R. v. Helpert, 2013 ONSC 7469

Ontario Superior Court of Justice

Court File No.: 30000186
Date: 2013/06/24

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

GORDON HELPERT

Joseph Hanna, for the Crown
Ernest Guiste, for the Accused

Heard: June 24, 2013

SPEYER J.

1Mr. Helpert appears this morning for sentencing following his plea of guilty to three offences; aggravated assault, assault with a weapon and impaired driving. An agreed statement of fact was filed setting out the circumstances of this case.

THE CIRCUMSTANCES OF THE OFFENCE

Mr. Helpert’s Conduct Approximately Two Hours Prior to his Assaultive Behaviour

2On March 10, 2009, at around 3:00 p.m., Mr. Helpert entered Winner’s Bar located in the east end of Toronto. He ordered a beer and then proceeded to conduct himself in an unusual, if not erratic manner. He poured a pile of change onto the bar counter and started flicking the coins across the bar onto the floor. Other customers observed this behaviour and words were exchanged between the accused and other patrons. At some point, Mr. Helpert apologized for his conduct and things seemed to calm down. Mr. Helpert had a couple of beers and left the bar, without further incident, driving away in his green Pontiac.

Mr. Helpert’s Conduct That Gives Rise to the Present Charges

3Two hours later, at approximately 5:00 p.m., the victim, Terriglyn Morris, attended the same bar, where her daughter worked as a waitress. She was not present when Mr. Helpert was in the bar earlier. While waiting for her daughter to finish her shift, Ms. Morris had a beer. At some point, she went outside to have a cigarette.

4Around 6:00 p.m., while standing outside conversing with other customers of the bar, the accused returned to Winners and pulled his Pontiac into a parking spot near the front entrance to the bar. In doing so, his vehicle mounted the sidewalk in proximity to where Ms. Morris and the other customers were standing. This prompted Ms. Morris to make a comment as to the manner in which Mr. Helpert had parked his vehicle. Mr. Helpert reversed his vehicle back slightly, got out of his car, and went to the back of the vehicle where he retrieved a large machete. He then yelled words to the effect “is that a couple of feet enough for you”. Immediately thereafter, the accused proceeded towards the victim and, upon reaching her, he took a two-handed swing with the machete, bringing the blade downward from his shoulder and striking Ms. Morris in the back of the head. A portion of the blade of the machete struck the back of the victim’s head causing a six-inch wound from the top of her left ear up towards the crown area on the left side of her head. Fortunately for the victim, the major force of the blow was absorbed by a wall area located near where the victim was standing.

5The victim, bleeding profusely, ran inside the bar with Mr. Helpert following. Mr. Helpert, at this point, focused his attention on others in the bar. He proceeded to wave the machete and swung it towards another customer, Mr. McCaughley, from a distance of about two or three metres. He missed. Another customer, Mr. Ariza, armed himself with a chair and pointed the chair towards the accused. Mr. Helpert took at least two swings with the machete striking the chair in the process. Mr. McCaughley recalled that Mr. Ariza had struck the accused with the chair prior to the accused turning his attention to Mr. Ariza. One of the swings by the accused, aimed in the direction of Mr. Ariza actually knocked the chair out of Ariza’s hands. Shortly thereafter, the accused left the bar and drove away. He was pulled over shortly thereafter by the police.

6Mr. Helpert was taken to the police station where the results of a breathalyzer test indicated readings of 169 and 163 mgs of alcohol in 100 millilitres of blood: more than twice the legal limit.

PHYSICAL INJURIES SUFFERED BY THE VICTIM

7Ms. Morris received multiple stitches both internal and external to close a five-inch laceration in her head. The wound took approximately three months to heal. She was off work for six to eight months. From time to time, she continues to feel numbness in the area of the injury and further, occasionally suffers from dizzy spells.

THE VICTIM IMPACT STATEMENT AND THE PSYCHOLOGICAL IMPACT ON THE VICTIM

8Victim-impact statements are a vehicle used at a sentencing hearing to convey to the court the sense of loss or harm suffered by those who have been impacted by an offender’s criminal conduct. In many cases, and this case is no exception, such criminal conduct can have a profound psychological effect.

9In this case, Ms. Morris tells the court, as a result of this incident, she has suffered from bouts of depression that have required hospitalization on four or five occasions. It has put a strain on her 34-year marital relationship with her husband. Additionally, she has not been able to hold a job for more than four or five months.

CIRCUMSTANCES OF THE OFFENDER

1. General Background

10Mr. Helpert is 63 years of age and was 59 at the time of these events. He was born in Newfoundland but came to Ontario to seek employment when he was 17. He has a grade eight education. He has never married and has no children. His only criminal conviction was in 1989 for impaired driving. He has no past history of criminal assaultive behaviour.

11In 1991, Mr. Helpert was seriously injured in a work-related accident when he fell from the roof of a school. A steel beam crushed his leg and foot. As a result of the injury, he never returned to work. He was awarded a permanent Worker’s Compensation Pension.

2. The State of Mr. Helpert’s Health Prior to the Events of March 10, 2009

12Mr. Guiste filed two medical reports from Dr. Wheeler, Mr. Helpert’s physician for more than 20 years. As a result of the 1991 work-related accident, the accused suffers from constant pain in his leg. Related to his “regional pain syndrome”, and his inability to work, Mr. Helpert developed depression and has been diagnosed as having a “generalized anxiety disorder”. For almost ten years, Mr. Helpert received psychiatric care for his depression related issues from Dr. W. A. Guest that were only discontinued when Dr. Guest retired.

13At the time of these events, Mr. Helpert was taking two prescribed medications. One was Celexa, which is an anti-depressant. The other is Lyrica, which is described as “a pain modulator medication” that acts centrally on the brain to alter perceived pain”. Dr. Wheeler’s reports establish that alcohol should not be consumed when Mr. Helpert is taking either of these two drugs. One more point is of significance. The pharmaceutical records indicate that on March 9, the day before these events, Mr. Helpert’s dosage of Lyrica, the pain medication drug, was doubled from 75 mgs to 150 mgs.

STATEMENTS OF MR. HELPERT IMMEDIATELY FOLLOWING HIS ARREST

14Crown counsel filed a video statement at the sentencing hearing which depicts Mr. Helpert’s appearance, statements and conduct from the time he arrived at the police station. What the accused tells the officers, shortly after the events at the bar, sheds light on a number of significant matters.

15First, after the breathalyzer officer asks the accused about combining prescription medications with alcohol, Mr. Helpert tells the officer that prior to March 9, the day before these events, for a period of one year and three months, he had abstained from alcohol. This abstinence from alcohol stopped the night before he assaulted Ms. Morris, when, by his own admission he became depressed, perhaps because he himself had been assaulted earlier that day. In his video statement, he told the officer that he consumed a bottle of brandy that evening. The only other alcohol consumption the accused admits is to having consumed only two beers on March 10.

16Second, in describing the state of his mental health, after being asked by the booking sergeant if he had received psychiatric treatment, he made the following utterances:

SARGENT: No I’m not worried about how long, what have you seen him for or her

HELPERT: I’m fucked up upstairs

SARGENT: Yeah

HELPERT: I didn’t mean to use that language

SARGENT: Well that’s okay we’ve heard worse you’re a, how are you feeling right now?

HELPERT: Ah I feel good

SARGENT: Yeah

HELPERT: Yeah I’d like to be shot

SARGENT: Yeah while there you go so

HELPERT: Because I’ve got no interest in this world, I’ve told my doctors that, I’ve no connection

17At another point, while with the breathalyzer officer, Mr. Helpert is captured as saying “if I got to be shot, I got to be shot” and speaks of his desire to commit suicide.

18Third, Mr. Helpert admits to losing his temper on the day in question. At one point in the interview, in describing the events, he told the officer “so I done a stupid thing, I took the thing out of the trunk and I went back to say don’t mess with me”.

DECISION AND REASONS

19The principles of sentencing are set out in s. 718-718.2 of the Criminal Code. A judge imposing any sentence must consider and balance factors specified in those sections in arriving at proper sentence. Above all, in balancing all factors of sentencing, the appropriate sentence must reflect the gravity of the offence and the degree of responsibility of the offender.

20In the present case, Mr. Hanna on behalf of the Crown argues that a total sentence of 4 ½ years is a fit sentence. This term of imprisonment is comprised of 3 months actual pre-trial custody credited on a 2:1 basis (6 months) plus an additional four years in jail. In support of this submission, Crown counsel asks me to take into account the very serious and violent nature of this assault including, the use of a machete to the head of another human being, the fact that the attack on Ms. Morris was unprovoked, that the accused chased other customers inside the bar threatening mayhem with the same weapon and the serious impact of the psychological injuries inflicted by the accused on the victim.

21On the other hand, Mr. Guiste argues that this is a proper case for a non-custodial sentence. He argues his client has suffered from depression and acute pain for more than a decade. On this point, Mr. Guiste emphasizes Mr. Helpert’s inability to get relief from his state of chronic pain in spite of the prescribed medications he was taking. On the day in question, counsel argues his client was over medicated having taken double the dose of Lyrica previously prescribed and this factor played an important role in the conduct Mr. Helpert exhibited.

22Mr. Guiste also submits that his client was immediately remorseful as demonstrated in the video when he immediately acknowledged his wrong doing. Further, during his long period of release, defence counsel points out that the accused has, over several years, complied with the terms of his bail. Moreover, while acknowledging the seriousness of the offence, counsel argues that Mr. Helpert’s behaviour on March 10, 2009 was completely out of character for a man who has no history of violence or criminal behaviour.

23In determining a fit sentence, I take into account, as factors in favour of mitigation, that Mr. Helpert is a man in his 60s without a prior criminal record except for an impaired driving conviction more than two decades ago. He has pled guilty and showed remorse immediately at the police station. I have also taken into consideration his pre-existing medical condition described earlier in these reasons. Also, while on bail over a very long period, he has adhered to his conditions of release. I note the restrictive terms of his bail conditions which include a condition that he be in his residence except with one of his sureties.

24On the other hand, one cannot shield one’s eyes from the horrific nature of this assault. It would be wrong to underestimate and difficult to exaggerate the seriousness of assaulting, in an utterly unprovoked manner, another citizen by splitting their head open with a machete. One cringes at the thought. It is of little wonder that the victim has been deeply scarred psychologically as a result of Mr. Helpert’s conduct.

25The fact is that this case could easily have been one of attempted murder. Indeed, had the burden of the blow of the machete not been absorbed by the wall, this proceeding might very well have been a murder case.

26It is undoubtedly the case that alcohol in combination with the accused’s medications played an important role in his conduct. That said, other factors also played their part. As Mr. Helpert acknowledges in his videotape statement, and at page 24 of the transcript of that statement, this is a case of an accused losing his temper. Moreover, as observed earlier in these reasons, Mr. Helpert told the police he went to the trunk of his car to retrieve the machete because he wished to demonstrate “don’t mess with me”. Sure enough, he was true to his word. Although the combination of drugs and alcohol played a role, the accused’s conduct was not altogether spontaneous.

27All sentencing is case specific. In the present case, denunciation and deterrence are the most pressing of sentencing considerations. I found helpful, however, Justice Code’s general analysis of sentencing for aggravated assault offences as found in R. v. Tourville 2011 ONSC 1677, [2011] O.J. No. 1245. Because of the brutality and unprovoked nature of the attack on the victim, this case would normally fall at the high end of the range of sentencing. However, taking into account all of the mitigating factors, and the fact that Mr. Helpert has been the subject of restrictive bail terms over a long period, I am sentencing him to the functional equivalent of 3 years in the penitentiary. He is entitled to credit for three months of pre-trial custody on a 2:1 basis. In the result, the sentence is 2 ½ years in jail.

28This sentence is with respect to the counts of aggravated assault and assault with a weapon to run concurrently. With respect to the impaired driving charge, the accused is sentenced to one day in jail to run concurrently.

29In terms of ancillary orders, a DNA order shall issue. Further, a s. 109 (2)(a) and s. 109 (2)(b) of the Criminal Code weapons prohibition order for life shall issue. Finally, there will be a one-year driving prohibition imposed on Mr. Helpert.

___________________________ Speyer J.