COURT FILE NO.: CR11-50000248-0000
DATE: 20121115
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
Malcolm Ricketts
Defendant
L Bird, for the Applicant
P Hiebert, for the Defendant
HEARD: November 3, 2012
CROLL J.
REASONS FOR DECISION
[1] After a trial before me, Malcolm Ricketts was found guilty of five offences. Four of these offences flowed from an altercation that occurred on January 21, 2010 between Mr. Ricketts and his girlfriend, Christina Hammond. They are as follows: 1) assault on Christina Hammond; 2) attempting to choke Christina Hammond, with the intent to assist himself in committing the assault; 3) by criminal negligence, causing bodily harm to the baby, Heaven Hammond Ricketts, as he was assaulting Christina Hammond while she held Heaven; and 4) maiming Heaven Hammond Ricketts by committing an aggravated assault. Mr. Ricketts was also found guilty of endangering the life of Heaven Hammond Ricketts, thereby committing an aggravated assault, on March 6, 2010.
[2] As a preliminary matter, it is agreed that the Kienapple principle applies to counts three and four, and that the finding of guilt on count three, criminal negligence causing bodily harm to Heaven Hammond Ricketts, should be conditionally stayed. While the defence further submits that the Kienapple principle should apply to counts one and two, I do not accept this submission. The delict is not the same in those two counts. Rather, choking to enable an assault is an additional element beyond the assault. As such, a finding of guilt on both counts one and two does not offend the Kienapple principle, which provides that there should not be multiple convictions where the same or substantially the same elements make up the offences charged in two or more counts.
[3] The Kienapple principle was considered in R. v. Hill, 2010 ONSC 5150, [2010] O.J. No. 3956, where the accused argued that choking under s. 246(a) was a particularization of aggravated sexual assault under s. 273(2), such that the Kienapple principle applied (at para. 27). In finding that the elements of each offence were different, Bryant J. stated, at para. 35:
The wording of s. 246(a) seems to discourage the application of the Kienapple principle. Parliament has specifically chosen to make choking with the intent to commit an indictable offence a separate offence from the commission of the indictable offence. If the intent to choke is always subsumed by the indictable offence committed in coordination with a s. 246(a) offence, the scope and application of the offence would be considerably narrowed.
[4] As I indicated at the conclusion of the trial, this was a tragically sad case. After her admission to the hospital on March 6, 2010, Heaven was found to have had 10 or 11 healing broken ribs and two metaphyseal fractures in her legs. A CT scan revealed three areas of acute bleeding in her brain, and cerebral edema or brain swelling. Heaven also had retinal haemorrhages in all four quadrants of both eyes. Indeed, Heaven was so ill that it was necessary to transfer her to the Intensive Care Unit at the Hospital for Sick Children for a period of her hospitalization.
[5] The collective medical evidence at the trial established that Heaven suffered permanent and significant brain damage as a result of her injuries. She has been diagnosed with cerebral palsy and is severely developmentally and physically delayed. Heaven turns three today. At the time of trial, she was over 2 1/2 years old and was not crawling or walking independently. The medical evidence indicates that there is no expectation that she will be able to do so. She cannot sit unsupported for long periods of time. Heaven is also significantly visually impaired.
[6] I determined that the rib fractures were caused by Mr. Ricketts on January 21, 2010, while he was assaulting Christina, and during which he was holding Heaven too tightly. I also determined that the metaphyseal fractures, brain damage and visual impairment were caused by Mr. Ricketts’s violent shaking of Heaven on March 6, 2010. While Christina has physically recovered from the assault and attempted choking that occurred in January 2010, it is clear that baby Heaven will never recover. Indeed, as described by the Crown, her injuries are her own life sentence.
[7] Mr. Ricketts is a 23-year-old man. He has no criminal record.
[8] The Crown seeks a sentence of eight to ten years, together with certain ancillary orders.
[9] The defence submits that a sentence in the range of three to five years is appropriate.
[10] There are a number of significant aggravating factors to be considered. I note the following:
Heaven incurred severe and permanent injuries on March 6, 2010. There is no aspect of her health that has not been impacted by this incident and she will require medical treatment for the rest of her life. Her injuries are profound and have robbed her of the potential to lead a normal, healthy life.
These assaults involved an egregious breach of trust. The Criminal Code, R.S.C. 1985, c. C-46, pursuant to ss. 718.2(a)(ii.1) and (iii), specifically recognizes abuse of a child and abuse of a position of trust as aggravating factors. By his actions, Mr. Ricketts violated the sacred nature of the parent-child relationship, and the obligations inherent in that relationship. Indeed, in this case, given Heaven’s unusual and early history of bathing injuries, Mr. Ricketts had an even heightened duty of care. At just under one month old, Heaven was admitted to the hospital for three days where she was treated for aspiration pneumonia. Mr. Ricketts was bathing Heaven that day, and she had aspirated fluid into her lungs when she slipped under the water. Just weeks later, Heaven suffered another injury. On December 31, 2009, while being bathed in St. Catherines by her uncle, DeShawn Ricketts, Mr. Ricketts’s brother, her leg was scalded by excessively hot water and she had to be rushed to a hospital emergency room. While both of these incidents were unfortunate accidents, the fact that they occurred within weeks of each other, all before Heaven was three months old, should have underscored for Mr. Ricketts how especially vulnerable his infant daughter was, and how much she needed meaningful protection.
Although the assault on March 6, 2010 led to the most devastating injuries, it was not an isolated incident. On January 21, 2010, Mr. Ricketts assaulted both Christina and Heaven. Mr. Ricketts was angry at Christina because she did not trust him with Heaven, a distrust stemming from the pneumonia incident. As he physically assaulted Christina, he held Heaven so tightly that he broke at least ten of her ribs. At trial, Dr. Armstrong, a neuroradiologist at the Hospital for Sick Children in Toronto and an expert in paediatric radiology, described the type of action that would be needed to fracture a baby’s ribs. He stated that if the rib is compressed enough, it will snap and create a rib fracture, or that a violent impact on the side of the chest can cause a baby’s ribs to fracture. Dr. Armstrong opined that normal, everyday activity or even a child rolling off a couch or change table would not likely cause broken ribs. However Mr. Ricketts handled Heaven on January 21, 2010, it was sufficiently forceful to break her ribs. This sequence of two attacks within six weeks belies any submission that the violent and life-threatening shaking on March 6, 2010 was an isolated episode. This was not a case of an inexperienced and frustrated young parent losing control with a difficult baby.
The combination of the domestic assault on Christina and the attack on Heaven in January 2010 is also an aggravating factor, again involving an abuse of trust. The evidence at trial was that Mr. Ricketts was angry, the assault went on for some time, and culminated with a neighbour’s call to 911 because of the noise coming from the apartment. Mr. Ricketts was so brazen that he engaged in this conduct in front of a third person, Christina’s friend, Marsha Edwards.
The fact that there were other family members in the apartment on March 6, 2010also establishes an aggravating circumstance. Christina, her mother Lorraine Hammond, DeShawn Ricketts, and a cousin, Shantaless Ashmeade, were all there that day. Mr. Ricketts had options. He could have asked any one of them to help with the baby so that he could get ready to go to his dance practice. His failure to do so illustrates again that this was not an incident of an unskilled parent losing control with nowhere else to turn. His refusal to ask for help, arguably stemming from his resentment of Christina’s distrust, directly led to this tragedy.
It is also aggravating that Mr. Ricketts has not acknowledged his anger issues and does not appreciate the seriousness of these charges. The pre-sentence report dated September 24, 2012 indicates that he continues to deny the offences and that he is “stumped” by what happened to the baby. While the pre-sentence report indicates that he quit school in 2010, his evidence at trial was that he was attending school in 2010. Mr Ricketts’s testimony at the sentencing hearing did not clarify, but instead, served to further obfuscate this issue. The pre-sentence report of September 24, 2012 also indicates that Christina was visiting Mr. Ricketts weekly, despite a court order prohibiting this contact. I appreciate that these issues pale beside the heartbreaking reality that is at the root of this matter, but in my view, the continued refusal to accept responsibility and the lack of candour about various issues are problematic, and do not bode well for rehabilitation.
[11] As noted, Mr. Ricketts is a youthful, first offender. That is the only mitigating factor for consideration. His work and school records are not noteworthy, and he has taken no steps towards rehabilitation.
[12] The Crown and defence have provided me with a number of cases for which I am grateful. The case law provides that the paramount sentencing principles for offences of this nature are general and specific deterrence, denunciation and protection of the public. In R. v. Singh (1985), 8 O.A.C. 100 (C.A.), a father who pled guilty to throwing his three-month-old daughter two to three feet onto the floor, which caused her head to strike a table and led to horrific and long term injuries, was sentenced to five-and-a-half years by the trial judge. In increasing the sentence to eight years, the Court of Appeal made the following statements, at para. 11:
The brutal injuries which were inflicted upon a defenceless baby by her father called for a very lengthy penitentiary term. While the rehabilitation of the respondent must be borne in mind, general and specific deterrence must be the prime considerations for such a crime of violence. In our opinion, the sentence of five and one-half years imposed by the trial judge did not adequately reflect the gravity of the offence, or the abhorrence of society for the respondent’s conduct, particularly bearing in mind that this was not the first such attack on this child. As a result of the massive injuries, the child was now little more than a “vegetable”, and her continued existence was very tenuous.
[13] In R. v. Habib (2000), 2000 CanLII 16824 (ON CA), 147 C.C.C. (3d) 555 (Ont. C.A.), an 18-month-old baby was found to have suffered a brain injury, a skull fracture, and serious injuries to her eyes as a result of violent shaking. The Court of Appeal upheld a conditional sentence due to special mitigating circumstances, and it recognized, at para. 10, that while an accused in a typical case of aggravated assault involving Shaken Baby Syndrome may receive a sentence in the range of three to five years, the range must be extended to accommodate the rare or exceptional case.
[14] In R. v. Osborne (1996), 1996 CanLII 980 (ON CA), 110 C.C.C. (3d) 161 (Ont. C.A.), the father intentionally immersed his 26-month-old infant in a bathtub of scalding water. The baby was hospitalized for six months, underwent numerous skin grafts, and would continue to need skin grafts until she was an adult. While the consequences of that assault were devastating, there was some potential for the baby to have a relatively normal life as she became an adult. Osborne, aged 29 with no criminal record, was sentenced to eight years imprisonment. However, there is always a specific factual background that animates sentencing. I note that in Osborne, there was a finding that Mr. Osborne knew the dangers and the probable results of his actions at the time he immersed the baby. There is no such evidentiary foundation in this case.
[15] I have considered the cases provided against the aggravating facts of the assault that occurred on March 6, 2010. In summary, this was not a single incident of frustration by an unskilled parent. Rather, it followed some six weeks after another assault against both Heaven and Christina, an assault in which Mr. Ricketts used enough force to break Heaven’s ribs. There were family members available on March 6, 2010 to assist Mr. Ricketts had he merely asked for their help. Heaven will never recover from the damage inflicted on her by her father. I find that the appropriate sentence for the aggravated assault on March 6, 2010, count five, is seven years.
[16] I turn now to the offences that occurred on January 21, 2010. Determining whether sentences should be consecutive or concurrent is a “fact-specific inquiry whether the connection between two offences is sufficiently or insufficiently close”: see Clayton C. Ruby, Gerald J. Chan & Nader R. Hasan, Sentencing, 8th ed. (Markham: LexisNexis Canada Inc., 2012), at para. 14.15. The totality principle should also be kept in mind, which “requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender”: see R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 42.
[17] In this case, notwithstanding the defence submissions, the sentence for the March aggravated assault will be consecutive to the sentences imposed for the January offences. The offences in January and March occurred under completely different circumstances, and over a month apart. In January, the assaults against Christina and Heaven were the result of a physical altercation between Mr. Ricketts and Christina, and Heaven was, unfortunately, stuck in the middle. However, in March, I found that Mr. Ricketts was alone with Heaven when he shook her forcefully and violently in an attempt to calm her down, even though he could have sought assistance from family members present in the apartment. There is a break between the two transactions such that a consecutive sentence is appropriate.
[18] While very serious, Mr. Ricketts’ conduct on January 21, 2010 is not of the same gravity as that which occurred in March. Without in any way minimizing the January assaults, neither Heaven’s nor Christina’s injuries required hospitalization. Heaven’s injuries were undetectable, except by x-ray, and most significantly, Heaven’s ribs healed and Christina suffered no long term physical effects. On count one, assault on Christina Hammond, Mr. Ricketts is sentenced to four months, and on count two, attempt to choke Christina Hammond with the intent to assist himself in committing an assault, Mr. Ricketts is sentenced to four months, to be served concurrent to the sentence on count one. On count four, the aggravated assault on Heaven which broke her ribs, Mr. Ricketts is sentenced to 12 months, consecutive to the sentence on counts one and two.
[19] I recognize that typically, where there is “a single criminal transaction”, concurrent sentences are appropriate. Even where there may be two different victims, a concurrent sentence may still be imposed. Overall, it is a matter of discretion as to whether a consecutive or concurrent sentence should be imposed based on the facts of the case, provided that the overall sentence is reasonable.
[20] I am of the view that, in this case, a consecutive sentence is appropriate because although the assaults were part of “a single criminal transaction”, a separate and distinct offence was perpetrated on Heaven, who was not only another person, but a baby. The statements made by the Court of Appeal in Singh, above, with respect to the abhorrence of society for the infliction of violence on a baby should be recalled. Furthermore, in my view, the requirement that the sentence be served consecutively does not offend the totality principle.
[21] In sum, I have determined that the appropriate sentences are as follows:
Count one: four months;
Count two: four months, to be served concurrently to count one;
Count four: 12 months to be served consecutively to counts one and two;
Count five: seven years, to be served consecutively to count four.
[22] This amounts to an aggregate sentence of eight years and four months (100 months). However, Mr. Ricketts has been in custody since March 15, 2010, some 32 months. Both counsel made submissions on the credit to be given for this period of pre-trial custody.
[23] It is not in dispute that the offences that occurred on January 21, 2010 predate the February 22, 2010 changes to the credit for time spent in pre-sentencing custody, and would in the usual course attract credit on a two to one basis, that is, a credit of two days for each one day spent in pre-trial custody. However, the Crown’s submission that the pre-trial custody should all be attributed to the March offence, as it was that offence that kept Mr. Ricketts in custody, has some persuasive force. Pursuant to the changes in Bill C-25, An Act to amend the Criminal Code (limiting credit for time spent in pre-sentencing custody), 2nd Sess., 40th Parl., 2009, cl. 3, under ss. 719(3) and (3.1) of the Criminal Code, the credit for each day spent in pre-trial custody is to be on a one to one basis, unless the circumstances justify an enhanced credit of up to one-and-a-half days for each day spent in custody. As stated by Trafford J. in R. v. Lewers, 2012 ONSC 5332, [2012] O.J. No. 4554, at para. 26, “The basis of enhancing the credit may be the oppressive aspects of the pretrial incarceration, the absence of training or other educational programs in the facility and the fact that the time spent in custody pending trial is not considered on parole issues. Judicial notice may be taken of the latter factor.”
[24] In this case, the defence filed a report from Mr. Luis Raposo of the Security Department at the Toronto Jail. It indicates that Mr. Ricketts has been housed at the Toronto Jail since April 20, 2011, some 575 days. For almost 30% of that time, Mr. Ricketts was triple bunked in a cell meant for two inmates. Mr. Ricketts testified that there were frequent lockdowns while he was housed at the Toronto Jail. His estimate that the jail was in lockdown for about a third of the time he was in custody cannot be substantiated, as the report from Mr. Raposo states that the Toronto Jail does not keep statistics on the number of lockdowns. However, I am satisfied that judicial notice may be taken of the fact, as opposed to the frequency, of lockdowns. The report indicates that privileges such as phone use, visits or programs can be suspended during a lockdown. In addition, the report notes as follows: “Based on available yard statistics the Protective Custody Unit inmate Ricketts is housed in have been offered the opportunity to attend yard an average of 3 days per month. This is mainly due to staff shortages and inclement weather. There is no exercise equipment available at the Toronto Jail; the yard is for fresh air only.”
[25] Finally, as noted in Lewers, judicial notice may be taken of the fact that time spent in pre-trial custody is not considered on parole issues. This issue was examined in some detail in R. v. Johnson, 2011 ONCJ 77, 268 C.C.C. (3d) 423, by Green J. of the Ontario Court of Justice, and was considered by Glithero J. of the Superior Court of Justice in R. v. Summers, [2011] O.J. No. 6377 (S.C.), albeit in a briefer, more conversational manner. Glithero J. stated, among other things, at para. 41,
I just say it’s absolutely unfair to treat someone who is presumed to be innocent more harshly than we would treat someone who has been found to be guilty. So if we’re going to give everybody that’s found guilty a third off or as much as two-thirds off or even more if they’re eligible for day parole, it simply is not fair to say to someone we presume to be innocent, you serve every day without any credit beyond the actual day-for-day ratio.
[26] In this regard, I note that Mr. Ricketts has no misconducts while in jail for the last 32 months. As a youthful first offender, he would be entitled to earned remission.
[27] Finally, I note that the Crown submits that any delay in this case must be laid at the feet of Mr. Ricketts, and has provided an excerpt from a March 11, 2011 Ontario Court of Justice transcript that suggests this is the case. Defence counsel vigorously denies this characterization. A sentencing hearing should not be converted to a version of an application under s. 11(b) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11, where delay is examined in detail. As well, credit for pre-trial custody is not intended to be a complex arithmetic exercise that parses out chunks of time in a complicated way. Rather, credit for pre-trial custody is a mechanism to address the various factors I have examined. In this case, I am of the view that credit for pre-trial custody on a one to one-and-a-quarter basis for the entire period of Mr. Ricketts’s pre-trial custody is appropriate. I am satisfied that this recognizes that Mr. Ricketts may not have been detained for the January charges alone; accounts for the circumstances at the Toronto Jail; and addresses the parole entitlement issues. Accordingly, as he has been in pre-trial custody for 32 months, he shall be given credit for 40 months, or three years and four months. This credit will be allocated to count five.
Mr. Ricketts, please rise.
You are sentenced to a global sentence of eight years and four months; however you are being granted credit for three years and four months (40 months) of pre-trial custody. This sentence is allocated as follows:
Count 1: assault on Christina Hammond on January 21, 2010 – four months;
Count 2: attempting to choke Christina Hammond, with the intent to assist in the assault on January 21, 2010 – four months, concurrent to count one;
Count 4: maiming Heaven Hammond Ricketts by committing an aggravated assault on January 21, 2010 – 12 months, consecutive to counts one and two;
Count 5: endangering the life of Heaven Hammond Ricketts, thereby committing an aggravated assault on March 6, 2012 – three years and eight months (44 months), in addition to pre-trial custody of three years and four months (40 months), for a total of seven years (84 months). This is consecutive to count four.
[28] You are also subject to a DNA order under s. 487.051, authorizing the taking of a DNA sample. Further, you are subject to a s. 109 order prohibiting you from possessing a firearm or any other item stipulated by that section for life.
CROLL J.
Released: ** November 15, 2012**
COURT FILE NO.: CR11-50000248-0000
DATE: 20121115
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Applicant
– and –
Malcolm Ricketts
Defendant
REASONS FOR DECISION
CROLL J.
Released: ** November 15, 2012**