the apartment had several tendons severed in his hand.
[32] Prior to the home invasion, Brook and the other males attended the apartment of the 14-year-old. The young person was known to Brook. While at his apartment Brook and the co-accused stole the complainant's mother's jewellery and some money from his mother's purse. The complainant then heard conversation about “kicking the niggers’ asses” but refused to join Brook and the others and return to the apartment to continue the attack. The young person was then punched and kicked. He described that Brook kicked him in the ribs on the right side boasting after he did it “that was a good one.” Brook then choked the complainant not allowing him to breathe for 30 to 40 seconds. He warned the complainant that if he told anyone that he had assaulted him he would return and kill him.
[33] The repugnant racial overtones in these allegations are absent in the present finding of attempted murder. However I find the common thread between the last 2005 convictions and the present offences is the deliberate and wanton use of violence by Brook heedless of all consequences. .
[34] The text messages in the present matter between Brook and Machesney (Exhibit 23 at trial) just after the shooting reflect this common thread.
[35] Brook’s texts “I’m gone bro I think I missed.” Machesney responds “Next time.” Brook’s answers “I hit but I don’t think it was good enough.” Fifteen minutes later Brook’s texts “I got to get the fuck out of Dodge can you help me on that.” Machesney responds “In the morning no problem erase these messages.” Brook’s replies “Its getting thrown away any way I really hope I did good what time…”
[36] In summary, I find Brook’s criminal record, the events surrounding that record, and the present convictions to be serious and disturbing. These factors are highly relevant to the custodial sentence to be imposed.
VICTIM IMPACT STATEMENT
[37] The Victim Impact Statement was filed as an Exhibit in the sentencing hearing. Hill reported that the shooting impacted his mental health. Initially he had flashbacks; had anxiety and panic attacks ultimately suffering from severe depression for which he was prescribed medication.
[38] Although his mental health has stabilized he writes “It is still hard to deal with the fact that someone tried to kill me.”
[39] He describes his physical injuries to be very painful, attending over 40 medical appointments after his release from hospital and undergoing 3 surgeries. He has lost full use of his finger and has no feeling in his knuckle.
[40] Presently his medical and mental health issues have improved and he notes ”Now life is going well. I am working hard and on the right track.”
THE POSITION OF THE CROWN
[41] Pursuant to Section 239(1)(a)(1) of the Criminal Code, since Brook has been found guilty of attempted murder with the use of a firearm, the minimum penalty to be imposed is a custodial sentence of 5 years and the maximum penalty is life imprisonment.
[42] The Crown seeks a sentence of life imprisonment. The Crown argues that Brook can be found to be a “worst offender”, given his lengthy criminal record, his negligible prospects for rehabilitation, and lack of remorse in the present case. In the alternative the Crown seeks a custodial sentence of 18 to 20 years.
[43] The Crown argues that the attempted murder on Hill was a planned and deliberate offence, an ambush in which Hill was defenceless. The Crown submits the events surrounding the shooting are a classic example of the toxic violence in which guns and drugs imperil the safety of the public.
[44] A further aggravating factor is that at the time of these offences Brook was already bound by an earlier Court Order imposed in March 2005 prohibiting him from possessing or purchasing firearms for life. The Crown argues that by wounding Hill using a firearm, not only has Brook breached that Order, but has also demonstrated that he has no reservation in using escalating violence to achieve his criminal objectives.
[45] Given that rehabilitation is not a relevant factor the sentencing principles engaged are denunciation, specific deterrence and general deterrence. The Crown submits only by separating Brook from the community by the imposition of a lengthy custodial sentence, will the public be protected from the lifestyle of entrenched violent criminality that Brook has chosen to follow.
[46] The Crown also seeks that Brook be bound by an additional lifetime Firearm Prohibition Order pursuant to section 109 of the Criminal Code, and that Brook provide a sample of his DNA to the DNA databank.
POSITION OF THE DEFENCE
[47] The Defence seeks a global sentence of 10 to 12 years, less time already spent in pre–trial custody. The Defence submits that in every jury trial it is axiomatic that the factual basis upon which the jury makes its determination of guilt to the offences is not known. Citing R. v. Brown (1991) 1991 CanLII 73 (SCC), 6C.R. (4th) 353 (S.C.C.), which states:
…makes it clear that subject to the jury’s express and implied findings, the judge must make the necessary sentencing findings. He or she must, of course, make those findings in keeping with the law relating to the finding of facts on sentencing as set out in R. v. Gardiner 1982 CanLII 30 (SCC), [1982] 2 S.C.R. 368…. which establishes that while all credible and trustworthy evidence may be accepted, disputed facts relied upon by the Crown in aggravation must be established beyond a reasonable doubt.
[48] The Defence argues that with the divergent trial evidence of both Brook and Hill, the Crown cannot prove beyond a reasonable doubt the aggravating factors that Brook brought the gun with him and planned to ambush Hill. The rejection of Brook’s self-defence by the jury does not equate to a finding that he brought the gun and ambushed Hill.
[49] The Defence submits that for the purposes of this sentence all that is necessary is for a finding to be made that there was a shot (or shots) fired and directed towards Hill which imperilled his life. To do so otherwise, the Court would be embarking on speculation and conjecture as to what evidence the jury found as a fact, even though they were satisfied beyond a reasonable doubt that the Crown had negatived the self defence position advanced by Brook.
[50] The Defence argues given the baseline of a minimum punishment of four years for offences of this nature as set out in section 239(1)(a)(1); the sentence imposed must be appropriately reflective of the gravity of the offence. The Defence submits that the proposed sentence of 10 to 12 years less time served meets that criterion.
THE SENTENCE TO BE IMPOSED WITH ACCOMPANYING REASONS
[51] The range of sentence for attempted murder is considerable. Sentences for attempted murder are fact driven. (R. v. M.M.) [2004] O.J. No. 325. A maximum period of life imprisonment is imposed only in limited circumstances. R. v. Forrest (Ont. C.A.) [1986] O.J. No. 330.
[52] As also held in R. v. Forrest 16 W.C.B. (Ont. C.A.) 431:
…the sentence of life imprisonment should be reserved for the worst offence perpetrated by the worst offender and should not be used as a substitute for the dangerous offender provisions of the Criminal Code.
[53] There is no doubt that attempted murder with the use of a gun is a serious offence. The gravity of that offence is reflected in the range of penalty to be imposed from a minimum of five years to a maximum of life imprisonment. There is equally no doubt that Brook has acquired a significant previous criminal record with multiple convictions for crimes of violence.
[54] However, as frightening and disturbing the shooting of Hill may be, it falls outside the category as being the worst offence. That description captures offences that shock the community because of their sheer brutality or because of the tragic consequences that befall the victim.
[55] By way of example, in R. v Megsun (1977), 1997 CanLII 623 (ON CA), 121 C.C.C. (3d) 439, the Ontario Court of Appeal upheld a life sentence on a conviction for attempted murder where the victim was sexually assaulted and left on a road side to die after being mutilated, cut and slashed.
[56] Similarly in R. v. Brown 2009 ONCA 563, [2009] O.J. No. 2908, the victim was rendered paralyzed from the waist down after being shot point blank six times in a public parking lot in Toronto. This was an unprovoked shooting in an apparent retaliation over some minor slight. The victim was confined to a wheel chair for the rest of his life.
[57] The Court of Appeal confirmed the trial judge’s findings that “this was a cold-blooded and senseless shooting”. The Court also upheld the trial judge’s concern regarding the increasing use of gun violence in an urban “public place where other citizens including children, were present and at potential risk.” In considering both these factors, the Court found no error in the life sentence imposed at trial.
[58] These two decisions are not meant to be exhaustive as to what constitutes the “worst offence”. However they are instructive in distinguishing the present matter.
[59] The psychological consequences of being shot repeatedly as experienced by Hill cannot be understated nor can the numerous gunshot wounds inflicted be discounted. Fortunately as confirmed in the Victim Impact Statement, Hill has overcome the mental trauma of the incident and writes “My life is going well. I am working hard and on the right track.”
[60] Similarly as noted in trial Exhibit 12 the Trial Admission of Fact setting out Hill’s injuries, it was agreed that “None of the injuries were life threatening.”
[61] Lastly, although the issue of gun violence is of significant public concern, unlike Brown supra, in the present case the shooting occurred on a rural road involving two people not in attendance in a public place and with no evidence that any third parties were put at risk.
[62] Despite Brook’s serious and lengthy criminal record, and the Crown’s submission that it confirms a life style of entrenched criminality based largely on violence, human life, I cannot find that Brook can be classified as the “worst offender.”
[63] As already observed, a life sentence is imposed only in limited circumstances. “However those circumstances may exist when the offence is part of a pattern of violent behaviour which threatens the lives of others.” R. v. Forrest supra, citing R. v. Hovarth (1983) 1982 CanLII 3838 (ON CA), 2 C.C.C. (3d) 196.
[64] In the Forrest decision the Appellate Court upheld a sentence of life imprisonment from a conviction for attempted murder involving the stabbing of an on duty police officer investigating the suspicious circumstances of a day parolee.
[65] The Appellant had a previous record both for property and violence related offences. Two previous convictions involved violence against police officers. In finding no error in the sentence imposed the Court held:
…the attempted murder of Constable Miller is but the last episode in a pattern of serious violence directed against police officers. It seems to me obvious that given an appropriate opportunity the appellant will continue his pattern of violent behaviour.
[66] As already reviewed, Brook has a serious and lengthy previous record. It is comprised of offences not only related to violence, but also offences related to crimes of dishonesty, i.e. break, enter and theft, theft, fraud, possession of stolen property, and breaches of court orders both for bail releases and probation orders.
[67] The convictions that Brook has amassed for violence are random, indiscriminate, and as set out in his 2005 convictions, racially repugnant. Although the convictions for violence are serious and numerous, in the context of his entire record I cannot find those convictions in and of themselves establish a pattern of violence as found in the Forrest decision.
[68] For these reasons it would be an error in principle to impose a life sentence as submitted by the Crown.
[69] Equally for the following reasons, it would be an error to impose a sentence of 10 to 12 years as proposed by the Defence.
[70] Section 742 (2) provides:
Where the court is composed of a judge and jury, the court
(a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty;
[71] In Brown supra cited by the Defence, where the factual implications of a jury finding are ambiguous, the Court should not attempt to follow the logical processes of the jury. However the Court may still come to an independent determination of the relevant facts.
[72] There is no ambiguity on the following facts. For some time Hill and Brook were involved with each other in illicit drug dealing. As a result, Brook owed Hill a substantial amount of money possibly as little as $2000 or as much as $12,000. Regardless of the amount Hill agreed to be paid in kind through the receipt of a substantial quantity of marijuana clones. The transfer of the flats was scheduled for April 25, 2009.
[73] I further find there was no ambiguity in the evidence of William Machesney who testified he was aware of the scheduled meeting between Brook and Hill. There is no ambiguity in the text messages between Brook and Machesney before and after the meeting as set out in Exhibit 23 at trial. The accuracy and wording of those text messages were not challenged at trial.
[74] As already reviewed, shortly after the shooting Brook texts Machesney with the following messages amongst others “I'm gone bro I think I missed”, “I hit but I don't think it was good enough”, “I really hope I did good.”
[75] These are Brook’s text messages in his own words. They are clear and unambiguous. They relate directly to the shooting of Hill. Given the drug debt owed by Brook to Hill, I find these words relate directly to the motive for the shooting, namely attempting to murder Hill to eliminate the debt.
[76] As held in R. v. Gauthier (No.2) (1996), 108 C.C.C. (3d) (B.C.C.A.) at p.239
The case law is clear. Where an evidential conflict at trial is left unresolved by the verdict of the jury, the trial judge must reach his or her own conclusion as to the facts surrounding the offence of which the accused was convicted, applying the usual standard of proof in a criminal case.
[77] As held in R. v Siu (1998) 1998 CanLII 6092 (BC CA), 114 B.C.A.C. 115, that court found no error in the appropriateness of the sentencing judge coming to his own conclusion as to motive. The court found the trial judge was entitled to examine the evidence of motive in order to determine whether it provided an explanation for the criminal conduct found by the jury.
[78] I find the history of the relationship between Brook and Hill and the evidence before and after the shooting including the text messages, provides context and an explanation for the criminal conduct found by the jury.
[79] For these reasons I reject the Defence submission that for the purposes of sentencing all that is necessary is for a finding to be made that there was a shot or shots fired and directed towards Tim Hill which imperilled his life.
[80] Section 718 of the Criminal Code sets out the purpose and principles of sentencing. It holds:
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.
[81] Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[82] In applying these principles the aggravating and mitigating factors relating to the offence and the offender are relevant.
[83] For John Brook, I find little or no mitigation in this case. His employment history is chequered and minimal. Despite having a child in 2009 Brook continued to immerse himself in criminality with no insight or regard of the consequences his conduct would have on his family or the community at large. At 27 years of age, given his significant criminal record, the prospects for rehabilitation are minimal.
[84] The aggravating circumstances are significant. It is trite to observe a finding of attempted murder is a serious matter. The gravity of that offence is elevated by the evidence that John Brook planned and intended to kill Timothy Hill. His efforts to accomplish that goal are borne out in the number of gunshots aimed at Tim Hill, and his text messages confirming that purpose. Although the injuries sustained by Hill were not life-threatening, they were only so by good luck and good fortune.
[85] At the time of the shooting Brook was already bound by a prohibition order prohibiting him from owning or possessing firearms for life. In utilizing a firearm attempting to kill Hill, Brook was either heedless or at best, indifferent to that court order.
[86] His significant criminal record requires no further review, except to observe that the incident that led to his May 10, 2010 convictions for break and enter, possession of break-in instruments, and disguise with intent, occurred on April 14, 2009 ,11 days prior to the attempted murder of Hill.
[87] Having regard to the totality of the aggravating circumstances set out, I agree with the secondary position of the Crown that a significant custodial sentence is required. Denunciation, specific and general deterrence are the principles to be applied in determining the length of sentence to be imposed.
[88] However I disagree with the Crown that the range of 18 to 20 years is appropriate.
[89] In assessing the gravity of these offences, the circumstances leading to their commission, the antecedents of John Brook including his criminal record, the global sentence in this case is one of 16 years less time served.
[90] This sentence is structured as follows:
On count 1 - attempted murder by discharging a firearm - 15 years;
On count 4 - pointing a firearm - 1 year concurrent;
On count 5 - possessing a firearm while prohibited by an Order under section 110 of the Criminal Code - 1 year consecutive.
[91] Both Counsel have agreed that Brook was arrested on May 7, 2009 and then later released on May 14, 2009 (8 days). Brook was later re-arrested on May 28, 2009 and has remained in custody since. Less the 4 months imposed for the May 10, 2010 convictions for break, enter and theft, Brook has spent approximately 28 months of pre-trial custody on the present offences.
[92] The Truth in Sentencing Act S.C. 2009, c. 29 an Act to amend the Criminal Code limiting credit for time spent in pre-sentence custody was assented to on October 22nd 2009. This was approximately five months after Brook was remanded in custody in May of 2009.
[93] In these circumstances I am not limited to allowing credit for pre-trial custody on a ratio of one day or a maximum of one and one half days for every day spent in pre-trial custody as provided in this legislation.
[94] Therefore, for the 28 months of pre-trial custody I calculate credit on a two for one ratio, allowing a credit figure of 56 months custody. The 56 months is to be deducted from the global sentence of 16 years imposed, leaving 11 years and 4 months to be served.
[95] I further order that Brook be bound by a lifetime Weapon Prohibition Order under Section 109 of the Criminal Code, and that he also provide a suitable sample of his DNA to the authorities.
Released Orally: January 6, 2012