R. v. David 2017 SCJ mini 15

CITATION: R. v. David, 2016 ONSC 5152

COURT FILE NO.: 71/16

DATE: 2017-08-29

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

KIMO NICHOLAS DAVID

A. Khoorshed, for the Crown

S. Kovacs, for Mr. David

HEARD: August 29, 2017

REASONS FOR SENTENCE

gibson J.

[1]

Introduction

Kimo Nicholas David (“David”) has been found guilty of four offences:

2The first count alleged that, on or about 16 September 2015, at the Town of Milton, he did in committing an assault upon Khoa Le, cause bodily harm to him, contrary to s.267(b) of the Criminal Code.

3The second count alleged that on or about 16 September 2015, at the Town of Milton, while bound by a probation order made by the Ontario Court of Justice in Toronto on 2 April 2014, he failed without reasonable excuse to comply with the order, to wit: keep the peace and be of good behaviour, contrary to s. 733.1 of the Criminal Code.

4The third count alleged that on or about 16 September 2015, at the Town of Milton, while bound by a probation order made by the Ontario Court of Justice in Toronto on 6 November 2014, he failed without reasonable excuse to comply with the order, to wit: keep the peace and be of good behaviour, contrary to s. 733.1 of the Criminal Code.

5The fourth count alleged that on or about 16 September 2015, at the Town of Milton, while bound by a probation order made by the Ontario Court of Justice in Toronto on 29 October April 2014, he failed without reasonable excuse to comply with the order, to wit: keep the peace and be of good behaviour, contrary to s. 733.1 of the Criminal Code.

6Mr. David pleaded not guilty to all four counts. On June 15, 2017, following a trial, the Court found him guilty of all four counts.

[7]

The Facts

The facts of this case were as follows.

8On 16 September 2015, Mr. David and the complainant Khoa Le were cellmates at the Maplehurst Correctional Centre in Milton. The evidence of the complainant Le, which was accepted by the Court, was that on the morning of 16 September 2015, two portions of food were delivered by an inmate to the cell that on that day he shared with David. They were passed through the hatch in the cell door. David appropriated his food, and a dispute ensued. David hand-slapped Le on the left side of his face. Le ran to the door of the cell and yelled for help. David then assaulted him with his fists, punching him repeatedly. Le used his two hands to protect himself, then fell to the floor near the door, hitting his head on the heavy metal door to the cell. David then stepped, or stomped, on Le’s body and face with his foot. Le was bleeding from the assault. Le was screaming, but David told him to be quiet. Le complied because he was scared. David then started to clean up the blood. David gave Le another orange jumpsuit (or “jumper”) and told him to change. After about 20 minutes, a guard came and opened the door. Le ran out right away, holding a white towel with blood on it. He fell down in the hallway. He was then taken by ambulance to hospital.

9Mr. Le’s injuries arising from the attack by David included cuts on the corner and inside of his mouth requiring stitches, a sore knee, fractured ribs on his right side, and a stiff neck which required him to wear a neck brace for some time, bruising on the right side of his head from where his head hit the wall, and bruising on his face. There was also some bruising on his left side because it hit the toilet bowl during the attack.

10A number of photos depicting injuries to Khoa Le were made exhibits, as well as medical records from the diagnostic imaging department of the Milton District Hospital indicating the results of x-rays taken of Mr. Le on 16 September 2015. These indicate that he had undisplaced fractures in the right 4th, 5th and 6th ribs laterally.

11The photos in evidence as Exhibit 3 depict injuries to Le, including stiches to the upper right corner of his lips, bruising to the left side of his head, bruising around the outside corner of his left eye, bruising above his right ear, bruising under his right eye, stitches inside his mouth, redness on his left leg around the knee, and redness around his ankle. They also depict him wearing a neck brace.

[12]

Positions of the Parties

The Crown submits that an appropriate sentence in this case would be two years less a day consecutive, plus three years probation, with a number of ancillary orders. It also asks, pursuant to s.725(1)(c ), that I consider any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge. It suggests that in this case, this would include robbery of the peanut butter, and aggravated assault.

13The Defence suggests that an appropriate sentence would be six months jail, less credit for pre-trial custody equivalent to 2.5 months, with no probation. It asks specifically that the Court consider as a mitigating factor that, prior to the incident which led to the charges currently before the Court, Mr. David had been in segregation at Maplehurst for 15 days. The Defence submits that jail is a dangerous place, and that there is a palpable sense of unease which prevails in that environment, and that this was a trigger for Mr. David’s actions.

[14]

Aggravating and Mitigating Factors

The aggravating factors present in this case include the following:

a. Mr. David’s extensive prior criminal record, which includes offences of violence or threats of violence;

b. The extent of the physical injuries suffered by Mr. Khoa Le, as described earlier;

c. That the offences occurred in a custodial environment, against a smaller cellmate who was essentially defenceless (I shall say more about this factor below).

15The mitigating factor in this case would be Mr. David’s relatively young age. He is still only 22. It would appear that Mr. David has also had a difficult start in life, in terms of parental abuse by his father.

16Mr. David has a significant criminal history, marred with violence and non-compliance with Court orders.

17Mr. David has not expressed any remorse for this offence. This is not an aggravating factor, but rather the absence of a mitigating factor.

18I have considered all of the facts that emerged in evidence in this case, whether aggravating or mitigating, but Mr. David will be sentenced only for the four offences of which he was convicted.

[19]

Sentencing Principles and Analysis

I have carefully considered all of the sentencing purposes and principles elaborated at ss. 718, 718.01, 718.1 and 718.2 of the Criminal Code. I have also considered the sentencing precedents and the relevant aggravating and mitigating factors in this case. Having done so, I consider that the imposition of a custodial sentence in this case is required to fulfil the requirements of denunciation and specific and general deterrence. I have also had regard to the prospects for rehabilitation, and the necessity to separate offenders for society in some circumstances.

20The mitigating factors in this case are scant, while the aggravating factors are significant.

21The appropriate range of sentence in this case would be between 12 and 24 months imprisonment.

22The Crown is correct that the fact that the assault occurred in a custodial environment is an aggravating rather than mitigating factor. No one disputes that prison is a difficult and disconcerting environment, as the Defence suggests. But Mr. David assaulted Mr. Le, a physically much smaller man, in their cell, where Mr. Le was essentially defenceless, and had no means of escape or immediate recourse to assistance. The custodial environment of prison is not a law-free zone. Individuals serving custodial sentences are put by the state into an environment where their usual rights are limited, and where they may be particularly vulnerable to intimidation and violence of other inmates. Having put them there, the state has an obligation to ensure that they are not further victimized by virtue of having been placed in that environment for the purposes of sentencing articulated in the Criminal Code.

23It is the rule of law that governs in Canada, not the law of the jungle. And this includes prison.

24Mr. David was in pre-trial custody on these charges from February 8, 2017 to March 8, 2017, a period of one month. He will be given credit on sentencing for this period at a ratio of 1.5 to 1. In addition, he was subject to restrictive bail conditions for a period thereafter. Therefore, as requested by the Defence, he will be given a credit of 2.5 months as against the custodial sentence to be imposed.

25Mr. David’s life appears to be on a dismaying trajectory. At only 22 years of age, he already has an extensive criminal record, and the pattern of this suggests an escalating trend. I would like to believe that, as his girlfriend Alyssa Irwin suggests, his past actions won’t define him, and that he wants to move forward and to change. If this is to be the case, Mr. David will need some assistance with his rehabilitative efforts in future. For this reason, and also for the necessary monitoring for the protection of society once he is released from custody, the Court considers that a period of probation would be appropriate.

[26]

Sentence

Mr. David is therefore sentenced as follows:

a) On the offence of assault causing bodily harm at Count 1, to a term of imprisonment for 18 months, to be followed by three years of probation, with the conditions specified below. A credit of 2.5 months will be subtracted from this, for an effective sentence of 15.5 months;

b) On the offences of failing without reasonable excuse to comply with the probation orders at Counts 2, 3 and 4, to six months imprisonment on each count, to be served concurrently with each other, and with the sentence for Count 1;

c) Following release from custody, there shall be a term of probation for three years, the conditions of which include:

i. Keep the peace and be of good behaviour;

ii. Appear before the Court when required to do so;

iii. Notify the Court or your probation officer in advance of any change of name or address or of any change of employment or occupation;

iv. Report within 48 hours of release from incarceration to a probation officer and thereafter as directed by your probation officer;

v. Reside at an address approved by your probation officer;

vi. Attend and actively participate in any assessment, counselling, evaluation, or rehabilitative treatment, including specifically for anger management, that may be directed by or arranged by your probation officer;

vii. Sign any waivers, consents or releases necessary to monitor compliance with this and any other condition of your probation order;

viii. Maintain or actively seek employment, or training and education, and provide proof of this to your Probation Officer;

ix. Do not possess any weapons of any kind, including firearms or crossbows;

x. Do not contact Mr. Khoa Le subsequent to your release;

xi. Do not associate or have any contact with anyone known to you to have a criminal record, unless approved by your Probation Officer;

xii. Do not travel outside Canada without the written permission of your probation supervisor.

27Pursuant to s.743.21, Mr. David is not to communicate, directly or indirectly, with Khoa Le or any member of Khoa Le’s family during the custodial portion of the sentence.

28As the offence of assault causing bodily harm under s.267(b) is a primary designated offence, pursuant to s. 487.051 of the Criminal Code, a sample of bodily substances shall be provided for the purpose of forensic DNA analysis.

29There shall be a s.109 weapons prohibition order for ten years in respect of any firearm, other than a prohibited firearm or restricted firearm, and any cross-bow, restricted weapon, ammunition and explosive substance, and for life in respect of any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition.

30There will be a Victim Fine Surcharge of $800, payable within one year.

Gibson J.