ONTARIO SUPERIOR COURT OF JUSTICE
Court File and Date
COURT FILE NO.: 11-30000636-0000
DATE: 20120601
Style of Cause
BETWEEN:
HER MAJESTY THE QUEEN Crown - and - JESSE BROOKS Defendant
Soula Olver, for the Crown
Monte McGregor, for the Defendant
HEARD: May 7, 2012
ALLEN J. ( Orally)
REASONS FOR JUDGMENT
(Sentencing Hearing)
BACKGROUND
[ 1 ] The accused Jesse Brooks, 21 years old at the time, was charged with offences committed in relation to assaults on his domestic partner Sarah Luce. He was charged in relation to May11, 2011 with assault with a weapon, attempt murder, unlawful confinement, damaging a Toronto Police Services automobile and with an assault on Ms. Luce sometime between April 7, 2011 and May 11, 2011.
[ 2 ] Mr. Brooks pleaded guilty to the lesser included offence of aggravated assault avoiding the necessity of a preliminary inquiry. The sentence is therefore in relation to that offence.
[ 3 ] Mr. Brooks comes to this sentencing hearing with a criminal record. The following are his convictions as an adult:
(a) May 13, 2008 - fail to comply with recognizance
(b) March 24, 2009 - fail to comply with disposition and cause disturbance
(c) April 15, 2009 - fail to comply with recognizance
(d) October 29, 2009 - fail to comply with probation (x 2); assault; possess weapons dangerous; and utter threats
(e) March 29, 2010 - threaten death
(f) July 22, 2010 - assault with intent to resist arrest and theft under
(g) February 28, 2011 - unlawfully at large; obstruct police officer; fail to comply with probation order
[ 4 ] The following are his convictions as a young person:
(a) January 11, 2005 - possession of a weapon for dangerous purpose
(b) January 19, 2005 - assault; uttering threats; fail to comply with recognizance
(c) December 5, 2006 - fail to comply with recognizance
(d) January 29, 2007 - theft under
(e) August 14, 2007 - assault with intent to resist arrest; fail to appear
(f) December 3, 2007 - theft under; failure to appear
THE ACCUSED'S BACKGROUND
[ 5 ] A Pre-Sentence Report ("PSR") which provides some detail about Mr. Brook's background was submitted as an exhibit. Mr. Brooks grew up in Belleville, Ontario. His childhood and youth were marked by family breakdown, violence and alcohol and substance abuse, as a result of which Mr. Brooks was removed from his family by the Children's Aid Society. Mr. Brooks recalls that his father left the family when he was 6 years old and was violent toward him and his mother which resulted in police intervention on a number of occasions. His father abused drugs and alcohol and had a criminal life style. Mr. Brooks' mother's subsequent partners were also physically and emotionally abusive toward him and his mother. His mother was not able to care for her son or protect him from the violence. CAS took him into foster care for a short while followed by a period of residing with his father. At age 11 he returned to foster care and in 2005 became a Crown ward. He lived off and on in group homes until age 16 when he began living in shelters and with friends until he moved to Toronto at age 17.
[ 6 ] Mr. Brooks completed grade 11, leaving high school when he was released from foster care. According to the PSR, Mr. Brooks completed a few high school credits while in custody and was attending college for business courses when he was arrested. He submitted into evidence copies of various certificates for anger management and substance use courses, and a cognitive skills workshop which he attended in August and September 2011 and March 2012 while in custody.
INCIDENTS GIVING RISE TO CHARGES
[ 7 ] Mr. Brooks and Ms. Luce began their relationship on November 15, 2010. Photographs taken of Ms. Luce following the May 11, 2011 assault reveal a tattoo on her abdomen "Jesse 11.15.10" signifying this. At the time, Mr. Brooks was residing in a shelter and left the shelter to live with Ms. Luce at her apartment. On May 1, 2011, they moved into another apartment together.
[ 8 ] The Crown put into evidence a one-hour video recording, with the transcript, of Ms. Luce's statement to the police on May 14, 2011. The police were not able to locate Ms. Luce before the sentencing hearing for her to give a victim impact statement. Throughout the video interview Ms. Luce stated she feared Mr. Brooks, feared he would make good his promise to kill her. It can be reasonably concluded that Ms. Luce made herself unavailable out of her fear of Mr. Brooks.
[ 9 ] Ms. Luce described Mr. Brooks as a controlling person. He would pinch her routinely causing bruises, and would apologize, only to continue to pinch her again. She stated that prior to the May 11, 2011 assault, Mr. Brooks had assaulted her about a month before with a backhand slap.
[ 10 ] Ms. Luce explained that Mr. Brooks had looked at a box of letters through which he thought she was communicating with other men and that made him very angry. On the morning of the incident, Mr. Brooks told Ms. Luce that if she went to school and bothered with another man he would kill her. He called her friend's cell and said Ms. Luce better be home by 4 p.m. or else he was going to burn her belongings and would not let her into the apartment. She got home at 4:05 p.m.
[ 11 ] When Ms. Luce arrived at the apartment, the apartment door was propped open. Loud music was playing. Mr. Brooks stepped out as though he was going to have a cigarette. He stepped back inside and called her in and shut the door. He began punching her with a cigarette lighter in his fist. He kicked her, pushed her down, stomped on her head and dragged her by the hair pulling a clump of hair from her scalp. Ms. Luce screamed and cried. He repeatedly shouted he was going to kill her. She believed if she did not escape he would kill her.
[ 12 ] The landlord interceded and began asking him what was going on; what is wrong with him. There was a break in the beating and Ms. Luce was able to escape into the garage. She hid in the bed of a pick-up truck parked in the garage. When she thought she was in the clear she left the truck. A construction worker saw her all bloodied and called 9-1-1.
[ 13 ] Ms. Luce sustained a broken jaw which had to be wired for six weeks until it healed. Photographs revealed numerous cuts and bruises all over her head, legs arms and torso. She required stitches in her scalp. Her t-shirt was drenched in blood.
AGGRAVATING AND MITIGATING FACTORS
[ 14 ] Section 718.2 (a) of the Criminal Code requires the court in deciding the nature and extent of sentence to consider any aggravating or mitigating circumstances.
[ 15 ] The aggravating factors in this case are as follows:
(a) Mr. Brooks' assault on Ms. Luce was a violent attack and was pre-planned. He warned her on the morning before she left for school he would kill her. He stood ready and waiting for her at the apartment door, called her in and unprovoked began a course of continuous assault as he yelled he was going to kill her.
(b) Ms. Luce's fractured jaw was disabling as it was surgically wired for six weeks. She also received stitches in her scalp.
(c) Section 718.2(a)(ii) of the Code cites a criminal offence committed in the context of a spousal relationship as a particular type of aggravating factor the court should take into account. Ms. Luce was in a domestic relationship with Mr. Brooks for about six months. They lived together in an apartment they rented together. She regarded the relationship as serious. She had Mr. Brooks' name and the date their relationship began tattooed on her abdomen. Ms. Luce was entitled to believe in the context of a spousal trust relationship that her partner would not assault her.
(d) Section 718.2(a)(ii.1) of the Code provides that an offence against a person under 18 years old is an aggravating factor. While Ms. Luce was 18 years old and not under 18, she was young at the time of the assault.
(e) Mr. Brooks has an extensive criminal record. This is an aggravating factor. As an adult he has 8 prior substantive convictions and 6 convictions for breaches of undertakings and court orders. From age 15 to 17, Mr. Brooks was convicted of various offences some involving assaults and weapons.
[ 16 ] The following mitigating circumstances must also be considered:
(a) Mr. Brooks pleaded guilty early in the process avoiding the expense and court resources required for a preliminary inquiry and trial. This also prevented Ms. Luce from having to experience the stress of testifying at a criminal proceeding.
(b) Mr. Brooks' young age at the time of the incident is a mitigating factor. He was 21 years at the time of the assault on Ms. Luce.
(c) Mr. Brooks had a disadvantaged and unhappy childhood. He experienced violent emotional and physical abuse and neglect by his parents and other adults. He was separated from his family and lived in and out of foster care and group homes until age 17 when he began living on his own.
(d) Mr. Brooks has shown some interest in furthering his education through college courses and some interest in addressing his anger and substance issues. The evidence in this area however is not of the most detailed and persuasive sort.
(e) Mr. Brooks submitted a handwritten letter directed to Ms. Luce purporting to express remorse. However, I find there is a self-serving quality to the letter and an element of reversing the blame for his assault on Ms. Luce for what he perceives as her cheating on him. I do not find the letter assists Mr. Brooks as a mitigating factor.
ANALYSIS
Principles
[ 17 ] The objectives of sentencing are provided under s. 718 of the Code . Those objectives are deterrence, denunciation, separation of offenders from society, rehabilitation, reparation to the victims and promotion of a sense of responsibility for the harm to victims.
[ 18 ] Courts have imposed custodial sentences for serious violent crimes to emphasize the goals of denunciation and deterrence. Parliament legislated as of December 1, 2007 that the conditional sentence provisions in the Code do not apply to persons who have committed a "serious personal injury offence". Aggravated assault is one such offence. This leaves a term of imprisonment as the appropriate sentence.
[ 19 ] Section 718.1 of the Code sets down the fundamental principle of proportionality in sentencing. The sentence must be proportionate to the gravity of the offence. This inquiry must be conducted on a case by case basis. The Ontario Court of Appeal has held the "narrow focus" of the sentencing process is directed at imposing a sentence that reflects the circumstances of the specific offence and the attributes of the specific offender. It is not the forum in which to right perceived societal wrongs, allocate responsibility for criminal conduct as between the offender and society, or "make up" for perceived social injustices by the imposition of sentences that do not reflect the seriousness of the crime [ R. v. Hamilton (2004), 2004 5549 (ON CA) , 186 C.C.C. (3d) 129, 72 O.R. (3d) 1 (Ont. C.A.)].
[ 20 ] The sentencing judge may deduct the time spent in pre-sentence custody.
PARTIES' POSITIONS
[ 21 ] The Crown seeks a sentence of from 6 to 8 years, a s. 109 of the Code firearm prohibition, and a DNA order. The Crown asks the court to place emphasis on the aggravating factor that the offence was one of domestic violence. Courts have long recognized the particularly offensive nature of assaults that arise in a domestic context.
This court has acted on the principle that where there is a serious offence involving violence to the person, then general and individual deterrence must be the paramount considerations in sentencing in order to protect the public. In my opinion, this principle is applicable not only to violence between strangers but also to domestic violence. Domestic assaults are not private matters, and spouses are entitled to protection from violence just as strangers are. Th is does not mean that in every instance of domestic violence a custodial term should be imposed, but that it should be normal where significant bodily harm has been inflicted, in order to repudiate and denounce such conduct.
[ R. v. Inwood ( 1989), 1989 263 (ON CA) , 48 C.C.C. (3d) 173 (Ont. C.A.) ].
[ 22 ] The Crown cites eight cases involving domestic assault with a focus on the length of the sentence where there is a violent assault on a domestic partner.
(a) R. v. G.C ., [2010] O.J. No. 3240 (Ont. C.A.) where a 6 year sentence was upheld for an assault of some duration by a husband on his wife resulting in injuries that were egregious and horrific.
(b) R. v. Langford 2010 CarswellOnt 4280 (Ont. C.A.) where a 9 year sentence was given to a husband for a brutal, prolonged assault on his wife. The attack was described as so ferocious and the injuries so extensive that the accused was fortunate not to be facing a conviction for homicide.
(c) R. v. Sinobert , [2007] O.J. No. 4560 (Ont. C.A.) where a sentence of 4 years with 1 year credit for pre-sentence custody, was given. This was a fully circumstantial case based on eye and ear witness evidence and the presence of blood evidence.
(d) R. v. Kosik , [2005] CarswellOnt 1158 (Ont. C.A.) where a sentence of 14 years was given, with 5 years' credit for pre-sentence custody. The accused pleaded guilty for an assault on his wife who was in an advanced stage of pregnancy. He left his seriously injured, bloodied wife unconscious and alone on the kitchen floor.
(e) R. Smardon, [2001] O.J. No. 3437 (Ont. C.A.) where an 8 1/2 year sentence was given for injuries inflicted by a male domestic partner on his partner that
rendered her unable to care for her children and caused her to lose custody of them.
(f) R. v. Pitkeathly , 1994 222 (ON CA) , [1994] O.J. No. 546 (Ont. C.A.) where an 8 year sentence was given where the male domestic partner inflicted permanently disfiguring injuries on the female domestic partner and caused post traumatic shock. The
appellate court acknowledged the severe brutality of the assault in upholding the severe sentence.
(g) R. v. Beckwith, [1993] O.J. No. 2218 (Ont. C.A.) where an 8 year sentence was
given where the male domestic partner inflicted permanently disfiguring
injuries on the female domestic partner. The accused had an extensive prior
criminal record.
(h) R. v. Truscott , 2004 CarswellOnt 6212 (Ont. S.C.J.) where the court ordered a sentence of 5 1/2 years on each charge which included charges of aggravated assault by a male domestic partner on his female domestic partner in which she was pursued and terrorized resulting in her going into hiding with her children. This case also involves an assault by the male domestic partner with a knife on a police officer who answered the domestic call.
[ 23 ] The defence seeks a jail sentence of 2 to 3 years with 1 year credit for pre-sentence custody. It is the defence's position, in accordance with R. v. Hamilton , supra , that the domestic nature of the assault is one among the other aggravating factors identified in section 718.2(a) of the Code . While the domestic element should be considered with the other aggravating factors in setting the sentence, the court's central focus should be on the nature of the offence and the nature of the offender. I believe this is the proper approach.
[ 24 ] The defence presented cases highlighting the length of the sentence in relation to the nature of the particular accused and the nature of the assault. One domestic assault case was cited among them.
(a) Under two years : R. v. Belisario , [2002] B.C.J. No.792 (B.C.C.A.) where the accused was age 20, had no criminal record, stabbed the victim and received a 15 month jail sentence; and R. v. Miganeh , [2004] O.J. No. 5381 (Ont. S.C.J.) where the accused age 21, with no prior convictions, received a 23 month jail sentence for a physical attack on a 58 year old pedestrian leaving the victim with severe head injuries, hearing loss and blurry vision.
(b) Two years : R. v. O'Quinn , 2002 44942 (ON CA) , [2002] O.J. No. 2016 (Ont. C.A.) where the accused age 18, with a youth criminal record, assaulted the victim with a beer bottle in a pool hall resulting in a coma and neurological injuries to the victim. He received a 15 month jail sentence plus three years' probation. R. v. Taghiev , [2004] O.J. No. 5519 (Ont. S.C.J.) where the accused, age 21 years, with prior convictions, was convicted of assault, possession of explosives and firearms. He stabbed an acquaintance in the neck with a knife over a minor dispute and received a two years less a day jail sentence and two years probation.
(c) Three years: R. v. W.A.E ., [2002] O.J. No. 4834 (Ont. S.C.J.) involves a domestic assault by repeated knife stabs to his wife's neck by the husband, age 31 with no prior record of violence. He received a three year jail sentence. R. v. Howe 2006 CarswellOnt 8945 (Ont. S.C.J.) where the accused age 24 years, with no prior convictions, punched, kicked and choked the female victim endangering her life by leaving her bleeding in an isolated area. He received a jail sentence of three years.
(d) Four years: R. v. Halliday , [1991] O.J. 2681 (ODJ-GD) where the accused repeatedly shot and seriously injured a high school student and another victim while the accused was out on a judicial release with a firearm ban. He received a jail sentence of four years for two counts of aggravated assault. R. v. Jayne , [2008] O.J. No. 1304 (Ont. C.A.) where an accused with an extensive criminal record with lengthy custodial terms made a violent and prolonged assault on his girlfriend and received a 4 1/2 year sentence.
(e) Five years: R. v. Jamieson , [2005] O.J. No. 2495 (Ont. S.C.J.) where the accused was a nurse, with no prior convictions, broke several limbs of the 20 month old victim and showed no remorse. She received a five year jail sentence which took into account the accused's breach of trust given her position as a nurse. R. v. Haj-Ahmed , [2006] B.C.J. No. 3478 (B.C.S.C.) where the accused, with no criminal record, in a dispute over rent, poured hot vegetable oil on his sleeping roommate causing third degree burns. He received a 5 year jail sentence.
CONCLUSION
[ 25 ] The maximum sentence for aggravated assault is 14 years with no minimum. A conditional sentence is not available. I therefore order a custodial sentence with a period of probation after release. The length of the custodial sentence imposed must send a message of deterrence and denunciation for the severity and violence of the assault. However, given Mr. Brooks' youth and his problems managing his anger, the objective of rehabilitation should also be reflected in the sentence.
[ 26 ] The injuries to Ms. Luce were not life threatening or permanently disabling. However, the aggravating fact of the prolonged brutality of the assault with death threats on a domestic partner must influence the sentence. Ms. Luce's jaw was broken and wired for six weeks, a clump of hair was pulled out and she received stitches to her scalp.
[ 27 ] A further aggravating factor is Mr. Brooks' prior youth and adult convictions some involving violence and the use of weapons. His prior convictions also demonstrate a tendency to not honour his undertakings and orders of the court.
[ 28 ] An important mitigating factor is the fact Mr. Brooks pleaded guilty sufficiently early so as to avoid criminal proceedings which saved financial resources and obviated the necessity for Ms. Luce to testify, especially given her fear of seeing him again. The mitigating factors of his youth when he committed the offence and the deplorable conditions of his childhood and early youth must be taken into account in tailoring a sentence.
[ 29 ] It appears there was some attempt to continue his schooling and to attend programs to deal with anger and substance issues, although there is no evidence of the nature of the programs or his progress.
DISPOSITION
[ 30 ] Taking the aggravating and mitigating circumstances into account and the sentences imposed by other courts considering similar factors, I find a fit sentence is:
(a) 3 years jail time, with 1 year and 21 days credit for pre-sentence custody;
(b) 2 years probation after release;
(c) a 10-year firearm and weapons prohibition; and
(d) a DNA order.
[ 31 ] The terms of Mr. Brooks' probation shall be as follows:
(a) He will keep the peace and be of good behaviour.
(b) He will appear before the court when required to do so by the court and notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation.
(c) He will report to a probation officer within two working days of his release and thereafter when required by the probation officer and in the manner directed by the probation officer.
(d) He will refrain from communicating directly or indirectly with Sarah Luce.
(e) He will refrain from attending within 100 metres of Sarah Luce or at any place known to be the residence or school or place of employment of Sarah Luce.
(f) He will attend for and actively participate in any assessment, treatment or counseling as required by and to the satisfaction of his probation officer, including for anger management. He will sign whatever consents or releases that may be required by his probation officer in order to monitor and verify compliance with said assessment, treatment or counseling and he will provide written proof of completion of said assessment, treatment or counseling to his probation officer.
(g) He will not own, possess or carry any weapons defined by the Criminal Code .
Allen J.
Released: June 1, 2012
COURT FILE NO.: 11-30000636-0000
DATE: 20120601
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN Crown - and - JESSE BROOKS Defendant
REASONS FOR JUDGMENT (Sentencing Hearing)
Allen J.
Released: June 1, 2012