R. v. Brown, 2017 ONSC 4866
COURT FILE NO.: 1353/13
DATE: 2017-07-31
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
CLIFTON BROWN
Defendant
A. Midwood, for the Crown
K. Grewal, for the Defendant
HEARD: July 31, 2017
Justice B.A. Glass
Reasons for Sentence for Aggravated Assault
[1] The Defendant was found guilty on June 14th for aggravated assault upon having choked the complainant. He was acting in response to the complainant throwing a dresser drawer down the stairs at their residence. The drawer struck the Defendant on the head. Fortunately for everyone, he did not sustain significant injuries.
[2] Both the complainant and the Defendant had consumed alcohol. The complainant had consumed 10-15 beers and 4-5 shooters of liquor.
Criminal Record for Mr. Brown
[3] The record for Mr Brown began in 1983 and ended in 2014 covering assault, assault of a police officer, possession of a prohibited weapon, possession of a narcotic, breach of probation, assault causing bodily harm, assault with intent to resist arrest, uttering a death threat and breach of recognizance. Most convictions resulted in probation and fines. For his first assault of a police officer in 1983 he served a 30-day sentence intermittently. In 2003 he served 90 days in custody intermittently after being given 57 days credit for pre-sentence custody. In 2014, Mr. Brown served 10 days intermittently. With the intermittent sentences, he also was placed on probation.
Victim Impact Statement
[4] The victim was a female friend. They had dated and he resided at her residence. She testified in a very clear and unemotional manner. She had called 911 when she was choked. She appeared to have lost consciousness while talking with the 911 contact person. She no longer consumers alcoholic beverages. At the time of the events, she consumed similar quantities of alcohol on weekends and during the week would drink 4-5 beers daily.
[5] The complainant described how this event impacted upon her. She has continued to feel traumatized by the physical assault. The victim lost her job a few weeks after the events occurred. She appears to have fear and trepidation in her life.
Pre-sentence report
[6] The report outlines that Mr. Brown has had many challenges in his life. He was born in Jamaica. He came to Canada at age 11 but encountered difficulties of moving to another country and enduring bullying in school. His criminal records reflects several assault convictions. He is an ironworker being certified as a journeyman. During his childhood, Mr. Brown encountered physical and verbal abuse by his father and step—mother.
Mitigating Factors
[7] The challenges of his childhood, being bullied, being physically and verbally abused by his father and step-mother are among life experiences that demonstrate a hard time.
[8] His mother lives in California and suffers from cancer.
[9] An explanation for losing self-control and choking the complainant flows from being struck by a flying dresser drawer as it was cast down the stairs by the complainant without warning. It could have resulted in major injuries or death.
[10] The criminal record has many dated convictions. Since 2003, there is no assault record. In 2014, the uttering a threat occurred for which he served a 10-day intermittent sentence together with a 1 year probation period.
Aggravating Factors
[11] The choking was not done to protect himself. Rather, Mr. Brown appears to have reacted in anger, understandably, but excessively. His criminal record indicates that he has been one who has been physically confrontational with others during the 30 years prior to this event.
Analysis
[12] This offence is a domestic assault event; however, it was not an event commenced by Mr. Brown alone. Rather, the consumption of alcohol played a role. There is no doubt that the victim was intoxicated. Both the victim and Mr. Brown were angry with each other. Ms. Kennedy went upstairs and threw a dresser drawer down the stairs striking Mr. Brown on the head. Until that event occurred, there was no physical force applied by Mr. Brown to Ms. Kennedy.
[13] Domestic violence is to be treated seriously by the courts and very often results in a custodial sentence. When the sentence is custodial, the court notes denunciation of the conduct of the person being sentence as well as calling for general and specific deterrence.
[14] In this case, the Crown seeks a custodial sanction taking into account a pattern of assaults dating back to 1983. The Crown suggests 9 months in custody followed by 18 months probation with conditions and a DNA order as well as a weapons prohibition order for life.
[15] The defence seeks credit for 4 years of house arrest bail terms so that no custodial sanction be imposed but rather a suspended sentence.
[16] The Crown submits that credit for stringent bail terms should not be given. The exception has been that Mr. Brown could be out of his residence to work. The case commenced in 2013 and much of the loss of time has related to him changing lawyers.
[17] I accept that there should be a sentence that denounces the conduct of the Defendant as well as one that conveys a general message to society that physical altercations should not be undertaken. Finally, the sentence should specifically discourage Mr. Brown from resorting to physical violence.
[18] However, all can be addressed with a suspended sentence. I have had the benefit of R. v. White found at 2014 ONSC 2878 whereby Ratushny J. sentenced the Defendant after being found not guilty of attempted murder but guilty of aggravated assault when the Defendant stabbed a male friend in the chest after he struck her face resulting in the need for reconstructive surgery on her nose. That was a domestic assault event. The victim was a war veteran from the Afghanistan conflict suffering from Post Traumatic Stress Disorder. I am persuaded that Clifton Brown should have any sentence suspended taking into account the actions of Ms. Kennedy. A suspended sentence will reflect upon the sentencing guidelines in the Criminal Code. This could have been a manslaughter trial for Ms. Kennedy had the object she threw killed Mr. Brown. Often, the person retaliating facing greater problems than the initiator, but I conclude that a suspended sentence addresses such considerations. There is no need for reporting conditions or counselling.
[19] Mr. Brown addressed the court today expressing his remorse for what happened. He has a job in Toronto which he has travelled to from Peterborough.
Sentence
[20] The sentence will be a suspended sentence and probation for 12 months with a provision that Mr. Brown not communicate or associate or be within 500 metres of the residence of Julie Kennedy and Melanie Partington. He is to be of good behaviour and keep the peace.
[21] There will be a DNA order.
[22] There will be a prohibition order pursuant to section 109 of the Criminal Code for life.
[23] There will be no Victim Surcharge. This offence is under the old provisions of the Criminal Code and is waived by the court.
Justice B.A. Glass
Released: July 31/ 2017