Reasons for Sentence

MONDAY, JUNE 20, 2016

CONLAN J. (Orally):

Introduction

These are my oral reasons for sentence in the matter of Her Majesty the Queen and Joseph Schmidt. Mr. Schmidt has entered guilty pleas, has been found guilty, and convicted of two counts. Count one that he committed a break and enter at a dwelling house with intent to commit an indictable offence therein, contrary to Section 348(1)(a) of the Criminal Code of Canada, and count two, that Mr. Schmidt committed an assault upon Jeremy John Robert Walsh causing bodily harm to Mr. Walsh, contrary to Section 267(b) of the Criminal Code of Canada, both offences having occurred at the Municipality of North Bruce Peninsula in the Central West Region on 21 October 2014.

Facts

The facts underlying the two offences are outlined in Exhibit 1, the agreed statement of facts. In a nutshell on the date in question Mr. Schmidt, angry about losing his girlfriend to Mr. Walsh, took it upon himself to drive to Mr. Walsh’s residence, invade the home uninvited, and attack Mr. Walsh, causing serious bodily injury to the victim. In particular, Mr. Schmidt wore a disguise; carried with him at least two weapons, a pipe and a knife; invaded the home of Mr. Walsh; and attacked Mr. Walsh in the darkness while Mr. Walsh was lying in his bed in his bedroom. The stab wounds to Mr. Walsh caused multiple scars and disfigurement. They are described as “nasty” in one of the medical records. Some of the stab wounds were relatively superficial, others much deeper, especially the one in the back area of Mr. Walsh.

Surgery was required for Mr. Walsh to remove his spleen, and he has experienced some complications since, including multiple hernias. It was, no doubt, a terrifying home invasion and assaultive experience on the part of Mr. Walsh.

Principles of Sentencing

The principles at play in this case are, one, denunciation, two, deterrence, and, three, rehabilitation. Sentencing is a highly individualized process and any sentence imposed must be proportionate to the gravity of the offences and the degree of responsibility of the offender. I must take into account the principles of sentencing in Section 718 and the following sections of the Code, as well as the aggravating and mitigating factors at play.

Aggravating Factors

The chief aggravating factors are number one, the seriousness of the two offences themselves. To have someone show up at your residence uninvited, enter without your permission under the cover of darkness and then attack you in your own bed must be one of the more terrifying experiences that someone could endure. So that is an aggravating factor on sentence. The other aggravating factor, quite frankly, is that Mr. Walsh suffered some serious injuries as a result of what happened.

Mitigating Factors

There are several mitigating factors that must be balanced against those in aggravation. First of all Mr. Schmidt has no prior criminal record.

Second, I accept that he is a relatively young person of otherwise good character. The reference letters speak to that, and in particular the letter that I was most impressed with is the letter authored by Joan and Jim Kroeplin, K-R-O-E-P-L-I-N, indicating that Mr. Schmidt has been very helpful while one of the Kroeplins has been seriously ill with cancer. In particular Mr. Schmidt has volunteered to maintain their property without any remuneration, on a regular basis, including snow blowing the driveway in very bad weather. That letter goes to the fact that Mr. Schmidt obviously is someone of good character generally, so I accept that this terrible conduct on his part on October 21, 2014, must have been fuelled by something that made him behave in ways that he normally does not.

Also in mitigation are the guilty pleas. The guilty pleas are very valuable in a case like this. It saves Mr. Walsh from having to come to court and testifying at what could be a protracted trial, and the guilty pleas are signs of Mr. Schmidt’s remorse and acceptance of responsibility.

Also in mitigation are the actions of Mr. Schmidt immediately after the attack. It is very unusual the facts of this case. Mr. Schmidt obviously recognized the seriousness of what he had done, tried to make amends, in part, by bringing Mr. Walsh to the hospital. Of course it would have been much better to rethink the whole idea before it happened, but at least Mr. Schmidt did that rather than leave Mr. Walsh in a bloody mess in his bedroom.

Also in mitigation is the fact that Mr. Schmidt has complied with a relatively strict bail recognizance for quite some time now, and in accordance with the decision of the Court of Appeal for Ontario in a case called Downes, D-O-W-N-E-S, I can take into account the strictness of the bail terms and Mr. Schmidt’s compliance with those conditions. And it’s to Mr. Schmidt’s credit that he has towed the line since he has been out on bail, and the recognizance is fairly strict, including a house arrest condition 24 hours a day unless he is in the presence of one of his sureties.

And the final item in mitigation, this relates to the value of the guilty pleas, is that there were some triable issues in this case. No case is ever perfect from the perspective of the prosecution, but some cases are less perfect than others. I don’t know what would have happened with these triable issues, but it was an obstacle for the Crown that Mr. Walsh was not immediately cooperative with the authorities at the hospital. I’m sure that would have been used against Mr. Walsh at trial, the fact that he said something different to the people at the hospital at first instance. He might have been able to explain that adequately, I’m not sure, but it would have been an obstacle. Not necessarily one that could not have been overcome but it’s a factor that has to be considered, and it adds to the utility of the guilty pleas in this case.

And there were other triable issues: Self defence; the exact chronology of what happened in the bedroom. If the trier of fact was persuaded that the, the conduct on the part of Mr. Schmidt all came post Mr. Walsh trying to use the firearm and Mr. Walsh getting Mr. Schmidt in a chokehold, then the self defence argument could have succeeded. It at least was a viable argument, and that should be taken into consideration in terms of adding to the value of the guilty plea.

So there are lots of mitigating factors that balance against those aggravating circumstances that I outlined.

Joint Submission and Sentence

So in all of the circumstances the Court of Appeal for Ontario has reminded trial judges repeatedly that joint submissions on sentence ought not to be disturbed unless they are clearly unreasonable, such that their acceptance would bring the administration of justice into disrepute. This joint submission is not clearly unreasonable. It is within the range considering all of the circumstances of the offences and those of the offender, and thus I accept the joint submission.

And I have endorsed the indictment as follows:

Mr. Schmidt has entered guilty pleas to counts one and two. The agreed facts were read in. Mr. Schmidt is found guilty and convicted on both counts. The joint submission on sentence is accepted and is as follows:

Orders and Conditions

First, there are victim fine surcharges imposed on each conviction. Six months to pay from today.

Second, there are Section 109 Criminal Code firearms and weapons prohibition orders on both convictions for 10 years and life respectively according to the two subsections.

Next, there are primary DNA orders on each of the two convictions.

Next, in addition to 22 days of pre-sentence custody credited as 33 days, from today Mr. Schmidt is imprisoned for a period of two years. That is on each conviction concurrent. Total of two years from today.

While Mr. Schmidt is incarcerated he shall have no contact or communication, directly or indirectly, by any means whatsoever, with Jeremy John Robert Walsh.

Upon his release from custody Mr. Schmidt will be the subject of a probation order. The duration is three years. All of the statutory terms apply. In addition these optional conditions apply.

Mr. Schmidt shall report to a probation officer within three working days of his release from custody and thereafter on such schedule and in the manner directed by the probation officer.

Mr. Schmidt shall reside where directed and not change that address without the prior permission of the probation officer.

Mr. Schmidt shall have no contact or communication, directly or indirectly, by any means whatsoever, with Jeremy John Robert Walsh.

Mr. Schmidt shall not attend within 500 metres of any location known to him to be the residence, place of employment, or place of education of Mr. Walsh.

Mr. Schmidt shall attend for all counselling and treatment as recommended by the probation officer and not leave that counselling or treatment without the prior permission of the probation officer. In order to monitor his compliance, Mr. Schmidt shall sign any releases of information demanded of him by the probation officer.

And, finally, Mr. Schmidt shall not possess any firearm or weapon as defined in the Criminal Code.

Before I ask Mr. Schmidt whether he understands, is there anything else?

MR. SHATTO: No thank you, Your Honour.

THE COURT: Is there anything else, Mr. Barrie?

MR. BARRIE: I—no, Your Honour. Thank you.

THE COURT: Okay. Mr. Schmidt, stand up for a moment please, sir. So taking these orders one at a time, the victim fine surcharges, I think it’s $200 on each count.

MR. BARRIE: It should be.

THE COURT: Okay. You understand that those have to be paid?