ONTARIO

SUPERIOR COURT OF JUSTICE

(Summary Conviction Appeal Court)

COURT FILE NO.: 14-0270
DATE: 2014 11 18

B E T W E E N:

HER MAJESTY THE QUEEN

A. J. MacDonald, for the Respondent

Respondent

• and -

CALVIN BROOME

M. Stanley, for the Appellant

Appellant

HEARD: November 13, 2014 at Guelph

REASONS FOR JUDGMENT

[on appeal from a sentence imposed
by Douglas J. on January 14, 2014]

HILL J.

INTRODUCTION

[1] Following pleas of guilt, Calvin Broome was sentenced to a total of 6 months’ imprisonment for the crimes of assault (6 months) and possession of marihuana (15 days concurrent). In addition, a one-year probation order on terms was imposed.

[2] The appellant challenges the lawfulness of the sentence imposed submitting the disposition is unfit. It was argued that the length of the sentence is unreasonably excessive primarily on account of two alleged errors by the trial court:

(1) Based upon unwarranted speculation as to why the victim did not provide a victim impact statement, the trial judge improperly relied upon the lack of such a statement as an aggravating factor in sentencing.

(2) The trial court failed to give appropriate weight to significant mitigatory factors relating to the offender.

THE FACTUAL BACKGROUND

The Assault

[3] On March 4, 2013, the 15-year-old victim (J.H.) was walking home from his high school in Mount Forest with two female students, one of whom was a former girlfriend of the appellant. On a public street, he was confronted by the appellant who was in the company of two 15-year-old males, D.D. and D.L.

[4] The 19-year-old appellant was unknown to J.H. The appellant pushed the victim, yelled obscenities at him and invited him to engage in a physical fight. J.H. declined and attempted to walk away.

[5] The appellant grabbed J.H., pulled him to his knees and struck him repeatedly in the face with his knee before throwing him to the ground where he got on top of the victim at which point he repeatedly punched him in the face and head.

[6] At this point, D.D. kicked the victim once in the face while D.L. delivered three kicks to his face. Nearby witnesses pulled the three assailants off of the victim who was on the ground bleeding from the mouth and nose. As he retreated, the appellant, who believed that J.H. was trying “to get hooked up” with his ex-girlfriend, yelled that the next time he saw J.H. it would be a hundred times worse.

[7] The victim made his way home. He did not seek medical attention. A few days later, at his school, the assault was reported and the police were alerted.

[8] At the time of the assault upon J.H., D.D. was on probation from an assault finding in Youth Court. D.L. had no prior record when the assault was committed.

Marihuana Possession

[9] On March 31, 2013, while on bail for the assault charge, the appellant was arrested in possession of 9 grams of marihuana.

PRESENTENCE REPORT

[10] The trial court ordered a presentence report which included the following information:

(1) After the appellant’s parents separated when he was 4 years of age, he lived with his mother.

(2) When the appellant was aged 16, he was living with a friend as he lost contact with his mother who was living in a tent and struggling with an addiction to illicit drugs.

(3) The appellant was expelled from his high school for non-attendance and behavioural issues. He has 20 high school credits but has not completed grade 12.

(4) The appellant began to consume alcohol at age 13. Subsequently, he tried cocaine and ecstasy. Marihuana use began at age 14 and has been used daily:

The subject admits to using illicit drugs and currently uses marijuana daily as a way to cope with his anger and to help slow down his thinking. Some personal collateral source describes the subject as “a pothead” and indicated that most of his friends are as well. (PSR, p. 6)

(5) On the subjects of anger management and counselling, the PSR author noted that:

The subject acknowledges that he has anger issues and sometimes feels like he wants to “snap”.

The subject acknowledges that he has always had a temper… He acknowledges that at the present time he is still very angry and wants to get help for this.

Collateral sources are of the opinion that the subject could benefit from some counselling. The subject maintains he would not pursue counselling on his own but would attend if required by the Courts and knows this would be beneficial to him.

(PSR, pp. 5, 6)

(6) The offender’s view of his involvement in the assault of J.H. was described in these terms:

With regards to the offences before the Court the offender did appear to take some responsibility. He indicated that he wants the Court to know that he really regrets assaulting the victim and if given the opportunity he would like to apologize to the victim. He indicated that he “blacked out” during the assault and cannot believe what he did.

THE SENTENCING HEARING

[11] At trial, counsel for the appellant acknowledged the assault to have been “senseless” and “unnecessary” risking more serious harm than actually occasioned. Counsel submitted that genuine remorse existed as evidenced by the first offender’s plea and desire to apologize to the victim. It was submitted that if a probationary disposition was not seen as a fit disposition, then incarceration should be “a short period of custody” only.

[12] Immediately prior to Crown counsel’s sentencing submissions at trial, this exchange occurred:

THE COURT: You have proceeded by indictment herein, I believe, did you?

CROWN COUNSEL: Yes, that’s what it says…

DEFENCE COUNSEL: That’s my understanding.

Counsel on appeal agreed that this understanding was in error – the prosecution in fact elected to proceed summarily on the assault charge.

[13] At trial, Crown counsel asked the court to consider “a custodial disposition” to be the only appropriate sentence, necessary to effect denunciation as well as general and specific deterrence in circumstances of “a senseless and cowardly attack”. Counsel noted that in the absence of a victim impact statement, “[t]here’s no input that I can provide you” beyond noting that the victim’s injuries caused some bleeding.

[14] On November 18, 2013, about two months earlier than the appellant’s sentencing hearing, during the plea proceeding for D.D. and D.L., when neither the appellant or his counsel were present, Douglas J. was informed that the victim remained “very fearful for his safety”.

[15] Douglas J. sentenced all three offenders involved in the assault upon J.H. In Youth Court, D.D. was sentenced to 45 days while D.L. was effectively sentenced to time served (103 days) with the trial judge expressing his concern about this amount of pre-disposition custody.

[16] In Reasons for Sentence respecting the Appellant, the court recognized that “jail should be a last resort for a youthful first offender”. The appellant was described as “youthful and immature”. Douglas J. concluded that the appellant’s “abuse of illegal drugs is out of control”. The trial court noted the appellant’s self-admitted “hair-trigger temper” and anger issues. The court questioned the degree of actual remorse:

He says he is genuinely sorry and he is willing to apologize. I do not know how genuine and sorry he is. I suspect he is sorry because he was caught and he is now going to jail, because he is going to jail. But if he is sincerely sorry for what he has done, then I am going to give him an opportunity to correct the things that were motivating him by way of some intense counselling and, by way of a probation order, after he does his jail term.

[17] On the subject of harm done to the victim, the court observed that:

This kid was so scared that he did not even report it. He did not go to the doctor. He did not seek any medical attention. That is why we do not have any photographs or any medical reports here. The police were not even told until a couple of days later when someone else called the police.

I suspect there is no victim impact statement, that this kid is still living in fear and probably this assault will impact him and affect him for the rest of his life. That is what normally happens when people are attacked, defenseless…

[18] The sentencing judge further stated:

We have a here a young person who you could have predicted would end up in a criminal court sooner rather than later. He is described, and describes himself as someone with a hair-trigger temper, anger issues, and it may well be that these come from a childhood that was awful, but he is 19. He is now an adult and he is expected to take the consequences for his actions, even though he is youthful and immature. If he knows he is violent, which he has known for a while, and he knows that drugs make him do things he would not otherwise do, how can he come to court then and say, oh by the way, I kicked the daylights out of this kid while he was on the ground, threatened that it would be a hundred times worse, but, you know, it is the anger and it is the drugs. Whatever it is, he better get it fixed, or he is going to be in a morgue some day for picking on the wrong person when he does not have two other buddies to help him out.

Why does he have to go to jail? Courts have a duty to make sure the public knows that when their children are coming home from school, or going to school, or at school, they should be safe and when someone is walking home from school, minding their own business, they are entitled to get home. When three people, like a wolf pack, attack somebody, a 15-year-old boy and not only knock him down, but, once he is down, beat on him, that takes a special kind of cruelty. That takes a special kind of meanness. That is a dangerous thing to do. You could kill somebody, kicking them in the head when they are down. I’m sorry, he says, I apologize to you.

I have said this before, and counsel might be getting sick of it, but it needs to be said for the people who are here. Day in and day out in this courtroom, we deal with all kinds of offences, some of which are minor, some of which the public has no particular interest or concern about, and they are never going to make the news, but, once in a while, a case comes along that I know that I better be very careful to do my duty and do the right thing because it is an important case. It is important not only to the young person, and the victim, it is important to them, but it is important to the community. This is one of those cases. Now, that does not mean that I am going to crush this young person and send him to jail for five years. Some members of the public would think that this is the right sentence. That is not what this is all about. This is not about beating up on a 19 year old who has had a tough life. But he cannot use that as an excuse for what he did. He might be able to use it for other problems in his life, but he cannot come to a criminal court, having done what he has done, and expect that this is going to give him some sort of a free pass for this broad daylight violence, no.

I must find the right length of sentence for him, that does not crush him, that treats him as a youthful, first offender and is a balanced sentence, that is not a knee-jerk, emotional reaction to what he has done, and it must be seen by the community and by the courts that oversee what I do as a just and fair sentence, balancing all of the principles of sentencing, which includes his rehabilitation and reform.

(emphasis added)

ANALYSIS

[19] A court’s discharge of the sentencing function is an exercise of judicial discretion. It can be a “profoundly subjective process” (R. v. Shropshire, 1995 47 (SCC), [1995] 4 S.C.R. 227, at p. 249) as a sentencing judge sees the offender and has an intimate familiarity with his or her community.

[20] Deference to the sentencing discretion vested in trial judges is a general principle of review. In the oft-quoted passage in R. v. M.(C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, at paras. 89-90, the court stated:

As Bull J.A. described the nature of a trial judge's sentencing discretion in R. v. Gourgon (1981), 1981 328 (BC CA), 58 C.C.C. (2d) 193, at p. 197:

. . . the matter is clearly one of discretion and unless patently wrong, or wrong principles applied, or correct principles applied erroneously, or proper factors ignored or overstressed, an appellate Court should be careful not to interfere with the exercise of that discretion of a trial Judge.

Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. Parliament explicitly vested sentencing judges with a discretion to determine the appropriate degree and kind of punishment under the Criminal Code.

[21] Similarly, in R. v. Rezaie (1997), 1996 1241 (ON CA), 112 C.C.C. (3d) 97 (Ont. C.A.), at para. 20, the court stated:

…an appellate court may interfere with a trial judge's sentencing discretion in only two kinds of cases. First, an appellate court may interfere if the sentencing judge commits an "error in principle". Error in principle is a familiar basis for reviewing the exercise of judicial discretion. It connotes, at least, failing to take into account a relevant factor, taking into account an irrelevant factor, failing to give sufficient weight to relevant factors, overemphasizing relevant factors and, more generally, it includes an error of law.

[22] In the present case, I am satisfied that the appellant’s grounds of appeal have established merit.

[23] Turning first to the sentencing judge’s consideration of the significance of the lack of a victim impact statement, the court’s observations cannot easily be taken as simply steeped in a narrative review of the case. It cannot reasonably be concluded that the court did not infer, and in turn rely upon, significant existing fear on J.H.’s part from the absence of a s. 722 victim impact statement being filed in the sentencing hearing.

[24] It is generally an uncertain course for a court to seek to draw an inference from the fact that a victim has elected not to file a victim impact statement. For example, in R. v. Whalen, 2011 ONCA 74, at para. 9, the court noted the impropriety of the trial court concluding “that the absence of a victim impact statement entitled him to infer that the victims had not suffered any” unusual “harm”.

[25] Further, neither the appellant nor his counsel were present in the Youth Court when the prosecutor in the proceeding for D.D. and D.L. informed Douglas J. that the victim remained in fear for his safety. In the appellant’s sentencing hearing, Crown counsel specifically indicated that he could provide “no input” in the absence of a victim impact statement (VIS) beyond confirming the victim’s minor injuries. As well, during the sentencing submissions, the court did not request the parties’ assistance as to what inference(s) could be safely drawn from the absence of a VIS.

[26] To the extent that the court’s reasons for sentence assigned any weight to the victim’s fear to provide a VIS, it erred in doing so.

[27] That said, the error of greatest significance in the sentencing court’s reasons lies elsewhere – the court’s failure to give any weight to relevant mitigatory factors notably the offender’s youth, guilty plea, and lack of a prior criminal record. The sentencing court, through innocent mistake, was misled by counsel to believe that the Crown had proceeded by indictment on the assault charge. If that had indeed been the case, the maximum sentence would have been the “five years” referred to in the court’s reasons for sentence as a disposition the court considered far too harsh in the circumstances. However, because the Crown proceeded summarily, such a sentence was legally unavailable as a 6-month sentence was the maximum possible period of imprisonment (s. 787(1) of the Code). Accordingly, it is clear not only from the text of the submissions and the reasons, but also from the fact of the imposition of the maximum sentence of 6 months without any discounting recognition for significant factors in mitigation, that misapprehension of how the Crown had proceeded caused the sentence imposed to be unfit.

[28] Section 718.2(e) of the Code guides sentencing courts to consider for all offenders all available sanctions other than imprisonment as may be “reasonable in the circumstances”. This approach is in accordance with the pre-existing common law – see for example, R. v. Stein (1974), 1974 1615 (ON CA), 15 C.C.C. (2d) 376 (Ont. C.A.), at p. 377, where particular emphasis was placed upon the principle of avoidance of the imposition of custody upon a youthful first offender and the need to de-emphasize punishment for general deterrence purposes. That caution was, of course, subject to the caveat of the crime committed not being “of such gravity that no other sentence is appropriate” (Stein, at p. 377) or “[e]xcept for very serious offences and offences involving violence”: R. v. Priest (1996), 1996 1381 (ON CA), 110 C.C.C. (3d) 289 (Ont. C.A.), at pp. 294-5.

[29] While, as a general rule, employ of the descriptors “worst offence” and “worst offender” add nothing to a sentencing inquiry which “must proceed on a case-by-case basis” (R. v. Cheddesingh, 2004 SCC 16, [2004] 1 S.C.R. 433, at para. 1), always having regard “to the nature of the offence and the personal circumstances of the offender” (emphasis added) (R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at para. 17; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at paras. 43, 44, 49), it can be said that “a maximum sentence is to be imposed only rarely”: R. v. Malcolm, 2013 ONCA 451, at para. 11.

[30] In the appellant’s case, the trial judge was quite correct to view the instance of assault under consideration to be at the serious end of the types of assault within the common assault or assault simpliciter category having especial regard to these factors:

(1) the assault was entirely unprovoked

(2) the violence by the appellant, an adult, involved kneeing and punching a young teenager on a public street

(3) with the appellant as the instigator and leader, group violence was inflicted upon the defenceless victim when two companions of the appellant, both young persons, joined in

(4) only through the intervention of bystanders was the assault terminated

(5) after the assault, the appellant issued a further threat to the victim.

[31] Clearly, the nature of the assault and the blameworthiness of the appellant favoured imprisonment and not a community-based disposition. Be that as it may, individualized sentencing in this case required close scrutiny of the offender’s personal circumstances. Of concern, was the offender’s persistent use of marihuana and his failure to control his temper – both facts at play in the commission of the offence and relevant to the issue of risk of future re-offending as was the appellant’s commission of the marihuana offence while on bail for the assault charge.

[32] However, by imposing the maximum sentence of 6 months’ imprisonment, the maximum allowable penalty, the sentencing court underlined its view of the severity of the offence and the appellant’s role but without any demonstrable regard to certain mitigatory factors. As noted in R. v. Solowan, 2008 SCC 62, [2008] 3 S.C.R. 309, at paras. 8 and 16, where the Crown elects to prosecute a hybrid offence summarily, “that offence must be treated for sentencing purposes as a summary conviction offence” – an exercise which requires the court to reduce the sentence to be imposed “for any relevant…mitigating circumstances relating to the …offender”: s. 718.2(a) of the Criminal Code, L.M., at para. 17.

[33] In the present case, because the assault crime was not treated as a summary offence by the sentencing court, these factors were given no effect in the sentence imposed:

(1) at age 19, the appellant was a youthful offender

(2) he had no prior criminal record

(3) he pleaded guilty – accepting the trial judge’s reservations as to the genuineness of the remorse, the plea nevertheless promoted the utilitarian objectives of the victim not having to testify and a saving of court time

(4) the offenders “awful” childhood.

[34] Having regard to the totality of the circumstances including the Youth Court sentences imposed upon D.D. and D.L. and the principle of parity, there can be no doubt that the appellant’s role in the offence and his adult responsibility warranted imprisonment. That said, for the reasons discussed, the 6-month maximum penalty for the assault, proceeded with summarily, was excessive in the circumstances. Accordingly, the appeal is allowed and the sentence for the assault conviction is set aside and a sentence of 145 days is imposed. The sentence for the marihuana conviction remains concurrent. The probation order remains. On resumption of his sentence, the appellant shall be credited for days in custody serving sentence prior to being admitted to bail pending appeal.

[35] It is expected that arrangements will be made for the appellant’s voluntary surrender forthwith on release of this judgment failing which the Crown may apply for a warrant of arrest.

Hill J.

DATE: November 18, 2014

COURT FILE NO.: 14-0270
DATE: 2014 11 18

ONTARIO
SUPERIOR COURT OF JUSTICE
(Summary Conviction Appeal Court)

RE: R. v. CALVIN BROOME

COUNSEL: J. MacDonald, for the Respondent
M. Stanley, for the Appellant

HEARD: February 19, 2014

REASONS FOR JUDGMENT
[on appeal from a sentence imposed
by Douglas J. on January 14, 2014]

Hill J.

DATE: November 18, 2014