ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 06-3349
DATE: 2012/06/26

BETWEEN:

HER MAJESTY THE QUEEN – and – GEORGE EDWARD KENNY Defendant

Dallas Mack and Jason Neubauer, Crown Counsel

Jeffrey Schroeder, counsel for the accused, George Edward Kenny

HEARD: June 7, 2012 (Ottawa)

REASONS FOR DECISION

PARFETT J. (Orally)

[ 1 ] After a jury trial, George Edward Kenny was convicted of two counts of assault causing bodily harm. He is now before the court for sentencing.

Circumstances of the offence

[ 2 ] On December 31, 2004, the victim in this matter, Brian Fudge was celebrating New Year’s Eve and his birthday with some friends at Le Skratch Bar on Merivale Road in Ottawa.

[ 3 ] There was an altercation inside the bar with Kenny’s co‑accused, Charlie Manasseri. As a result of that altercation, Mr. Manasseri was found guilty by the jury of second degree murder. After the assault by Manasseri, Fudge was dazed and confused and needed some assistance to leave the bar. Fudge was escorted from the bar by a friend, Daniel Narraway, and a bouncer. He made his way down the stairs outside the bar with some help from Dan Narraway. It was clear to everyone that Fudge was intoxicated. He also had a small cut to one cheek.

[ 4 ] On his way down the stairs, Fudge was yelling at the bouncers and also to some of the patrons gathered on a terrace immediately outside the bar. At times, Fudge was incoherent. Narraway told him to ‘shut up’.

[ 5 ] Kenny came up to Michael Gil, the bar manager, and asked if he could ‘finish this off’ or ‘finish him off’. Gil advised Kenny that the matter was off bar property and therefore no longer his concern.

[ 6 ] As Fudge and his friend, Daniel Narraway were standing downstairs outside the bar, George Kenny came up and struck both Fudge and Narraway. The blow to Narraway caused him to spin around and lose his balance. As a result of that blow, Narraway suffered a chipped tooth and a swollen jaw that he had trouble opening for several days. Fudge was also punched by Kenny. As a result of that blow, Fudge was rendered unconscious. He never regained consciousness and died on January 2, 2005.

[ 7 ] After the assault, Kenny returned to speak with Gil and according to another witness, Leanne Campbell, he stated, “it only took one punch”. Kenny was laughing. Although, Kenny was charged with manslaughter for the assault on Fudge, he was found guilty only of an assault causing bodily harm. Crown contends – and I agree – that the ‘bodily harm’ occasioned by Kenny’s assault on Fudge was the loss of consciousness that was the direct result of the punch. While Kenny is not responsible for more harm, he is also not responsible for less.

Circumstances of the offender

[ 8 ] At the time of this offence, Kenny was 19 years of age. He had no criminal record. In 2008, while he was awaiting trial on these charges, Kenny was convicted of fail to comply with his recognizance as a result of consuming alcohol and he received a sentence of 60 days incarceration. In 2011, he was convicted of assault causing bodily harm, receiving a suspended sentence and probation for two years. It is noteworthy that this latter conviction involved a bar room brawl.

[ 9 ] Counsel for Kenny chose not to request the preparation of a pre‑sentence report and therefore, there is little personal information available to the court. According to the submissions of counsel, Kenny is now 27 years old. He works full‑time for a landscaping company and is involved in a long‑term relationship. Several letters were filed on Kenny’s behalf. Both Kenny’s mother and father indicate that Kenny is personable, helpful around the house, works long hours and has generally abided by his conditions of release. His employer indicates that Kenny is reliable, punctual and mature. He is also courteous and has an excellent rapport with the clients.

[ 10 ] Kenny has not expressed any remorse for his actions.

Principles of sentencing

[ 11 ] Section 718 of the Criminal Code of Canada sets out the governing principles of sentencing. That section states:

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 acknowledgement of the harm done to victims and to the community.

[ 12 ] Given the gravity of these offences, the primary sentencing principles are denunciation and deterrence. As a result of Kenny’s relative youth, rehabilitation is also a consideration on sentencing.

[ 13 ] Two other sentencing principles set out in the Criminal Code have a significant impact on this sentencing hearing. Section 718.1 states:

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[ 14 ] In addition, s. 718.2(d) points out that, ‘an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances’.

[ 15 ] This offence occurred in 2005 when conditional sentences were still available as a sentencing option. Defence urges me to consider this option if I find that a sentence of less than two years is appropriate. In R. v. Proulx , [1] the Supreme Court of Canada noted that the principles of deterrence and denunciation could be met by a sentence served in the community. However, the court must be satisfied that the safety of the public would not be endangered by a sentence served in the community. [2] In addition, the court must consider whether,

the need for denunciation or deterrence is so pressing that incarceration will be the only suitable way in which to express society’s condemnation of the offender’s conduct or to deter similar conduct in the future. [3]

[ 16 ] The Crown argued that retribution is another legitimate sentencing principle and one that is applicable to the specific circumstances of this case. In R. v. M.(C.A.) [4] , the Supreme Court of Canada noted:

Retribution, as an objective of sentencing, represents nothing less than the hallowed principle that criminal punishment, in addition to advancing utilitarian considerations related to deterrence and rehabilitation, should also be imposed to sanction the moral culpability of the offender. In my view, retribution is integrally woven into the existing principles of sentencing in Canadian law through the fundamental requirement that a sentence imposed be “just and appropriate” under the circumstances. Indeed, it is my profound belief that retribution represents an important unifying principle of our penal law by offering an essential conceptual link between the attribution of criminal liability and the imposition of criminal sanctions . [5] [Emphasis in original]

Mitigating and Aggravating Factors

[ 17 ] Defence points out that Kenny’s relative youth and his lack of criminal record at the time of committing these offences are the primary mitigating factors. Defence spent a considerable amount of time detailing the length of time that the charges took to get to trial and the financial cost of these proceedings, but he did not actually suggest that these factors should be considered as mitigating. On the other hand, it is apparent that defence believes that the court should in some fashion take these factors into consideration. However, I agree with the Crown that it is Kenny’s actions in the early morning hours of January 2005 that caused him to be linked with his co‑accused, and which in turn caused him to be part of the lengthy proceedings.

[ 18 ] The Crown detailed the aggravating factors in this case and for the most part, I agree with the Crown’s submissions on this point. Specifically, I agree that these two assaults were not impulsive acts; they were premeditated. Kenny asked Gil for permission to ‘finish this off’. That statement indicates clearly that Kenny went down the stairs with the intention of assaulting Fudge and Narraway. Furthermore, that statement also indicates that Kenny intended to harm Fudge and Narraway. Neither Fudge nor Narraway were anticipating another assault. Indeed, Narraway indicated to the court that he believed Kenny was a bouncer who had come to offer his assistance.

[ 19 ] The attack on Fudge and Narraway was both unprovoked and gratuitous. There is not a shred of evidence that Kenny had any interaction whatsoever with either Fudge or Narraway at any point in the evening. Crown has always argued that Kenny’s statement at the top of the stairs means that he must have seen the earlier assault, but there is no evidence of this. I agree with defence that the only conclusion that could be drawn from Kenny’s statement is that he witnessed something – perhaps Fudge’s obstreperous behaviour on the stairs. Regardless of what may have been the impetus for Kenny’s decision to assault Fudge and Narraway, the fact remains that there was no reason for Kenny’s actions.

[ 20 ] There is evidence that Fudge had a cut on his face. There is also evidence that Fudge was having some difficulty walking after the first assault. In addition, Fudge was clearly intoxicated. Therefore, Fudge was a vulnerable victim and this fact would have been apparent to Kenny as it was to the other witnesses.

[ 21 ] The punch to Narraway was sufficiently forceful to cause him to spin around and almost fall over. He also had a chipped tooth and a swollen jaw that took a significant time to heal. Those injuries speak to the force of the punch. The punch to Fudge caused him to lose consciousness and crumple to the ground. After the assault, and despite the obvious injury to Fudge, Kenny showed no concern about what he had done. Indeed, he went on to boast to Gil and Campbell about the success of his actions.

Positions of Counsel

[ 22 ] Defence is seeking a suspended sentence with probation or alternatively a conditional sentence for his client. He provided case law that indicated that those sentences can be appropriate for a youthful, first time offender. On the other hand, the cases provided by defence do not address the circumstances of this offence. These assaults were not the impulsive act of a drunken youth.

[ 23 ] Crown asks the court to impose a penitentiary term in the range of three years. Crown also provided case law supporting their position. Unfortunately, most of the cases provided by the Crown dealt with aggravated assaults, which necessarily attract higher sentences.

[ 24 ] However, there were two cases that did provide some assistance. In R. v. Costa [6] , the court dealt with an offender who had pleaded guilty to manslaughter. Costa chased the deceased, who was drunk and was vandalizing cars. The deceased picked up an object and swung it at Costa. Costa took the object away from the deceased and struck him in the head with it. The deceased died of a head injury. The court found that Costa was a youthful, first time offender. The deceased was intoxicated and posed no threat to Costa. The violence was neither protracted, nor gratuitous. Costa was sentenced to 14 months jail.

[ 25 ] The second case that was useful in providing some sense of the appropriate range of sentence in this case was R. v. Woodward . [7] In that case, Woodward attended a gay bar. The motivation for the assault was anti‑homosexual bias. Woodward’s attack on the victim was premeditated, unprovoked and unexpected. The victim had no opportunity to defend himself. After the assault, Woodward stepped over the victim, who lay unconscious on the floor and never asked anyone about the victim’s condition. Woodward never expressed remorse for his actions. Woodward had a prior, dated and unrelated criminal record. He received a sentence of six years jail.

[ 26 ] There are very clear differences between the above two cases and the case at bar. On the other hand, these cases highlight the difference in treatment of a spontaneous act by a youthful, first time offender, and a premeditated, unprovoked attack on a vulnerable victim.

Sentence

[ 27 ] As noted earlier, the primary sentencing principles that are applicable to this type of offence are denunciation, deterrence and rehabilitation. In my view, the appropriate sentence must also take into account moral blameworthiness – and it would be hard to find an assault with more blameworthiness than in this case. Kenny’s act was premeditated, harm was intended, the victims were vulnerable, they had no opportunity to defend themselves, no remorse was expressed either at the time or now, and there is no explanation at all for what occurred.

[ 28 ] As a result, in my view neither a suspended sentence nor a conditional sentence could meet the sentencing objectives as set out in s. 718.1 of the Code . Although, I find that Kenny would not pose a danger to the community were he to serve his sentence in the community, the facts of this case are too serious and the need for denunciation is so pressing that incarceration is the only suitable way in which to express society’s condemnation of Kenny’s conduct. On the other hand, I believe that the term sought by the Crown is excessive. It oversteps what is needed to denounce this crime and to deter either Kenny or others. Finally, it does not take into account Kenny’s relative youth, his lack of criminal record at the time and the fact that rehabilitation is still a viable goal.

[ 29 ] In the circumstances, and taking into account all the factors that I have previously outlined, I will impose a sentence of 24 months jail, less one day, concurrent on each count. This term of incarceration is in addition to the seven days of pre‑sentence custody that Kenny has already served. The term of incarceration is to be followed by two years of probation. The terms of the probation order will be as follows:

• statutory terms;

• report to a probation officer within 48 hours of your release and thereafter as required;

• not to associate or communicate, either directly or indirectly with Daniel Narraway, any of the Fudge family, any Crown witnesses, or any person known to you to possess a criminal record unless your probation officer specifically indicates in writing that you may communicate with that person, or any other person identified to you by your probation officer;

• abstain from the purchase, possession or consumption of alcohol;

• not to be in any place where alcohol is served or sold;

• attend for any assessment or treatment as recommended to you by your probation officer including but not limited to anger management or substance abuse; and

• sign any releases required by your probation officer to monitor your attendance and progress in any treatment program.

Ancillary orders

[ 30 ] There will also be a DNA order and a section 109 order for life.

Madam Justice Julianne A. Parfett

Released: June 26, 2012

COURT FILE NO.: 06-3349
DATE: 2012/06/26

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN – and – GEORGE EDWARD KENNY Defendant REASONS FOR decision Parfett J.

Released: June 26, 2012

[1] 2000 SCC 5 , [2000] 1 S.C.R. 61 .

[2] At para. 127.

[3] Ibid .

[4] 1996 , [1996] 1 S.C.R. 500 .

[5] At para. 79.

[6] [1996] O.J. No. 299 (Gen. Div.) .

[7] 2001 BCCA 251 , [2011] B.C.J. No. 964 (C.A.)