ONTARIO

SUPERIOR COURT OF JUSTICE

Court File No.: CR-11-303
Date: 20120327

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – NICHOLAS BROWN Appellant

M. Minns, for the Crown
D. Wilcox, for the Appellant

Heard: March 26, 2012

On Appeal from the Judgment of Madam Justice N. Dawson dated November 16, 2011

HEALEY J.

[1] The appellant appeals against the sentence made by Her Honour Justice Dawson of the Ontario Court of Justice on November 16, 2011, whereby she imposed a custodial sentence of 15 months, followed by a two-year probationary period with various ancillary terms, for the offence of assault causing bodily harm contrary to section 267 (b) of the Criminal Code of Canada.

[2] The test for variance by an appellate court of a sentencing decision is where it can be shown that the sentence is clearly unreasonable: R. v. Shropshire, 1995 47 (SCC), [1995] 4 S.C.R. 227 (S.C.C.).

[3] The appellant argues that the custodial sentence imposed was unduly harsh, which resulted from, in his submission, that fact the trial judge erred by failing to give sufficient weight to the mitigating factors in this case - in particular the appellant’s rehabilitative efforts through cessation of alcohol and drug use - while at the same time giving too much weight to factors such as the appellant’s youth court record.

[4] The trial record establishes that Dawson J. carefully took into account all significant factors in this case, both mitigating and aggravating, to arrive at her sentencing decision. The crux of the trial judge's decision is found at page 30 of the transcript of her Reasons for Judgment, where she discusses her inclination to impose the maximum period of incarceration of 18 months but sets out her reasons for not doing so. While in that same paragraph she refers to both the mitigating and aggravating factors that were at the fore for her, her very thorough reasons are replete with references to all mitigating and aggravating factors presented by this case. The weight afforded by the trial judge to those factors is, of course, to be given significant deference.

[5] The facts of the assault are egregious, demonstrating that it was completely deliberate. There was a prior history of bullying this victim by the appellant during their high school years, and on the night in question the victim was confronted within and then stalked down outside of the bar. The resultant injury and its sequelae were serious, and the trial judge was entitled to take those consequences into consideration. With respect to the appellant’s history in the criminal justice system, his youth record indicates that the appellant has been a serial offender since the age of 13 with offences occurring on an almost yearly basis, his last being robbery, for which he was convicted at age 18. The appellant’s probationary period for that offence had ended only three months before the charges that brought him before this court. While Dawson J.’s Reasons note that she recognized that the majority of the appellant’s record arose as a youth, it was appropriate that she took note of that fact that it included three assaults, including one for assault with a weapon, three of uttering threats and the robbery, all being crimes of violence. Given that record, there are comments in the pre-sentence report that highlight the need to send this offender a strong message aimed at deterrence and denunciation. Those comments were:

• "This writer previously supervised the subject for a portion of his adult probation order during which time he presented as humored by negative police attention, well-versed in how to evade breaches and to get by with superficial compliance on probation. He was typically disinterested in any formal anger management or substance use counselling or therapy discrediting the effectiveness of such interventions."

• "The subject has superficially satisfied past requirements to attend substance use or anger management counselling. As previously noted he presented as entertained at the negative attention by police and his ability to avoid further charges,…"

[6] There were also positive comments in the pre-sentence report that emphasized steps taken by the appellant to remain sober for the previous year, showing maturity and better judgment, dissociating from his past negative peer group, and focusing his efforts on maintaining employment and developing his own business. Despite those factors, which were taken into account by the trial judge as reflected in her Reasons, the appellant’s attitude toward his criminal behaviour as evidenced by his lengthy record, the short periods between re-offending, the nature of the offences, his prior superficial attempts at rehabilitation, coupled with the blatantly deliberate and violent nature of his latest offence, necessitated that the trial judge fashion a sentence that properly addressed deterrence and denunciation for this particular offender.

[7] The issue on this appeal is not that the trial judge went well outside of the range suggested by the Crown, which was between 6 and 9 months. The case law makes clear that the imposition of a sentence in excess of the range suggested by Crown counsel does not reflect an error in principle: R. v. Barton, [2002] O.J. No. 4105 (C.A.); R. v. Noel, 2006 26574 (ON CA), [2006] O.J. No. 3183 (C.A.); R. v. Thomas, [2001] O.J. No. 2220 (C.A.). I accept the submission of the Crown on this appeal that the range given by the Crown at sentencing does not define the appropriate sentencing range. Further, the appellant’s counsel was not able to provide case law that would guide this court to the conclusion that the sentence imposed was clearly outside of the appropriate range for the offence in question having regard to the sentencing principles set out in section 718 of the Code.

[8] For all of the above reasons, the appellant has failed to show that the sentence imposed was clearly unreasonable and accordingly the appeal is dismissed.

HEALEY J.

Released: March 27, 2012