R. v. Cummings, 2015 ONSC 3162

COURT FILE NO.: 13-70000794-0000

DATE: 20150519

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Daniel Brandes for the Crown

- and -

CASSIM CUMMINGS

R. Craig Bottomley for Cassim Cummings

HEARD: May 12, 2015

REASONS FOR SENTENCE

Corrick J. (orally)

Introduction

1On February 27, 2013, Cassim Cummings slashed Corey Baker's neck with a knife on a TTC subway train. Mr. Cummings had a trial before me, and on April 14, 2015, I found him guilty of aggravated assault, assault with a weapon, carrying a concealed weapon and possession of a weapon for a purpose dangerous to the public peace.

Circumstances of the Offences

2At approximately 10:20 p.m. on February 27, 2013, Mr. Cummings was walking through a subway car approaching patrons who were seated. His right hand was covered with a white plastic bag concealing a knife he was carrying. He approached Corey Baker, who was sitting in the subway car. When Mr. Baker stood up in front of Mr. Cummings, Mr. Cummings swung his right hand at Mr. Baker, cutting Mr. Baker's neck.

3Mr. Baker was taken to the hospital by ambulance. He suffered a 5 centimetre-long scratch ending in a 1 centimetre-long laceration, which was closed with a single staple. He was released from the hospital the same night.

Circumstances of the Offender

4Following my verdict in the trial, Mr. Brandes made an application to have Mr. Cummings assessed to determine whether he was exempt from criminal responsibility on account of mental disorder. The application was dismissed. Dr. Jeffrey Van Impe, a psychiatrist who assessed Mr. Cummings for fitness to stand trial, testified on that application. In addition, two psychiatric reports from Waypoint Centre for Mental Health Care were filed on the application. Counsel agreed that I consider Dr. Van Impe's evidence and the two psychiatric reports for the purpose of sentencing. I have derived most of the background information about Mr. Cummings from the psychiatric report dated June 2, 2014.

5Mr. Cummings is 22 years old. He is single. When he is not in custody, he has occasionally lived with his mother in Toronto, but has often been homeless. He does not have much formal education, having left school in grade 11. He has no employment history.

6He had a disrupted childhood. He was born in Jamaica. His parents separated when he was a baby. His mother left Jamaica for Canada when Mr. Cummings was 19 months old. Mr. Cummings remained in Jamaica staying with his grandmother and other relatives. He came to Canada when he was 7 years old, and was reunited with his mother.

7He had a difficult relationship with his mother and by the time he was 14 years old, he was in the care of the Children's Aid Society, living in foster and group homes.

8Mr. Cummings suffers from a mental illness, the nature of which has yet to be definitively diagnosed. His mother reported that Mr. Cumming's behaviour changed when he was 12 or 13 years old. He became withdrawn, defiant, angry, and threatening.

9Mr. Cummings has been seen and assessed by doctors a number of times. In June 2010, Mr. Cummings sought drug and alcohol treatment at the Centre for Addiction and Mental Health. He was discharged the same day to a youth shelter. In August 2010, the police took him to the hospital from his group home after he had made threatening comments to staff. He was discharged the same day with no follow-up appointments scheduled.

10While Mr. Cummings was in custody in 2012, he was admitted to the St. Lawrence Valley Correctional and Treatment Centre due to suspected psychosis. He was irritable, guarded, loud, agitated, angry and threatening. He was seen to be talking to himself. His condition improved once he was treated with medication. Upon discharge, he was diagnosed with alcohol abuse, cannabis dependence, anxiety disorder and antisocial personality disorder with dysfunctional anger.

11While awaiting trial on these charges, Mr. Cummings was seen by two different physicians. On August 13, 2013, Mr. Cummings was assessed at William Osler Health Centre, after he had been aggressive with the doctor at the detention centre. The assessing physician determined that Mr. Cummings was not suffering from any acute psychiatric symptoms, and he discharged Mr. Cummings the same day back to the detention centre.

12Mr. Cummings was last assessed by Dr. Van Impe between March 18 and June 2, 2014 when Mr. Cummings was admitted to Waypoint Centre for a fitness assessment, and having been found unfit to stand trial, readmitted with a Treatment Order. Dr. Van Impe testified that, upon admission, Mr. Cummings was acutely psychotic. He was paranoid, aggressive and threatening and had to be kept in seclusion between March 18 and April 1. He refused medication, and could not engage in conversation.

13Once treatment with anti-psychotic medication was started on April 9, Mr. Cummings improved dramatically. He was removed from seclusion. He told Dr. Van Impe that he was thinking more clearly, and was less angry. However, according to Dr. Van Impe, Mr. Cummings did not achieve complete insight into the benefits of treatment. He refused oral anti-psychotic medication, which would have had fewer negative side effects. Dr. Van Impe opined in his June 2 report that Mr. Cummings was likely to be non-compliant with treatment if he were offered only oral medication.

14Dr. Van Impe testified that he did not have enough information or experience with Mr. Cummings to make a specific diagnosis of his illness. For that reason, he diagnosed Mr. Cummings with Psychotic Disorder – Not Otherwise Specified. He noted in the June 2 report that the most likely explanation for Mr. Cummings' symptoms was schizophrenia.

15Mr. Cummings has the following criminal record.

2009-07-21

Youth Court

Robbery

12 months probation

2009-10-28

Youth Court

Assault

Fail to comply with recognizance

18 months probation

2010-05-17

Youth Court

Uttering threats

Assault with a weapon

Fail to comply with disposition

time served (10 days) & 24 months probation

2010-06-28

Youth Court

Mischief under $5,000

Fail to comply with recognizance

12 months probation

2010-08-03

Youth Court

Uttering threats

Fail to comply with disposition

8 days & 4 days under community supervision & 19 days pre-sentence custody & 12 months probation

2010-11-08

Youth Court

Mischief under $5,000

time served (20 days) & 12 months probation

2011-03-26

Robbery

6 months jail (13 months pre-sentence custody) & 2 years probation & s. 109 prohibition order for life

Positions of the Parties

16On behalf of the Crown, Mr. Brandes submitted that the appropriate sentence in this case is four years imprisonment, less credit for the time Mr. Cummings has spent in pre-sentence custody, plus three years probation with a condition that Mr. Cummings seek and maintain counselling and treatment for any emotional or mental health issues and sign any release form necessary for his probation officer to monitor his treatment. Mr. Brandes also seeks a DNA order and a s. 109 order for life.

17Mr. Bottomley, on behalf of Mr. Cummings, submitted that the time Mr. Cummings has already served in pre-sentence custody is the appropriate sentence; that a further period of incarceration will not meet any of the objectives of sentencing, and may well frustrate them by delaying treatment for Mr. Cummings. Mr. Bottomley agrees with the three-year term of probation and the ancillary orders sought by the Crown.

18Both parties agree that Mr. Cummings is entitled to enhanced credit at the rate of 1.5 days for each day he has spent in pre-sentence custody. Mr. Cummings was arrested on March 1, 2013. As of the date of sentencing, he has spent 810 days or 26 months and 19 days in custody.

Discussion

19The principles of sentencing that I am bound to consider are set out in the Criminal Code. The first is the fundamental purpose of sentencing set out in s. 718, which is to “contribute to respect for the law and the maintenance of a just, peaceful and safe society” by imposing sentences that have one or more of the following objectives: denouncing unlawful conduct, deterring the offender and others from committing crimes, separating offenders from society, where necessary, assisting in the rehabilitation of the offender, providing reparations for harm done to the victim or to the community, and promoting a sense of responsibility in the offender.

20In this case, which involved a vicious unprovoked attack with a knife on a member of the public using the public transportation system, the principles of deterrence and denunciation are of paramount importance. However, rehabilitation cannot be overlooked, especially in light of Mr. Cummings' age and mental health.

21The second principle I must consider is proportionality. Any sentence imposed must reflect the gravity of the offence and the offender’s degree of responsibility.

22Thirdly, I am required by section 718.2 to impose a sentence taking into account any relevant aggravating or mitigating circumstances relating to the offence or the offender.

23Finally, I must consider sentences imposed on similar offenders for similar offences committed in similar circumstances. To that end, counsel have referred me to a number of cases. I do not propose to set out the details of each of them because no two cases of aggravated assault are the same, and one case can be easily distinguished from another. The cases disclose a wide range of sentences as a result of the varied factual circumstances that can give rise to an aggravated assault conviction.

24In R. v. Tourville 2011 ONSC 1677, Justice Code reviewed the sentencing jurisprudence in aggravated assault cases, and concluded that the cases fall into three broad ranges of sentence. The first range, which he described as "exceptional," are imposed in cases characterized by an unusual degree of mitigation, permitting a court to deviate from the usual sentence of significant jail. In the middle, he identified cases generally involving first offenders and some element suggesting a consent fight during which the accused used excessive force. These cases generally attracted high reformatory sentences between 18 months and two years less a day. At the high end of the range were penitentiary sentences of four to six years. These cases generally involved recidivists, with serious prior criminal records, or unprovoked or premeditated assaults with no element of consent or self-defence.

25Mr. Brandes referred the court to R. v. Johnson (1998), 1998 CanLII 4838 (BC CA), 131 C.C.C. (3d) 274 in which the British Columbia Court of Appeal held that the range of sentence for aggravated assault was between 16 months and six years in prison. He also referred the court to R. v. Kanthasamy 2007 ONCA 90, in which the Court of Appeal upheld 7½ year terms of imprisonment imposed on two 20-year-old offenders for aggravated assault, noting that the sentence was "close to the upper range of sentence imposed for this kind of offence."

26Mr. Bottomley provided the court with ten sentencing decisions that also demonstrate the broad range of sentence for aggravated assault.

27In R. v. Peciukaitis 2008 ONCA 672, the Court of Appeal considered a 14-month sentence meted out to a 60-year-old first offender. The accused had pleaded guilty to aggravated assault, and break and enter. She and her husband had been involved in litigation with their ratepayers association. She broke in to the cottage of the president of the association, walked into his bedroom where he was sleeping, jumped on top of him and stabbed him in the chest with a large kitchen knife. The victim was not seriously injured, but the knife nicked his lung and he required stitches to close two cuts on his chest. The accused had spent 85 days in pre-trial custody. She suffered from depression and anxiety. Although the court declined to interfere with the 14-month sentence in light of fresh medical evidence, it concluded that the sentence was demonstrably unfit and that a penitentiary sentence should have been imposed.

28Justice MacDonnell imposed a 36-month prison term on a 28-year-old first offender who pleaded guilty to aggravated assault in R. v. Haly 2012 ONSC 2302. The accused stabbed the victim in the back with a hunting knife while the victim was working out on a machine in a fitness club where the victim was employed. The attack was unprovoked. The victim suffered numerous stab wounds to his back, flank, arm and leg. His wounds were stapled, and he was released from hospital later the same day. The victim recovered from the physical injuries, but continued to suffer psychological harm. The accused had a history of substance abuse and had been diagnosed with major depressive disorder. Justice MacDonnell concluded that a four and a half year prison term was appropriate, but credited the accused with 18 months of pre-sentence custody.

29I note these two decisions in particular because they involve offenders who suffered from mental illness, as does Mr. Cummings. I note as well that they involve offenders without a criminal record, unlike Mr. Cummings.

30A review of the cases demonstrates that sentencing is a profoundly individualized process driven by the unique facts of every offence and the unique characteristics of every offender. The sentencing principles to which I have referred must be applied to the unique circumstances of each case.

31The principal mitigating circumstance in this case is the nature of the injury suffered by Mr. Baker. Fortunately, his injuries were not life threatening. He did not require surgery or a stay in the hospital. I hasten to add however, that this was a matter of luck.

32In addition, Mr. Cummings is a young man who has had a rather disrupted life, coping with parental figures coming in and out of his life, homelessness and an undiagnosed mental illness.

33On the other hand, Mr. Cummings has a serious and related criminal record. He has been convicted of 19 offences on seven prior occasions. On five of those occasions, Mr. Cummings was convicted of an offence involving violence or threatened violence. He has been convicted twice of robbery, twice of uttering threats, once of assault and once of assault with a weapon. He is not a stranger to using violence in the community.

34In the case before this court, Mr. Cummings used a knife he had concealed in his hand to viciously attack a complete stranger who was minding his own business on a subway train.

35Mr. Cummings does not appear to have any support in the community. It is not clear that he has a place to live once released from prison.

36Mr. Cummings' mental health is a significant consideration. There is evidence in this case that some mental health issue was linked to the commission of these offences by Mr. Cummings. Left untreated, Mr. Cummings will continue to pose a danger to the safety of the community. Dr. Van Impe noted in his report that Mr. Cummings did not gain complete insight into the benefits of treatment while he was in Waypoint between March 18 and June 2, 2014. Mr. Cummings refused to take oral medication even after he had stabilized. On the other hand, Mr. Cummings took oral medication voluntarily when he was in St. Lawrence Valley Correctional and Treatment Centre in 2012. In addition, his probation officer reported that Mr. Cummings attended most of his appointments, and followed through with referrals she had made.

Determination of a Fit Sentence

37Despite Mr. Bottomley's very able submissions, in the circumstances of this case, denunciation and deterrence must be the paramount considerations. Before giving Mr. Cummings credit for the time he has spent in pre-sentence custody, I am of the view that a sentence of fours years in prison is the fit and proper one. It is required to reflect the fact that this was an extremely dangerous act committed by a person who has repeatedly committed violent acts in the past. I will credit the 26 months and 19 days Mr. Cummings has spent in pre-sentence custody as 40 months, leaving a term of eight months left to be served.

38In addition, Mr. Cummings will be placed on probation for a period of three years with the following conditions:

1. keep the peace and be of good behaviour;

2. appear before the court when required;

3. report to a probation officer within one working day of the day you are released from prison and thereafter, when required by the probation officer and in the manner directed by the probation officer;

4. remain within the jurisdiction of this court unless written permission to go outside this jurisdiction is obtained from the court or the probation officer;

5. reside at an address approved of in writing by your probation officer;

6. abstain from owning, possessing or carrying any weapon including any offensive weapon, ammunition, explosive substance or weapon as defined in the Criminal Code; and

7. attend counselling and treatment as directed by your probation officer, and sign any releases necessary to allow your probation officer to monitor your compliance with this condition.

39In addition, as aggravated assault is a primary designated offence under the DNA provisions of the Criminal Code, there will be an order requiring Mr. Cummings to provide a DNA sample. There will also be an order prohibiting him from possessing any weapon for life.

40In summary, Mr. Cummings is sentenced to eights months in prison to be followed by three years probation concurrent on counts 4, 5, and 7. Count 6 is conditionally stayed pursuant to the principle in R. v. Kienapple.

Corrick J.