OSHAWA COURT FILE NO.: CR-18-14825
DATE: 20190909
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ROBERT BERNARD TAYLOR
Defendant
Mr. S. O’Neill, for the Crown
Mr. D. Barrison, for the Defendant
HEARD: July 22 and August 2, 2019
REASONS FOR SENTENCE
MCKELVEY J.:
Introduction
[1] The defendant, Robert Taylor, has pleaded guilty to a charge that:
On or about the 23rd day of July, in the year 2017, at the Town of Whitby, in the Province of Ontario, did in committing an assault on Craig Stephenson, wound, maim, disfigure, or endanger the life of the said Craig Stephenson, and thereby commit an aggravated assault, contrary to s. 268(2) of the Criminal Code of Canada.
[2] The defendant now comes before this court for sentencing on this offence which is subject to a maximum sentence of 14 years.
Background Facts
[3] At the time of his plea, the defendant acknowledged the facts surrounding the offence. In the early morning hours of July 23, 2017, the victim, Craig Stephenson, was at the Pearson Pub, which is located in the Town of Whitby. After the pub closed, Mr. Stephenson socialized with a few patrons on the front porch before departing at approximately 2:50 a.m. The pub backs onto a large municipal parking lot. When Mr. Stephenson reached the parking lot he encountered the accused, who at the time was engaged in sexual activity with a female in the parking lot. Mr. Stephenson approached Mr. Taylor and the female and made a comment to them about offering to join in on the sexual activity. Mr. Taylor and the female began to walk away and Mr. Stephenson followed them. They walked a fairly considerable distance with Mr. Stephenson following both the defendant and the female. A verbal confrontation ensued between the defendant and Mr. Stephenson. The defendant then struck Mr. Stephenson in the face several times with his fist before kicking Mr. Stephenson in the face. The blows which included hits from the defendant’s fist as well as his foot were done in quick succession. Mr. Stephenson fell to the ground unconscious as result of the blows. He suffered a broken jaw, several broken teeth, a broken nose, sinus fractures of his facial bones, a broken orbital bone and a large wound to the entire bottom of his chin.
[4] The defendant called 911 and requested an ambulance; however, he did not provide his name and left the scene before the ambulance arrived.
[5] The Crown concedes that the defendant at the time of the assault, subjectively felt threatened by Mr. Stephenson when the altercation occurred. However, the defence concedes that Mr. Taylor went much further than what was required and his actions in the circumstances were not reasonable.
Applicable Legal Principles
[6] The principles of sentencing are set out in s. 718 of the Criminal Code which provides as follows:
The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
[7] Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[8] In the present case, the offence committed was a serious crime of violence and both parties agree that a custodial sentence is required. A custodial sentence reflects the need to achieve denunciation and both specific and general deterrence. It also reflects the gravity of the offence and the degree of responsibility of Mr. Taylor. The only difference between the parties is with respect to the length of the custodial sentence.
Position of the Parties
[9] The Crown takes the position that a sentence of 12 months is required in this case, less credit for pre-sentence custody. In the present case, Mr. Taylor has been incarcerated for 205 days prior to trial. Based on a 1.5 to 1 credit, the total pre-sentence custody is 307 days.
[10] The defence argues that Mr. Taylor should be sentenced to time served in pre-trial custody.
Ancillary Orders
[11] The Crown seeks a number of ancillary orders against Mr. Taylor as follows:
(a) The Crown seeks an order under s. 109 of the Criminal Code prohibiting the defendant from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance. The requested order is for life.
(b) As the offence is designated as a primary designated offence under s. 487.04 of the Criminal Code, the Crown seeks an order under s. 487.051 for the defendant to provide a sample for DNA analysis.
(c) Following his release from custody, the Crown seeks a period of probation for two years with the following terms:
i. That Mr. Taylor report to a probation officer as required;
ii. That he reside at an address approved by the probation officer and attend counselling as recommended by the probation officer;
iii. That he sign a release allowing the probation officer to obtain relevant information about his counselling;
iv. That Mr. Taylor have no contact or communication, directly or indirectly, with the victim, Craig Stephenson;
v. That Mr. Taylor remain at least 100 metres away from where Mr. Stephenson works, lives, goes to school or is known to be; and
vi. That Mr. Taylor keep the peace and be of good behaviour.
(d) That Mr. Taylor pay restitution to Craig Stephenson in the sum of $14,296.63, which represents Mr. Stephenson’s out of pocket expenses for remedial medical and dental care as a result of the injuries suffered as a result of the assault. Mr. Taylor shall have two years from the date of his release to make the payment required by this restitution order.
[12] Mr. Taylor does not object to the ancillary orders requested by the Crown. These ancillary orders will, therefore, form part of his sentence.
Circumstances of the Offender
[13] Robert Taylor is currently 34 years old and has two children. He is currently unemployed but previously was employed as a financial services manager in the car sales industry.
[14] Mr. Taylor has had an ongoing issue with alcohol as well as opioids. He advised that the opioid addiction occurred following treatment for a medical condition. Mr. Taylor is currently taking a substance abuse program at a treatment centre where he currently resides. A representative of the treatment centre who was present at the time of sentencing submissions advised that they are prepared to allow Mr. Taylor to interrupt his treatment program to accommodate a custodial sentence, if this is required by the court.
[15] Mr. Taylor was initially released on a promise to appear following his arrest on the charge of aggravated assault. Subsequently, however, he was placed into custody because of a breach of condition as well as other charges. As noted earlier, counsel have agreed that Mr. Taylor is entitled to a total credit of 307 days custody on the aggravated assault offence. Mr. Taylor also was subject to house arrest for 138 days. Correspondence from the Central East Correctional Centre confirmed that during his incarceration, Mr. Taylor was subject to lock down on 9 occasions for less than 6 hours and on 44 occasions for 6 hours or more. On 9 days of his incarceration he was subject to triple bunking or overcrowding while incarcerated at the Central East Correctional Centre.
[16] Mr. Taylor has a criminal record. On December 11, 2009, he was convicted of driving with more than 80 milligrams of alcohol in his blood. He was also convicted of dangerous operation of a motor vehicle causing bodily harm contrary to s. 249(3) of the Criminal Code. For that offence he was sentenced to 6 months incarceration as well as probation of 12 months and a driving prohibition for 3 years.
[17] During his incarceration while awaiting trial on this charge, Mr. Taylor reports that he was assaulted by other inmates. He was treated by a doctor at the Central East Correctional Centre and complained of pain in his hand. According to Mr. Taylor’s affidavit dated August 2, 2019, he was told by the doctor at Central East that it was nothing serious. However, once he was released from custody he went to hospital and was diagnosed with a fracture in his hand.
[18] In his affidavit, Mr. Taylor described the lockdown periods and the treatment he received at the Central East Correctional Centre as follows:
I understand that being in custody is not supposed to be easy, but the lockdown periods and the treatment I received at the Central East Correctional Centre made a difficult time feel unbearable and made me concerned about my own health and wellbeing.
Impact of the Offence on the Victim
[19] Mr. Stephenson filed a victim impact statement. In this statement, Mr. Stephenson describes how he was treated in hospital for five days following the assault with pain killers for a broken jaw, numerous fractured and missing teeth, a broken orbital bone and a broken sinus cavity. He states he suffered through excruciating facial, head and dental pain for four weeks. He also described the impact of his injuries as follows:
My jaw was wired shut for six weeks. During that extended period, I had to inject lukewarm liquid food into my mouth by placing a syringe through the hole formed by the four continuous missing upper and lower teeth. I was unable to open my mouth fully for four months after the removing of the wire. For 18 months after the wire was removed, I was forced to continue consuming lukewarm liquid food in order to reduce the shock like pain caused by applying temperature and pressure to the 14 remaining fractured teeth, most of which were fractured deeply enough to expose the sensitive interior dentin.
[20] Mr. Stephenson goes on to describe a lengthy period of remedial treatment which included four dental implant posts, an implant bridge, two implant crowns, two root canals, a molar inlay, multiple veneers and fillings and other diagnostic procedures.
[21] Much of the remedial dental work to restore his teeth was not covered by dental insurance. As a result, Mr. Stephenson travelled to Costa Rica in October of 2018 for treatment to reduce the total cost. He also was required to apply for a home equity line of credit with his mortgage provider to finance the treatments needed to restore his teeth.
[22] Mr. Stephenson underwent counselling for six months in 2018 to deal with the symptoms of post traumatic stress disorder which had been earlier diagnosed by a psychiatrist. He still experiences recurrent flashbacks as a result of the assault. He also experiences continuing recurring problems with throbbing pain on the right side of his upper jaw. He suffers from chronic anxiety and depression caused by flashbacks of the assault. The right side of his face is no longer symmetrical with his left side and his teeth do not line up consistently.
Aggravating Factors
[23] There are a number of serious aggravating factors in this case. The most serious aggravating factor is the nature of the assault on Mr. Stephenson and the very serious injuries he has suffered as a result of the assault.
[24] It is also significant that Mr. Taylor has a previous criminal record. While the record dates back to 2009, the offence involved causing bodily harm to the victim through the dangerous operation of a motor vehicle.
Mitigating Factors
[25] There are also a number of significant mitigating factors in this case. The most significant is Mr. Taylor’s plea of guilty at the opening of trial. I accept that this reflects Mr. Taylor’s acceptance of responsibility. The Crown concedes that there was a triable issue on the issue of self-defence. The assault itself was unwitnessed and the victim’s recollection of the event is limited. The guilty plea therefore represents a very substantial mitigating factor.
[26] Other mitigating factors include the conditions of Mr. Taylor’s pre-trial custody which have been described previously as well as the 138 days of house arrest since his release from detention.
[27] The Crown suggests that no credit should be given based on these factors because it was Mr. Taylor’s own wrongful breaches of the terms of his release which led to a subsequent pre-trial incarceration and house arrest. The Crown argues that Mr. Taylor was in effect the author of his own misfortune.
[28] I agree with the defence, however, that Mr. Taylor should not lose the benefit of any credit for his pre-trial conditions of custody or house arrest because of the breach of his bail conditions. These breaches are being dealt with separately by way of other charges and do not justify Mr. Taylor being subjected to harsh treatment while in custody.
Analysis
[29] Counsel refer to the decision of Code J. in R. v. Tourville, 2011 ONSC 1677. This case deals with the appropriate range of sentences for aggravated assault cases. At para. 28 of that decision the court states,
In the mid-range are cases where high reformatory sentences have been imposed of between eighteen months and two years less a day. These cases generally involve first offenders and generally contain some elements suggestive of consent fights but where the accused has resorted to excessive force.
[30] In the absence of mitigating factors, I have concluded that the sentence for Mr. Taylor would have been near the higher end of this range given that he has a previous criminal record for an offence involving bodily harm and taking into account the very serious nature of the assault.
[31] Mr. Taylor’s plea of guilty, the conditions of his pre-trial incarceration as well as his time spent in house arrest are, however, significant mitigating factors. In R. v. Downes, 2006 CanLII 3957 (ON CA), [2006] O.J. No. 555, the Ontario Court of Appeal noted that stringent bail conditions, especially house arrest, represent an infringement on liberty and is a form of punishment although of a different character than actual incarceration. They therefore need to be taken into account as relevant mitigating circumstances. In R. v. Dragos, 2012 ONCA 538, the Ontario Court of Appeal in reviewing a judge’s sentencing reasons noted that, “a precise mathematical calculation of the credit to be given for pre-sentence bail” is not required. What is required is that in a proper case, consideration should be given to pre-sentence bail and in a final analysis, the mitigating weight to be assigned to pre-sentence bail, if any, is a discretionary matter for the sentencing judge.
[32] Having considered the mitigating factors in this case I have concluded that Mr. Taylor’s request for a sentence based on time served is not appropriate given the gravity of the offence and the need for denunciation as well as both specific and general deterrence. Even accepting the defence submission that Mr. Taylor should not lose the benefit of credit for his pre-trial conditions of custody and house arrest, I view the Crown’s position regarding sentence to be appropriate in the circumstances of this case.
[33] Mr. Taylor, would you please stand. Further to the foregoing reasons I sentence you as follows:
[34] For your conviction on the offence of aggravated assault, I sentence you to a custodial sentence of 1 year less pre-trial custody credit of 307 days, together with the ancillary orders as outlined earlier in these Reasons.
Justice M. McKelvey
Released: September 9, 2019
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
ROBERT BERNARD TAYLOR
Defendant
REASONS FOR SENTENCE
Justice M. McKelvey
Released: September 9, 2019