CITATION: R. v. Goulding, 2017 ONSC 4376
COURT FILE NO.: CR-17-10000372-0000
DATE: 20170718
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
Kelly Beale, for the Crown
- and -
DERRICK GOULDING and SHAWN CLYKE
Respondents
Brian Kolman, for Derrick Goulding
Uma Kancharla, for Shawn Clyke
HEARD: July 17, 2017
Thorburn J.
REASONS FOR SENTENCE
- OVERVIEW
[1] The accused, Derrick Goulding, and Shawn Clyke, were convicted by a jury on April 22, 2015 of assault causing bodily harm and the lesser included offence of assault. Based on the evidence presented to the jury at trial, Derrick Goulding pleaded guilty to possession of 7.18 grams of marijuana, 0.43 grams of Crystal meth, and 1.08 grams of cocaine.
[2] These are the reasons for sentence in respect of Derrick Goulding’s convictions.
- THE EVIDENCE IN RESPECT OF THESE OFFENCES
[3] In April of 2015, the Complainant, Sidney Lee, was 20 years old. She was small in stature. She had moved to Toronto with a boyfriend. Her boyfriend went to jail and in April of 2015, she was staying at a shelter by herself.
[4] Sidney Lee and Mr. Goulding knew one another from the street.
[5] The night before this incident, Sidney Lee stayed overnight at her grandmother’s house and left around 7:00 a.m. She saw a person named Cody whom she had met a few times and knew from the area. They bought coffee at Tim Hortons and sat on a bench in College Park.
[6] Derrick Goulding came up to them as they sat outside the College Park area. Derrick Goulding started to shout and swear at Cody. Derrick Goulding took off his shirt, Cody jumped on him and Derrick Goulding told Cody that he should remember who Derrick Goulding’s friends are and that they could beat him up. Cody left.
[7] Sidney Lee took no part in the altercation.
[8] Mr. Goulding then took Sidney Lee by the arms, swung her around three times and he, along with Shawn Clyke and another male, kicked her, hit her and pushed her to the ground. They began beating her with sticks, hit her with bricks and buckets, threw a chair at her and thereby assaulted her causing her bodily harm.
[9] There is video footage of some parts of her travel to Dundas station and her entry into the TTC station at Dundas station. She appears fearful, often looking back over her shoulder.
[10] Officer Bourgeois attended the hospital at about 1:15 p.m. on April 22, 2015. He said that when he arrived at St. Michael’s hospital, Ms. Lee was curled up in a ball. He described her as extremely upset and crying profusely. She did not make eye contact with him. She looked at the floor as she spoke. She was clothed but he observed scratches on her forearms.
[11] Officer Mark Franke took photographs and documented the Complainant’s injuries. Her left arm was in a sling, her left hand was swollen, there was bruising to her upper right leg, light bruising on her neck, bruising on her lower back and minor scrapes on her body. Ms. Lee’s arm was sprained. There was mud on her backpack.
[12] Sidney Lee acknowledged that she has Raynaud’s syndrome which can cause redness and swelling of the joints.
[13] When Derrick Goulding first encountered the police, he used the false name, Aaron Smith. He had done so before in the past.
[14] At the time of his arrest, police retrieved 7.18 grams of marijuana in a Ziploc bag, .43 grams of Crystal meth, 1.08 grams of cocaine, more cocaine in his left shoe and one gram of marijuana.
3. THE PRINCIPLES OF SENTENCING
[15] Section 718 of the Criminal Code, R.S.C., 1985, c. C-46 provides that, in sentencing a person convicted of offences, the court must consider:
i. denunciation of the unlawful conduct;
ii. deterring the offender and others from committing offences;
iii. separation of offenders from society where necessary;
iv. rehabilitation of offenders;
v. reparation for harm done to victims or to the community; and
vi. promotion of a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
[16] Similar sentences should be imposed on similar offenders for similar offences committed in similar circumstances. The sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. A sentence may be increased or reduced to account for aggravating or mitigating circumstances.
Consecutive versus Concurrent Sentences
[17] Whether sentences are consecutive or concurrent is determined by, “whether the acts constituting the offences were part of a linked series of acts within a single endeavour”. This is a factual assessment. (R. v. G.P.W. (1998), 106 B.C.A.C. 239 (B.C.C.A.) at para. 35 and R. v. Li, 2009 BCCA 85, 2009 B.C.C.A. 85 at para 47).
[18] It is agreed that the offences of assault and assault causing bodily harm involve a single endeavour and the sentences for those two offences should therefore be concurrent. The offences of drug possession also involve a single endeavour and the sentences for those offences should therefore be concurrent. The sentence for assault causing bodily harm and possession of drugs involve different endeavours and those sentences must therefore be consecutive to one another.
The Totality Principle
[19] In cases such as this, where there are multiple offences, the principle of totality requires the court to craft a global sentence that is not excessive. (R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500 at para. 42 and R. v. Gummer, 1983 5286 (ON CA), [1983] O.J. No. 181 (C.A.) at para 13).
- INFORMATION ABOUT THE VICTIM AND THE OFFENDER
[20] The victim filed a victim impact statement. In it she says that “When this was happening to me, I felt like nothing, I was traumatized and in shock. I felt helpless… Just before this happened, I was trying to make positive changes in my life and this has totally thrown me off that path.” She has yet to recover.
[21] Derrick Goulding has indigenous heritage on his mother’s side. He was advised of the right to request a Gladue report but declined to do so after consultations with his counsel. (I have nonetheless taken this into account in addressing the counselling for his substance abuse issues.).
[22] In April 2015, he was 29 years old. He was not working. He was selling and consuming Crystal meth and other illegal drugs. His drug addiction became worse after his brother died of a drug overdose.
[23] Mr. Goulding has a lengthy criminal record that includes several convictions for assault, one conviction for sexual interference, several incidents of failure to comply with probation, drug possession and drug trafficking. None of the offences were as serious as this and he has never served a penitentiary sentence.
[24] The aggravating factors in respect of Mr. Goulding and what he did are as follows:
a. Mr. Goulding has a criminal record;
b. the circumstances of this offence include a prolonged unprovoked assault for 15 to 30 minutes on a small young vulnerable woman as part of a group of three males who assaulted her together;
c. the victim suffered a number of bruises, abrasions and a sprained shoulder;
d. Mr. Goulding has a history of failing to abide with court orders;
e. while on bail on these charges he went missing for approximately one month before being apprehended by police.
[25] The mitigating factors include the fact that:
a. Mr. Goulding continues to enjoy the support of his family who are prepared to bring him home and help him find work in construction with his father;
b. he has completed a number of courses while he has been incarcerated; and
c. he has expressed remorse.
- THE SENTENCE RANGE FOR SIMILAR OFFENDERS WHO COMMITTED SIMILAR OFFENCES
[26] Sentencing ranges provide guidelines for trial judges. (R. v. Stone, 1999 688 (SCC), [1999] 2 S.C.R. 290 at para 244).
[27] The sentence range for the offence of assault causing bodily harm by an offender with a criminal record, resulting in comparable harm to the victim is approximately six months to four years. (See R. v. O.T. [2005] O.J. No. 1499 (Ont. C.A.), R. v. Clunas 1991 7218 (ON CA), 2 O.R. (3d) 1 [1991] O.J. No. 175 (C.A.), R. v. Tourville 2011 ONSC 1677, [2011] 93 W.C.B. (2d) 296 (S.C.J.) R. v. Chickekoo (2008), 79 W.C.B. (2d) 66 (Ont. C.A.) R. v. Moreira, 2006 9709 (ON SC), [2006] O.J. No. 1248 (S.C.J.) and R. v. Thompson, [2005] O.J. No. 1033 (C.A.).
[28] The sentence range for simple possession of cocaine, Crystal meth and marijuana in quantities such as these, ranges from a conditional sentence to six months in custody. (Her Majesty the Queen v. Chad Lake, January 13, 2004 Seppi J. (S.C.J.), R. v. Day, 2011 ONSC 1148, (S.C.J.) and Her Majesty the Queen v Nuttall, 2017 ONSC 970.
- JOINT SUBMISSION OF THE PARTIES
[29] The joint submission put forward by the parties is a reasonable one that is within the range of sentence imposed on similar offenders for similar offences committed in similar circumstances. As such, I accept their joint submission and the ancillary orders and probation terms set out below.
[30] The parties agree that a global sentence of 2 years plus one day on the assault causing bodily harm followed by a consecutive sentence of four months in custody on the drug possession charges should be imposed. (The assault convictions are concurrent to one another and the drug possession convictions are concurrent to one another (the most serious being the possession of cocaine conviction).
[31] From this sentence Mr. Goulding’s time served must be deducted. Mr. Goulding has spent one year, seven months and 9 days in custody on these charges from April 29, 2015 to December 8, 2016. Thereafter, he was on bail from December 8, 2016 to March 24, 2017 when his parents advised that they no longer wished to serve as his sureties as he was not complying with the terms of his release. He then went missing and was apprehended on April 25, 2017 and has since been in custody.
[32] Therefore the period between April 29, 2015 to December 8, 2016 shall be calculated at the rate of 1.5:1. On this basis, Mr. Goulding has served his two-year and four-month sentence.
[33] In addition the following ancillary orders will be imposed:
a) pursuant to section 487.051(b) of the Criminal Code, Mr. Goulding must provide a sample of his DNA for forensic analysis;
b) pursuant to section 110 of the Criminal Code, Mr. Goulding is forbidden from owning a firearm for 10 years.
[34] Thereafter, a two-year period of probation is imposed during which Mr. Goulding must:
a) keep the peace and be of good behaviour;
b) have no contact with the victim, Sidney Lee. He must not be within 200 metres of anywhere she resides, goes to school, works or is known to be;
c) have no contact with his co-accused, Shawn Clyke, or Pawel Sledz;
d) reside at the address approved of by his probation officer and report to his probation officer as required;
e) not be in possession of illicit drugs;
f) attend counselling for drug abuse at direction of his probation officer;
g) sign all necessary releases for probation officer to monitor compliance with drug counselling; and at his request;
h) participate in the Native Fire Centre Joshua Smoke counselling for narcotics.
Thorburn J.
Released: July 18, 2017
CITATION: R. v. Goulding, 2017 ONSC 4376
COURT FILE NO.: CR-17-10000372-0000
DATE: 20170718
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
- and -
DERRICK GOULDING and SHAWN CLYKE
Respondents
REASONS FOR SENTENCE
Thorburn J.
Released: July 18, 2017