CITATION: R. v. Hughes, 2015 ONSC 2626
COURT FILE NO.: 14354/14
DATE: 2015/04/23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
SHELDON HUGHES
Louise Collins, for the Crown
Stephen Bernstein, for the Accused
reasons for sentence
garton J.
[1] The accused, Sheldon Hughes, age 51, has pleaded guilty to assaulting Genera O’Reilly, age 39, on August 3, 2013. He has also pleaded guilty to failing to comply with a recognizance on that date by possessing and consuming alcohol.
[2] The Crown seeks a sentence of two years less one day, followed by three years probation with respect to the assault charge, and one year concurrent with respect to the offence of breach of a recognizance.
[3] The position of the defence is that a global sentence in the range of four-and-a-half to nine months, followed by one year probation, would be fit and proper in the circumstances.
Background of the proceedings
[4] Mr. Hughes was originally charged with a number of offences arising out of events on August 3, 2013. These included an assault on Ms. O’Reilly that caused her bodily harm. He pleaded not guilty to all the charges except for one count of breaching his recognizance. The trial then proceeded before me without a jury.
[5] During cross-examination, Ms. O’Reilly, who was the Crown’s last witness, became quite emotional and refused to return to the courtroom following the lunch break. The following day, she did not come to court at all, although she was ultimately in touch with Crown counsel. Ms. O’Reilly advised the Crown that she needed more time to compose herself before she would be able to continue her testimony. Although Crown counsel suggested that the trial be adjourned for a few weeks, she and defence counsel also began to discuss a possible resolution to the case. In the end, Mr. Hughes pleaded guilty to the lesser and included offence of common assault. Verdicts of not guilty were entered with respect to the remaining charges, except for the breach of recognizance, to which Mr. Hughes had earlier pleaded guilty.
[6] Ms. O’Reilly first met Mr. Hughes when she was 27 years old. They lived in a common law relationship in 2004 and 2005, when she was 28 and 29 years old. They were not living together by the time Ms. O’Reilly gave birth to their daughter, Soleil, on November 26, 2006. Ms. O’Reilly testified that sometime prior to Soleil’s birth, Mr. Hughes attended at her residence when he was drunk and assaulted her. She complained to the police and charges were laid. On October 5, 2006, Mr. Hughes was convicted of assaulting Ms. O’Reilly, uttering threats, and failing to comply with a recognizance. In addition to 49 days of pre-trial custody, Mr. Hughes received a suspended sentence and was placed on probation for 30 months. He was also fined $200 for possession of a Schedule II substance.
[7] Ms. O’Reilly and Mr. Hughes had no further contact with each other until Soleil was about three years old. At that time, Ms. O’Reilly decided to allow Mr. Hughes limited access to his daughter. Mr. Hughes would occasionally take care of Soleil overnight, during a weekend. He also took her to Caribana each year. His other daughters sometimes accompanied him on these occasions. Mr. Hughes apparently has seven other children. Ms. O’Reilly testified that there were never any family court orders regarding custody or access. Mr. Hughes has never made any child support payments with respect to Soleil.
[8] On July 9, 2012, Ms. O’Reilly gave birth to her son, Shiloh. Shortly thereafter, her relationship with Shiloh’s father ended. Ms. O’Reilly subsequently asked Mr. Hughes, who was living in the Barrie area, to take on more child care responsibilities with respect to Soleil, as she was now also caring for a newborn infant. Mr. Hughes, in responding to her request, occasionally stayed overnight at Ms. O’Reilly’s residence on a weekday and/or on weekends. He helped her care for the baby, sometimes took the children to day care, and also assisted Ms. O’Reilly in moving to another apartment. Ms. O’Reilly testified that she and Mr. Hughes got along well during his visits over the course of 2012 and 2013. She enjoyed his friendship. However, the relationship was strictly that of friends; they were not romantically involved.
Events on August 1 to August 3, 2013
[9] On Thursday, August 1, 2013, Mr. Hughes attended at Ms. O’Reilly’s residence and stayed overnight without incident. He planned to take Soleil to Caribana on Saturday, August 3, 2013.
[10] On Friday, August 2, 2013, Ms. O’Reilly spent the evening visiting with a couple of her neighbours in the front yard of their townhouse complex. Mr. Hughes was upstairs in Ms. O’Reilly’s apartment with the children during most of this period. At some point, Ms. O’Reilly observed that Mr. Hughes, much to her disapproval, had purchased a 26-ounce bottle of rum. She testified that Mr. Hughes tends to become violent when he drinks rum.
[11] Ms. O’Reilly went to bed that night in her bedroom. Soleil also fell asleep in Ms. O’Reilly’s bed. Shiloh was asleep in his crib in the same room.
[12] Sometime in the early hours of the morning, Mr. Hughes entered the bedroom and began poking at Ms. O’Reilly to wake her up. He kept telling her that they had to talk, and complained that she was ungrateful for all the things he was doing to help her out. He appeared to be drunk. His speech was slurred.
[13] Ms. O’Reilly did not want to talk to Mr. Hughes at that time. An argument ensued, during which Soleil woke up. The baby also started to cry. Ms. O’Reilly took Shiloh out of his crib, gave him a bottle, and put him in his playpen in the living room. Mr. Hughes continued to want to talk to her. While they were on the bed, he punched her in the forehead. Ms. O’Reilly began to scream. Mr. Hughes has acknowledged through his guilty plea that in order to stop Ms. O’Reilly from “being loud”, he put his thumb on her throat and applied pressure. He also placed his hand over her mouth. As a result, Ms. O’Reilly could not breathe. His actions left red marks or scratches on her neck.
[14] Mr. Hughes slapped Ms. O’Reilly in the mouth, causing a “fat lip” or bruising to her mouth. Ms. O’Reilly initially thought that her jaw was broken but quickly realized that that was not the case, as she was able to move it back and forth. Mr. Hughes also gripped her stomach, causing multiple scratches with his fingernails.
[15] During the assault, Soleil, who was six years old at the time, was in and out of the bedroom. At some point, Ms. O’Reilly threw her cell phone towards Soleil and asked her to call the police. Although Soleil saw parts of the struggle between her parents, it has not been established that she actually saw her father hit her mother. However, she heard what was going on and at some point told her father, “Daddy, you’re cracking mommy’s bones.”
[16] Following the assault, Ms. O’Reilly got into the shower. Mr. Hughes followed her in. Ms. O’Reilly tried to avoid having him see the “goose egg” that he had caused when he punched her on the forehead. She was fearful of the accused and very distraught – so distraught that she got out of the shower, grabbed Shiloh from his playpen and, while wearing only a towel, ran out of the apartment to a nearby gas station. She jumped into the back seat of a car and asked the owner to call the police.
[17] Detective Male arrived shortly thereafter and placed Ms. O’Reilly and the baby in the backseat of his cruiser. They remained there from 5:51 a.m. to 6:05 a.m., when Det. Male drove her back to her residence. The DVD-recording of Ms. O’Reilly in the cruiser shows that she was very distressed and concerned about having left Soleil alone in the apartment with Mr. Hughes.
[18] By the time the police arrived at her residence, Mr. Hughes was gone. Prior to leaving, he had told Soleil to call Ms. O’Reilly’s neighbour, Jacqueline Allen, and to ask her to come over. Soleil followed through with these instructions. Ms. Allen immediately attended at the apartment, where she found Soleil alone and crying on the sofa in the living room. About ten minutes later, the police arrived. A few minutes after that, Ms. O’Reilly returned home with Det. Male.
[19] Ms. O’Reilly described the assault as harrowing. The bruise on her forehead, which developed into a large bump, resulted in her having a black eye the next morning. The bruise on her forehead and the scratches on her abdomen took a couple of weeks to heal.
[20] The incident also had an impact on Soleil, who experienced difficulty falling asleep for some months following the assault. She was also fearful of having the lights turned off when she went to bed. However, according to Mr. Hughes’ sister, Kathleen Noel, who maintains contact with Soleil, these problems have now resolved and Soleil is currently “doing okay.”
[21] Ms. O’Reilly, through Crown counsel, described Mr. Hughes as a very loving and caring person who needs treatment for alcoholism. She expressed the view that he has spent enough time in jail. She maintains the hope that one day Mr. Hughes can again be a good father to Soleil.
Facts relating to the offence of failing to comply with a recognizance
[22] At the time that Mr. Hughes assaulted Ms. O’Reilly, he was on bail for sexual assault, choking with the intent to commit a sexual assault, and other charges. One of the terms of his bail was that he was to abstain from the consumption, possession, or purchase of alcohol. This recognizance had been in effect since March 31, 2011. On August 3, 2013, Mr. Hughes, as stated earlier, was in possession of a bottle of rum and was under the influence of alcohol when he assaulted Ms. O’Reilly.
[23] I am advised by counsel that on July 2, 2014, following a jury trial in Brampton on the above-named charges, Mr. Hughes was found guilty of sexual assault and choking with intent to commit a sexual assault. The date of these offences was November 1, 2008. Sentencing is scheduled for May 1, 2015.
Background of the offender
[24] Mr. Hughes is 51 years old. His criminal record, which commenced when he was 25 years old, is as follows:
August 16, 1988 Possession of a narcotic Absolute discharge
July 12, 1990 Conspiracy to commit theft 30 days intermittent + 3 mos. prob.
August 20, 1991 Use credit card obtained by crime 7 days on each count, concurrent
(2 counts)
December 6, 1991 Assault 21 days + 2 years probation.
May 19, 1992 Break and enter with intent $500 fine
September 19, 1996 Possession of a narcotic $250 fine
March 1, 2004 Mischief under $5000 Suspended sent. + 6 mos. probation
September 1, 2005 Fail to comply with recog. 15 days intermittent (6 days pretrial custody) + 1 year probation
October 5, 2006 (1) Assault, utter threats, fail to Susp. Sent. + 30 mos. prob. on each
comply with recognizance count (49 days pre-trial custody)
(2) Possession of Sched. II drug $200 fine
October 11, 2011 (1) Fail to comply with recog. (1) 1 day + 3 days pre-trial custody
(2) Refuse breath sample (2) $1000 fine + driving prohibition
for 1 year
July 2, 2014 (1) Sexual assault Offence date: November 1, 2008
(2) Choking with intent to Sentencing scheduled for
commit a sexual assault May 1, 2015
[25] Mr. Bernstein, counsel for Mr. Hughes, pointed out that but for the convictions in 2011 for failing to comply and refusing to provide a breath sample, there is a five-year gap in Mr. Hughes’ criminal record; that is, from November 2008, when he committed the Brampton offences (for which he was convicted in July 2014), to August 3, 2013, when he committed the offences before this court. Mr. Bernstein also pointed out that the longest sentence that Mr. Hughes has received to date is 49 days of pre-trial custody, which was followed by a 30-month period of probation. The gap principle and “jump effect” or “step principle” must therefore be considered in determining an appropriate sentence.
[26] Mr. Hughes worked as a forklift operator for the A&P supermarket for seven years. His main difficulty in life has been his abuse of alcohol. He has the support of his four siblings. His sister, Ms. Noel, who is a senior manager with Scotia Bank, has indicated that she is willing to assist Mr. Hughes in getting treatment for substance abuse. Ms. Noel described her brother as a good family man. Ms. O’Reilly described Mr. Hughes as a good person when he is not drinking. Mr. Hughes, through his counsel, has indicated that he cares deeply for Soleil and, following his release from custody, intends to take the necessary steps through family court proceedings that will allow him to play a more significant role in her life.
[27] Mr. Hughes has spent almost 11 months in pre-trial custody with respect to the charges before the court; that is, from August 9, 2013 to July 2, 2014, when he was convicted of the Brampton offences. Defence counsel has asked that three to six months of this time be attributed to the present charges which, on a 1.5:1 basis would be the equivalent of a four-and-a-half to nine-month sentence.
[28] Since his incarceration, Mr. Hughes has been in five different detention centres, which have been the subject of numerous lock-downs. He has not been able to participate in any programs while incarcerated. While at the Don Jail, he contacted the Salvation Army on his own initiative in the hope of being accepted at one of their treatment facilities following his release into the community.
Aggravating factors
[29] The aggravating factors in this case include Mr. Hughes’ fairly lengthy criminal record, including two prior convictions for assault, one of which involved an assault on Ms. O’Reilly. More recently, Mr. Hughes was convicted of sexual assault and choking, which he committed in 2008. He was on bail with respect to those charges when he assaulted Ms. O’Reilly. Mr. Hughes also has three prior convictions for failing to comply with a recognizance.
[30] The assault on Ms. O’Reilly took place in a domestic context. Although Mr. Hughes and Ms. O’Reilly were not living together or romantically involved at the time, they had earlier been in a common law relationship and had a child together. Mr. Hughes was staying overnight at Ms. O’Reilly’s home for the purpose of assisting with the care of their six-year-old daughter. Ms. O’Reilly trusted Mr. Hughes to be in her home and to stay the night without causing her harm or violating the sanctity of her bedroom where she and her children were sleeping.
[31] The assault may be described as fairly serious, as it resulted in Ms. O’Reilly sustaining a large bump to her forehead, which took a couple of weeks to heal, as did the scratches on her abdomen. The pressure applied to her neck, in combination with the placement of Mr. Hughes’ hand over her mouth, resulted in her being unable to breathe. She also suffered a swollen lip. The assault was harrowing for Ms. O’Reilly, whose level of fear was such that she fled her home in the early morning hours while wrapped only in a towel and with her baby in her arms.
[32] The fact that the assault took place in the presence of a child is aggravating. Soleil may not have actually seen her father strike her mother, but she was certainly aware of the violence he was employing as is evident from her statement that he was “cracking mommy’s bones.”
[33] Before leaving the apartment, Mr. Hughes told Soleil to call Ms. Allen and to ask her to come over. However, he left the residence before Ms. Allen arrived. Ms. Allen found Soleil alone and crying on the sofa in the living room. The impact on Soleil of the assault on her mother is apparent from the fact that she had difficulty falling asleep for some time after the incident and became fearful if the lights were turned off.
Mitigating factors
[34] Mr. Hughes pleaded guilty to failing to comply with a recognizance at the outset of the trial. However, his guilty plea to the lesser and included offence of assault was not entered until midway through the cross-examination of the Crown’s last witness, Ms. O’Reilly. Crown counsel submits that given the fact that the guilty plea was entered after the preliminary hearing and almost at the end of the Crown’s case, it should be given minimal consideration as a mitigating factor. I agree that the lateness of the plea lessens the mitigating effect. However, I also recognize that in pleading guilty, Mr. Hughes saved Ms. O’Reilly from any further emotional trauma that she was obviously experiencing by having to attend in court and continue with her testimony.
[35] Mr. Hughes has the support of his siblings. He has shown in the past that he can be steadily employed. It is apparent from both Ms. O’Reilly and Ms. Noel that Mr. Hughes has the potential to be a good “family man” and loving parent. As noted earlier, when Ms. O’Reilly’s relationship with Shiloh’s father broke down, Mr. Hughes, at Ms. O’Reilly’s request, stepped in and assisted with some of the child-care responsibilities.
[36] As defence counsel submits, the real issue in Mr. Hughes’ life is his abuse of alcohol. The fact that Mr. Hughes recognizes that he has a substance abuse problem and is prepared to take counselling to deal with it is the first step in his rehabilitation. Ms. Noel and his other siblings are willing to assist and support him in his efforts to get treatment.
The appropriate sentence
[37] As the case law demonstrates, sentencing is a highly individual case-specific process that requires the assessment of many factors in order to determine the most appropriate sentence in the circumstances.
[38] In the present case, deterrence and denunciation must play a primary role. This is Mr. Hughes’ third conviction for assault (excluding the convictions for sexual assault and choking in 2014, for which he is to be sentenced in May 2015), and his second conviction for assaulting Ms. O’Reilly. The assault, with the resulting injuries sustained by Ms. O’Reilly, was not trivial. The application of pressure to her neck and the covering of her mouth, such that she could not breathe, are aggravating. The assault took place in her home at a time when Mr. Hughes knew their six-year-old daughter and Ms. O’Reilly’s infant son were present. Although I take into account the gap and jump principles, I also bear in mind the non-trivial nature of the assault and the harrowing effect it had on the victim, causing her to flee her home. It is apparent that prior short sharp sentences for assault and failing to comply with a recognizance have not sufficiently deterred Mr. Hughes. This is his fourth conviction for failing to comply with a recognizance.
[39] Although deterrence and denunciation are important factors, rehabilitation must also be given appropriate weight. Mr. Hughes has pleaded guilty, acknowledged that he has a drinking problem, and has asserted his intention to seek appropriate treatment and counselling. If Mr. Hughes were able to abstain from alcohol, his risk of re-offending would be substantially reduced.
[40] Having considered and weighed the aggravating and mitigating factors, the principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code, as well as the submissions of counsel, I find that a fit and proper sentence in this case is 12 months, less credit for time served in pre-trial custody. The sentence imposed on the assault charge is 12 months. A sentence of two months concurrent is imposed on the charge of failing to comply with a recognizance. Eight months of pre-trial custody, when credited on a 1.5:1 ratio, is the equivalent of a 12-month sentence. Thus, eight months of the time that Mr. Hughes has spent in pre-trial custody is attributed to this case.
[41] Taking into account the time served in pre-trial custody, the sentence is 1 day, concurrent on both counts, to be followed by probation for a period of two years. The terms of the probation are as follows.
keep the peace and be of good behaviour;
appear before the court when required to do so by the court;
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;
report to a probation officer within two working days of release from custody and thereafter as required by the probation officer;
take counselling for substance abuse as may be directed by the probation officer, and provide releases and proof of attendance at counselling sessions to the probation officer;
not be in possession of any weapon as that term is defined in the Criminal Code;
have no contact with Genera O’Reilly without her written revocable consent provided to the probation officer, or pursuant to a Family Court order; and
not be within 200 metres of 55 Bishop Tutu Blvd., or any place where Genera O’Reilly works or is known to be, except with her written revocable consent provided to the probation officer.
Ancillary orders
[42] There will be a weapons prohibition order pursuant to s. 110 of the Criminal Code for a period of ten years.
[43] There will also be an order requiring Mr. Hughes to provide the number of samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis. In making this order, I have considered Mr. Hughes’ criminal record and the fact that the current offence involves violence on a former common law partner and mother of his child. Mr. Hughes left the scene prior to the arrival of the police. The impact of such an order would have minimal impact on Mr. Hughes’ privacy and security of his person. I am satisfied that the order is in the best interests of the administration of justice.
GARTON J.
Released: April 23, 2015
CITATION: R. v. Hughes, 2015 ONSC 2626
COURT FILE NO.: 14354/14
DATE: 2015/04/23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
SHELDON HUGHES
REASONS FOR SENTENCE
GARTON J.
Released: April 23, 2015