Court File and Parties
BARRIE COURT FILE NO.: CR-13-215 DATE: 20160421 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – WARREN MANN Defendant
Counsel: Frederick Temple, for the Crown Uma Kancharla, for the Defendant
HEARD: April 15, 2016
Reasons for Sentence
HEALEY J.
DELIVERED ORALLY
1Warren Mann was found guilty of attempted murder and aggravated assault on April 20, 2015 following trial by jury.
2These reasons explain the sentence that will be imposed on Mr. Mann for these crimes, and the basis for that sentence.
The Circumstances of the Offence
3Warren Mann (“Mann”) earned his living as a long distance truck driver. Gail Brown (“Brown”) earned her living in the sex trade. Mann first met Brown in the spring of 2011 in response to an escort advertisement that she placed in a local newspaper. They met up three or four times. According to Mann, they then agreed that he should move into her apartment, where she lived with her son, Brandon, who was then twenty years old. Mann was there for three or four days when Brown, who had a history of alcohol misuse, was arrested at the apartment on June 25, 2011 for breach of probation and assaulting a police officer, leading to a period of incarceration. At this point Brown and Mann had had face-to-face contact on seven or eight days in total. During her incarceration Mann lived at the apartment with Brandon, paid the bills and gave financial assistance to both Brandon and Brown’s daughter, Kayla, who lived elsewhere. Mann and Brown exchanged correspondence while Brown was in jail and he went to visit her, sometimes taking her children. While Brown expressed feelings and plans in those cards and letters that suggest she may have been flirting with the idea of a romantic relationship that went beyond a commercial one, almost every correspondence from her requests Mann’s financial assistance. Mann testified that he believed that they were moving together toward a relationship and that Brown wanted to leave the escort business. He anticipated that they would live together and be a couple after her release.
4Brown was released on March 28, 2012 and immediately entered an alcohol rehabilitation program, which was completed in early May 2012. The evidence at trial was that the program was successful and she did not drink thereafter. She moved to a rooming house initially, and in July 2012 moved into a rental home with her daughter, Kayla, and Kayla’s boyfriend, Justin. The home, a semi-detached, was on Bernick Drive in Barrie, Ontario, and was located, significantly, a very short distance from the local hospital.
5Mann learned that Brown was intending to move into the Bernick Drive property on July 25, 2012. On that same date, he arrived back in Toronto from a long distance haul and drove to Barrie. His evidence is that he had everything that he owned with him in his car that day, and that it was his expectation that he would be moving into the Bernick Drive house.
6It is clear, however, that the romantic relationship that Mann perceived was not progressing smoothly. Earlier that day, he had sent text messages to Brown stating that he felt she was treating him as an “occasional friend”. There was evidence that Brown had been texting Mann from her daughter’s phone because she may not have wanted him to have her work number.
7After Mann arrived at Bernick Drive the two spent time gardening and then watching movies with Kayla and Justin. But Mann expressed during his testimony his dissatisfaction with the fact that Brown had not told Kayla and Justin that he would be moving in, and that he made an attempt, after Kayla and Justin had gone to bed for the night, to speak with Brown about it. She did not want to address the topic. He then went out to his car, and wrote these words on an envelope: “Just want to say thanks again Gail, once again you got what you wanted and to hell with me. And my feelings”. He testified that this was a precursor to a suicide attempt, because he felt “a little bit depressed”. He testified that he removed a knife from his suitcase, pulled it across his wrist but, the blade being dull and ineffective, he abandoned that idea and re-entered the house. By then it was close to midnight.
8Brown, mercifully, has no recollection of that evening because of the brain injuries that she suffered in the events that followed. Mann testified that he again attempted to initiate a conversation about telling the “kids” he was moving in, the last time occurring in Brown’s bedroom. He testified that she rebuffed him again, then became angry and began to hit him. He recalled reaching out and grabbing her arms to stop her from hitting, then, according to Mann’s version of events, the two lost their balance and fell down together. He testified that he has no memory of what happened next.
9What happened next is that Brown’s head was smashed into the floor with such force and repetition that both carotid arteries running up the side of her neck were partially sheared, depriving her brain of oxygen. She was gripped so tightly around her throat that her larynx was fractured, causing her airway to collapse. One of the paramedics called to the scene noted three individual red and purple finger marks on each side of her neck, describing the redness as evidence of strangulation of the worst he had ever encountered. Her head was hit so hard against the floor that it woke the sleeping neighbours in the adjoining house, one of whom heard the banging through her window, and one of whom heard the sound carried through to the basement where her bedroom was located. Needless to say, the force of the blows caused brain damage; Brown bled into her brain as a result of a shearing of the blood vessels surrounding it. The intensity of the attack was such that Brown’s liver was broken into multiple pieces, causing severe internal hemorrhage. In the opinion of the trauma surgeon who both treated Brown and testified at the trial, such an injury to her liver was the result of very violent, high velocity blows to the abdomen, such as seen in a motor vehicle crash. The surgeon testified that the carotid arteries were partially sheared as a result of rapid acceleration and deceleration of Brown’s neck.
10The banging also woke Kayla and Justin. On entering her mother’s bedroom, Kayla testified that she saw Mann on top of her mother. As she tried to take in what was happening, she saw Mann repeatedly pull her mother’s head up and bang it on the floor. She screamed, moved closer and saw blood on the floor behind her mother’s head. She saw that her mother was unconscious and heard her making light, raspy noises.
11Justin attempted to pull Mann off of Brown, unsuccessfully. Mann’s shirt ripped, but he did not stop what he was doing, or even pause. Justin did not testify at the trial, but Kayla described Justin as being taller than her, estimating that he weighed 230 pounds. Kayla screamed to Justin to call the police and Justin ran next door to his cousin’s home, where a 911 was made.
12Kayla, then only seventeen years of age and small in stature, and alone in the room with the man that she believed to be killing her mother, made a brave attempt to stop the horror of what was unfolding before her. She first put her arms around Mann’s neck and chest to try to pull him off, with no success. She then grabbed a glass candle holder and smashed it onto the back of Mann’s neck, shattering it. It stopped him, but only momentarily. Kayla was screaming at Mann. She testified that Mann got up, faced her and said, “Your mom is my problem”. Kayla turned and fled the house, joining Justin next door. As she exited the bedroom, she saw Mann sit back down onto her mother’s body.
13Kayla’s testimony was thoroughly believable both in content and delivery, and unaffected in its main points by the cross-examination. I find these events to have occurred as she described them to have occurred.
14At thirty-four minutes after midnight, almost simultaneous with the 911 call initiated by Justin, the call taker at the Barrie Police Service received a 911 call that was placed by Mann. In an eerily calm tone, but breathing heavily, Mann tells the dispatcher that he would like to report a murder. In response to her question “what happened” he replied, “My so-called girlfriend … took and pissed me off”, and so “I killed her”. Asked how, he said “I choked her and beat her to death”. Asked where she was now, he replied “Layin’ on the floor in a pool of blood”. At no point does he request an ambulance. Any thought that he placed this call to help Brown is dispelled by what comes next. The dispatcher asked, “Are you sure she is dead?” His chilling response follows: “Well, I’m pretty sure she’s gonna be (unintelligible) anyway”. Before the dispatcher can complete her next sentence, Mann ends the call. And, as if the contents of this exchange is not enough to horrify the listener, beginning partway through the tape, along with more laboured breathing from Mann, echoes the repeated thumping sound that can be none other than Brown’s head continuing to be struck on the floor. The regularity of the sound is as described by both Kayla and the neighbour who listened to the sound through an open window. Based on the testimony of the dispatcher that there was no reason, by way of construction work or otherwise, for such a sound to be coming from the area of the police station, I conclude that the sound emanated from Mann’s end of the line. These facts, taken together with the timing of the call, which overlapped that of the 911 call placed from the neighbour’s home immediately after Kayla arrived on their doorstep, cause me to find that Mann continued to attack Brown by striking her head into the floor even as he was speaking to the dispatcher.
15It would be difficult to conjure up a more explicit, measured expression of the mens rea of the offence of attempted murder, the mental intent to kill.
The Effects on the Victim
16The paramedics were dispatched from the Royal Victoria Hospital in Barrie and arrived within three minutes of the call. Police officers had arrived moments before. Advanced care paramedic backup was required due to the severity of Brown’s injuries. Despite the extreme difficulty that Brown was having with her breathing, the advanced care paramedic was unable to insert an airway down her throat due to the clenching of her jaw that was occurring from her brain injury. Efforts were focused on suctioning the blood from her mouth and airway so that she would not aspirate it and choke. Her Glascow Coma Scale score was assessed as being a five out of fifteen, a score of three indicating death.
17Brown was transferred to St. Michael’s Hospital in Toronto within hours, where she was found to have a reduced Glascow Coma Scale score of four. Dr. Ahmed, a trauma surgeon, testified that Brown presented with five injuries, any one of which on its own would be life threatening. The first was a right frontal subdural hemorrhage, and the second was a subarachnoid hemorrhage, both of which are life threatening because the blood can cause the brain to be compressed, herniating the brain from the skull and essentially crushing it, causing death. The third injury was the bilateral carotid artery dissection, sheared partway through the arterial wall, depriving the brain of blood and oxygen. Brown suffered multiple small stokes when her brain was deprived of oxygen. The fourth injury was the fracture to her larynx, which caused her airway to collapse and impaired her ability to breathe. Dr. Ahmed testified that this injury would be considered life threatening because Brown could suffocate if not intubated with a breathing tube to rectify the collapse of the airway. The fifth injury was the trauma to her liver, causing severe hemorrhage and requiring surgery. This injury was life threatening because of the rapid and substantial blood loss, the liver receiving 20% of the blood volume of every heartbeat. Dr. Ahmed testified that Brown lost a great deal of blood that day, primarily from her liver injury.
18Brown was not expected to survive her injuries at the time of her admission to St. Michael’s Hospital. She was on life support in the intensive care unit, intubated and attached to a ventilator because of the severity of her brain injury. She was unable to control her own breathing. She was in critical condition over the next couple of days. An MRI of Brown’s brain showed that the areas of dead tissue from these strokes were diffuse and extensive, usually indicative of a severe and debilitating brain injury. Over the next month, still in the intensive care unit, she suffered infections and seizures, both of which threatened her life. The seizures were the result of having suffered multiple strokes from the brain trauma. It was known that if she survived she would suffer severe long-term effects.
19Brown remained on life support in the intensive care unit at St. Michael’s Hospital, intubated and attached to a ventilator, until September 9, 2012 1. She was in various stages of coma and was removed from life support measures on that date, and thereafter came slowly out of consciousness. Later that month she was transferred to the Royal Victoria Hospital in Barrie and received rehabilitation for her acquired brain injury.
20Dr. Ahmed testified that it was believed that Brown survived because of her relatively young age and good health, and the promptness of the care that she received. It is expected that she would not have survived if not taken to Royal Victoria Hospital so promptly.
21Brown’s injuries are physical, psychological and permanent. She has an acquired brain injury which has caused deficits in speech, mobility and cognitive function. She initially used a wheelchair and then learned to walk again. Her gait is now unsteady, and her balance and coordination remain affected. She used to enjoy running and can no longer do so. Her balance can be affected just by holding something in her hands or having her purse on her shoulder.
22Brown’s voice has been permanently changed. Her larynx had to be surgically reconstructed. Her speech is raspy and soft, and she sometimes has to gasp for air. Brown describes her own speech as slurred, and she finds that she often has to repeat her comments to be understood.
23Brown has lost her sense of smell and has lost her right-sided vision in one eye.
24Brandon described that his mother had been physically very strong, a person who could run fast and who now has no physical stamina. He used to look to her for guidance, but he describes that now it hard to keep a conversation going with her. She has a short attention span and difficulty remembering things, whereas before she was a quick thinker. He described her as very depressed, a complete change from the independent and strong person that she was before the attack.
25Similarly, Kayla described her mother as utterly changed. She now moves and thinks slowly, and she cannot do normal daily activities without tiring. Her concentration is minimal; she cannot follow movies or stay on one subject. Kayla also described that her mother has no “filter”, and so she says inappropriate things.
26Brown described that everything about her body, and her spine in particular, causes her extreme and constant pain. Her fatigue, pain, memory, confusion, attention span, lack of balance, voice and diminished sensory life are constant impediments.
27Psychologically, Brown is angry, frustrated and depressed, and describes each day as a struggle, both mentally and physically. She feels violated and weak, and has difficulty relaxing and sleeping. She is plagued with thoughts of violence being enacted on herself or her family members. She is saddened by both her own and her family’s losses.
Effects on the Victim’s Family
28Brandon also provided a victim impact statement in this proceeding. Brandon is only twenty-three years of age and describes that he has become depressed, broken and unable to cope with what has happened to his mother. He suffers from anxiety attacks when he thinks about this incident, and is consumed with rage. He has trouble sleeping because he is haunted by the contents of the 911 call placed by Mann.
29Brown’s father, Mr. McEwen, also provided the court with an eloquent victim impact statement for use in sentencing. In it he references the fact that Brown’s extended family held three meetings while she was on life support, trying to grapple with whether to end her suffering. They had to struggle with this decision in light of the medical evidence of her extensive brain injury. Mr. McEwen described that his family will be haunted forever by the discussions they were compelled to have at that time. The pain and suffering that Mann caused, and continues to cause this family, is enormous, and in her father’s words, “I feel there is no end to this and never will be”.
30Brown and her children were consistently supported by extended family members and friends in the courtroom when forced by this trial to give their testimony. Brown’s children, despite having to undergo an excruciating examination of their mother’s troubled past and, in Kayla’s case, having to listen to the 911 call several times, remained articulate, credible and stoic historians. It was clear that Brown, despite her challenging past and unconventional lifestyle, is cherished by her family. Kayla’s testimony resounds: “I knew my mother wasn’t a typical housewife, but we knew she loved and cared for us unconditionally”.
The Circumstances of the Offender
31Mann is currently approximately fifty-three years of age and has a grade ten education. He has no prior criminal record. He has a steady work history. He has no history of drug or alcohol abuse. Mann has been married twice and there is no evidence of a history of abuse in his domestic relationships.
32A psychiatric report was prepared by Dr. Julian Gojer for the purposes of sentencing. In it he notes that Mann reported bouts of depression relating to dissatisfaction with his spouse, work, finances and future aspirations going back to his twenties. No diagnosis or treatment was ever provided. Beyond that notation, there is no evidence of mental disorder predating the offence.
33Following his arrest Mann tried to cut his elbow joints with a piece of plastic from his glasses and required medical attention. Following that incident medications were prescribed, but only for a matter of weeks. It is also noted that his CCNC medical file suggests that he has fought physically with other inmates on at least two occasions.
34His first wife, from whom he was divorced in approximately 2001, reported that there was no violence in their relationship and that Mann was a “gentle soul”. She denied any aggression on his part toward other persons or animals.
35Mann has four brothers and an eighty-eight year old mother. His ex-wife reported that the family is refusing to visit him while he is in jail.
36Dr. Gojer’s report references a previous report prepared by Dr. Pearce for the purpose of assessing a potential defence of not criminally responsible on account of mental disorder. Dr. Pearce did not diagnose Mann with any mental illness, personality disorder or substance abuse disorder.
37Dr. Gojer opined that Mann has no features of a psychopath, but has suffered from chronic low-grade depression, and in the weeks leading up to the offence was suffering from an “adjustment reaction marked by increased feelings of being taken advantage of, and resentment towards Brown”. He described Mann as an individual who suppresses his feelings and when a triggering event occurs the “emotions are released with significant intensity and are associated with actions that can be impulsive and associated with little thought or planning”.
38This is a case in which the circumstances of the offence do not necessitate a psychiatric report for the court to conclude that Mann is a deeply disturbed person. Courts have recognized that the circumstances surrounding the commission of an offence may clearly indicate that the offender suffers from a personality disorder: R. v. Horvath, at para. 22; R. v. Charlebois, [1987] O.J. No. 886, 22 O.A.C. 235 (C.A.). And with the greatest respect to Dr. Gojer, the explanation provided in his report of an “adjustment disorder” underlying this offence strips down to nothing more than that Mann had an unhealthy perspective on the relationship and completely lost control in reaction to feeling unjustly treated by Brown. In this regard, I reject the submission of defence counsel that Mann’s chronic, mild depression or adjustment disorder should act as a mitigating feature. There are no cases to which I have been directed, and I would be surprised to find any, where such mild difficulties reduced the level of individual responsibility for a crime of this magnitude.
39There remains uncertainty about what triggered Mann to carry out this attack. Mann admitted at trial that whatever it was that made him angry that night had to do with Brown. On the evidence, three likely scenarios emerge, none of which is mutually exclusive: (1) that Mann discovered that Brown continued to work as an escort; (2) that Brown indicated that she did not intend that Mann live with her; or, (3) that Brown signalled to Mann that she did not wish to be in a serious, or any, relationship with him, or perhaps that she did not return his affections in the manner that he anticipated. Needless to say, it is unfathomable that any of these bases could incite such ruthless violence against another human being.
40Dr. Gojer administered the violence risk appraisal guide instrument to assess Mann’s propensity for violent re-offence, which placed him among those likely to have only a ten percent chance of re-offence. Dr. Gojer conceded that, had the instrument been administered to Mann immediately prior to this attack, he would have achieved approximately the same score. He rated Mann as a low risk to re-offend. Dr. Gojer concluded that Mann is a good candidate for the intensive therapeutic programming offered in the penitentiary system, and that Mann appears to be open to learning how to better manage his relationships and reactions to them.
41Nonetheless, Dr. Gojer also stated that he had concerns that, without successful treatment, any woman would be at risk from Mann. Further, Dr. Gojer testified that he was unaware of that part of Brandon’s testimony in which Brandon recounted conversations between himself and Mann while they lived together. Brandon testified that Mann spoke frequently about being hurt in his past relationships, and was preoccupied with the thought of being hurt by Brown. Brandon testified that Mann made the following statement during one conversation: “If you're mom hurts me then everyone's going to be in trouble”. Brandon did not question the comment at the time as he thought that Mann was referring to financial consequences. The last time Mann voiced his concern to Brandon about getting hurt by Brown was in June or July 2012. Dr. Gojer testified that if Mann said such a thing, he would be concerned that this meant that Mann was more aware of his actions at the time, and that he endorses an attitude toward violence. Brandon was a credible witness and his evidence on this point was not touched on cross-examination; I do find that such words were uttered by Mann. Whatever Mann may have meant by such a comment, it may be easily inferred from it, and I do so infer, that he intended there to be consequences of some sort if Brown disappointed him. That in turn, calls into question the extent to which he gave forethought to his actions, and how deeply skewed are his notions about relationships.
42Mann’s testimony during the trial revealed that he continues to view himself as a victim in this scenario, having been financially used and misled by Brown. Dr. Gojer also noted that Mann sees himself as a victim, a viewpoint that the doctor described as a classic “cognitive distortion”, along with blaming the victim, and he testified that these cognitive distortions became the fertile ground from which this crime stemmed. Dr. Gojer confirmed during the sentencing hearing that Mann’s denial and minimization of his own responsibility causes him concern for Mann’s ability to respond to treatment. Nonetheless, overall he assessed that Mann has attributes that cause him to conclude that he would be receptive to therapy to address the way he approached and reacted to this relationship, and any similar relationship that he may enter in the future.
43I turn now to Mann’s assertion that he fails to remember anything about the assault itself. At trial he had an intact memory for everything leading up to it, and also recalled dialling 911 and talking to the dispatcher, although could not recall the exact words said. His testimony was that it was the “altercation” that put his mind in a “blur”. He alleges no recollection of Justin and Kayla being in the room. He maintained this denial when being interviewed by Dr. Gojer. Although I find his assertions in this regard to be open to very serious debate, it has not been necessary to make any factual findings as to whether his testimony is credible in this respect. More relevant are his answers to some of Crown counsel’s questions. He was asked whether it was possible that his act was so violent that he was unable to deal with it in his mind, and Mann’s response was “could be”. When asked by Mr. Temple whether he cannot face what he did, his answer was “correct”. During Mann’s testimony, when asked how he was feeling on his way to the police station following his arrest, which occurred within fifteen to twenty minutes after his hands had been around Brown’s throat, he replied, “mentally I am played out. I have been up since the previous morning and this is now into the next morning”. Later in his testimony he stated that he was only experiencing “fatigue” at the station. These responses highlight for the court that Mann, as of the time of trial, was not focused on what he had done, and in fact had yet to accept that he was prepared to kill Brown that evening. Dr. Gojer’s report confirms that this continues to be the case; Mann still only accepts responsibility for assaulting Brown, but denies, even in the face of the contents of his 911 call, any intent to murder. He admitted at trial that it was his voice on the 911 audiotape.
44This examination of Mann’s mental state is not done with a view to determining Mann's future risk to the community or a segment of it. I am aware of the caution from the Supreme Court in R. v. L.M., [2008] 2 S.C.R. 163, 2008 SCC 31 that sentencing has different objects and rationales than the considerations that affect a long-term offender, and that the two processes must be kept distinct, with supervisory orders focusing on minimizing future risk: paras. 46-49. Instead, the discussion of Mann’s mental state has been undertaken to examine the circumstances of the offender - his moral culpability and blameworthiness for this crime - as required by the Criminal Code. It is done to ensure that a sentence is only imposed after a full examination, to the extent allowed by the evidence, of the totality of factors involved in this offence, by this particular offender.
45In summary, I have before me an individual who is not a youthful offender, with no criminal record, who has a solid work history but limited success with personal relationships, with no apparent family supports, no psychiatric history or diagnosis beyond mild depression, who “snapped” and attempted to kill a woman who he perceived to have taken advantage of him. He is unable or unwilling to accept responsibility for the full extent of his criminality that night.
Expressions of Remorse
46Mann apologized to Brown and her family in court at the beginning of the sentencing hearing. His remarks were brief and addressed the fact that he was extremely upset, that he wished that he could turn back time, and wished that this had never happened.
47According to Dr. Gojer’s report, Mann deeply regrets what happened.
48These expressions of remorse are considered in light of my previous comments about Mann’s limited acceptance of culpability.
The Position of the Parties
49The parties differ significantly on what constitutes a fit sentence in this case.
50On behalf of Mann, Ms. Kancharla submits that the appropriate range is eight-and-a-half to ten years, with pre-trial custody from July 26, 2012 being given enhanced credit on a 1.5 basis, relying on the decision of R. v. Summers, 2014 SCC 26.
51She submits that the offence involved no pre-meditation or planning, and that proof of this arises from the fact that Mann did not use the knife located in his car. She relies on the report of Dr. Gojer to suggest that a reduction of sentence is warranted on the basis of Mann’s mild depression and adjustment reaction, a submission to which I have not conceded. Ms. Kancharla emphasises that although a very serious offence, Mann is a first-time offender and his potential for rehabilitation is endorsed by Dr. Gojer, along with the testing showing him to present a low ongoing danger to society.
52On behalf of the Crown, Mr. Temple submits that a life sentence is appropriate given the nature of the crime and its enduring effects on Brown. He emphasises that deterrence and denunciation are paramount sentencing considerations for attempted murder, and that the sole mitigating factor in this case is Mann’s lack of former record.
53Mr. Temple submits that this is not a case where the optimistic predictors of future risk found in Dr. Gojer’s report should be given any weight. He asserts that the circumstances of this offence are enough to show, without psychiatric or psychological evidence, that Mann exhibited a ruthless, determined intent to kill in a horrendous manner. Unlike the killer who distances himself from his victim with a weapon, Mann used his bare hands to choke and attempt to beat the life out of Brown. He was so consumed with rage and killer instinct that Kayla and Justin’s interruptions failed to deter him. Even with his focus distracted by speaking to the police dispatcher, he was able to persist in carrying out that intent.
Analysis
54A sentencing judge must take into account the relevant sentencing objectives, principles and factors, then apply these to the circumstances of the case. The sentencing decision must be dictated by the fundamental principle that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
55The Criminal Code dictates that the fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions.
56The Criminal Code lists several objectives to be achieved by the imposition of just sanctions, which include:
(a) To denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) To deter the offender and other persons from committing offences;
(c) To separate offenders from society, where necessary;
(d) To assist in rehabilitating offenders;
(e) To provide reparations for harm done to victims or to the community; and
(f) To promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
57Depending on the offence and the offender, some of these objectives will be more relevant than others. Provided that a court takes into account all relevant aggravating and mitigating factors, properly weighs and emphasises the objectives and principles of sentencing, and imposes a sentence that fits the offence and the offender, a just sentence will have been achieved.
58A sentencing judge is also to take into account the principle that the sentence imposed should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. This is to ensure that unjustified, substantial differences in sentences do not exist between similar offences and offenders. In this case, as a starting point, the Ontario Court of Appeal as confirmed that, generally, an appropriate sentencing range for attempted murder in a domestic context is a period of incarceration of eight and a half years to the maximum life sentence: R. v. Boucher and R. v. Botelho, 2010 ONCA 497.
Mitigating and Aggravating Factors
59The sole mitigating factor is the lack of previous convictions.
60I do not consider Mann’s age to merit consideration as a mitigating factor. He is not of such an advanced age that I should take into account how a lengthy period of incarceration might affect his health. Nor is he young enough to be given the benefit of hope that rehabilitative efforts will be enhanced by the natural maturation process, or a focus that emphasizes preserving and maximizing his ability to become a productive member of society.
61On the other hand, there are multiple aggravating factors even beyond those enumerated in s. 718.2 (a) of the Criminal Code:
- Primary is the fact of the significant impact on Brown, as previously described. These physical injuries were sustained when she was only thirty-nine years old; she will live with each of them to the end of her life. The emotional impacts, which as a society we would wish might diminish with time, might not.
- Second is the extreme, senseless brutality of this act, the pain that Brown must have had to endure before she lost consciousness, all carried out by Mann with his bare hands. But paramount is the fact that Mann continued his attack even when physically confronted first by Justin, then Kayla, yet he remained undeterred in his intent to kill.
- Third is the fact that Mann carried out this attack, I find as a fact, for anywhere between ten and twenty minutes. Whether ten or twenty, either length of time increases the horrendousness of his actions. It was not a fleeting, impulsive act. And it was carried on even as he was able to have a conversation with the police dispatcher, being lucid enough to give responsive answers to her questions.
- The fourth aggravating factor is the nature of the relationship between Brown and Mann. This victim and offender were neither spouse nor common-law partner, and the extent to which they ever departed from a strictly commercial relationship remains uncertain. Yet the fact that Brown was a sex trade worker when Mann first came to know her is significant to this court. One is led to the distasteful conclusion, on the evidence, that Mann felt entitled to exclusive rights to and control of Brown due to his ongoing payments of money to her. Those who work in the sex trade, being predominantly women, must not be subjected to violence from those who seek to use their greater financial means as a tool of control. A crime such as this cries out for a harsh sentence to deter those who likewise see women as sexual property to be bought and then controlled. Further, whatever their true arrangements, Mann believed this to be a romantic relationship headed toward cohabitation and possibly marriage. The principles of denunciation and deterrence are of paramount importance in cases involving domestic violence: R. v. Boucher, at para. 27; R. v. Tan, 2008 ONCA 574, at para. 40, R. v. Bulat, 2013 ONSC 4513 at para. 32, and R. v. Vienneau, 2015 ONCA 898 at para. 14. Even in a domestic-like context, violence inflicted on a partner is an aggravating factor: R. v. Tan, 2008 ONCA 574, at para. 40. Again, a heavy sentence is warranted to act as a general deterrent to those who likewise would be inclined to terrorize the partner who rejects them, and as a specific deterrent to Mann, who seems particularly afflicted by such a mindset.
- The fifth aggravating factor is the fact that this offence occurred in Brown’s home and bedroom, where she had trusted Mann sufficiently to allow him entry.
- The sixth aggravating factor is that part of the murder attempt was played out in the presence of Kayla, who at that time was still a minor.
The Application of the Principles
62I must now apply the relevant sentencing objectives, principles and factors to the circumstances of this offence and to the particular circumstances of this first-time offender.
63In the case of a serious crime such as attempted murder, the principles of denunciation and deterrence are of primary importance.
64Rehabilitation has a significant role to play in our penal system and is a consideration in this case. I have considered the theoretical possibility presented by Dr. Gojer that Mann will be amenable and responsive to intensive therapy. It is hoped that this is the case, and he is urged to accept whatever programs are offered to him in this regard. They may assist him both in interacting with other inmates and staff, and in his future relationships on release. But in my view the potential for Mann to respond to therapy cannot be used as a justification for ameliorating the sentence in this case, in the face of the facts of this horrendous crime and its aftermath.
65Imprisonment for life is the maximum punishment for the crime of attempted murder.
66The principles that are applicable to the imposition of a maximum sentence were outlined by the Supreme Court of Canada in R. v. L.M., [2008] 2 S.C.R. 163, 2008 SCC 31. That case dismisses the notion that maximum sentences are to be reserved for cases involving the worst of circumstances and criminals: para. 18. This viewpoint had also been rejected earlier in the case of R. v. Cheddesingh, [2004] 1 S.C.R. 433, 2004 SCC 16, even while the Court acknowledged the exceptional nature of a life sentence. R. v. L.M., [2008] 2 S.C.R. 163, 2008 SCC 31 confirms that maximum sentences should be resorted to in appropriate circumstances: paras. 18 and 21.
67Life sentences have been most typically imposed where the circumstances of the offence include unusual features of brutality or cruelty, or where the offence is part of a pattern of violent behavior: R. v. Horvath, at para. 14. The phrase “stark horror" has sometimes been used where those more disturbing features exist: R. v. Horvath, at para 23. The circumstances of the offence in R. v. Horvath were sufficient to impose a life sentence under normal sentencing principles: para. 23. The cruelty and callousness of the offender’s conduct in R. v. Horvath, which the Court of Appeal found to indicate a disturbed and dangerous personality "quite apart from the psychiatric evidence", aligns with the degree of brutality exhibited by Mann.
68This case also resembles R. v. Charlebois, [1987] O.J. No. 886, 22 O.A.C. 235 (C.A.), although a knife was used in the attack in that case. The offender entered the victim's apartment and repeatedly stabbed her in the face, then cut her throat from ear-to-ear, injuring her voice box. Her wounds were brutal, disfiguring and life-threatening. Charlebois left the apartment but returned. As the victim lay helpless, he stabbed her in the back, then left the victim to drown in her own blood. In imposing a life sentence, the court found that “[i]t would be difficult to devise a scenario which could be worse”. R. v. Charlebois, [1987] O.J. No. 886, 22 O.A.C. 235 (C.A.) is comparable to this case in that the offender's attack was interrupted for some reason, and yet he resumed his attempts to murder the victim when he returned to her apartment. The victim was left to bleed to death and her wounds were serious and significant. The maximum sentence was upheld by the Ontario Court of Appeal for the attempted murder conviction.
69A review of the facts of those attempted murder cases in which the circumstances of the offence led to the imposition of the maximum sentence reveals that each was uniquely revolting: R. v. Lieung, R. v. Mesgun, R. v. Cheddesingh, [2004] 1 S.C.R. 433, 2004 SCC 16 and R. v. Anderson, 2012 ONCA 373. This case is the same; it has its own uniquely horrendous facts that place it in the category of circumstances deserving of the harshest punishment available. It also has a significant feature that is not found in any of the other attempted murder cases cited by either counsel, which is a debilitating, permanent brain injury that impacts every facet of Brown's life. In both R. v. Anderson, 2012 ONCA 373 and R. v. Mesgun, life sentences were imposed despite the offenders having no prior criminal record.
70This is not a case like R. v. Klair in which the Court of Appeal reduce the life sentence imposed by the trial judge because of the panel’s reasoning that the offender had not intended the victim, his young grandson, to suffer devastating burns and injuries when he deliberately set fire to the residence while caring for the child. Here, unquestionably, Mann intended to kill, and the fact that he was unsuccessful, with different consequences resulting, is not to be factored in his favor.
71Just as in the case of R. v. Stubbs, 2013 ONCA 514, Mann should not get the benefit of the prompt medical attention received by Brown, nor her fortuitous recovery. As was the case in R. v. Varga, Mann stands convicted of attempted murder, rather than murder, by pure luck. The Court of Appeal in R. v. Varga noted that in the circumstances where “the slight tilt" of the victim’s head made the difference, the offender’s culpability was hardly distinguishable from that of a murderer: para. 95. Those words are equally applicable in this case. Were it not for the fact that Brown lived close enough to the local hospital for the first responders to arrive within minutes, and for the advanced paramedic backup to arrive shortly thereafter, she would very likely be dead. Her survival remained tenuous for weeks; were it not for excellent medical care and luck, she would very likely be dead.
72I turn now to the cases relied upon by the defence. In R. v. Botelho, 2010 ONCA 497, the Court of Appeal increased the sentence to the lowest possible for attempted murder, being 8½ years. The case offers a brief description of the offence, which includes that the victim was stabbed numerous times and would have died from her injuries had she not had prompt medical attention. The additional aggravating factors that are in the case before this court appear to be absent, other than Mr. Botelho’s inability or unwillingness to accept the gravity of his conduct. In particular, there is no description of debilitating, long-term injuries.
73In R. v. Bulat, 2013 ONSC 4513 the offender committed his attempted murder by striking the victim with a motor vehicle, in the context of jealousy over the ending of a relationship. However, mitigating factors that are entirely absent in Mann’s case included a life of service devoted to others, his age and frail physical health, and the impact of his incarceration on his adult daughter, who suffered from significant psychiatric issues and who the offender saw daily prior to his arrest. Mr. Bulat received a sentence of six years imprisonment in the particular circumstances of that case.
74In R. v. Champagne the Court of Appeal upheld a sentence of twelve years for attempted murder, noting that this was a terrible case of domestic abuse with three separate victims, one of whom was a five-year-old child, and two discrete attacks. Nothing more is known about the circumstances of that case to assist in understanding why twelve years was considered to be a fit sentence.
75The sentence in R. v. Edwards is not one that should be used as a comparator. A sentence of eight years was imposed in the face of a violent case of attempted murder of a common-law spouse. This term of imprisonment was based on a joint submission. The Court of Appeal declined to increase the sentence only because of the Crown's position at trial. However, Rosenberg J.A., writing for the court, noted that even in the face of a guilty plea, the offender having turned himself into police and having expressed his remorse, the sentence of eight years was “extremely lenient” given the aggravating features of the case.
76The facts in R. v. Hoare, 2016 ONCJ 36 involve an attack on a spouse with a baseball bat. After a trial, Mr. Hoare was found guilty of attempted murder and other offences, and sentenced to eleven years in custody for the attempted murder. Hoare is a trial decision, and it is noted that the Crown sought a sentence of only fifteen years. A mitigating factor not present in the case before me was the amount of community and family support still being offered to the offender, formerly a successful professional who had become addicted to opiates and gambling, which was the basis for his offence. In his sentencing decision the trial judge averted to the mitigating factors and the facts of the crime as bringing Mr. Hoare “below the high end of the range”. The trial judge described that high end as being 15 years for an offender with no criminal record. As the cases from the Court of Appeal indicate, even the maximum sentence is available to the court for first-time offenders convicted of attempted murder, where such sentence is warranted.
77Similarly, in R. v. Payne, on a conviction for attempted murder in a domestic context, the sentencing judge began from the premise that the appropriate range of sentences was between six and ten years. The offender was sentenced to slightly less than seven years. I find that I should not be guided by this case as a precedent given that the Court of Appeal has indicated that 8½ years should be the minimum, and the facts of that case are less extreme than those presented in the case before me.
78In R. v. Vienneau, 2015 ONCA 898 the court imposed a sentence of eleven years, which the Court of Appeal upheld as falling within the acceptable range for attempted murder in the context of that case. The court noted that the trial judge had been alive to certain mitigating factors, including the offender's steps toward rehabilitation while in jail, and the support of his family. While that victim’s neck was cut with a knife and extensive injury sustained to her trachea and voice box, she was not saddled for life with a brain injury like Brown. Again, I do not find the facts of R. v. Vienneau, 2015 ONCA 898, as unseemly as it may be to compare the nature and consequences of such a horrendous crime, to be as egregious as those of the case before me.
79I recognize that issuing the maximum sentence for attempted murder is rare, particularly for a first time offender, and should be reserved for only those cases which call for the severest sanction. This is such a case. After considerable thought, and taking into account all of the circumstances of this offence and offender, I am satisfied that the application of ordinary sentencing principles leads to the conclusion that the maximum sentence should be imposed in this case.
Sentence
80Mr. Mann is sentenced to imprisonment for life with normal eligibility for parole. The parole eligibility period began on July 26, 2012 and continues for a period of seven years thereafter.
81There will be an order preventing Mr. Mann from possessing any prohibited firearm, weapon or ammunition for life pursuant to s. 109 of the Criminal Code.
82There will be an order that Mr. Mann provide a sample of his DNA pursuant to s. 487.051 of the Criminal Code.
83There will be an order that Mr. Mann have no contact directly or indirectly with Ms. Brown or any member of her family, meaning her children, father, siblings and any of their spouses or common-law partners, pursuant to s. 743.21 of the Criminal Code for the duration of his sentence.
84The conviction for aggravated assault will be stayed on the basis of R. v. Kienapple, [1975] 1 S.C.R. 729.
85It is my strong recommendation that Mr. Mann receive a complete psychological and psychiatric evaluation during the assessment phase of his incarceration. Dr. Gojer interviewed him for only four hours, and administered only one risk assessment tool as referenced in his report. Dr. Gojer’s characterization of Mr. Mann as labouring under an adjustment disorder or cognitive distortions, with respect, seems to barely scratch the surface of what compelled him to commit this crime, and no doubt, remains a wholly unsatisfactory explanation for Gail Brown and her family.
HEALEY J.
Released: April 21, 2016
