ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 7-729/11

DATE: 20130205

BETWEEN:

HER MAJESTY THE QUEEN

Applicant

– and –

ANDRAE SMART and JUSTIN CAMILLERI

Defendants

Yeshe Laine, for the Crown

Brad Burgess, for the Defendant, Andrae Smart

Kevin McCallum, for the Defendant Justin Camilleri

HEARD: January 3 and 23, 2013

MOLLOY J.:

REASONS FOR SENTENCE

Circumstances of the Offence

[1] Andrae Smart and Justin Camilleri were convicted by a jury of aggravated assault. The victim of the assault, Gregory Sheppard, was attacked on the dance floor of a busy Toronto nightclub and sustained serious injuries, including a broken jaw.

[2] Both Mr. Smart and Mr. Camilleri testified at trial. Mr. Camilleri denied any involvement whatsoever in any assault on Mr. Sheppard. Mr. Smart admitted punching Mr. Sheppard once in the face, while they were on the dance floor. However, he testified that he did so in self defence after Mr. Sheppard, who was intoxicated, picked a fight with him.

[3] Mr. Sheppard testified that Mr. Camilleri had been carrying a grudge against him for some time relating to an alleged debt arising from a period when the two of them had been roommates. He said that while he was on the dance floor, Mr. Camilleri grabbed him in a “choke hold” from behind and held him, while two other individuals, one of whom he identified as Mr. Smart, punched him in the head.

[4] Since the jury convicted both accused, it is clear they rejected their evidence and accepted Mr. Sheppard’s version of the event. It does not necessarily follow that the jury accepted Mr. Sheppard’s evidence about the involvement of a third man. Since an attack by three men (as opposed to two) would be an aggravating factor, I would need to be satisfied of the fact beyond a reasonable doubt before I could rely on it in sentencing.[^1] Mr. Sheppard had consumed a large amount of alcohol. On his own evidence, the attack was sudden and he did not get a good look at this third person because he was being held back by Mr. Camilleri and the third assailant was off to one side. I am not persuaded beyond a reasonable doubt that there actually was a third person involved. There is a reasonable possibility that Mr. Sheppard is confused about that.

[5] It is a necessary inference from the verdict that this assault was unprovoked and that it was not a fair fight. Mr. Camilleri held Mr. Sheppard back, while Mr. Smart delivered the blows. There must clearly have been some coordination of efforts between Mr. Smart and Mr. Camilleri, but it is possible this was only moments before the assault itself occurred. There would not appear to be any motive on the part of Mr. Smart, other than simply to assist Mr. Camilleri. By everyone’s account, the whole incident was very brief.

[6] Mr. Sheppard sustained abrasions to his face, two fractures to his jaw, and displaced and fractured teeth. His injuries required surgery, which included having a metal plate implanted in his chin. He also had bruising and swelling in his neck area from being restrained. He was in considerable pain for two to three weeks, has permanent scarring, and still requires additional dental work at an estimated cost of $3000.00. In addition, the incident has had an emotional impact on him and still affects him to this day.

Position of the Parties

[7] The Crown seeks a sentence of 18 months to two years less a day for each offender, to be followed by a period of probation. During the term of that probation, the Crown submits there should be a ‘no contact” order with respect to the victim as well as a prohibition from attending the nightclub where the incident occurred and a requirement that both offenders attend for counselling. The Crown also seeks a DNA Order and a s. 109 weapons prohibition for 10 years.

[8] The defence argues that the appropriate sentence is 90 days intermittent, but takes no issue with any of the other Crown submissions.

General Principles

[9] A sentence imposed for a criminal offence is required to be proportionate to the gravity of the offence and the degree of responsibility of the offender.[^2] In determining what is a fit sentence, I must consider this principle of proportionality, and also have regard to the purposes and objectives of sentencing as stated in s. 718 of the Criminal Code as follows:

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

[10] I am also required by s. 718.2 of the Criminal Code to take into account any aggravating or mitigating circumstances relating to the offenders or of offence and increase or reduce the sentence accordingly.[^3] Other general principles to be applied include the requirement that: similar sentences should be imposed on “similar offenders for similar offences committed in similar circumstances”[^4] and that all reasonable sanctions other than imprisonment should be considered such that an offender is not deprived of liberty if less restrictive sanctions are available.[^5]

Circumstances of the Offenders

[11] Andrae Smart is a young first-time offender. The pre-sentence report is extremely positive. Mr. Smart is now 27 years old, and was 24 at the time of the assault. He was raised by his mother in Toronto, the oldest of her four children. He reported having learning difficulties in school, but did complete grade 10 and a few Grade 11 credits. He left school when he was about 17 years old and has worked steadily since that time. Primarily, this work has involved manual labour. For the past several years, he has been employed with a company that installs and repairs irrigation systems, the owner of which is somebody he knew from high school. Mr. Smart has done very well in this job, rising to a supervisory position as a crew leader and running his own truck. In a letter to the court, his employer praised Mr. Smart’s leadership skills, said he was a “big asset” to his company, and described his character as being “intelligent, positive and responsible.” Mr. Smart hopes eventually to have his own irrigation installation business, which appears to me to be a realistic and achievable career goal. Mr. Smart currently lives with his mother and contributes $750.00 a month as his share of the rent.

[12] Justin Camilleri was 26 years old at the time of the offence. He was raised in Mississauga, where he lived with his parents and two younger brothers. Although his parents separated when he was 20 years old, he has remained close to both of them. Mr. Camilleri completed Grade 11, but dropped out at the age of 17 and has been working in the automotive service industry full-time since then. He has completed the education and training to be a licensed automotive technician and plans to take the examination for licensing in the near future. He is currently employed as an automotive mechanic and his employer for the past two years said that he was “dependable,” described his work as “excellent,” and said that he communicates well with customers and co-workers.

[13] Mr. Camilleri does have a criminal record, but no crimes of violence. He received a conditional discharge in 2008 after a finding that he was in possession of stolen property. Also in 2008, he was convicted of possession of marijuana for the purpose of trafficking and some related offences, for which he was sentenced to 60 days intermittent and concurrent on all counts. In 2009, he was again convicted of possession of marijuana for the purpose of trafficking and sentenced to a 75 day intermittent sentence. Mr. Camilleri attributes his prior criminal activity to immaturity and states that he had an “eye-opener” in 2009 and has avoided any criminal conduct or lifestyle since then. Sources contacted by the officer who prepared the pre-sentence report confirm that Mr. Camilleri “has matured substantially over the past few years and is committed to his family and employment.”

[14] Mr. Camilleri has been significantly affected emotionally and psychologically as a result of these charges. In particular, he has worried about the impact this may have on his job, which he loves, and ultimately on his career as a mechanic. He has taken positive steps to ameliorate this potential impact, including contacting the Elizabeth Fry Society and, through their services, completing 40 hours of community service with the Salvation Army.

Aggravating Factors

[15] The most serious aggravating factor in this case is the unprovoked nature of the assault, the fact that it was two assaulters on one victim, and the injuries inflicted on the victim. In addition to the physical injuries, which were considerable, the victim continues to struggle with emotional issues, such as depression, difficulty controlling anger, anxiety, and panic attacks at social events and activities.

[16] Without minimizing the serious nature of this attack, I do note that it was short in duration and did not involve a weapon. This is by no means mitigating, but must be taken into account when evaluating this case in relation to sentences imposed in other cases involving aggravated assault.

[17] For Mr. Camilleri, the existence of a prior criminal record is also aggravating, although I note that it is not related to the issues in this case, did not involve violence, and appears to be a part of his life that he has successfully put behind him.

Mitigating Factors

[18] Both offenders are youthful. Mr. Smart has had no prior contact with the law and has no criminal record. Although Mr. Camilleri has a criminal record, he has not served a significant sentence in the past, the longest sentence being 75 days intermittent. Also, as I have already noted, the criminal record does not involve violence.

[19] Both offenders have stable roots in the community, enjoy a supportive family, and have been fully employed for a substantial period of time. Mr. Camilleri loves his work, has done well for many years, and is about to become a fully licensed automotive technician. Mr. Smart has applied himself in the workplace, demonstrated leadership abilities, and been promoted to a supervisory level. He has aspirations of owning his own business in this same line of work. In short, both young men have shown themselves to be responsible and productive members of our community. It is not often that young men of their age come before the courts with not just a record of employment, but solid work histories and a realistic career paths ahead of them. This is very much to their credit.

[20] There is no history of violence by either of these offenders. Their attack on Mr. Sheppard is an aberrant act that would seem to be out of character for both of them.

[21] Case law often refers to the existence of remorse as a strong mitigating factor. That is not a factor in this case because both accused pleaded not guilty to the charge, as is their right. The absence of remorse is not an aggravating factor; it is merely the absence of a mitigating factor. Usually, a remorseful attitude is taken by the trial judge as an indication that the particular offender is capable of, and interested in, being rehabilitated. In the case before me, although true remorse is not a factor given the pleas, both accused have demonstrated an appreciation of and empathy for the suffering of the victim. Also, I am satisfied on other grounds that rehabilitation is very much a realistic goal in sentencing these two offenders.

Denunciation, Deterrence and Protection of the Public

[22] Clearly, this is a serious and violent offence that requires denunciation by this court. General deterrence of others who might seek to violate our laws in a similar manner is also an important consideration.

[23] However, I do not consider either offender to be at serious risk of re-offending in this manner. There has been a significant deterrent effect on both of them by virtue of having been charged and found guilty of this offence. They recognize the impact this can have for their entire future lives. I therefore do not believe that a heavier sentence is required to reflect the principle of specific deterrence; they have learned their lesson. Neither do I consider that to be necessary for the protection of the public; they are not dangerous.

Similar Sentences for Similar Crimes and Similar Offenders

[24] Parity in sentencing is important. There ought not to be wild, unexplainable variations between the sentence imposed in one case and that imposed in another that looks to be similar. That said, the general principle that similar sentences should be imposed for similar offences committed by similar offenders is easier to state in the abstract than it is to apply in the concrete circumstances of a given case. The reality is that there is an infinite variety of offenders who commit particular offences, and the circumstances of their crimes are also subject to wide divergence. Sentencing is a highly individualized process and finding direct parallels in other cases is often extremely difficult. This case is no exception.

[25] The Crown, while acknowledging a difficulty in locating “similar” cases, referred me to three authorities – one decision from this Court and two from the Supreme Court of the Northwest Territories.

[26] In R. v. Alanizi,[^6] Ratushny J. sentenced the offender to 12 months imprisonment for aggravated assault after a guilty plea. Unfortunately, the decision does not set out the background of the assault or the offender with much particularity. The offender did not have a criminal record, but I do not know how old he was, or what other mitigating factors may have been present. However, the trial judge made particular note of the violence of the assault in that the victim had a broken jaw and almost lost an eye. Most significantly, the offender then committed a second assault on the same victim, which is a seriously aggravating factor not present in the case before me. I find it difficult to compare that case with this one.

[27] The Crown also relied on the decision of Cooper J. of the Northwest Territories Supreme Court in R. v. Catholique,[^7] in which the offender was sentenced to 15 months imprisonment plus 18 months probation. I do not find this case to be of any assistance in determining the sentence I should impose in this case. In Catholique, the offender and the victim, both of whom were intoxicated, had gotten into a brawl at the home of the victim. At the outset, the offender threw the victim down a flight of stairs. The victim landed face first and suffered a broken jaw. The offender continued the fight after that. The trial judge commented that it was fortunate the victim did not suffer a broken neck, permanent disability, or death. Both the prolonged nature of the beating and the risk of such dire consequences are significant difference from the case before me. The offender in Catholique did not have a criminal record at the time, but he had a serious history of alcohol abuse and violent conduct. He was only 18 years old and pleaded guilty, which are mitigating factors not present here. However, this came before the trial judge as a joint submission by the Crown and defence and the sentence imposed was essentially for time already served in custody, allowing a credit of 1.5 to 1. The considerations brought by a trial judge on a joint submission are quite different from a consideration of the appropriate sentence after a full adversarial hearing. Also, when the sentence imposed is time served, that may be more a reflection of the amount of time actually served, rather than the amount of time that the crime necessarily warrants.[^8]

[28] Finally, the Crown referred me to the Northwest Territories decision in R. v. Camsell,[^9] in which an offender was sentenced to an effective sentence of 18 months imprisonment. This was also a guilty plea and an offender who was 26 years old. However, the offender had significant problems with the law as a youth and had accumulated a criminal record “of some significance,” which included assault with a weapon seven years earlier. The assault itself was also considerably more violent than the one before me. The offender and his friend had been at the home of the victim and had been asked to leave because they were drunk and loud. Instead, they jointly attacked the victim, hitting him repeatedly and breaking his jaw in the process. The trial judge, understandably, considered it to be aggravating that this assault occurred in the victim’s own home after he had quite legitimately asked the offender to leave. That is an aggravating factor not present in the case before me. Also, the nature of the assault is more severe and the criminal record of the offender is another distinguishing factor.

[29] In reaching his conclusion as to the appropriate sentence for Mr. Camsell, Charbonneau J. considered two decisions, one of which was the recent decision of his brother judge in Catholique, upon which he placed considerable reliance. The trial judge held that a heavier sentence should be imposed than in Catholique because the assault occurred in the victim’s home and involved two attackers acting together. The trial judge does not appear to have considered the fact that the sentence in Catholique was based on a joint submission for time served.

[30] Although the two offenders now before me did not plead guilty, in my view, the other mitigating factors operating in their favour distinguish their situations from those in the two Northwest Territory cases. Also, the assault itself is not as severe as was involved in those cases and there were other aggravating factors in those cases not present here. All in all, I do not find the Crown’s cases to be sufficiently similar to the one before me to warrant the type of sentences imposed in those cases.

[31] The defence referred me to two cases from this Court: the decisions of Baltman J. in R. v. Pulido and Archibald J. in R. v. Farah.[^10]

[32] The Farah case involved a fight in a high school cafeteria in 2003. The offender was not the initial aggressor. Rather, he was accosted by the victim who accused him of having previously assaulted his brother. A scuffle ensued among a number of students, in the course of which somebody (not the offender) produced a knife. The offender grabbed the knife and stabbed the victim in the side, which caused a lacerated spleen requiring surgery. The offender was initially convicted at trial, but appealed both his conviction and sentence. The Court of Appeal ordered a new trial, which proceeded before Archibald J. in 2006. This time, the offender pleaded guilty. By then, the offender was 22 years old and a full-time student at Seneca College, expecting to graduate with a business administration diploma in 2007. Mr. Farah had served 23 days in pre-trial custody. Archibald J. held that four months would be a fit sentence, and sentenced Mr. Farah to a 75 day intermittent sentence in addition to the time served. In doing so, the trial judge recognized that this was a serious crime involving the use of a deadly weapon in a school. However, he also noted that the offender was a young man with a positive future who had the potential capacity to turn his life around. He reasoned that imposing a longer sentence would jeopardize Mr. Farah’s chances of finishing his education and therefore de-emphasize the principle of rehabilitation.

[33] The offence in Farah is quite different from the one before me. It was not a two-on-one fight and was not unprovoked, which makes it less serious than the one here. On the other hand, it involved the use of a deadly weapon in a high school, which is far more serious. Mr. Farah was younger than either of the offenders before me. However, they share the same potential to turn their lives around and, apart from this offence and the consequences of it, are poised to go on to worthwhile careers and to lead productive peaceful lives in our community.

[34] Finally, I have taken into account the Pulido decision in which Baltman J. imposed a sentence of 90 days intermittent on an offender who assaulted the victim with a broken bottle during a fight in a bar. The offender in that case was 35 years old, married, and the father of three children. He had a history of steady employment and had recently started his own business. He had two prior, although dated convictions: one for theft in 1993 and one for assault causing bodily harm in 1998. The latter conviction had also involved a fight in a bar after the offender had been drinking alcohol.

[35] Mr. Pulido had been charged with inflicting two injuries: one to the victim’s hand (which he admitted) and one to the victim’s neck (which he denied). He was found not guilty in respect of the neck injury and expressed remorse for the injury to the victim’s hand. There was some provocation by the victim (which was not present in the case before me). On the other hand, the assault involved a dangerous weapon and the offender had been aiming for the victim’s head, hitting his hand instead when the victim put up his arm to protect himself. Therefore, the assault was in that sense more serious than the case before me.

[36] Mr. Pulido was considerably older than the two youthful offenders before me. However, his otherwise productive life and his family commitments were factors relied upon by the trial judge in imposing the 90-day intermittent sentence. While not identical, similar factors are at play in the case before me.

The Appropriate Sentence in This Case

[37] Applying all of these factors to the situation before me, I find that the appropriate disposition for each of these offenders is a 90-day intermittent sentence. In coming to that conclusion, I am not unmindful of the violent nature of their offence, nor of the impact on the victim. I also recognize the importance of denunciation and general deterrence in a crime such as this one. However, I must also be mindful of the important goal of rehabilitation.

[38] In my view, the objective of specific deterrence does not require a longer sentence than I am imposing. As I have already mentioned, neither of these offenders needs a year or more in jail to understand the importance of never committing such an act again. The charge itself, the trial, and the criminal record they have both acquired will be a significant specific deterrence.

[39] I recognize that the sentence I am imposing may be seen by some as lenient. However, my concern with respect to a longer sentence of imprisonment is that it would thwart the goal of rehabilitation. It is well recognized that for youthful offenders, particularly those with no or minimal criminal records, rehabilitation typically plays a strong role in sentencing.[^11] In R. v. Hayman[^12] the Ontario Court of Appeal held:

A first sentence of imprisonment especially for a first offender should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence.

[40] This sentence will be the first for Mr. Smart. Although Mr. Camilleri does have a criminal record, I still consider this general principle to be applicable to him given his youth and the nature of his prior record. Keeping the length of imprisonment to the minimum necessary to achieve the goals of sentencing is also consistent with ss. 718.2(d) and (e) of the Criminal Code.

[41] These young men have jobs and financial obligations. They do not, in my view represent a threat to the community. They would be ideal candidates for a conditional sentence to be served in the community, if that option were available to me. However, in light of amendments to the Criminal Code, no person convicted of this offence is eligible for a conditional sentence.

[42] I have considered the viability of imposing a longer term of imprisonment with a recommendation that both offenders be considered for the Temporary Absence Pass program (“T.A.P.”) administered through the Ontario Parole Board. That program would enable them to be outside the prison during their sentence (subject to electronic monitoring) for various purposes, which would include employment. The difficulty with that option is that I can do no more than recommend such a disposition. Whether or not it would be implemented is entirely out of my control. Further, the process required to determine an individual’s eligibility for a T.A.P. requires assessments and reviews that take time and which do not begin until after the offender has been sentenced. By the time the T.A.P. was in place, the offender may no longer have a job to go to, thereby defeating the whole purpose of the program.

[43] I consider it to be vitally important for these two young men to keep them employed and functional in their community. I do not want to see them get off the productive paths they are now on. Putting them in prison for some period of months would only serve to undermine their future prospects for employment and integration into society, thereby jeopardizing the very real prospects of rehabilitation, for very little gain.

[44] I am therefore sentencing both offenders to the longest period of imprisonment possible to enable them the flexibility of maintaining employment, which is 90 days to be served intermittently. That will be followed by the longest period of probation available, which is three years.

[45] In my view, the fact of the conviction and the fact that they will have to spend this period of time in prison are sufficient to meet the objectives of general deterrence and denunciation in all of the circumstances. It is also not out of line with other sentences in roughly comparable cases (such as Farah and Camsell). Most importantly, it is the best option available to respect the goal of rehabilitation for these two youthful offenders.

[46] In addition to the 90-day sentence and probation, there shall be a DNA Order and a s. 109 Order for 10 years. The probation terms shall include: a requirement of community service for a total of 200 hours; a prohibition from having any contact with the complainant Gregory Sheppard directly or indirectly or attending within 100 meters of what they know to be his place of residence, education, or employment; a prohibition from entering the property of the Guvernment nightclub in Toronto; a weapons ban; and a requirement to attend for such counseling as may be directed by the probation officer as well as to sign any releases required to enable the probation officer to monitor attendance and progress at same. I will address any further or alternate probation terms in court on the sentencing date.

MOLLOY J.

Released: February 5, 2013

COURT FILE NO.: 7-727/11

DATE: 20130205

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

Applicant

– and –

ANDRAE SMART and JUSTIN CAMILLERI

Defendants

REASONS FOR SENTENCE

MOLLOY J.

Released: February 5, 2013

[^1]: R. v. Gardiner, 1982 30 (SCC), [1982] 2 S.C.R. 368
[^2]: Criminal Code, s. 718.1
[^3]: Criminal Code, s. 718.2(a)
[^4]: Criminal Code, s. 718.2(b)
[^5]: Criminal Code, s. 718.2(d) and (e)
[^6]: R. v. Alanizi, [2002] O.J. No. 5533 (S.C.J.)
[^7]: R. v. Catholique, 2010 NWTSC 37
[^8]: It is worth noting that the offender in that case had breached his recognizance four times, each of the breaches being alcohol related, which is apparently why he had spent so much time in custody.
[^9]: R. v. Camsell, 2012 NWTSC 55.
[^10]: R. v. Pulido, 2010 ONSC 3143; R. v. Farah, 2006 CarswellOnt 6729 (Ont.S.C.J.)
[^11]: R. v. Bates (1977), 1977 2054 (ON CA); R. v. Priest (1996), 1996 1381 (ON CA); R. v. Vandale and Maciejewski (1974), 1974 1610 (ON CA)
[^12]: R. v. Hayman (1999), 1999 3710 (ON CA) at para. 22