CITATION: R. v. Bradley, 2016 ONSC 2003
COURT FILE: 21/15
DATE: 2016 03 23
ONTARIO
SUPERIOR COURT OF JUSTICE
(Summary Conviction Appeal Court)
B E T W E E N:
HER MAJESTY THE QUEEN
A. E. O’Marra, for the Respondent
Respondent
- and -
ROBERT BRADLEY
S. Pennypacker, for the Appellant
Appellant
HEARD: November 18, 2015 at Milton
ENDORSEMENT
[on appeal from conviction (November 24, 2014) and sentence (February 23, 2015) by Cooper J.]
HILL J.
INTRODUCTION
[1] The appellant pled not guilty to charges of (1) dangerous operation of a motor vehicle and (2) assault with a weapon. After a trial, the appellant was found guilty on both counts. A conviction was entered on the dangerous driving count and a conditional stay on the weapon charge.
[2] With credit for eight (8) days of presentence custody, the appellant was sentenced to a further 112 days in custody, a 1-year driving prohibition, and 18 months’ probation on terms.
[3] The appellant appeals against conviction and sentence.
[4] The thrust of Ms. Pennypacker’s submissions on behalf of the appellant focused upon the legal insufficiency of the summary conviction trial court’s reasons for judgment as to both conviction and sentence.
[5] The reasons for conviction were described as confusing, conclusory, lacking in critical analysis and unamenable to meaningful appellate review. The trial court’s reasons for sentence were said to be “completely impenetrable”, and that in any event, the sentence imposed was unfit in all the circumstances.
Factual Background to Offences
[6] In February of 2013, the appellant, as well as the complainant and his girlfriend (M.B.), were employed at the Ford plant in Oakville.
[7] The appellant and the complainant had an exchange of words with one another immediately before going off an evening shift on February 15, 2013. At trial their versions of what was said were not consistent. For years, there had been a level of animosity between them.
[8] On the complainant’s evidence, as he walked in the darkness in the employee parking lot, he heard a revving engine and the lights come on of a parked vehicle. The car came toward him catching up to him “so fast”. M.B., who had previously had a relationship with the appellant, and who walking on ahead, heard the sound of a speeding car. Another Ford worker, Nick Kotsariadis, testified that as he was in the parking lot he heard the high idle and sudden acceleration of a vehicle as a driver increased the speed of a car. The car he heard was travelling way faster than the norm in the employee parking lot – perhaps at a rate of 50 to 70 k/hr. – in the witness’ words, the driver “shouldn’t have been driving in the parking lot at that speed”.
[9] At trial, the complainant maintained that as the appellant’s vehicle came straight toward him he tried to get out of the way but was unable to avoid being struck:
I tried to get out of the way. The car clipped me, ran my foot over, knocked me over the car. I, I sustained some serious injuries to my arm because the mirror hit my forearm. The car stopped, which was Mr. Bradley, and I could see him, his face – so could [M.B.] – stopped, looked at both of us, and then sped off.
[10] In describing what occurred, the complainant testified that, as he turned toward the car coming at him, the driver’s side mirror of the appellant’s vehicle stuck or “slipped” his left forearm and a car tire drove over one of his steel-toed work boots. As well, as he was spun around, his hip was hit by the vehicle’s front quarter panel as he “slid off the car” or “bounced off the car” and “ended up on the ground”. He was “in shock”.
[11] The complainant testified that after he was struck, the appellant stopped his vehicle and looked at him before driving off in a hurry.
[12] M.B. testified that prior to the collision she screamed to the complainant, “Watch out”. It looked too late for him to move away, although it appeared to the witness that the complainant “was trying to jump away”. The witness heard a “thump” and she “knew something happened”. M.B. testified that the appellant stopped his vehicle, looked out his window at the complainant and “sped off”. She got the vehicle licence plate number and called 9-1-1.
[13] Mr. Kotsariadis informed the court that he heard a girl scream and heard the “loud bang” of “some sort of impact” and when he got to her location he observed the complainant on the ground. He saw a beige sedan with a busted side mirror “leaving at a higher speed”.
[14] In his testimony, the appellant testified that after having words with the complainant, he left the plant and proceeded to his parked vehicle. He let his car warm up for a couple of minutes with the engine running. It was a manual transmission vehicle which revs high and loud at first gear.
[15] On the appellant’s evidence, once he put the car in gear he travelled no faster than 40 k/hr. After turning a corner in the lot, probably then only driving at about 10 to 15 k/hr., he saw the complainant step out from behind a motorcycle stand, and then jump off of the sidewalk into the laneway in front of him. He saw the complainant face him and with his left hand try to pull his driver’s-side mirror off. The appellant further testified that:
I didn’t see him fall or anything. He was stood up and he was laughing. Because I looked in my rear-view mirror as I took off and – and I heard him yell something, I don’t know what, but he, you know, you could tell he was laughing by the – by the smirk on his face, you know?
[16] According to the appellant, his driver’s window was up and he at no point put it down. He drove to a police station to report the incident.
[17] According to the complainant, on attending a walk-in clinic for pain he was experiencing to his forearm, back and hip, he received two medical prescriptions. A photo of the complainant’s forearm taken three days after the incident revealed a redness at the site of the abrasion. M.B. subsequently took a further photo of the forearm which depicted the same abrasion five days after the injury was incurred. The complainant testified that he lost one or two days of work on account of his injuries.
[18] In the early morning hours of February 15, 2013, Halton Regional Police Service (HRPS) Sergeant Vince Williams heard a radio transmission about the incident at the Ford parking lot. At 2:22 a.m., the officer observed a vehicle resembling the one sought in connection with that incident travelling at a high rate of speed northbound on Oak Park Drive. The vehicle just “barrelled” past the witness at about 70 k/hr.
[19] With his emergency lights activated, Sgt. Williams pursued the appellant’s vehicle into the parking lot of HRPS 20 Division. The officer observed the side mirror dangling on the driver’s side of the appellant’s vehicle.
The Sentencing
[20] The appellant, born September 9, 1966, has a prior criminal record of 18 convictions between 1983 and 2009. There are no convictions for physical violence against a person.
[21] The appellant was born in England. The majority of his family (mother, sisters) reside there. The appellant wants to return to live in England.
[22] While the appellant has been involved in volatile personal relationships in the past, he has remained on good terms with P.S., a former common law partner and surety with whom he has been residing.
[23] The appellant did not complete high school. In school, he was diagnosed with ADHD for which he was prescribed medication. He has been employed with Ford for over 30 years.
[24] In the past, the appellant had a history of substance abuse including alcohol and crack cocaine. Seven of the appellant’s prior convictions relate directly to drugs or alcohol. The appellant completed residential treatment programs and reported being sober and drug-free since October 2007.
[25] The appellant experienced two significant medical incidents in his past. In 2006, he was stabbed and fell from a balcony suffering severe injuries. In 2007, he was involved in a motor vehicle accident causing him to be in a coma for 20 days and hospitalized for a total of 40 days.
[26] The Presentence Report author noted that probation services records indicate that the appellant complied with all conditions of prior orders for community supervision.
[27] At trial, counsel on the appellant’s behalf sought a suspended sentence and probation. No victim impact statements were filed. Crown counsel submitted to the trial judge that “a custodial sentence … in the range … [of] … three to four months … with credit for pre-trial custody credited of eight days”.
Reasons for Judgment - Conviction
[28] The trial court reserved its judgment on the date when the closing submissions of counsel were heard. On November 24, 2014, oral reasons were delivered.
[29] After extensively reviewing the evidence heard at trial, the trial judge noted the burden of proof upon the prosecution, “the principles in Regina v. W.D.” with the appellant having testified, and the relevant jurisprudence respecting dangerous operation of a motor vehicle. The reasons also identified the correct legal approach to use of a prior criminal record respecting an accused who testifies on his own behalf.
[30] The trial court made these principal findings of fact:
(1) the appellant and the complainant were not on good terms largely on account of the appellant’s past relationship with M.B.
(2) an unpleasant exchange between the appellant and the complainant occurred immediately prior to these persons going off shift and leaving the Ford plant
(3) the appellant left the building before the complainant and M.B.
(4) the appellant sat in his vehicle in the handicapped parking area which provided a good view of exit area Gate 12 used by employees to get to their parked vehicles
(5) having seen the complainant exit, the appellant “drove directly at him, deliberately at him” in a fit of rage resulting in the car’s side mirror striking the complainant’s left forearm – the appellant drove over the complainant’s foot and struck the complainant’s hip
(6) the appellant then drove off at a high rate of speed
(7) the appellant drove to a police facility “to make himself look like the victim and not the perpetrator”.
[31] In making these findings, the trial court noted the version of events narrated by the complainant and M.B. to be largely consistent and in many respects at odds with that of the appellant. The court considered Mr. Kotsariadis as “a totally independent unbiased witness” who provided honest and accurate evidence serving to corroborate key aspects of the complainant/M.B. accounts allowing the court to conclude that the prosecution evidence should be accepted and the evidence of the appellant rejected. In the result, the trial judge “accepted the evidence of the Crown witnesses beyond a reasonable doubt” and did not believe the appellant’s evidence nor was the court “left in a state of reasonable doubt by his evidence”.
Reasons for Sentence
[32] The court’s reasons for sentence are as follows:
I consider this an intentional act. You waited for the complainant to leave work, and then you drove right at him with the purpose of injuring him, and you did injure him. And as [Crown counsel] says, it is fortunate that it was not worse. There could have been brain injuries, there could have been death. This is a serious case.
And I am giving you credit for eight days detention. The sentence I would have imposed was, and the Crown was asking for three to four minimum, my sentence would be 120 days. But I am deducting the eight days. So, it would be 112 days. And the suspended sentence is totally inappropriate.
[33] Eighteen (18) months’ probation with conditions and a 1-year driving prohibition were also imposed.
[34] Recognizing that sentence had already been pronounced, counsel for the appellant nevertheless asked the trial judge to consider an intermittent-range sentence. The trial judge rejected the submission noting that the sentence already imposed was “a soft sentence for driving a car intentionally at somebody and injuring them”.
Analysis
Conviction Appeal
[35] This was pre-eminently a credibility case. The trial judge had the inestimable advantage of seeing and hearing the witnesses.
[36] The trial court was the beneficiary of extensive written and oral submissions from the parties. Although no transcript of the oral submissions was filed on appeal, though required by Rule 40.08(13)(d) of this court’s Criminal Proceedings Rules, there were undoubtedly explorative exchanges between the court and counsel respecting the live issues during those submissions.
[37] While the analytical segment of the trial court’s reasons for conviction are somewhat brief, the reasons are adequate to explain the court’s path of reasoning and to permit meaningful appellate review.
[38] The trial judge was entitled to make the factual findings he catalogued. On the whole of the evidence, the findings were reasonable and supported by the evidence.
[39] The weight of the evidence, in terms of evidence of the complainant and M.B. as to the speed of the appellant’s approaching vehicle, and the effort of the complainant to get out of the way, was against the version advanced by the appellant. Accepting, as he was entitled to, that Kotsariadis was a credible and reliable witness, that witness’ confirmatory evidence in particular respecting the abnormal speed of the appellant’s vehicle and M.B.’s scream prior to the collision, demonstrably assisted the trier of fact.
[40] The trial court’s considered and reasoned acceptance beyond a reasonable doubt of conflicting credible evidence amounted to a legitimate and justifiable explanation for rejection of the appellant’s evidence without losing sight of the ultimate application of the requisite burden of proof.
[41] Within the confines of appellate review, on the whole of the trial record, there is no cause for appellate intervention.
Sentence Appeal
[42] Trial courts enjoy a broad discretion to impose what they consider to be a fit and appropriate sentence guided by the Part XXIII Criminal Code statutory principles, relevant identifiable sentence ranges, and jurisprudential sentencing discussion in particular relating to proportionality and restraint in the infliction of punishment.
[43] Error in principle, failure to consider a relevant factor, over-emphasis or erroneous consideration of the appropriate factors impacting on the sentence imposed, or a sentence found to be demonstrably unfit absent other error, can justify appellate court intervention and permit the court to inquire into the fitness of sentence and replace it with the sentence it considers appropriate: R. v. Lacasse, 2015 SCC 64, at paras. 36-55.
[44] A sentencer will identify the general guideline range for similarly committed offences (R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 44; Lacasse, at para. 60). Then, “[o]nce the range is identified, the sentencing judge must consider specific … mitigating factors” (R. v. Hamilton and Mason (2004), 2004 CanLII 5549 (ON CA), 186 C.C.C. (3d) 129 (Ont. C.A.), at para. 111) and “[t]he relative importance of any mitigating … factors will then push the sentence…down the scale of appropriate sentences for similar offences”: Nasogaluak, at para. 43.
[45] In this case, the trial court made no reference in its reasons for sentence to the balance of relevant mitigating and aggravating factors: Code, s. 718.2(a).
[46] In aggravation, in particular, was the seriousness of the appellant’s conduct, the existence of a prior criminal record and, at least indirectly, continued hostility toward M.B.
[47] In mitigation, the offender:
(1) had maintained substance abstinence and reoffence for a number of years
(2) had maintained long-term stable employment
(3) was incident-free while bound by the terms of a judicial interim release recognizance for a period of over 2 years including compliance with a non-communication condition relating to the complainant and M.B.
(4) had complied with prior community supervision orders.
[48] The offender was not entitled to the leniency or sentence reduction which generally accompanies a not guilty plea, remorse and acceptance of responsibility.
[49] The trial court’s failure to articulate the factors balanced in its punishment decision seems, in part, to have been the result of simply relying on the prosecutor’s submitted sentence range without an individualized analysis of the mitigating/aggravating factors. This raises an additional issue.
[50] The Crown at trial articulated a position that a fit sentence would include a 3-month sentence. The trial judge did not articulate why this lesser punishment, in the range identified by the prosecution, capable of being served intermittently by an offender with full-time employment, would not have been a fit disposition. While not a joint submission scenario, the unexplained imposition of an effective sentence only 22 days (112 minus 90) beyond the lowest point of the Crown’s recommended range is an error in principle.
[51] These circumstances warrant limited appellate intervention, especially having regard to the contextual reality that the appellant will have served his custodial sentence in three installments, in 2013, 2015 (12 days prior to admission to bail pending appeal) and now in 2016.
[52] The sentence imposed at trial is varied to this extent only: (1) with credit for 8 days’ of pre-sentence custody, the 112 –day sentence imposed at trial is reduced to 90 days’ incarceration to be served on an intermittent basis commencing Friday, April 1, 2016 at 7:00 p.m. on consecutive weekends on each occasion from Friday at 7:00 p.m. to the following Monday at 6:00 a.m. until the sentence has been served (2) the term of the probation order is reduced from 18 months to 1 year and the order will commence during service of the intermittent sentence pursuant to s. 732 (b) of the Code.
CONCLUSION
[53] The appeal against conviction is dismissed.
[54] The appeal against sentence is allowed to the extent described in para. 52 above.
Hill J.
DATE: March 23, 2016
CITATION: R. v. Bradley, 2016 ONSC 2003
COURT FILE: 21/15
DATE: 2016 03 23
ONTARIO
SUPERIOR COURT OF JUSTICE
(Summary Conviction Appeal Court)
RE: R. v. Robert bradley
COUNSEL: E. O’Marra, for the Respondent
S. Pennypacker, for the Appellant
ENDORSEMENT
[on appeal from conviction (November 24, 2014) and sentence (February 23, 2015) by Cooper J. on February 23, 2015]
Hill J.
DATE: March 23, 2016