File No. CR10-12319

Neutral Case Citation No. 4198

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

• against -

DAMION DICKETTA PEARSON

Sentencing

BEFORE THE HONOURABLE MR. JUSTICE GLASS

on April 25, 2012,

at OSHAWA, Ontario

APPEARANCES

K. POLLEY and D. SLESSOR Counsel for the Crown

B. ROSS Counsel for the accused

April 25, 2012

U P O N R E S U M I N G : (4:25 p.m.)

REASONS FOR sentence

GLASS, J. (Orally):

On November 7, 2011, jury selection commenced following which evidence was presented to the jury during the course of this trial.

The Crown completed its evidence on November 22, 2011, and at the request of the Defendant, defence evidence commenced on November 28, 2011.

On November 29^th^, counsel presented their closing submissions to the jury.

On November 30^th^, the jury received their instructions and began their deliberations for the three counts on the indictment.

On December 6, 2011, the jury returned with their verdicts. Mr. Pearson was found guilty of second degree murder, aggravated assault and committing the aggravated assault with a weapon. Defence did not want a pre-sentence report. The Crown arranged for victims of the offences to attend or provide statements to explain to the Court how the crimes for which Mr. Pearson was found guilty, had affected them.

VICTIM IMPACT STATEMENTS

Denise Robinson is Jeff Warne’s mother. She described her own feeling of guilt flowing from trying to exert tough love to her son when letting him live alone. She is depressed and finds difficulty trying to forgive herself.

Philip Warne is Jeff Warne’s father who also expressed how he is sad and upset about his son’s murder. He experiences sadness every day. He has not been able to achieve closure.

Michelle Warne is a sister of Jeff Warne. She filed a victim impact statement whereas her parents also read their statements to the court. Michelle misses her brother. She has gone through the court process to date and has found that in effect stressful.

A friend of Jeff was Tracy Kitchen who filed a victim impact statement describing how she has nightmares over the loss of Jeff. She does not know if they will ever end. She regrets that she won’t see Jeff become a successful person, get married or become a father. She endures pain every day without Jeff.

JURY’S RECOMMENDATIONS FOR PAROLE ELIGIBILITY

One juror recommended no parole for ten years, four recommended no parole for 20 years, and seven recommended no parole for 25 years. Although the recommendations of the jury are not the overall consideration for the trial judge, they do demonstrate considerations from the community for the offence committed taking into account the character of Mr. Pearson, the nature of the offence, and the circumstances of the offence. The jury had the experience of hearing all the evidence at trial. They gathered an appreciation of what had happened and how the death of Mr. Warne occurred.

CROWN SUBMISSIONS ON SENTENCE

The Crown submits that the sentence for second degree murder should be life without parole for 25 years taking into account the character of Mr. Pearson, the nature of the offence, the circumstances of the offence together with the jury’s recommendations.

Mr. Slessor noted that this was a murder by a person who killed Mr. Warne and then demonstrated no remorse and denied responsibility. He had murdered his friend two weeks before and was found guilty of first degree murder. This homicide, the Warne homicide, followed watching and besetting the residence of Mr. Warne with a planned home invasion. Death was instant with a shotgun blast to the head.

Although Mr. Warne sold drugs, he was not a violent seller of drugs and did not have any weapon in his apartment.

The killing of Mr. Warne was an execution style ending of a person’s life. Mr. Pearson demonstrated his character during the trial with violent outbursts and expressions of hatred to the police and the Crown.

DEFENCE SUBMISSIONS ON SENTENCE

Mr. Ross for Mr. Pearson, recognizes that the sentencing judge can take into account the aggravating factor of a first degree murder two weeks before the killing of Mr. Warne. And since 2005, cases have indicated that a second degree sentence for a murder with a gun bear out a sentence of at least 15 years prior to parole.

Mr. Ross points out that the sentence is life imprisonment. Parole is not automatic, but rather must be approved by the National Parole Board.

Mr. Ross noted that Damion Pearson has been through the crown ward ship system since age 13. In 2007, a good friend was killed and that appears to have impacted on his life.

Some of the cases relied on by the Crown dealt with offenders with lengthy records and violent records. He points out that Mr. Pearson did not have a record at all before these two murders.

In conclusion, Mr. Ross recommended that the sentence be life imprisonment without parole eligibility for between 18 and 20 years.

ANALYSIS

The jury has provided recommendations that Mr. Pearson be eligible to apply for parole after a variety of years. I’ll repeat; seven jurors recommended 25 years, four recommended 20 years and one recommended ten years.

The jury is reflecting the sentiment of the community in varying degrees.

Second degree murder requires a sentence of life imprisonment without the opportunity to apply for parole for a minimum of ten years. The sentencing court has the discretion to set the time for parole application between ten and 25 years. The jury is asked for recommendations on the number of years for a person so serve the life sentence before being allowed to apply for parole. Their recommendations must be between ten and 25 years. The jurors do not have to make recommendations, but they are given the opportunity to do so.

In finding Damion Pearson guilty of second degree murder, the jury must have accepted the evidence as showing that Mr. Pearson was either the main shooter of Mr. Warne, or that he was a party to an offence of robbery knowing that death might ensue. The evidence showed that there was a home invasion for the purpose of committing a robbery. Invading a person’s residence is a major intrusion on a person’s privacy and life. Being prepared to demonstrate violence with the use of a shotgun whereby the deceased was killed, and the landlord was injured demonstrates serious violent behaviour without regard for others. The sentencing court should denounce this type of conduct. The court should discourage violent behaviour with a sentence that conveys to the community the message that anyone committing this type of offence will receive a major sanction. The message is applicable to the defendant as well.

There is no mitigating circumstance here with the death of Jeff Warne.

The first degree murder of Khristian Ottley just two weeks before the killing of Jeff Warne, is an aggravating factor.

The impact of the death of victims, the manner in which the killing was committed, the use of a sawed-off shotgun to the head of an unarmed person demonstrates an uncaring, unemotional approach to the life of another human being. Parole ineligibility should be much more than a minimum of ten years in these circumstances. This is a case in which the maximum for parole ineligibility should be considered.

The sentence for second degree murder will be life imprisonment without parole for 25 years.

With respect to aggravated assault and committing the aggravated assault with the use of a weapon, the weapon of choice being a shotgun. The shotgun was discharged in the direction of the landlord at close range. Had Mr. Rizvi not escaped from the landing, the evidence infers that he might have been killed too. Again, the use of a gun during a home invasion on occupants requires denunciation of such conduct when sentence is imposed. Both general and specific deterrence must be reflected in order to discourage such conduct from others in our communities.

The sentence for the aggravated assault is five years concurrent to the life sentence imposed for the second degree murder.

The use of a firearm when committing an aggravated assault requires an additional sanction. Taking a gun into a person’s residence, discharging it at the landlord, causing injury to the landlord, and doing so during a home invasion are serious factors to consider. There is no factor to ease the circumstances of this conduct.

The sentence for using the firearm while committing an aggravated assault will be two years consecutive to the sentence for aggravated assault and both of those are concurrent to the life sentence for second degree murder.

There will be a DNA order.

There will be a s.109 weapons prohibition order for life.

FORM 2

Certificate of Transcript

Evidence Act, subsection 5 (2)

I, Deborah Tinmouth, certify that this document is a true and accurate transcript of the recording of R v. Pearson in the Superior Court of Justice held at 150 Bond Street, Oshawa taken from Recording No. 2812-506 400780 20120425 0912 Certified on Form One

May 31, 2012 ........................................

Deborah Tinmouth

Court Reporter

Transcript ordered.....................April 27, 2012

Transcript completed...................May 31, 2012

Transcript approved for release........May 31, 2012

THIS IS NOT A CERTIFIED COPY UNLESS ORIGINALLY SIGNED