Court File and Parties
COURT FILE NO.: CR-14-1490 DATE: 20160812 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Damian Romaine Campbell
BEFORE: Bale J.
COUNSEL: Shonagh Pickens, for the Crown Mark Rieger, for Damian Campbell
HEARD: April 18, June 16 and August 12, 2016
Restriction on Publication
By court order made under subsection 486.4(1) of the Criminal Code, any information that could identify the person described in these reasons as the complainant, or the complainant’s mother, shall not be published in any document, or broadcast or transmitted in any way.
Endorsement
Introduction
[1] Damien Romaine Campbell was found guilty by a jury of one count of simple assault, three counts of assault with a weapon, and one count of aggravated assault. In each case, the complainant was the offender’s domestic partner.
[2] The principle issue on sentence is whether, and the extent to which, the court may take into account the immigration consequences of a particular sentence. Mr. Campbell is not a Canadian citizen, and may be subject to deportation in the event that he is sentenced to six months or more, on any one count of which he was convicted.
Circumstances of the Offences
[3] The conviction on Count #2, for simple assault, arose from ongoing assaults occurring during the course of Mr. Campbell’s relationship with the complainant, and included punching, slapping, and hitting with a shoe. It also included a specific incident which occurred in January 2007, when Mr. Campbell threw the complainant onto a bed, pulled down her pants, and inserted his finger into her rectum to punish her for allowing a paediatrician to treat their new-born daughter, by inserting a gloved finger into her rectum.
[4] The conviction on Count #4, for assault with a weapon, arose from ongoing assaults occurring during the course of the parties’ relationship, during which the complainant was whipped with a belt. She was whipped if she didn’t live up to his standards relating to the cleaning business that they ran together, or relating to domestic chores. These whippings would occur as often as several times during one week. If no belt was available, Mr. Campbell would use an electrical cord of some sort (such as a doubled-up guitar cord). Photographs entered as exhibits at trial show wounds upon unhealed wounds.
[5] The conviction on Count #5, for assault with a weapon, arose from ongoing assaults occurring during the course of the parties’ relationship, during which the complainant was beaten with a broom stick on her arms and neck. The broom sticks were aluminum dollar store broom sticks, as many as ten of which were broken during the assaults and had to be replaced. On one occasion, a jagged edge of a broom stick caught the complainant’s lip on the back stroke resulting in a permanent scar on her lip. She also has a scar on one of her hands, as a result of being struck with an ice-scraper.
[6] The conviction on Count #1, for assault with a weapon, arose from the assault which occurred on the night that the complainant finally left Mr. Campbell. During the evening of May 7, 2013, and continuing into the early morning of May 8, 2013, Mr. Campbell whipped the complainant with electrical cords causing significant injuries that were documented in police photographs. On that occasion, the severity of the violence rose to a level that caused the complainant to fear that he wouldn’t stop until she was dead. He hit her in the head, punched her in the stomach, and dragged her around by her hair. She was eventually able to escape from the home when he left the room to change his shirt. She ran out the door and to her parents’ home, from which 911 calls were made, resulting in Mr. Campbell’s arrest.
[7] The conviction on Count #3, for aggravated assault, arose from an assault which occurred in a motor vehicle sitting outside of a passport office in Toronto. Mr. Campbell became angry with the complainant and punched her in the chest, resulting in a collapsed lung and three days of hospitalization.
Circumstances of the Offender
[8] Damian Campbell is thirty-seven years old. He was born in Jamaica, and moved to Canada when he was 12 years old. He has positive childhood memories of a largely fulfilling home environment. At age 18, he moved out of his family home to pursue college studies. He was a good student in high school, and went on to obtain a two-year college diploma in Liberal Arts. His employment history is varied and substantial, with positions in retail and telemarketing, as a support worker, and in the restaurant industry. Mr. Campbell and the complainant ran their own cleaning business for a number of years. His biological father passed away in 2008. He continues to have a close and supportive relationship with his mother. Mr. Campbell and the complainant have two young daughters.
The Positions of the Parties
[9] Crown counsel argues that it is difficult or impossible to come up with a range of sentences appropriate to this case, because of what she describes as the uncommon severity of the assaults. Her position is that Mr. Campbell should serve a penitentiary sentence of between six and eight years, and be subject to a lifetime weapons prohibition.
[10] Defence counsel argues that the court may take into account the immigration consequences of a sentence of six months or more on any individual count. Because Mr. Campbell is a permanent resident, and not a Canadian citizen, and because he has been convicted of several offences punishable by a maximum term of imprisonment of at least ten years, he will be subject to a removal order, and may be deported from Canada. Although Mr. Campbell would otherwise be entitled to appeal the removal order on humanitarian and compassionate grounds, he will have no right of appeal if he is sentenced, on any one count, to a term of imprisonment of six months or more. His position then is that an appropriate sentence in this case would be six months, less a day, on each conviction, resulting in a global sentence of thirty months, less five days. If such a sentence were imposed, he would waive his right under s. 719(3) of the Code to receive credit for time spent in pre-sentence custody.
Mitigating Factors
[11] Other than a propensity for domestic violence, it would appear that Mr. Campbell is a law-abiding citizen with the potential to be an asset to the community. He has had a good education, and a fairly steady work history. Those who know him outside of his domestic relationships find it difficult to reconcile the Damian Campbell that they know, with the one who committed the crimes for which he is now being sentenced. He appears to have used his time constructively since his arrest, and has successfully completed an anger management program. He was on bail for almost three years with no suggestion of breach, and is employed in the institution in which he has been detained since his convictions.
[12] As noted in the pre-sentence report, Mr. Campbell has not officially acknowledged responsibility for his actions. However, in the letter of reference written by his mother, with whom he resided while on bail, she indicates that he has expressed remorse for what he put the complainant and their daughters through, and accepts that what he did was wrong.
Aggravating Factors
[13] Under s. 718.2(a)(ii) of the Criminal Code, evidence that the offender, in committing the offence, abused the offender’s spouse or common law partner is deemed to be an aggravating factor. In the present case, the abuse of the complainant by the offender continued for a period of somewhere in the neighbourhood of six years. The abuse sometimes occurred at least within earshot of, if not within the sight of, their children.
[14] The complainant tried desperately to keep the relationship intact. She kept herself covered in order to hide her wounds from her friends and family. She told lies to deflect any conversation about the wounds that she could not disguise. Notwithstanding those efforts, the abuse was evident to her mother who suffered from a feeling of helplessness – she was afraid to push the issue for fear of losing her relationship with her daughter.
[15] Mr. Campbell has two prior convictions for domestic assault arising from a previous relationship. According to the pre-sentence report, case notes from his conditional sentence and probation orders indicate that he “failed to accept responsibility for the offences or display victim empathy, regularly failed to report as directed, presented as “very challenging” during probation appointments, refused to cooperate with PAR programming requirements, and was subsequently charged with failure to comply with probation relating to his non-completion of counselling.”
Sentencing Objectives and Principles
[16] Section 718 of the Criminal Code provides the following sentencing objectives:
- to denounce unlawful conduct;
- to deter the offender and other persons from committing offences;
- to separate offenders from society, where necessary;
- to assist in rehabilitating offenders;
- to provide reparations for harm done to victims, or to the community; and
- to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
[17] Section 718.1 of the Code provides, as a sentencing principle, that a sentence must be proportionate to the gravity of the offence, and the degree of responsibility of the offender.
[18] In the present case, the predominant sentencing objectives are denunciation, specific and general deterrence, and rehabilitation.
Disposition
[19] I will first deal with defence counsel’s argument concerning the immigration consequences of the sentence which I will impose.
[20] Section 64(2) of the Immigration and Refugee Protection Act, as amended by the Faster Removal of Foreign Criminals Act, allows a person found inadmissible for serious criminality to appeal to the Immigration Appeal Division, but only if he or she has been sentenced to a term of imprisonment of less than six months. In the present case, a sentence of six months less a day on each of the five counts of which Mr. Campbell was convicted would preserve his right of appeal.
[21] In considering the individual circumstances of an offender as a factor in sentencing, the immigration consequences of a particular sentence may be taken into account, and the length of the sentence that would otherwise be imposed may be reduced. However, the risk of deportation cannot justify the use of inappropriate and artificial sentences to avoid collateral consequences and circumvent the will of Parliament: R. v. Hamilton (2004), 72 O.R. (3d) 1 (C.A.), at paras. 156 ff; R. v. Pham, 2013 SCC 15, at paras. 14 ff.
[22] Having carefully considered the difficult question of whether the five consecutive sentences of six months less a day would represent a fit sentence for Mr. Campbell’s crimes, I have come to the conclusion that it would not, for the following reasons.
[23] First, with the possible exception of the conviction on Count #2 for simple assault, a sentence of six months less a day would come nowhere near fulfilling the objectives of denunciation and specific and general deterrence. As a result, by attempting to achieve a reasonable global sentence by imposing five short consecutive sentences, the court would be allowing the offender to benefit from the fact that he was convicted of five offences, rather than any one of them. This would be imposing an inadequate and artificial sentence for the purpose of circumventing Parliament’s will on matters of immigration: R. v. Badhwar, 2011 ONCA 266, at para. 44 f.; Pham, at para. 17.
[24] Second, a global sentence of thirty months less five days would not be proportionate to the gravity of the offences committed, or the offender’s moral culpability, given the severity and frequency of the assaults, and the number of years over which they continued.
[25] It is difficult to compare the seriousness of the five counts of which Mr. Campbell was convicted. Count #3, the aggravated assault, is the most serious charge. It involved what was perhaps the only possibly life-threatening injury, and resulted in a three-day hospital stay. However, it resulted from a single blow to the chest, and caused less pain to the complainant than many of the other assaults. Count #1, one of the assaults with a weapon, was the most serious single-day incident – the severity of the violence rose to a level that caused the complainant to fear for her life. However, the seriousness of Count #4 and Count #5, the ongoing assaults cannot be discounted, given the frequency of the assaults, and the length of time over which they occurred.
[26] Having considered the objectives and principles of sentencing, and the case law cited by counsel, and having regard to all of the circumstances of the offences and the offender, I have concluded that an appropriate global sentence is one of four and a half years, reduced for pre-sentence custody.
[27] Mr. Campbell served six days in detention in 2013 prior to his release, and has served 205 days since his conviction in January of this year – a total of 211 days. I agree with defence counsel that Mr. Campbell should receive a credit of 1.5 days for each day spent in pre-sentence custody which would result in a credit of 10 months. He will therefore serve 44 months, in addition to the time spent in pre-sentence custody.
Sentence
On Count #4, assault with a weapon, 20 months On Count #5, assault with a weapon, 20 months concurrent On Count #2, assault, 6 months concurrent On Count #1, assault with a weapon, 12 months consecutive On Count #3, aggravated assault, 12 months consecutive
Lifetime prohibition from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance.
DNA sample.
Prohibition, while in custody, from communicating, directly or indirectly, with the complainant, except through legal counsel, or pursuant to a family court order made after today’s date.