CITATION: R. v. Robillard-Delahunt, 2017 ONSC 5573

COURT FILE NO.: CR-16-19

DATE: September 22, 2017

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Peter Napier for Her Majesty the Queen

• and -

KORY ROBILLARD-DELAHUNT

Geraldine Castle-Trudel, for the Accused

Accused

HEARD: September 8, 2017

REASONS FOR DECISION

James, J.

1On September 8^th, 2017 Mr. Robillard-Delahunt entered pleas of guilt to 1 count of aggravated assault in relation to Daniel Maxwell and 1 count of aggravated assault in relation to Amanda Duquette. The case was put over to today for sentencing. Aggravated assault occurs when the assailant wounds, maims disfigures or endangers the life of the complainant. It is punishable by a maximum of 14 years imprisonment. There is no minimum penalty

2The offender in this case is 25 years old. Despite his young age, he has accumulated a lengthy criminal record including dangerous driving and armed robbery. In addition, he is an exceptionally violent offender with 13 assault convictions on his record.

3By the time he was 22 years old he was serving time in a federal penitentiary. When not in custody he has failed to comply with release conditions and probation orders on at least 10 occasions. Clearly this offender has demonstrated that he poses a serious risk to the community because of his aggressive and antisocial behaviour.

4The circumstances of the incident which brings him before the court today took place at a New Year’s Eve party. He got in a dispute with an acquaintance, and when the hosts attempted to intervene, he pulled a knife from his pocket and started stabbing people. During the melee he was struck over the head with a bottle. Three people suffered injuries from the knife and the offender then fled the scene.

5He has been in custody since he was arrested. He is entitled to credit for 715 days awaiting trial at 1.5 days credit for each day he was in custody. This credit reflects the fact that while awaiting trial on these charges he was sentenced to the equivalent of 187 days incarceration for an unrelated conviction at Sharbot Lake, so this time is deducted from his pretrial credit.

6He has been in custody for 601 days which results in a credit of 902 days less the 187 days attributable to his sentence on the unrelated offences in Sharbot Lake. On that occasion he failed to stop at the scene of an accident and obstructed police.

7Crown counsel seeks a global sentence of 6 years and 4 months, which translates to a sentence today of 4.5 years when the credit for pretrial custody is taken into account.

8Defence counsel suggests a sentence of between 3 to 4 years less the credit for time served would be appropriate.

9Crown counsel points to the following aggravating factors in support of the request to impose a significant penitentiary sentence.

10First and foremost is the horrendous adult criminal record this offender has accumulated in a relatively short period of time, not considering his youth record which itself is quite extensive.

11In addition I have considered the victim impact statements from Daniel Maxwell and Amanda Duquette.

12Mr. Maxwell said he was about to start a new job that fell through because of his injuries. He went for 3 months of physiotherapy and still does not have full mobility in the arm that was injured. He can’t reach above his head or put his hand flat to do push ups. He can’t wear sunglasses because he can’t tolerate anything touching where he was stabbed in the head. He says he has been left with chronic headaches and has difficulty concentrating. He has trouble sleeping at night and the emotional trauma from the incident has affected his work and family life. He says he suffers from Post-Traumatic Stress Disorder and as a result he is a different person now than who he was before the attack occurred.

13Amanda Duquette said in her victim impact statement that she no longer feels safe around people she doesn’t know. She worries when she is on outings with her children and believes she has Post-Traumatic Stress Disorder as well. She suffers nightmares about the incident. She has a permanent scar on her right upper arm. She spent hundreds of dollars replacing furniture and clothing that had blood stains. She concluded her statement by saying, “to be honest, (this incident) has affected my life more than I can ever describe on a piece of paper.”

14Another aggravating factor is that there wasn’t just one victim. Three people in all were stabbed or cut by the offender on the night in question.

15As for mitigating factors, it is important to acknowledge that Mr. Robillard-Delahunt has accepted responsibility for his crimes by pleading guilty and relieving the victims of the necessity of testifying at a trial although they did have to give evidence at the preliminary inquiry.

16Defence counsel says the situation that night was a recipe for disaster. Drugs and alcohol had been consumed over the course of the night. It was 3 or 4 in the morning when the incident occurred. Ms. Castle-Trudel said that the victims were not particularly vulnerable individuals and the fight was actually 3 against 1. It started as a consensual fight. I would offer the comment, however, that based on the agreed statement of facts it appears that the offender was the aggressor and initiated the altercation.

17Another mitigating factor is the relative youthfulness of the offender. He is only 25 years old but this consideration is tempered by the fact that he is not a youthful first time offender who made a mistake that was out of character.

18In his allocution the offender said he understands that he has to turn his life around. He says the fact that he was at risk of being declared to be a dangerous offender prompted him to re-examine how he wants to live his life going forward. He says things will be different now. He wants to give his family a reason to respect and be proud of him.

19I would like to turn now to a review of the sentencing principles that apply to this case. In situations where violence has occurred and the offender has a lengthy criminal record, the primary consideration must be deterrence and denunciation.

20Any sentence that this court imposes must adequately denounce the violent and antisocial behaviour that this offender has exhibited.

21Mr. Robillard-Delahunt must understand that if he re-offends, it will be necessary to separate him from the community in order to protect the public. We do this by incarcerating high risk individuals for substantial periods of time.

22Other principles include that the punishment must be proportionate to the gravity of the offence and the degree of responsibility of the offender and a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

23Despite his serious criminal record, the issue of rehabilitation deserves consideration because the offender is relatively young. Assistance in rehabilitating offenders is a fundamental sentencing principle. There should be some incentive for him to turn his life around. I expect, however, this offender will need help to do that and for that reason it is important that Mr. Robillard-Delahunt take advantage of the programs that are available to him in prison. It is not enough to say you want to turn over a new leaf and that you see the error of your ways. Offenders like Mr. Robillard-Delahunt must demonstrate their determination to pursue a more positive life path by their actions and not just words alone. This means committing oneself to pursuing the services that are available to help offenders like Mr. Robillard-Delahunt who have trouble coping with the challenges of everyday life. In my view rehabilitation in the circumstances here means giving the offender the opportunity to learn coping tools and strategies in a structured setting and ensuring that any sentence that is imposed does not crush the hope for a more productive and pro-social future.

24Crown counsel has referred me to some case authorities which provide guidance for sentencing offenders for similar crimes. In particular is the decision of Justice Code in the Tourville¹ case, a decision of this court in 2011 and the cases therein referred to which establish that the high end of the range for aggravated assault is 4 to 6 years imprisonment.

25This range is reserved for repeat offenders with serious criminal records or where the attack was unprovoked or premeditated and an absence of elements of consent or self-defence.

26Mid-range cases fall in the 18 to 24 month range. These cases generally involve first offenders and involve elements of a consensual fight that got out of hand. (see Tourville, para. 28).

27Ms. Castle-Trudel says that this case is similar to the decision of Justice Low in the Silva case, a decision of this court in 2016. There the victim was attacked with a machete and sustained serious injuries with permanent scarring and continuing psychological issues. The offender had a record that included two previous assaults. He was 30 years old. The pre-sentence report was positive. He was employed and in a stable relationship. Justice Low imposed a sentence of 4 years before crediting pre-trial custody.

28Defence counsel also referred to another decision of Justice Low, subsequently approved by the Court of Appeal, the Palaguru² case from 2012, where the offender was a member of a group of attackers who beat up two men to intimidate them from testifying in an upcoming murder trial. The attack was described as cowardly, vicious and pre-meditated. The offender in that case had a criminal record that contained 13 convictions. Justice Low imposed a sentence of 4 years.

29Mr. Robillard-Delahunt, will you please stand up. I agree with Crown counsel that a sentence in the upper end of the range is appropriate here. Your record of violence, aggression and disregard for the law is the predominant factor to be considered. You are correct to be concerned that if you continue on the same path, there is a high risk that you will become the subject of a dangerous or long term offender application which could result in indeterminate detention.

30I am sentencing you to a period of imprisonment of 38 months to take effect from today. This sentence includes the credit for you pre-trial custody. This translates to a global sentence of 61.83 months which is near the mid-point of the upper range for crimes of this nature.

31I urge you to take advantage of the programs that will be available to you in prison. There is still time for you to turn things around. You are still a young man, but you can appreciate that if you come back before the court again for violent behaviour, the prime consideration will be the need to separate you from society for a lengthy period of time.

32There will be three ancillary orders as well. You will be subject to a lifetime weapons prohibition under section 109 of the Criminal Code, you will be required to provide a sample of your DNA and you will be subject to an order not to communicate with Daniel Maxwell, Amanda Duquette and Katrina Brunton while incarcerated pursuant to s. 743.21 of the Criminal Code.

Footnotes

1. 1R. v. Tourville, 2011 ONSC 1677
2. 2R v. Skanthavarothayar, 2012 ONCA 392