Court File and Parties

Court File No.: 15-0043

Superior Court of Justice

Her Majesty the Queen

v.

Steven Byford

Reasons for Sentence

Before The Honourable Justice M. Fuerst, on May 13, 2016, at Barrie, Ontario

Appearances: L. Shirreffs, Counsel for the Crown T. Bryson, Counsel for Steven Byford

Reasons for Sentence

FUERST, J. (Orally):

Introduction

A domestic argument resulted in the stabbing of a man by his partner’s teenaged son. Steven Byford pleaded guilty to aggravated assault of Darryl MacDougall.

The Circumstances of the Offence

Mr. Byford’s parents separated when he was in his early teens. After the separation, his mother began living with Darryl MacDougall.

In the spring of 2014, Mr. Byford moved in with his mother and Mr. MacDougall. Mr. Byford was then 18 years old.

The relationship between Mr. Byford and Mr. MacDougall was quite poor. Neither was particularly fond of the other.

On the evening of May 10th, 2014, an argument developed between Ms. Byford and Mr. MacDougall. Mr. MacDougall made comments to her about Mr. Byford. Although Mr. Byford was in another part of the house, the comments were loud enough for him to hear.

Mr. Byford called for Mr. MacDougall to repeat the comments directly to him. Mr. MacDougall walked towards Mr. Byford and pushed past him.

Mr. Byford grabbed a steak knife that was nearby in the kitchen. He chased after Mr. MacDougall, and stabbed him three times.

Mr. MacDougall ran outside and sought help from a neighbour, who called police and an ambulance. Emergency personnel attended. Paramedics treated Mr. MacDougall and rushed him to hospital. He briefly lost consciousness there.

Mr. Byford was located at a nearby residence. He was arrested without incident.

Mr. MacDougall was operated on by emergency room physicians. He had a stab wound to the neck, a stab wound to the mid-back, a stab wound to the lower back, and scratches on the left arm and left leg. The stab wound to the back was described as superficial, and the one to the neck as deeper. He had a small arterial bleeder.

Mr. MacDougall was discharged from hospital on May 14th, 2014.

The stab wounds healed, but left scars.

In his Victim Impact Statement, Mr. MacDougall describes suffering from some ongoing physical problems including muscle weakness. He experiences night terrors and night sweats. He has fears of attack on himself and his animals. He remains under a physician’s care.

The Circumstances of Mr. Byford

Mr. Byford is now 20 years old. He has no previous criminal record.

After his parents separated, he initially lived with his mother. He moved to his father’s home when he was in grade 10, and continued to live primarily with his father. At the time of the offence, he had left his father’s home after they had an argument.

Mr. Byford is now living with his father. He has had no contact with his mother since the offence. She has remained with Mr. MacDougall. However, she is supportive of Mr. Byford, as is his father.

Mr. Byford is a student at Georgian College, where he is studying business management. He works part-time at a gas bar. His supervisor describes him as an excellent employee.

Mr. Byford had some professional counselling in the past to assist with issues relating to his parents’ divorce and the compounding impact of the death of his maternal grandparents, to whom he was very close.

Sources contacted by the pre-sentence reporter said that the offence was out of character for Mr. Byford. There is no history of problems with anger control. His maternal aunt and uncle confirmed in a letter filed on the sentencing hearing that they have never seen or heard of any acts of violence on his part.

However, Mr. Byford has remained bitter about his parents’ marriage breakdown. He told the pre-sentence reporter that he feels Mr. MacDougall was emotionally abusive towards both him and his mother. This view finds some measure of support in a letter from his mother that was filed on the sentencing hearing, which refers to Mr. MacDougall’s “regularly recurring vocalization to both Steven and myself of his strong opinions that Steven was not doing enough and would have to leave if things did not change.”

The pre-sentence reporter describes Mr. Byford as lacking self-esteem and self-confidence. He concluded that Mr. Byford is a low risk to reoffend, and a suitable candidate for community supervision.

Mr. Byford was assessed recently by Dr. Ken Marek, a clinical psychologist. The assessment included a number of psychological tests. They indicated that Mr. Byford is severely depressed and anxious. There is reference to an eating disorder. He lacks self-confidence, feels inferior, is easily hurt by criticism, and tends to be socially introverted. Dr. Marek attributes the attack on Mr. MacDougall to unresolved anger, frustration and anxiety on Mr. Byford’s part. It was an uncharacteristic, isolated event. Dr. Marek’s opinion is that Mr. Byford is not at risk for acts of violence in the future, but to reduce the probability of any such behaviour in the future he strongly recommends that Mr. Byford attend individual counselling focused on anger management, stress management, interpersonal relationships, communications and self- confidence.

Mr. Byford takes responsibility for his offence and wishes that he had handled the situation differently. In a letter filed on the sentencing hearing, he expressed that he knows he has to manage his anger and stress. He has attended some counselling sessions which have helped him regain his focus.

I was not advised of any time spent in pre-sentencing custody, or on release subject to strict conditions.

The Positions of the Parties

On behalf of the Crown, Ms. Shirreffs seeks a sentence of 18 months to two years less a day in jail, followed by probation. She acknowledges that there are mitigating factors, but emphasizes the seriousness of this assault. It is only by chance that the blows were not lethal. Mr. MacDougall has been left with ongoing physical and emotional problems. Ms. Shirreffs points out that Mr. Byford chose to confront an unarmed Mr. MacDougall. There is no evidence that Mr. MacDougall tried to engage Mr. Byford in a physical fight. Rather, the stab wounds were inflicted to Mr. MacDougall’s back. While there is some indication of emotional abuse of Mr. Byford, there is no history of physical abuse. Mr. Byford’s experiences were simply the stresses of life. Ms. Shirreffs also seeks a section 109 weapons prohibition order, and a DNA order.

On behalf of the defence, Mr. Bryson submits that any jail sentence should be as short as possible and followed by a long period of probation. He agrees that the ancillary orders should be made. He points out that Mr. Byford is an introverted person who needs third party support. Any jail sentence will have a great impact on him. There are a number of mitigating factors that lesson the severity of the offence. Mr. Byford pleaded guilty. He accepts responsibility for his offence. He has completed the first portion of a business program while awaiting sentencing. The injuries suffered by Mr. MacDougall were relatively superficial. R. v. Lacasse permits a sentencing judge to step away from the applicable range where a lesser sentence can be justified.

The Principles of Sentencing

The objectives of sentencing long recognized at common law have been codified in section 718 of the Criminal Code. They are: the denunciation of unlawful conduct and the harm done to victims or the community by that unlawful conduct; deterrence, both general and specific; the separation of the offender from society where necessary; rehabilitation; reparation for harm done to the victims or the community; and promotion of a sense of responsibility in offenders and acknowledgement of the harm done.

Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It sets out various aggravating factors. It also requires that a sentence be similar to those imposed on similar offenders in similar circumstances, that the combined duration of consecutive sentences not be unduly long; that an offender not be deprived of liberty if less restrictive sanctions may be appropriate; and that all available sanctions other than imprisonment that are reasonable in the circumstances, and consistent with the harm done to victims or the community be considered.

Analysis

The maximum sentence for aggravated assault is 14 years in jail. There is no minimum sentence.

As the case law referenced by Ms. Shirreffs demonstrates, the range of sentence for the offence is broad. Occasionally, offenders have received suspended sentences, but typically jail terms from mid-range reformatory to significant periods in the penitentiary have been imposed.

I recognize that, as the Supreme Court of Canada said in R. v. Lacasse, 2015 SCC 64, sentencing ranges are guidelines. They are not straightjackets. The determination of a just and appropriate sentence is a highly individualized exercise. The presence of aggravating and mitigating factors specific to the case must be considered.

The aggravating factors in this case include:

1. The victim of the assault, Mr. MacDougall, was the domestic partner of Mr. Byford’s mother.
2. The assault occurred in Mr. MacDougall’s own home.
3. Mr. Byford used a weapon to attack Mr. MacDougall, who was unarmed.
4. Mr. Byford pursued Mr. MacDougall, who had already passed by him, in order to attack him with the knife.
5. Mr. Byford stabbed Mr. MacDougall multiple times. Fortuitously, the injuries inflicted were not life-threatening, as could easily have been the result.
6. The assault continues to have a physical and an emotional impact on Mr. MacDougall.

There are, however, a number of significant mitigating factors. Mr. Byford pleaded guilty, which is a sign of remorse and acceptance of responsibility for his actions. He has expressed genuine remorse. He was a teenager when he committed the offence. He is a youthful first offender.

The pre-sentence report is very positive. Mr. Byford completed high school. He is not a user of drugs or alcohol. He has the support of his father, and other family members. Although his mother has no contact with him, she wrote a letter expressing that she will be there for him in the future. His rehabilitative potential is evident from his efforts to continue his education and work at a part-time job while awaiting disposition of the charge.

It is important that both the pre-sentence reporter and Dr. Marek determined that Mr. Byford is a low risk to reoffend. He has no history of violent behaviour, and the offence was out of character for him. He recognizes that he needs professional assistance to manage his problems, including anger, stress, and lack of self-confidence, all of which contributed to his gross over-reaction to an emotionally charged situation.

The offence Mr. Byford committed is a serious crime of violence. I do not overlook the need to foster his rehabilitation given that he is a youthful first offender, but a custodial sentence is necessary to meet the objectives of denunciation and deterrence, particularly general deterrence.

While I do not consider that an 18 month custodial sentence would be excessive for this particular offence, I do have concerns about how Mr. Byford will fare in a custodial setting, given his psychological make-up as described by Dr. Marek, including the indication that he is severely depressed. For this reason, which is specific to the circumstances of this offender, I have decided to impose a custodial term that while still significant, falls somewhat below the bottom end of the range suggested by Crown counsel.

Mr. Byford, please stand. I sentence you to 16 months in jail, with a recommendation that you be considered for any early release program that may be available. The jail term will be followed by two years of probation. The conditions of probation are the statutory conditions, plus the following:

1. Report to a probation officer within 48 hours of your release and thereafter as required.
2. Have no contact, direct or indirect, with Darryl MacDougall.
3. Not be within 500 meters of the known place of residence or employment of Darryl MacDougall.
4. Attend for such assessment and counselling for anger management, stress management, interpersonal relationships and other issues as recommended by your probation officer and not stop it without the prior written permission of your probation officer.
5. Sign releases of information as between your counsellor and your probation officer so that your progress in counselling can be monitored.
6. Not possess any weapon as defined by the Criminal Code.

I order you to provide bodily fluid samples for the purpose of DNA testing. I make a weapons prohibition order under section 109(2)(a) for ten years and section 109(2)(b) for life. You can have a seat.

Mr. Bryson, Ms. Shirreffs, is there anything that we need to clarify?

MS. SHIRREFFS: Not from the Crown. Thank you.

MR. BRYSON: No, Your Honour. Thank you.

CLERK REGISTRAR: There is a victim fine surcharge.

MR. BRYSON: Oh, thank you. I’m going to ask for two years for payment of that amount. He’s a student.

THE COURT: And what’s the amount, Madam Registrar?

CLERK REGISTRAR: It will be $200.

THE COURT: Two-hundred dollars?

CLERK REGISTRAR: Yes.

THE COURT: Sentenced to 16 months in jail with a recommendation that he be considered for any early release program that may be available, to be followed by two years’ probation upon conditions read into the record. There’s a DNA order, section 109(2)(a) order for ten years and a section 109(2)(b) order for life; and a victim surcharge of $200 with two years to pay.

MR. BRYSON: Your Honour, there’s no need for an exemption period for turning over weapons or that sort; it’s covered by the 109 order.

THE COURT: Thank you. So, Madam Registrar, we’ll make sure the recommendation I’ve made is endorsed right on the warrant, please.

CLERK REGISTRAR: Yes, Your Honour.

MR. BRYSON: I appreciate that very much, Your Honour. Thank you.

THE COURT: Thank you.

...WHEREUPON PROCEEDING COMPLETED