ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-12-00085

DATE: 20131011

BETWEEN:

Her Majesty the Queen

– and –

Dean Mark Bonnington

Defendant

Michael Flosman, for the Crown

Dale Ives, counsel for the Defendant

HEARD: April 16, 2013

REASONS FOR sentence

mckelvey j.

Overview

[1] The defendant, Dean Bonnington, was convicted on one count of aggravated assault arising out of an incident which occurred on July 2, 2011. He comes before the court today for sentencing.

Circumstances of the Offence

[2] On the day of the incident, Mr. Bonnington had driven his boat to Big Chief Island, which is located in Lake Couchiching. There were hundreds of boats anchored in the area, many of them tied together.

[3] As Mr. Bonnington proceeded to leave Big Chief Island in his boat he started to make his way through other boats towards the open water. As he did so he caught the attention of other boaters in the area, including that of the complainant, David Gibbons, who was concerned that the propeller of Mr. Bonnington’s boat would foul the anchor lines which extended from the back of his boat. Words were exchanged between Mr. Gibbons and Mr. Bonnington, as well as some of the other people on the boat where Mr. Gibbons was located.

[4] Just before proceeding out to the open water, Mr. Bonnington stopped his boat, got into the water, and walked over to the back of the boat where Mr. Gibbons was located. He then got onto a swimming platform located on the back of the boat where Mr. Gibbons was located. He was pushed off the swimming platform, but subsequently got back onto the platform. Mr. Bonnington took a swing towards Mr. Gibbons’ face, and either punched or slapped him intentionally in a forceful manner.

[5] As a result of Mr. Bonnington’s actions, Mr. Gibbons has lost the sight in his left eye. He has undergone several operative procedures. However, the loss of vision in the eye is permanent.

Circumstances of the Offender

[6] In the pre-sentence report it is noted that Mr. Bonnington has previously been convicted on nine different occasions of offences occurring between 1982 and 2006. Most of the offences relate to property. There is, however, an assault conviction from 1993. It is also significant to note that from 1993 to 2006 there were no convictions. Thus, all but one of the offences occurred over 15 years before the current offence. As a result of his earlier convictions, Mr. Bonnington was incarcerated on several occasions. The longest period of incarceration appears to be for convictions in 1988, where he was sentenced to six months.

[7] Mr. Bonnington is currently 49 years old. His highest level of education is grade 12. He currently owns and operates Dean’s Property Maintenance, which is a landscaping and construction company that has various work contracts in London, Kitchener, Waterloo, Guelph, and Sarnia. The pre-sentence report indicates that the company employs approximately 75 employees throughout the various seasons.

[8] Mr. Bonnington maintains significant ties to family, friends and work. It is indicated in the pre-sentence report that he is active and positively involved as a parent and as a leader to his employees.

Impact on the Victim and the Community

[9] An impact statement was filed by Mr. Gibbons. This statement indicates that he suffered continuous migraine headaches and extreme sensitivity to light for a period of six months following the incident. After three extensive surgeries he is left with no sight in his left eye, and will be required to undergo checkups for the rest of his life in order to avoid any further complications such as losing the eyeball entirely. The blind eye is continually sore, itchy and irritated, and Mr. Gibbons must use prescribed eye medication on a daily basis. As a result of the injury, Mr. Gibbons was unable to work for 10 months and the injury has also prevented him from being able to work as a general contractor.

Relevant Provisions of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)

[10] Section 268 of the Criminal Code provides that a person who commits an aggravated assault is guilty of an indictable offence and liable to imprisonment for a term not exceeding 14 years.

[11] The principles of sentencing are set out in section 718 of the Criminal Code, which provides 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 acknowledgement of the harm done to victims and to the community.

[12] Section 718.1 provides that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 sets out other sentencing principles that a court is required to consider. Under this section a court needs to consider any aggravating or mitigating circumstances relating to the offence or the offender. In addition, a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

Position of the Crown and the Defendant

[13] The Crown argues that specific deterrence is a significant factor in this case. They point to the fact that the victim was not seeking a physical confrontation. Mr. Bonnington, however, persevered, waded through the water to Mr. Gibbon’s boat, and insisted on getting up on the back of the boat to hit Mr. Gibbons. The Crown points to Mr. Bonnington’s extensive criminal record and the fact that he has been convicted of an assault in the past. The Crown seeks an order that Mr. Bonnington be incarcerated for 18 months, followed by two years’ probation.

[14] Mr. Bonnington accepts that a period of incarceration is required in this case. It is submitted that while denunciation and general deterrence are relevant considerations, specific deterrence should not be a concern for the court. The defence points out that Mr. Bonnington has close ties with his family. He has been the driving force behind his business and a long period of incarceration will likely result in the closure of his business and the loss of jobs in the community. The defence submits that an intermittent sentence of 90 days would be appropriate in the circumstances of this case. With respect to probation, the defence has proposed a period of one year probation after completion of the sentence.

Case Law

[15] It is apparent that there are a broad range of sentences which have been imposed by the courts for convictions of aggravated assault. This reflects the wide range of circumstances covered under this section.

[16] In support of their position that an intermittent sentence is appropriate, the defence relies upon three cases. In R. v. Smart, 2013 ONSC 600, the court dealt with an incident where the two defendants picked a fight with the complainant. One of the defendants held the complainant while the other punched him. The complainant suffered two fractures to his jaw and was left with permanent scarring. It is significant to note in that case that both of the offenders were relatively young. One was 24 at the time of the assault, and the other was 26. One of the accused had a criminal record, but with no crimes of violence. The other was a first-time offender. The attack on the complainant was found by the court to be an aberrant act which was out of character for both of the defendants. In that case, the court found the appropriate disposition for each of the offenders to be a 90-day intermittent sentence. Rehabilitation was considered an important component of the sentence, and the court was satisfied that the objective of specific deterrence did not require a longer sentence.

[17] In R. v. Pulido, 2010 ONSC 3143 the court also imposed an intermittent sentence of 90 days. There had been a previous conviction about 10 years previously. In that case the defendant conceded liability for the hand injury, which proved to be the sole basis upon which he was convicted.

[18] The defence also referred to the decision in R. v. Farrah, 2006 CarswellONT 6729. In that case the defendant pleaded guilty. The court also noted that the accused was a young man with a positive future. Having regard to the age and character of the accused, the nature of the offence and the circumstances, an intermittent sentence was considered appropriate.

[19] The Crown relied on two authorities. In R. v. McCalla, [2000] OJ. 399, the Ontario Court of Appeal upheld a sentence of 15 months plus three years probation on a first-time offender. The offence arose out of an incident involving “road rage”. The appellant followed the complainant and then slashed the victim’s face with an exacto knife. Deterrence was an important component for this sentence.

[20] The Crown also referred to R. v. Hassad, [2013] AJ No. 379, a decision of the Alberta Court of Queen’s Bench. That case also involved a motor vehicle situation where angry words were exchanged. The accused drew a knife and slashed the complainant once across the face. The court imposed a sentence of 10 months incarceration, followed by 24 months probation.

Mitigating and Aggravating Factors

[21] In considering an appropriate sentence I have considered the following mitigating factors:

(1) No weapon was used by the defendant in the commission of the offence.

(2) Only one person was involved in the offence. The defendant did not enlist the aid of any others to participate in the assault.

(3) The incident itself was relatively brief and consisted primarily of one swing towards the complainant’s face.

(4) The attack in this case was not planned or premeditated.

(5) The defendant had been subjected to verbal abuse prior to the incident by the complainant and by other members who were on the same boat as the complainant.

(6) As noted in the pre-sentence report, the defendant was able to express victim empathy and in his own statement to the court expressed regret about the injury suffered by the complainant.

[22] Some of the aggravating factors in this case are as follows:

(1) The most serious aggravating factor is the nature of the injury suffered by the complainant. The loss of the vision in his eye represents a serious and permanent injury.

(2) Although not recent, the defendant does have a lengthy criminal record, and on at least one previous occasion was convicted of assault.

(3) The incident demonstrated a total loss of self control by the defendant. His actions in climbing onto the back of the complainant’s boat clearly demonstrated his intention to have a physical confrontation.

Analysis and Decision

[23] In reviewing the available case law submitted by counsel I have concluded that intermittent sentences for a conviction of aggravated assault are available only in very limited circumstances.

[24] They would apply, for example, to a first offender convicted of aggravated assault who has an otherwise unblemished record. Younger offenders have also been granted intermittent sentences where there is strong evidence for successful rehabilitation. I am of the view that an intermittent sentence is not appropriate in this case. Mr. Bonnington does not fit into the characterization of a youthful offender with strong evidence of rehabilitation. His past criminal record, although he has had no convictions since 2006, does not support an intermittent sentence, which would be at the lowest end of the range.

[25] At the time of the offence Mr. Bonnington was a mature adult. When he left his own boat he had the option of entering open water and leaving. Instead, he lost control of his temper and went over to the Mr. Gibbons’ boat where he intended to have, and did have, a physical confrontation. Society cannot tolerate physical aggression in the context of disagreements between people as to how someone else might be driving their boat or motor vehicle. Denunciation and general deterrence are significant factors which must be recognized for the sentence in this case.

[26] Also significant is the nature of the injury suffered by Mr. Gibbons, which is a serious and permanent injury.

[27] The mitigating factors noted above are, however, important. In my view, the mitigating factors take this case below the range proposed by the Crown. I am satisfied that Mr. Bonnington genuinely regrets the injury to Mr. Gibbons. My conclusion that the incident was not premeditated and that there was no weapon used are also, in my view, very significant mitigating factors.

[28] I have concluded that, in the circumstances of this case, the appropriate sentence is incarceration for nine months, plus a period of two years probation. The terms of the probation are the statutory terms and, in addition:

(1) report immediately to a probation officer and thereafter as required;

(2) have no contact, direct or indirect, with David Gibbons; and

(3) attend counselling for anger management issues as directed by the probation officer and sign any releases as requested.

[29] As aggravated assault contrary to section 268 of the Criminal Code is a primary designated offence, a DNA order under section 487.051 is mandatory. In addition, a 10-year weapons ban under section 109 of the Criminal Code is also mandatory. I order that these orders be issued in accordance with those sections of the Criminal Code.

Justice M. McKelvey

Released: ** October 11, 2013**