Court File and Parties

CITATION: R. v. Berry, 2015 ONSC 2560

COURT FILE NO.: 0397/13

DATE: 20150421

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. David Ian Berry

BEFORE: E.M. Morgan J.

COUNSEL: D. Mitchell, for the Crown D. Burke, for the Defendant

HEARD: March 27, 2015

SENTENCING JUDGMENT

[1] David Berry was charged with aggravated assault in respect of an incident that occurred in the early morning hours of May 31, 2012. After a four day trial before me as judge alone, he was found guilty on December 18, 2014.

[2] On March 27, 2015, I heard submissions on sentencing and reserved my decision until today.

I. Circumstances of the Offence

[3] The circumstances of the offence are set out in detail in my reasons for judgment dated December 18, 2014. I will state them briefly here.

[4] Sometime after midnight on a night when Mr. Berry was out drinking with a group of friends, he and his friend Dustin McIntyre, along with two other friends, had just come out of a club called The Underground on King Street in downtown Toronto, and got into a taxi. As the taxi started moving, Dustin McIntyre saw Mauricio Bedoya walking by and told the driver to pull over and ran out of the car. Mr. Berry left the taxi and ran after his friend. They apparently thought that they had seen Mr. Bedoya earlier in the bar leering at the women they were with.

[5] Another taxi driver who was passing by, Iftikhar Butt, saw Mr. McIntyre and Mr. Berry approach Mr. Bedoya. He testified that one of them suddenly, without any warning or provocation, hit or pushed Mr. Bedoya in the chest, and that Mr. Bedoya hit the ground hard and did not come up. According to Mr. Butt’s eyewitness account, the one that struck Mr. Bedoya was wearing a red t-shirt, while the other one was wearing a white shirt. Evidence from the video camera in the lobby of the apartment building to which the group of friends retreated after the incident shows Mr. Berry wearing a red t-shirt that night and Mr. McIntyre wearing a white shirt.

[6] Mr. Bedoya hit his head on the curb when he fell to the ground. He was found lying in the street bleeding when the police arrived on the scene. At trial, he testified that never saw Mr. Berry and Mr. McIntyre approach him as they came up to him from the rear. He said that until today he has no idea why he was assaulted. He was visiting Toronto from the United States for a one day job interview, and was staying overnight at a nearby hotel when he was attacked. He had just gone out to find a store and to have a walk on a warm night, and had never encountered Mr. Berry or his friends before.

[7] Mr. Berry and Mr. McIntyre fled the scene and returned to the taxi they had been in with their other two friends. Mr. Berry testified that he was aware that Mr. Bedoya was left lying on the ground, but he did not stop to see how he was doing or call for medical help.

[8] Having viewed the assault, Mr. Butt followed Mr. Berry and his friend back to their taxi and then followed that taxi in an effort to ascertain where the assailant was going. At a red light, Mr. Butt pulled alongside the taxi in which Mr. Berry was riding and, after assessing that the other driver was, like himself, from Pakistan, spoke to the driver in Urdu and told him to keep track of where he let his passengers off.

[9] The police arrested Mr. Berry a short time later at his friend’s apartment where the taxi had dropped them off. He was still wearing the red t-shirt that had been identified by Mr. Butt.

II. Victim Impact

[10] Mr. Bedoya suffered a catastrophic or near-catastrophic injury. His medical records that were exhibited at trial show that he suffered four skull fractures, broken bones in the ear, an accumulation of cerebral spinal fluid around the brain area, and bleeding from the nose. He spent a month in St. Michael’s Hospital undergoing numerous surgeries, after which he spent months in physiotherapy learning how to do simple tasks again like walking and brushing his teeth.

[11] In his testimony at trial and his victim impact statement, Mr. Bedoya explained that he is a financial analyst, but that he can no longer do that kind of work as he cannot focus for any significant period of time or sit in front of a computer screen. He was not insured for the medical bills he accumulated in Toronto, and has lost his home, his car, and his ability to earn a living. He has very large debts flowing from his stay at St. Michael’s Hospital. In addition, his injuries have severely affected his quality of life, and have negatively impacted on his relationship with his spouse and his four year old son.

[12] Mr. Bedoya’s parents also submitted victim impact statements. His mother says that she can no longer sit and talk about simple things with her son. She describes him as being “pensive and lost”, and indicates that he has lost his short term memory. As a mother, she says that she is heartbroken to see him like this. As she puts it, “He is not the same person he was prior to the incident”.

[13] According to Mr. Bedoya’s father, Mr. Bedoya’s injuries have had a tremendous impact on every member of the family. He says that none of their lives will ever be the same. Indeed, both of Mr. Bedoya’s parents have had to come out of retirement in order to support their son and his family. When Mr. Bedoya’s father was first told about what happened, his son was in the hospital and he was told that he may not survive. The father flew up to Toronto from Florida so that his son would not die alone.

III. Circumstances of Mr. Berry

[14] At the time of the incident, Mr. Berry had no criminal record. He has been working steadily in the carpentry industry for 15 years, and now has a responsible job as a construction foreman. He has told his employer about the charges, and his employer is very supportive of him.

[15] Mr. Berry appears to have a supportive family. Defense counsel stated at the hearing that his mother has been distraught over this matter. The pre-sentencing report noted that Mr. Berry did not want his family members contacted, suggesting that his family relationships might be strained; however, it seems that Mr. Berry simply wanted to shield his mother from any more strain than she has already endured. Mr. Berry’s counsel pointed out to me that Mr. Berry’s mother and brother were in attendance at the hearing in order to support him.

[16] The pre-sentencing report also states that Mr. Berry describes the incident leading to his conviction as one where he was “in the wrong place at the wrong time.” It notes that he is focused on his own predicament in facing these charges, and is not empathetic to the victim of the assault.

[17] Counsel for Mr. Berry submits that the report is wrong in saying that Mr. Berry lacks empathy. Counsel advises that Mr. Berry has read the victim impact statements, and given the chance he would express his sympathies to Mr. Bedoya and his family. That said, counsel stated that he would not sugar coat the fact that Mr. Berry has not taken responsibility for the assault. He maintained at trial that, despite what Mr. Butt thought he saw, it was actually Mr. McIntyre that shoved Mr. Bedoya, and he continues to hold to that position.

[18] There is no medical evidence regarding any problem that Mr. Berry might have in terms of substance or alcohol abuse. Nevertheless, the testimony at trial indicated that Mr. Berry had been going bar to bar with his friends during the entire night in question and that they had all consumed a substantial quantity of alcohol.

[19] The pre-sentence report suggests that his might indicate that alcohol is something of an issue in his life. I note, of course, that if alcohol is a problematic issue in Mr. Berry’s life, it has not prevented him from holding a steady job and achieving a position of responsibility with his employer.

IV. Positions of the Parties

[20] Counsel for the Crown suggests that given the nature of the assault, the appropriate penalty here is incarceration for 18 months plus 2 years of probation. He submits that this is toward the lower end of the scale for an aggravated assault, and takes into account that Mr. Berry is a first time offender with no other history of violence. Crown counsel notes, however, that the penalty must be substantial enough to send a message of disapprobation regarding this type of conduct, especially given the severity of the injuries that were inflicted on Mr. Bedoya.

[21] Counsel for the defense suggest that given what he characterizes as the lack of intent to harm, the appropriate penalty here is a suspended sentence plus some period of probation. He submits that this is a case where the victim’s injury was more of an accident than anything else. He says that Mr. Berry merely pushed Mr. Bedoya without any intention of injuring him and that Mr. Bedoya unfortunately fell to the ground and hit his head.

[22] Defense counsel notes that if the victim had not hit his head, this would end up in a peace bond not a jail sentence. He submits that the thin skull principle plays little role in criminal law, which is more focused on discerning the accused’s intent, and that here the victim’s condition speaks to the relative innocuousness of Mr. Berry’s act and his intent.

V. The relevant sentencing principles

[23] In R v M (C), 1996 CanLII 230 (SCC), [1996] 1 SCR 500, at 566, Lamer CJC articulated the objectives of sentencing in an instructive way:

The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of the community.

[24] It was obvious from the testimony at trial that Mr. Berry and his friends had spent the night in question drinking substantial amounts of alcohol. This may well be the reason that Mr. Berry’s judgment was not what it should be and his actions were so impulsive and rash.

[25] As the Court of Appeal observed in R v Dunn, [2002] OJ No 864, at para 34, “Violence occurring while under the influence of alcohol is not usually a mitigating factor. The trial judge was entitled to place significant weight upon the consequences of the appellant’s actions…” Alcohol-fuelled violence is not less morally blameworthy than other types of violent conduct, and the Defendant’s consumption of alcohol does not somehow convert an intentional assault into an accident or near-accident: R v Huth, 2014 BCSC 570, at para 42.

[26] In a case of aggravated assault, where by definition serious injuries have been sustained at the hands of the defendant, an important objective of a sentence is “denunciation and deterrence”: R v Rochetta, 2014 ONSC 5668, at para 47. In my view, it is necessary to send a message to the community that a violent flash of temper, whether or not driven by alcohol consumption, will be met with a sentence that reflects society’s abhorrence of this kind of senseless violence.

[27] In R v Tourville, 2011 ONSC 1677, Code J. reviewed the sentencing parameters for an aggravated assault. He first noted that the Criminal Code provides for a maximum sentence of 14 years. He then observed that the reported cases run the gamut from a high range of four to six years’ imprisonment for a person with a prior criminal record who commits “‘unprovoked’ or ‘premeditated’ assaults with no suggestion of any elements of consent or self-defence” [para 30], to a low range of a suspended sentence and three years’ probation for an aboriginal defendant with a history of having been raised in an abusive home and who “[b]y the time of sentencing…had obtained employment and was making real progress in counseling for her substance abuse problems” [para 27].

[28] Crown counsel suggests that the present case falls in a middle range between these two extremes. He submits that Mr. Berry’s situation is factually close to that of the defendant in R v Rai, 2013 BCSC 1826, who was trying to break up a fight and threw a “sucker punch” from which the victim suffered grievous injury. The British Columbia Supreme Court sentenced him to two years less a day. As the trial judge put it in Rai, at para 35, “This sentence…must reflect the seriousness of what occurred even if it is unlikely to happen again.”

[29] There are, of course, a number of mitigating factors that might serve to reduce the appropriate duration of the sentence. In the first place, Mr. Berry is a first time offender. In R v MacDonald, 2010 ONCA 178, the Court of Appeal sentenced a first time offender to a 12 month custodial term under similar circumstances – an unprovoked surprise assault that knocked the victim unconscious. The court noted that while the defendant’s situation may warrant a reduction in time, a prison sentence cannot be eliminated altogether. LaForme JA explained, “even though the appellant was technically a youthful first offender, the degree of violence in this case required that denunciation and general deterrence operated as the paramount sentencing objectives in this case.”

[30] Defense counsel submits that the most important consideration here is that the extent of the injury was not intended. A single push or shove to the ground has caused Mr. Bedoya a level of physical harm that is considerably beyond what Mr. Berry would have expected. Counsel for Mr. Berry stresses that Mr. Berry is a hard-working, responsible individual whose actions had unintended consequences, and asks that the sentence be commensurate with those circumstances.

[31] The situation here is comparable to that in R v Desgagne, 2013 ONSC 6319, where the defendant struck the victim one time, causing him to fall and hit his head on a cement floor. Ratushny J. stated, at para 28 of Desgagne, “While the accused is certainly responsible for his actions and the harm he caused, the extent of that harm was unintended, so that the degree of his moral blameworthiness for it is somewhat diminished… [I]t is a tough balance to achieve a proportionate sentence in these misfortunate and tragic circumstances.”

[32] Like Mr. Berry, the defendant in Desgagne had consumed alcohol, and felled his victim with a single blow in a moment of poor judgment and anger. The impact on the two victims is also strikingly similar: permanent brain injuries, short term memory loss, nerve damage, and loss of ability to work rendering a grown man dependent on his aging parents. In Desgagne, Ratushny J. imposed 8 months’ incarceration followed by 2 years’ probation.

[33] Counsel for Mr. Berry concedes that the two cases are similar, except that the blow that caused the injuries in Desgagne was a closed-fist punch. In the present case, the assault described by Mr. Butt as he passed the scene in his taxi entailed more of a shove or push to the chest.

[34] As indicated, Mr. Bedoya fell to the ground and stayed there, unconscious, and so the force of the shove must have been substantial. Nevertheless, I take defense counsel’s point that pushing a person may connote a somewhat different intent than punching a person; the former is designed to inflict pain and injury, while the latter is designed to intimidate and to assert oneself but not necessarily to seriously injure. Counsel for the defense submits that any comparison between Mr. Berry’s actions and the Desgagne case should take that difference into account.

[35] Mr. Berry, please stand at this time.

[36] In all of your circumstances and those of the offence, I sentence you to a period of 4 months incarceration followed by 2 years’ probation.

[37] The terms of your probation, in addition to the statutory terms, are the following:

• You are to report to a probation and parole officer as required;

• You are to attend, comply with, and complete such counselling as is recommended by your probation officer, including any rehabilitative programming related to substance abuse and anger-management;

• You are not to have any association, communication or contact, direct or indirect, with Mauricio Bedoya or members of his immediate family.

• You are to provide such proof of your compliance with your probation conditions as may be required by your probation officer.

[38] I also impose two ancillary Orders. The first is a DNA Order requiring you to submit to the taking of a bodily sample for DNA analysis and data bank storage. The second is an Order under section 109 of the Criminal Code prohibiting you from possessing any firearm or ammunition or any other item referred to in that section, for a period of ten years commencing on the day of your release from incarceration.

[39] Given your previously clean record and the fact that you have until now shown yourself to be a hard-working individual, your sentence for this aggravated assault is a relatively light one. Nevertheless, I have concluded that a conditional sentence such as that requested by counsel would not be consistent with the fundamental purpose and principles of sentencing. Your conduct, and the grief that it has caused to Mr. Bedoya and his family, necessitates a term of incarceration.

[40] The terrible consequences of this incident for Mr. Bedoya have underscored the need for every person to take responsibility for their actions and to learn to control any and all violent impulses. Moreover, the public at large needs to be reassured that acts like this, which result in injuries that will last the rest of the victim’s life, are not acceptable in our society. I trust that you will contemplate all of this in the days and months ahead.

Morgan J.

Date: April 21, 2015