ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-10657

DATE: 2014/09/23

BETWEEN:

HER MAJESTY THE QUEEN

– and –

KHAMEA LOUANGRATH

Accused

Matthew Geigen-Miller, for the Crown

David Anber, for the Accused

HEARD: April 3, 2014, September 5, 2014

REASONS FOR JUDGMENT - SENTENCING

Aitken J.

Offences

[1] On March 5, 2014, a jury returned a verdict of guilty against Mr. Louangrath in regard to three counts on the indictment: count one (assault of Brad Morrice, causing bodily harm), count two (forcible seizure of Brad Morrice), and count three (forcible seizure of Tyler Fradette). The jury found Mr. Louangrath not guilty of counts four and five, the robbery of Mr. Morrice and Mr. Fradette. In addition, Mr. Louangrath pled guilty to count six (assault of Brad Morrice). It is now my task to sentence Mr. Louangrath for the offences of which he is guilty.

Findings of Fact[1]

[2] On April 23, 2011, Mr. Louangrath and two friends arrived in a parking lot in the Market area of Ottawa in a vehicle driven by Mr. Louangrath, but owned by his brother. They told three young men, Mr. Morrice, Mr. Fradette, and Mr. Mayfield, who happened to be standing in a parking space that Mr. Louangrath wanted to use, to get out of the way. Messrs Morrice, Fradette, and Mayfield refused. The young men were waiting for another carload of friends who were to join them in the parking lot and then proceed to The Drink nightclub across the street to celebrate the birthday of Mr. Fradette’s girlfriend.

[3] Within moments, Mr. Louangrath’s passengers, and then Mr. Louangrath, jumped out of the truck and turned the confrontation from a verbal one to a physical one. Messrs Fradette and Mayfield tried to back away, saying that they did not want to escalate matters. That did not work. Mr. Louangrath and his friends started punching. Mr. Morrice had been on his cell phone at the time. When he came over to see what was going on, Mr. Louangrath punched him in the face, splitting his lip. Mr. Louangrath and his friends then got into their vehicle and drove around the corner. Mr. Louangrath parked the vehicle in an available spot. Mr. Fradette followed the vehicle and saw that it was parked near another nightclub, Industry. I find that Mr. Louangrath and his friends went into the nightclub, Industry.

[4] Meanwhile, Mr. Mayfield called the police and made a report of the assault. Constable Diraddo arrived on the scene shortly thereafter. He noted that Mr. Morrice had been injured. He also saw the vehicle. He went looking for Mr. Louangrath and his passengers, but was not successful in locating them. He advised the young men that an investigation would be undertaken.

[5] Messrs Morrice, Fradette, and Mayfield, together with other friends who had arrived in the parking lot, proceeded into The Drink to continue the birthday party for their friend. Approximately 45 minutes later, Mr. Louangrath, together with three or four of his friends, and four bouncers from Industry, stormed into The Drink, looking for Messrs Morrice, Fradette, and Mayfield. During the 45 minutes that had elapsed since the assault in the parking lot, someone had vandalized Mr. Louangrath’s vehicle, causing considerable damage. Although it is possible, and in fact likely, that the damage was done by someone who was in the group with Mr. Morrice and Mr. Fradette at The Drink, I find as a fact that the damage was not done by either Mr. Morrice or Mr. Fradette. When Mr. Louangrath discovered the damage, he assumed that Messrs Morrice, Fradette, and Mayfield were the culprits. He recruited some friends, and some bouncers from Industry, to find the men and get revenge.

[6] Mr. Louangrath led the group of eight or nine men onto the dance floor at The Drink and surrounded Mr. Morrice and Mr. Fradette. Someone in that group, other than Mr. Louangrath, grabbed Mr. Morrice and Mr. Fradette, pinned their arms behind them, and then forced them out the side door of The Drink into a back alley. Mr. Morrice was pushed up against a brick wall, and Mr. Fradette was pushed in the direction of a chain link fence. All of a sudden, one of the men with Mr. Louangrath gave Mr. Fradette a sucker-punch in the head. Mr. Louangrath started punching Mr. Morrice in the head and face, while other men restrained his arms, making it impossible for Mr. Morrice to defend himself. With every punch, Mr. Morrice’s head snapped back hitting the wall. There were many hard punches. They only stopped when Tim McCarthy, one of the security men from The Drink, insisted that the attack stop. When Mr. Morrice was let go by those pinning him to the wall, he collapsed to the ground. Meanwhile, a number of the other men in Mr. Louangrath’s group beat up Mr. Fradette, punching and kicking him while he was on the ground and trying to protect himself.

[7] When Mr. Louangrath was leaving the alley with the other men in the group, he said to Mr. McCarthy that he was sorry but that the two men had damaged his vehicle to the tune of $3,000 to $4,000.

[8] As a result of the beating that Mr. Morrice suffered in the alley, he sustained significant bodily harm. His lower jaw was broken in two places, on the right and on the left. His jaw had to be completely immobilized with wires and metal arch bars in a surgery which lasted over two hours. His jaw remained wired shut for approximately six weeks. Further surgery was required to remove the wires and bars. The assault caused the following additional conditions: mild neurocognitive disorder due to traumatic brain injury, post-traumatic stress disorder, and a major depressive disorder. As a result of the brain injury, Mr. Morrice has a reduced ability to concentrate, to understand and retain information, and to multi-task. This is a barrier to further academic study or advancement at work. Mr. Morrice now suffers from a significant level of anxiety and depression. The impairment of Mr. Morrice’s brain function is permanent.

[9] At the time of the attack, Mr. Morrice was pursuing police studies at Algonquin College. He passed his year on the basis of the excellent work that he had done up to that point. In the fall of 2011, Mr. Morrice had to drop out of this program due to his inability to focus, concentrate, and remember – all symptoms that arose following the beating.

[10] This was no minor scuffle. This was a vicious attack on a person who was overpowered by a group of men and given no opportunity to defend himself. It is an attack that will have a lasting impact on Mr. Morrice’s life.

[11] To the extent that any of the facts just related are not necessary findings inherent in the jury’s verdict, I am convinced of them beyond a reasonable doubt on the basis of the evidence at trial.

Victim Impact Statement

[12] Brad Morrice’s mother, Cheryl Morrice, submitted a victim impact statement in which she described the devastating impact that the beating Brad received on April 23, 2011, had on Brad, his sister, and his parents. She described her son, prior to the assault, as being bright, quick-witted, fun-loving, and happy – a young man in his prime who had made the Dean’s list at college, who had just been promoted at work, and who was heading off on a vacation after his exams. The assault caused permanent brain damage to Brad. He cannot focus or concentrate anywhere near what he could in the past. The child whom people described as a walking encyclopedia now has significant short-term memory problems. Since the assault, Brad has been depressed, anxious, lacking in self-esteem, and frustrated. He cannot understand why this happened to him, and he cannot see his way forward into the future. At times, he is self-destructive.

[13] Cheryl Morrice described how she, her husband, and her daughter have suffered as a result of this attack on Brad. They have had to struggle to find new ways of relating with Brad. Mrs. Morrice’s relationship with Brad has become strained, and Brad’s frustration is often taken out on her. It is very hard for Brad’s parents to shake the stress they feel over Brad’s future and to feel happy when he is, so clearly, not.

[14] Mr. Morrice, Mr. Fradette, and members of Mr. Fradette’s family, chose not to submit a victim impact statement.

Mr. Louangrath’s Circumstances as set out in the Pre-Sentence Report dated March 31, 2014

[15] Mr. Louangrath is 27 years old. He is single and has no dependents. Prior to his incarceration, he was working at a car dealership and living with his parents at the family home where he, and his five older siblings, were raised. His girlfriend of four years, Alexandra Murka, was also staying at the Louangrath home most nights.

[16] Mr. Louangrath described Ms. Murka as having a positive and nurturing effect on him. She provides him with stability and continuous support. Despite battling anxiety and panic attacks, Ms. Murka maintains stable employment in the retail sector and is motivated to get ahead. She has counted on Mr. Louangrath’s support to deal with her issues.

[17] Mr. Louangrath’s parents immigrated to Canada from Laos in 1985, shortly before Mr. Louangrath was born. His father has always maintained employment, and currently works assembling fibre optic boards. His mother worked occasionally throughout the years, most recently with a landscaping company. Prior to his incarceration, Mr. Louangrath provided financial support to his parents. He made a point of telling the probation officer that he was not a “freeloader”. Ms. Murka also described Mr. Louangrath as being committed to his parents.

[18] Mr. Louangrath described his parents as being appropriate and effective role models. They worked hard and expected their children to do well and succeed. They set realistic and achievable goals for their children. They did not subject their children to any abuse.

[19] Although Mr. Louangrath described his home environment as being quiet and stable, he appeared to be distant from his siblings and unwilling to provide the probation officer with any contact information for them.

[20] Mr. Louangrath’s mother, and Ms. Murka, had a difficult time accepting that Mr. Louangrath could have been involved in the offences for which he has been convicted. His mother provided a glowing description of Mr. Louangrath, stating that he had never displayed any problematic behaviour in the home, in the community, or in the school environment. Ms. Murka stated that Mr. Louangrath had never exhibited any behaviour of this nature in the past that would have foreshadowed his involvement in an offence of this nature. She is sure that it was Mr. Louangrath’s former friends who would have been the motivators for the offences that occurred. She was clear that Mr. Louangrath does not have an anger management problem, and that he has never been aggressive with her. Mr. Louangrath’s mother confirmed that she has never seen any altercations between Mr. Louangrath and Ms. Murka.

[21] Mr. Louangrath’s elder brother, Sounthone Louangrath, whom the probation officer managed to reach, described Mr. Louangrath as having matured over the last two years. Prior to that, Mr. Louangrath seemed to be more interested in his social life than in anything else. He is of the view that these offences have had a sobering effect on Mr. Louangrath.

[22] In regard to education, Mr. Louangrath had difficulties at school as a result of a learning disability. He was placed in special programming which made him feel ostracized and out of place. In grade 11, he transferred into general programming at another school, and flourished in that environment. In his final year, he enrolled in a co-op program, which gave him the opportunity of working in a car dealership. Mr. Louangrath excelled in this setting and went on to obtain full-time employment at the car dealership, where he has remained for seven years. Mr. Louangrath’s supervisor advised the probation officer that Mr. Louangrath’s work ethic and performance are amazing. There have been no issues regarding his attitude, behaviour, or demeanour throughout his lengthy employment with this company.

[23] Mr. Louangrath is currently classified as a mechanic’s apprentice and has completed the apprenticeship courses at a local college. He plans to study for the mechanic’s written examination while he is incarcerated.

[24] Despite having been convicted in October 2010 of possession for the purpose of trafficking under s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, Mr. Louangrath advised the probation officer that he has never been a regular drug user. This contradicts what Mr. Louangrath told another source tapped by the probation officer to the effect that he had started to use marijuana casually around the age of 18 years, but his use increased to the point where he was using habitually and heavily. The conviction in 2010 apparently was the impetus for Mr. Louangrath to abstain from drugs and seek a healthier lifestyle. Ms. Murka confirmed that neither Mr. Louangrath nor she had any substance abuse issues.

[25] Mr. Louangrath denied to the probation officer that he had any involvement, whatsoever, in the actions related to the offences of forcible confinement and assault causing bodily harm. He continued to profess his innocence; something which he, of course, had every right to do. In regard to the offence of assault, to which he pled guilty, Mr. Louangrath considered himself as being in the wrong place at the wrong time. He could not explain how a verbal confrontation had so quickly become physical. He suggested that Mr. Morrice, Mr. Fradette, and Mr. Mayfield had triggered the event by shouting at Mr. Louangrath and his friends. More specifically, he stated that Mr. Morrice had provoked the assault by pushing Mr. Louangrath which, in turn, made Mr. Louangrath feel threatened.

[26] Mr. Louangrath made no comments about the involvement of his associates in the offences in question, aside from stating that friends are inclined to fade away when someone is under house arrest.

[27] Ms. Murka was clear that some of Mr. Louangrath’s friends and associates in the past were negative influences. She stated that Mr. Louangrath has severed his ties with his former circle of friends, aside from his best friend, who was not named. She admitted to the probation officer that Mr. Louangrath’s circle of friends in the past had been a major source of concern for her, and his behaviours and activities within the community were a direct result of his affiliation with them.

Expression of Remorse

[28] Several months have passed since the Pre-Sentence Report was completed and, during this time, Mr. Louangrath has been incarcerated at the Ottawa Regional Detention Centre. When asked at the sentencing hearing whether he would like to say anything, Mr. Louangrath read out two statements – one directed to Brad Morrice and his family, and the other directed to the Court. In both, Mr. Louangrath acknowledged that what he did was wrong. He apologized to Brad Morrice, Tyler Fradette, and Evan Mayfield for the pain and suffering he caused them, and he apologized to the Court for wasting its time. He stated that, through the experiences he has had while in custody – including being the victim of physical aggression – he has come to realize that no one should ever be put in the position that Brad and Tyler were put in on the night of April 23, 2011. He now understands the fear they experienced and the suffering he caused. He stated that he wished that he could turn back the clock and undo all of the harm that he caused.

[29] Expressions of remorse for the first time at a sentencing hearing are always considered with some skepticism. However, in this case, the level of thought that obviously went into the two statements, written in Mr. Louangrath’s own hand, the level of emotion apparent when he read the statements and looked at the Morrice family members in the court room, and the clear statement that he was responsible for the crimes committed on April 23, 2011 for which he is now being sentenced, convince me that Mr. Louangrath’s expression of remorse is genuine. As a mitigating factor, it would have carried more weight had it been expressed clearly and unequivocally long before now. But that being said, it is still a factor to consider in mitigation of the sentence.

Position of Counsel

[30] Under s. 267(b) of the Criminal Code, R.S.C. 1985, c. C-46, assault causing bodily harm carries a maximum sentence of 10 years. Under s. 279(2)(a) of the Code, forcible confinement also carries a maximum sentence of 10 years. Assault under s. 266(2) carries a maximum sentence of 5 years. Pursuant to s. 742.1(e) of the Code, a conditional sentence is not available for Mr. Louangrath. Thus, the only question is what period of incarceration is appropriate for these offences in all of the circumstances of this case.

[31] Pursuant to s. 718.1 of the Code, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. As well, pursuant to s. 718.2(b), a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[32] As Defence counsel acknowledged, the offences that occurred in the bar and in the alley, and for which Mr. Louangrath received convictions, are serious, the conduct was grave, and the consequences of that conduct for Mr. Morrice and his family are tragic. Both counsel referred me to numerous authorities where sentences were meted out to others convicted of aggravated assaults or assaults causing bodily harm, and in some cases forcible seizure. I have reviewed all of these authorities.[2] As was noted by both counsel during their submissions, no two cases are alike in terms of the circumstances of the offences or the circumstances of the offenders or victims. Therefore, although a review of other cases is always useful to help place a crime on the continuum of criminal responsibility, the Court is still required to consider all the peculiarities of the particular offence and offender in question when crafting a sentence.

[33] In this case, the Crown is seeking a sentence of four years, and is focusing on the vigilante nature of the offence and the permanent harm caused to Mr. Morrice. Defence counsel suggests a sentence of fourteen months would be more appropriate, considering Mr. Louangrath’s relative youth, his history as a productive member in society, and his expression of remorse.

Objectives of Sentencing

[34] Although sentences can serve a number of objectives, as set out in s. 718 of the Criminal Code, in a case of this nature, the most important objectives are to denounce self-help or vigilante measures as appropriate responses to wrongs experienced by the offender, and to deter others, and not only the offender, from using violence to get revenge for perceived wrongs. Vigilante measures are clear indicators of a lawless society, where anarchy, instead of the rule of law, prevails. We cannot let that way of handling conflict take root in our community. That being said, Mr. Louangrath is still a young man with a future ahead of him. The best way for society to be protected in terms of his future behaviour is to take into account the objective of rehabilitating him.

Aggravating and Mitigating Factors

[35] The chief aggravating factors in this case are the following:

• This was a vigilante crime of revenge. Mr. Louangrath acted as accuser, trier, and punisher – in one fell swoop – without allowing Mr. Morrice to defend himself either verbally or physically. Mr. Louangrath had other legal means at his disposal to seek help in regard to the damage done to the vehicle. Instead, he chose vigilante justice of the worst kind.

• Furthermore, although Mr. Louangrath was quite understandably upset that someone had vandalized the vehicle he was driving, which was owned by his brother, he had no proof as to who had done the damage. He only had a theory, based on his own earlier assault on Brad Morrice. Despite having no proof, he asked no questions, and simply allowed his anger to vent through violence against someone he already disliked – caring little as to whether Mr. Morrice or Mr. Fradette were in fact the culprits. In considering this an additional aggravating factor, I am not suggesting that vigilante justice against the actual perpetrators of the vandalism would have been justified. Vigilante justice is never justified.

• Mr. Louangrath did not engage in the crime on his own but, instead, gathered approximately eight other men around him to assist him in intimidating and seizing Brad Morrice and Tyler Fradette, who obviously had no chance to defend themselves against such odds. He also had some of those men hold Brad Morrice so that he could beat him up. What I consider particularly aggravating was that Mr. Louangrath called on bouncers from Industrial to help him get revenge. Regrettably, those individuals have not been identified and prosecuted. I find as a fact that their number and their physical prowess would have been very intimidating to anyone they confronted.

• The forcible seizure of Mr. Morrice and Mr. Fradette and the subsequent assault on Mr. Morrice was not something that happened on the spur of the moment – it was planned, albeit not far in advance. I find as a fact proven beyond a reasonable doubt that, when Mr. Louangrath discovered the damage done to his brother’s vehicle and returned to Industrial to enlist other men to go to The Drink in search of Messrs Morrice, Fradette, and Mayfield, he did so with the intention of assaulting those men with the help of his friends and the recruits from the ranks of Industrial’s bouncers. The revenge was planned.

• When Mr. Louangrath was beating Mr. Morrice, some of his cohorts were holding Mr. Morrice’s arms so that he had no chance of protecting himself – particularly his head and his face – and Mr. Louangrath had complete freedom to pummel Mr. Morrice. Despite Mr. Morrice’s head repeatedly hitting the brick wall behind him, Mr. Louangrath did not stop.

• Not only did Mr. Morrice suffer significant immediate injuries – in the form of a broken jaw – but more importantly, he was left with permanent injuries that have irrevocably altered the course of his life. He has mild neurocognitive disorder due to traum