CITATION: R. v. Aubrey Wickham, 2015 ONSC 1544

COURT FILE NO.: 13-70000527-0000

DATE: 2015/03/06

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

AUBREY WICKHAM

Accused

Corie Langdon, for the Crown

Richard Elbirt, for the Accused

HEARD: March 3 – 7, 2014

DECISION ON SENTENCING

ALLEN J.:

BACKGROUND

The Trial

1In a trial conducted in March 2014, I convicted Aubrey Wickham on two counts under the Criminal Code: aggravated assault on Yin Man Cho (s. 268) and wounding Yin Man Cho by using a screw driver as a weapon (s. 267).

2The brief background facts are as follows:

3Mr. Wickham and Mr. Man were employees of a cosmetics factory at the time of the incident. Mr. Wickham immigrated to Canada from Guyana in 2010, two years before the incident. They both worked as powder compounders. A screw driver is needed at the start of and throughout a shift to adjust the pulveriser machine for the compounding process. Workers at times shared tools. There were no previous bad feelings between Mr. Wickham and Mr. Man.

4At the start of the shift on April 25, 2012, Mr. Wickham placed a screw driver on the machine he was working on. Mr. Man saw the screw driver and reached out and took it. A struggle ensued over the screw driver during which Mr. Wickham struck Mr. Man with the screw driver leaving Mr. Man with a gaping cut on his face and neck. The assault was an unprovoked attack on an unsuspecting co-worker.

5When the police arrived, Mr. Wickham admitted to striking Mr. Man in the face with the screw driver and insisted he was justified to do so because Mr. Man should not have taken his screw driver.

Mr. Wickham’s Background

6A Pre-Sentence Report (“PSR”) was filed at the sentencing hearing. Mr. Wickham is 62 years of age and a permanent resident in Canada from Guyana. He has resided in Toronto since May 2010 with the mother of his adult son, now age 36. Growing up, Mr. Wickham did not have a cohesive family relationship with his mother and six siblings. He was raised by a family friend. Mr. Wickham completed the equivalent of elementary school in Guyana. The mother of his son, Helena Paul, and Mr. Wickham met in Guyana and bore their son in their teenage years. Ms. Paul moved with her parents and the son to Toronto. Mr. Wickham remained in Guyana.

7Mr. Wickham reunited with Ms. Paul when he came to Canada in 2010. Mr. Wickham resides with Ms. Paul. A written statement by Ms. Paul indicates Mr. Wickham maintains a close and loving relationship with her and their son. He is caring and takes on many responsibilities around the home. The family relationship is stable. She has expressed shock about the charges before this court. Mr. Wickham has continuously worked at various temporary general labour and factory jobs since living in Canada.

8The PSR reveals Mr. Wickham has a very unusual criminal past. When he came to Canada he did not disclose to Canadian authorities a lengthy criminal record in the U.S. Mr. Wickham lived in the U.S. from his illegal entry in 1984 until 2004 when he departed. Contact with U.S. officials disclosed that Mr. Wickham had previously been convicted on May 31, 1991 under the alias “Michael Johnson” on drugs and weapons offences and served a custodial sentence until December 2000. He was on supervised release until 2004. The available information contains no indication Mr. Wickham had any compliance issues during the supervised release.

9Mr. Wickham initially denied a previous criminal record in the U.S. He initially asserted in his interview for the PSR that the record was for one of his brothers. He eventually admitted his criminal record to his probation officer. Authorities with the U.S. FBI confirmed the fingerprints on Mr. Wickham’s Canadian record to be the same as those on his U.S. record under the alias Michael Johnson. Ms. Paul has only recently found out about Mr. Wickham’s U.S. criminal record but indicates she continues to support him.

Victim Impact Statement

10Mr. Man encountered a deep cut on his face and chin that required seven stitches. It has left a noticeable permanent scar and he hopes to undergo plastic surgery someday. Until then he uses vitamin E to try to reduce the scarring. Mr. Man states that the scar has made him self-conscious and embarrassed when out in public and has caused some restrictions in his social life. He has suffered insomnia because of the fear he experienced from Mr. Wickham’s attack on him.

SENTENCING PRINCIPLES

11Section 718 of the Criminal Code sets out the principles that underpin the objectives for sentencing: denunciation, deterrence and the separation of the offender from society.

12The fundamental purpose of sentencing is to foster, along with crime prevention initiatives, 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: to denounce unlawful conduct; to deter the offender and other potential future offenders from committing offences; and, if necessary to separate offenders from society. Rehabilitation, reparations to the victim and a sense of responsibility for the offender’s wrong doing are also recognized goals.

13The principles of proportionality and parity also guide the determination of a fit sentence. A sentence should be proportional to the gravity of the offence and the degree of responsibility or moral blameworthiness of the offender: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61 (S.C.C.). Section 718.2(b) addresses the necessity for parity in sentencing, that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

AGGRAVATING AND MITIGATING FACTORS

14Section 718.2 provides that a sentence shall be increased or reduced to take into account any relevant aggravating or mitigating circumstances related to the offence or the offender. This provision sets out a non-exhaustive list of examples of possible aggravating factors to consider. Pertinent to this case is section 718.2(iii.1) which addresses a circumstance where an offender has exacted personal harm resulting in significant impact to the victim.

15From 2007 the law has mandated that the conditional sentence provisions in the Criminal Code do not apply to offenders who have committed a “serious personal injury offence”. Aggravated assault is one such offence for which a conditional sentence is not available requiring a term of imprisonment. The length of a custodial sentence is therefore at issue.

16Mitigating factors can include such considerations as whether the offender has family support and responsibilities and whether he enjoys a connection to the community. Employment is also a consideration. Any expression of remorse or acceptance of responsibility by an offender for the harm done is a mitigating factor. Senior age of an offender can also be a mitigating factor.

COLLATERAL CONSEQUENCES

17The court may also take into account any collateral issues that may impact a particular offender, that is, any collateral consequences that are personal to a particular offender. There may be particular burdens or hardships that flow from a sentence.

18The defence raises Mr. Wickham’s immigration status as a collateral factor. Under the federal Immigration and Refugee Protection Act an offender who is not a Canadian citizen and is convicted of an offence punishable by a sentence of six months or more is subject to deportation.

19The weight to be given collateral consequences in tailoring a sentence is fact specific, to be decided on a case by case basis. The court has the discretion to consider collateral consequences in the totality of the circumstances. However, the general rule remains applicable that a sentence must be fit considering the gravity of the offence and the blameworthiness of the offender. The collateral consequence cannot be given inordinate weight over general sentencing principles to skew a sentence in favour of or against deportation. The fundamental principles of sentencing as set out in the Criminal Code cannot be compromised because of a risk of deportation: [R. v. Pham, [2013] S.C.R. 739, at paras. 17 – 19, (S.C.C.)]

APPLICATION OF KIENAPPLE

20Mr. Wickham was convicted of aggravated assault and assault with a weapon. Assault with a weapon is the lesser offence as it carries a maximum period of imprisonment of ten years whereas conviction for aggravated assault carries a maximum sentence of fourteen years. The question that arises is whether the Kienapple principle applies to stay the lesser charge of assault with a weapon.

21The Ontario Court of Appeal found in relation to an offender charged with the same offences, as I also find in the case before me, that the assault with a weapon and the aggravated assault arose from the same transaction. As the Court of Appeal did, I will stay Mr. Wickham’s assault with a weapon charge: R. v. Basilio (2003), 2003 15531 (ON CA), 175 C.C.C. (3d) 440, at para. 16, (Ont. C.A.).

THE PARTIES’ POSITIONS

The Crown’s Cases

22The Crown seeks a sentence of 15 – 18 months’ incarceration with two years’ probation and the appropriate ancillary orders.

23The Crown relies on a decision of this court in which Code, J. provides a useful summary of the ranges of sentencing on aggravated assault imposed in varying fact situations R. v. Tourville, 2011 ONSC 1677, [2011] O.J. No. 1245, at paras. 27 – 32, (Ont. S.C.J.).

24At the bottom end of the range is an exceptional case that is clearly distinguishable from Mr. Wickham’s case. An aboriginal offender, with no adult record, pleaded guilty to aggravated assault with a broken beer bottle which resulted in facial lacerations to the victim. A Gladue Report disclosed a violent upbringing leading the offender to drug and alcohol abuse. The offender received a suspended sentence and three years’ probation: R. v. Peters (2010), 2010 ONCA 30, 250 C.C.C. (3d) 277 (Ont. C.A.).

25At the mid-range are cases with high reformatory sentences of between 18 months and two years less a day. The accused in the three cited cases were first offenders, the assaults had elements of consent and excessive force was used. The injuries in each of the three cases were on the more serious end of the spectrum than the case before me, ranging from serious permanent injuries to life threatening injuries. One case involved possession of a knife for a dangerous purpose resulting in the slashing of the victim: R. v. Chickekoo (2008), 79 W.C.B. (2d) 66 (Ont. C.A.); R. v. Moreira, 2006 9709 (ON SC), [2006] O.J. No. 1248 (Ont. S.C.J.); and R. v. Basilio, supra.

26At the high end of the range are cases where four to six years’ imprisonment have been imposed. These cases generally involve repeat offenders with serious prior criminal records, or involve unprovoked or pre-meditated assaults with no evidence of consent or self-defence: [R. v. Scott, [2002] O.J. No. 1210 (Ont. C.A.); R. v. Thompson, [2005] O.J. No. 1033 (Ont. C.A.); R. v. Vickerson (2005), 199 C.C.C. (3d) (Ont. C.A.); and R. v. Pakul, [2008] O.J. No. 1198 (Ont. C.A.)].

The Defence Cases

27The defence seeks a custodial sentence of no more than 60 days to be served intermittently on weekends.

28The defence cited cases I find were largely distinguishable from the case before this court.

29One case decided by the British Columbia Supreme Court involved two 18-year old first-time offenders. One accused assaulted the victim during a robbery causing life-threatening injuries. The offenders were remorseful and had a positive pre-sentence report. Suspended sentences with two years’ probation were imposed on each offender: R. v. Nakamura, 2012 BCSC 327, [2012] B.C.J No. 437 (B.C.S.C.).

30In another case, also decided by the British Columbia Supreme Court, a 21 year old aboriginal man with no prior criminal record attacked the victim with a knife causing non-life threatening injuries. The offender had been raised in an abusive home by an alcoholic mother. The offender had attended rehabilitative programs and found employment. A suspended sentence with 30 months’ probation was imposed: R. v. Nicholls, 2013 BCSC 1145, [2013] B.C.J. No. 1369 (B.C.S.C.).

31A further case involved an offender, age 23, with no prior record who expressed remorse for punching the victim causing injuries that required surgery. The court imposed an intermittent custodial sentence of 65 days to be served on weekends with one year’s probation: [R. v. Gugaruban, [2013] O.J. No. 2525 (Ont. S.C.J.)].

32The defence also presented a British Columbia Provincial Court case where the offender, age 21, with no previous record, in an unprovoked attack, threw a glass beer bottle at the victim causing serious facial injuries. The offender showed remorse for her actions. The judge imposed a suspended sentence with two years’ probation: [R. v. Greenough, [2013] B.C.J. No. 1822 (B.C. P.C.].

Defence Submissions

34The defence takes the position that the risk of deportation as a collateral consequence should figure more prominently as a factor in tailoring a sentence for Mr. Wickham. According to this view, a shorter sentence can be justified taking the risk of deportation into account with the mitigating factors. Mr. Wickham has strong emotional family support from his spouse and son. He occupies a responsible position in relation to the functioning of household. He has a positive relationship with the community. His senior age in the defence’s view should be regarded when considering the possibility that he might be uprooted from his stable life and made to leave Canada.

35The aggravating factors of the nature of the assault and his prior criminal record in the U.S, the defence submits, should not attract a sentence as lengthy as the six months that would put him at risk of removal from Canada.

36On his prior criminal record, the defence asks the court to consider that he was convicted of those offences over 20 years ago. He served a long sentence for his crimes and there is no evidence that during his four year supervised release he breached any conditions. There is no evidence of Mr. Wickham committing any other offences after the completion of his U.S. sentence until the incident at the factory in April 2012. His spouse expressed shock about the assault and his U.S. record. Ms. Paul describes Mr. Wickham as compassionate and caring which stands in contrast to his current and past criminal offences. The suggestion behind Ms. Paul’s perception is that the assault on Mr. Man was an isolated incident.

Crown Submissions

37In the Crown’s view, the sentence sought by the defence is out of step with general sentencing principles and cannot be justified by the collateral issue. Against the mitigating factors, sufficient weight must be given to the vicious, unprovoked nature of Mr. Wickham’s assault, his lack of remorse and the past U.S. criminal record he hid from Canadian authorities and attempted to hide from his probation officer.

38On the collateral consequence, the Crown advances the proposition enunciated in R. v. Pham that while the court has the discretion to take collateral consequences into account the sentence ultimately imposed must be in accord with general sentencing principles. When considering the risk to Mr. Wickham of being deported, the sentence must not stray from being proportional to the gravity of the offence and the degree of Mr. Wickham’s responsibility..

Conclusion

39Applying the parity principle in relation to both parties’ cases, it is clear an intermittent custodial sentence of 60 days would be a manifestly unfit sentence. Following direction from R. v. Pham and the principles of proportionality and parity, I find, a sentence in excess of 6 months is warranted.

40Mr. Wickham’s assault was a vicious, unprovoked attack on Mr. Man that left him with a permanent scar in plain view on his face. Mr. Man was simply attempting to borrow Mr. Wickham’ screw driver as was customary among workers at the factory. Mr. Wickham attacked him for this and, neither at that time, at trial, or in his interviews for the PSR has he expressed an ounce of remorse. His view is Mr. Man should not have touched his screw driver. He deserved the assault. The severity of the attack and the seriousness of the injury and Mr. Wickham’s callous attitude toward the harm done must attract some weight in considering the circumstances on a whole.

41There must be parity with other cases with similar facts. I agree with the Crown that the sentence should be closer to the mid-range. The cases in the lower range with suspended and intermittent sentences, like those cited by defence, have clearly distinguishing features, as do the cases at the higher range cited in R. v. Tourville.

42The mid-range is a reformatory sentence of 18 months to two years less a day. R. v. Tourville offers useful parameters to guide sentencing determinations. A sentencing court must still fashion a sentence based on the particular circumstance before it, taking into account any aggravating and mitigating factors.

CONCLUSION ON SENTENCE

43For the following reasons, I find a fit sentence to be 12 months’ imprisonment with a 24 month probationary period with conditions and the applicable ancillary orders.

44I took the following aggravating factors into account:

a) the vicious, unprovoked nature of the attack;

b) the permanent scar resulting from the assault that has created embarrassment and self-consciousness for Mr. Man;

c) Mr. Wickham’s lack of remorse and his callous attitude toward the harm done;

d) Mr. Wickham’s past criminal record in the U.S. involving serious drugs and weapons charges;

e) the disturbing fact that Mr. Wickham succeeded in using an alias in relation to those charges; and in relation to his Canadian convictions, he denied he was the offender in the U.S. until just before sentencing; which denial he maintained until this was being investigated by Canadian and US authorities.

45Viewing Mr. Wickham’s U.S. criminal record, I regarded this as somewhat less aggravating by the fact he was convicted over 20 years ago and served a lengthy sentence. I also considered there is no evidence of non-compliance during his four-year supervised release in the U.S. I took into account there is no evidence of any criminal activity from the completion of his U.S. sentence in 2004 until his current charges in 2012. However, with all of that said, I cannot ignore the deception Mr. Wickham acted under with the alias in the U.S. and his attempt to maintain that deception in Canada after his conviction until he was faced with an FBI investigation.

46I looked at the following mitigating factors:

a) Mr. Wickham’s senior age of 62 years;

b) his close and supportive family ties;

c) the important role he plays in his household supporting Ms. Paul and maintaining the home;

d) Mr. Wickham’s positive relationship with his neighbourhood and community;

e) no evidence from family or community of a history of violence or aggressiveness on his part; and

f) Mr. Wickham has consistently maintained employment and re-entered the work force after being fired by the cosmetics factory.

STAY OF CHARGE

47For reasons set out above, I stay the charge for assault with a weapon.

THE SENTENCE

48Aubrey Wickham, will you stand. Mr. Wickham, I sentence you as follows:

(a) To 12 months’ imprisonment for aggravated assault.

(b) To 24 months’ probation on the following terms:

(i) You will keep the peace and be of good behaviour.

(ii) You will appear before the court when required to do so by the court and notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation.

(iii) You will report to a probation officer within two working days of your release and thereafter when required by the probation officer and in the manner directed by the probation officer.

(iv) You will refrain from communicating directly or indirectly with Yin Man Cho.

(v) You will refrain from attending within 100 metres of Yin Man Cho or at any place known to be the residence or school or place of employment of Yin Man Cho.

(vi) You will attend for and actively participate in, and to the satisfaction of your probation officer, any assessment, treatment or counselling as required by your probation officer, including for anger management and you will sign whatever consents or releases that may be required by your probation officer in order to monitor and verify compliance with said assessment, treatment or counselling and you will provide written proof of completion of said assessment, treatment or counselling to your probation officer.

(vii) You will not own, possess or carry any weapons defined by the Criminal Code.

(c) There will be an Order made under s. 109 of the Criminal Code which prohibits you for the next ten years from owning, possessing or carrying any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance.

49There will be an Order authorizing the taking of such bodily substances as are necessary for the purposes of a forensic DNA analysis

B.A. Allen J.

Released: March 6, 2015

CITATION: R. v. Aubrey Wickham, 2015 ONSC 1544

COURT FILE NO.: 13-70000527-0000

DATE: 2015/03/06

ONTARIO

SUPERIOR COURT OF JUSTICE