ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-13-035
DATE: 20131218
BETWEEN:
HER MAJESTY THE QUEEN
P. Leger, for the Crown
- and -
CARL READ
M. Moon, for the Defendant
Defendant
HEARD: October 23 and December 18, 2013
REASONS FOR SENTENCE
Conlan J.
Introduction
[1] Carl Read was tried before a jury in Owen Sound in October 2013 on a four-count Indictment which alleged two charges of assault causing bodily harm against two victims and two charges of assault with a weapon against the same two victims.
[2] The jury returned verdicts of guilty on all four counts.
[3] The sentencing was adjourned to October 23, 2013 to allow for updated victim input. On that date, I heard the submissions of the Crown and received documents from both sides which were marked Exhibits – Mr. Read’s criminal record, the Information including the Endorsements made thereto, victim impact statements and a Hospital record regarding Mr. Little. I also received some jurisprudence from counsel.
[4] Without objection from the Crown, on October 23, the Defence request to adjourn the sentencing was granted. The adjournment was primarily to enable the Defence to obtain documentary evidence from the correctional facility to support its request for enhanced credit (more than 1:1) for the time that Mr. Read has spent in custody thus far.
[5] The matter returned before me on 18 December 2013.
[6] Mr. Read has been in custody since his arrest in November 2012.
The Facts
[7] Succinctly put, during a fight in downtown Owen Sound, Mr. Read struck one victim (Mr. Little) in the body with a metal bicycle lock.
[8] Mr. Read also punched Mr. Little and kicked him in the head/face area.
[9] Mr. Little suffered injuries as a result, including a lost tooth, a cut above his eye and a cut that required stitches near his ear.
[10] Mr. Read struck the other victim (Mr. Harrington) with the same bicycle lock. Mr. Harrington’s jaw was broken as a result.
[11] Self-defence was the main issue at trial. Obviously, the jury concluded that the Crown had proven the absence of self-defence, beyond a reasonable doubt.
[12] Mr. Read must be sentenced on the basis that, taking the findings of fact underlying the jury’s verdicts most generous to Mr. Read, he not only ended the fight; he also went too far in combatting the two victims.
The Offender
[13] Mr. Read is 46 years old, born February 20, 1967.
[14] Mr. Read has a terrible criminal record – Exhibit 1 on sentencing. The prior convictions are too numerous and too varied to summarize here. It spans many years and several jurisdictions. It includes multiple convictions for violence and one prior assault with a weapon conviction.
[15] Much of Mr. Read’s life has been spent on the streets and in a fight against an addiction to narcotics.
[16] Mr. Read has no family support. He was made a Crown ward as an infant.
The Positions of the Crown and the Defence
The Crown
[17] The Crown requests a sentence as follows: 22 months’ imprisonment in addition to time already served, about 13 months (credited on a 1:1 scale), probation for two years, a section 109 Criminal Code of Canada Order for life and a Primary DNA Order.
[18] Effectively, therefore, the Crown seeks a sentence of about 35 months’ imprisonment (just shy of three years).
[19] The Crown relies upon denunciation and deterrence as the paramount sentencing objectives and points to two main aggravating factors: the seriousness of the offences including the unprovoked nature of the attack, the use of a weapon and the injuries to the victims, and Mr. Read’s prior criminal history.
The Defence
[20] The Defence does not oppose the section 109 Criminal Code of Canada Orders sought by the Crown.
[21] The Defence does oppose the primary DNA Orders requested by the Crown. The Defence argues that they are unnecessary because Mr. Read’s DNA was taken previously.
[22] I reject that argument by the Defence regarding the DNA Order. The Order is mandatory – subsection 487.051(1). Nothing in the Criminal Code of Canada or in any Court decision supplied to me by either counsel suggests that a sample cannot be taken more than once. Further, there is nil evidence before me to support a conclusion that the taking of a DNA sample from Mr. Read would affect his privacy and security in a manner grossly disproportionate to the public interest.
[23] The Defence requests a sentence of time served (about 13 months of real time as of December 18, 2013) plus one day in jail, assuming that the Court accedes to the request for enhanced credit for time served (1.5:1). Alternatively, in the event that I do not give enhanced credit, the Defence suggests a sentence of 19-20 months in custody less time served.
[24] Thus, it appears that an appropriate effective sentence of imprisonment as submitted by the Defence is in the range of 19-20 months (that being time served at 13 months treated on an enhanced scale of 1.5:1).
[25] The end result is that the range of effective sentence before me is 19 months to 35 months’ imprisonment. By “effective”, I mean before taking in to account presentence custody and the credit therefor.
Analysis
[26] This was a vicious, weapon-laded assault on two men in downtown Owen Sound. The two victims were injured, Mr. Harrington severely.
[27] In my view, the paramount principles of sentencing at play are denunciation and specific and general deterrence.
[28] Against the seriousness of the crimes and the recidivism of Mr. Read as illustrated by his criminal past, we have the unfortunate life that the offender has led over the last four plus decades. Hopefully, Mr. Read is not beyond rehabilitation.
[29] There is no magic formula for determining a fit length of imprisonment. Sentencing is a highly individualized process.
[30] In my view, having taken in to account the circumstances of the offences, the circumstances of the offender and the submissions of counsel, a fit effective sentence for Mr. Read must be a penitentiary one.
[31] I have determined that an effective sentence of thirty (30) months’ imprisonment is appropriate.
[32] Regarding credit for presentence custody, I will accede to the submission of the Defence and give Mr. Read credit for 19 months’ time served. That is credit of nearly 1.5:1. I am rounding the credit down to 19 months rather than up to 20 months because the records from the correctional facility, quite frankly, paint a less draconian picture than other cases that I have presided over where I have given the full 1.5:1 credit. For example, although Mr. Read has spent some time in segregation and protective custody, the total number of lockdowns has been 10 occasions for 15 days. And overcrowding has not been a significant issue.
Conclusion
[33] Upon hearing the submissions of counsel regarding the application of the Kienapple principle, convictions are registered on counts 3 and 4 on the Indictment (the assault causing bodily harm matters). The findings of guilt on counts 1 and 2 (the assault with a weapon matters) are conditionally stayed.
[34] On count 3, Mr. Read is sentenced to a period of imprisonment of 30 months less credit for presentence custody equivalent to 19 months, resulting in a custodial sentence from today of 11 months. A Primary DNA Order is made. A section 109 Criminal Code of Canada Order is made for life.
[35] On count 4, Mr. Read is sentenced to the same period of imprisonment, concurrent. A Primary DNA Order is made. A section 109 Criminal Code of Canada Order is made for life.
[36] On both counts 3 and 4, Mr. Read is placed on a period of probation for two years. The statutory conditions apply. In addition, Mr. Read shall not have any contact or communication, directly or indirectly, with the two victims and the eye witness who testified at trial. Mr. Read shall not attend at any place known to him to be the place of residence, place of employment or place of education of any of those three persons. Mr. Read shall report to a probation officer as directed. I have considered the Crown’s request for counselling and abstention from substances conditions, however, I decline to impose them as it is time for Mr. Read to look after himself and get a fresh start after his release from custody.
[37] I thank counsel for their assistance in this matter.
Conlan J.
Released: December 18, 2013
COURT FILE NO.: CR-13-035
DATE: 20131218
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
CARL READ
Defendant
REASONS FOR SENTENCE
Conlan J.
Released: December 18, 2013