R. v. Scotlund Crompton, 2020 ONSC 6533

COURT FILE NO.: CR-19-0032-00

DATE: 2020-10-26

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Scotlund Crompton

Accused

Afton Brown, for the Crown

Karen Scullion, for the Accused

HEARD: September 14, 2020 at Thunder Bay, Ontario

REASONS ON SENTENCING

P. Smith J.

Overview

1Oles Chomniak was badly beaten on the morning of April 26, 2018. Following an investigation by the Thunder Bay Police Service, Scotlund Crompton was arrested and charged on May 3, 2018, with the aggravated assault of Mr. Chomniak contrary to s. 268 of the Criminal Code, R.S.C. 1985, c. C-46. Mr. Crompton was tried between October 7 and 10, 2019, and on March 3, 2020, I delivered my written reasons in which I found him guilty of the offence as charged.

2Sentencing has been delayed as a result of the disruptions to court scheduling caused by the COVID-19 pandemic and more recently by a fire at the courthouse. Mr. Crompton’s sentencing hearing was ultimately held with counsel for the Crown and Mr. Crompton appearing before me by Zoom videoconference link.

3A more complete statement of the findings of fact in this matter are set out in the Reasons for Judgment, releases on March 3, 2020. To provide context, an abbreviated account of the events that gave rise to the charge against Mr. Crompton are included below.

Factual Background

4On the morning of Thursday, April 26, 2018, 82 year-old Oles Chomniak had been out for his usual morning walk in his residential neighbourhood in Thunder Bay, Ontario. While stopping to observe some recent work that had been completed by the city, he saw two men approaching him, one of whom was holding an Apex Security yard sign which Mr. Chomniak had seen him remove from a nearby property.

5As these individuals approached Mr. Chomniak, one of them accosted him, asking “what d’you think of this sign?” This individual then pushed him. Mr. Chomniak tried to run but fell as the assailant attacked him again. Mr. Chomniak then lost consciousness while the assailant continued to repeatedly kick and punch him while he lay on the ground.

6The assault finally ended when a car pulled up near to where the attack was taking place. Both the assailant and the other individual with whom the assailant had been walking and who had been watching from across the street, fled the scene. Luba Mosely, the driver of the car that pulled up to Mr. Chomniak, called an ambulance and police.

7Mr. Chomniak was taken to hospital where it was later determined that he had suffered two breaks to his right arm, a broken nose, and extensive bruising to his face and body.

Personal Circumstances of the Accused

8Mr. Crompton is a 21-year-old man from Thunder Bay, Ontario. According to his Pre-Sentence Report (“PSR”), both of his parents, his grandfather, and his younger brother, also live in Thunder Bay. He is currently single and does not have any children.

9Mr. Crompton advises in his PSR that he attended school until the tenth grade, but that poor attendance and numerous physical altercations which resulted in school suspensions ultimately prompted him to leave school altogether. He briefly attended an adult education program but did not complete his goal of completing grade 11. He did however complete some training certificates while he was in the youth custody setting.

10Regarding his work history Mr. Crompton states that he briefly worked as a line cook and in a sheet metal shop, and that he would be interested in pursuing a career as a sheet metal worker in the future.

11Growing up, Mr. Crompton reported that his mother was employed by the casino and his father as a sheet metal worker. At some point, his mother developed a severe drug dependency which caused increasing strain on the family and gave rise to increasing parental conflict. According to Mr. Crompton he viewed his parents’ relationship as positive until he was around nine years old, at which point they began to argue frequently. He stated that, while he did not recall any physical abuse, the arguments would at times become intense enough that he felt compelled to shield his younger brother from the conflict. He states his parents ultimately separated around the time he was 14 or 15 years of age.

12Mr. Crompton reported that he largely lived alone in the family residence after the separation and that his mother often stayed in known drug residences while his younger brother had moved in with his paternal grandparents. It was around this time that Mr. Crompton became involved with the youth criminal justice system. He advises that, since that time, he has largely been in and out of custody settings or released from custody under the supervision of one or other of his parents or grandparents. He states he is very close with his grandparents and was deeply affected when his grandmother passed away from cancer three years ago.

13Mr. Crompton advises in his PSR that he currently maintains a positive relationship with each of his parents, noting that his mother ceased using illicit drugs approximately two years ago. He states that his grandfather also continues to be a positive support in his life, as does his brother, with whom he says he keeps in regular contact.

14Mr. Crompton acknowledges he presently struggles with substance abuse issues. He states that he began experimenting with cannabis and alcohol in social settings around the time he was 13 or 14 years old, before progressing to harder drugs like cocaine and benzodiazepines. He added that, up until his most recent return to custody, he had been using benzodiazepines daily, including on the day of the offence for which he is now before this court.

15Mr. Crompton acknowledges the negative impact that substance abuse has had on his life. This sentiment was confirmed by both his father and grandfather. Mr. Crompton says he has had periods of abstinence and has sought counselling on two previous occasions however, he did not end up following through with continued treatment either time. He has indicated that he would likely benefit from attending a treatment facility, as opposed to attending further substance use programming.

16Mr. Crompton also spoke about the depression and anxiety he has experienced for approximately seven years and admitted that he has attempted suicide four times before he was 18. He believes the root of his depression and anxiety is as a result of his exposure to parental conflict as a child. He acknowledges that he would benefit from treatment to help resolve his mental health issues.

17Mr. Crompton also acknowledges that he has trouble controlling his anger and that it has been a frequent source of problems in the past. He previously has attended anger management and substance use programming as part of a conditional sentence order, but his return to custody prevented him from following through with treatment.

18Mr. Crompton reported to the author of the PSR that he believed his mother was of French-Indigenous heritage, but that he did not know of which community she may have been a member or of any further information with respect to his heritage. Mr. Crompton reflected that he was not exposed to any form of Indigenous culture growing up and that he did not feel being detached from it had affected him. Counsel were canvassed about whether a Gladue Report was warranted in this case and both the Crown and defence have stated on the record that it was not required and would not be helpful in view if the circumstances of this case and Mr. Crompton’s upbringing.

19The PSR indicates that, while Mr. Crompton does have some insight into his negative behaviour, his lack of appropriate coping mechanisms and unresolved mental health and substance use issues and how they put him at an increased likelihood of engaging in criminal activity.

20The author of the report concludes by stating that, should Mr. Crompton seriously apply himself to addressing his issues and engaging in supportive programming, his risk of re-offending may decrease.

The Accused’s Criminal History

21Mr. Crompton has a significant criminal record for an individual his age. His full criminal record forms part of the Crown exhibit book filed as an exhibit during sentencing submissions. Briefly, he has numerous convictions as an adult for failing to comply with the terms of both release orders and sentencing orders. His earliest conviction as an adult dates back to September 25, 2017. He has had numerous convictions since, the most recent of which occurred in March of 2019. Included in those charges was a conviction for assault causing bodily harm contrary to s. 267(b) of the Criminal Code, for which Mr. Crompton received a nine-month conditional sentence order followed by 12 months of probation.

22Mr. Crompton has also received numerous convictions for offences as a youth, including multiple violent offences. For many of those offences, Mr. Crompton served custodial sentences in a youth facility.

The Positions of the Parties

23Counsel for Mr. Crompton concedes that, given the serious nature of the circumstances surrounding the offence, the principles of denunciation and deterrence are acknowledged as paramount considerations in crafting an appropriate sentence. However, counsel also submits that, while Mr. Crompton is not a youth, he is still a “young man” and, as such, the potential for Mr. Crompton’s rehabilitation must also serve as a guiding principle in determining his sentence.

24Defence Counsel also submits that this court should take into account the difficult circumstances surrounding Mr. Crompton’s upbringing and youth, including his exposure to parental conflict and his mother’s severe drug addiction. Counsel submits that Mr. Crompton’s own substance use issues were a significant contributing factor to both the charge before this court and his previous criminal record.

25Counsel adds that he has expressed remorse for his crime and that he has been receiving medication as part of the treatment he has been receiving while currently in custody.

26Counsel submits that a fit and just sentence for Mr. Crompton would be a custodial sentence of three years, less credit for time already served at an enhanced rate of 1.5 days for every day in custody.

27After subtracting enhanced credit for pre-sentence custody, Mr. Crompton would be required to serve the remainder of his sentence in a further Provincial Correctional Institution citing the cases of R. v. Barnsdale, 2012 MBCA 56, 280 Man. R. (2d) 200, R. v. Finlay, 2016 BCCA 299, [2016] B.C.J. No. 1437, and R. v. Giraud, 2020 QCCQ 2657. Sentences in these cases were two years, three years, and fourteen months, respectively.

28Counsel for Mr. Crompton also consented at the sentencing hearing to the Crown’s request for various ancillary orders to be made under ss. 109, 487.051, and 743.21 of the Criminal Code. Those orders will form part of the final disposition below.

29The Crown argues that a sentence of three years would not be an appropriate sentence in light of the particular circumstances surrounding the commission of this offence. While the Crown acknowledges that Mr. Crompton’s relatively young age and his potential for rehabilitation should be relevant considerations for this court, it submits that his rehabilitation would be better accomplished in a penitentiary setting, where he would have greater access to rehabilitative resources and programming.

30The Crown points out that, if Mr. Crompton is given a sentence of three years, he will ultimately serve his sentence in a provincial institution once his pre-sentence custody is factored into account. The Crown submits that a sentence of four years incarceration is therefore the appropriate sentence in this case.

31In support of its position, the Crown points to the presence of multiple aggravating factors which it submits far outweighs any mitigating factors in this case. The Crown points out that this was an unprovoked assault that occurred in the middle of the day committed against an elderly and vulnerable individual. The Crown cites R. v. Stubbs, 2013 ONCA 514, 300 C.C.C. (3d) 181, for the proposition that Mr. Chomniak’s recovery, however limited, should not factor into this court’s considerations on sentencing. Counsel on behalf of the Crown also points out that the cases cited in support of Mr. Crompton’s position can be distinguished by the presence of significant mitigating factors that are not present here. Moreover, Mr. Crompton has an extensive criminal record, a considerable portion of which involves violent offences.

32The Crown submits that the principles of denunciation and deterrence must take precedence in this case and cautions that this court should be very guarded about Mr. Crompton’s potential for rehabilitation. The Crown cites the case of R. v. Creighton, 2020 ONCJ 150, which involved a young person with similar personal circumstances to Mr. Crompton and whose potential for rehabilitation was similarly questionable. The Crown says the court in that case started with a sentence in the five-year range but reduced to it to three and a half years.

33With respect to the conditions of Mr. Crompton’s pre-sentence custody, his counsel submits that he was subject to horrendous conditions while in both the Thunder Bay District Jail and the Sudbury Jail. In particular, he has contended with the increased risk of infection due to COVID-19, chronic overcrowding, and limited time in the yard or outside of his cell. Counsel submits there are issues with rodents, mould, expired food, and a lack of access to lines of communication with counsel.

34Counsel on behalf of the Crown submitted a report which details some of the efforts undertaken by the Ministry to curb the spread of COVID-19 in the jails, however, counsel for Mr. Crompton submits that this report is general in nature and does not bear on the specific experiences of Mr. Crompton.

The Impact on the Victim

35Mr. Chomniak is an 84 year old man who currently lives in Thunder Bay, Ontario. He is retired, having worked for the Chronicle Journal newspaper for many years. At the time of the assault he was 82 years of age. Prior to the assault, he enjoyed golfing, and playing the guitar and the accordion. He states in his victim impact statement that he used to be a member of a band with several of his close friends that played music for other seniors before the attack.

36As a result of the attack, Mr. Chomniak sustained serious injuries from which he has still not yet fully recovered. In particular, his arm and nose were broken, he sustained swelling and bruising on his face and to his ribs, as well as various bruises and scrapes to the rest of his body. Mr. Chomniak stated in his Victim Impact Statement that doctors have told him he will need surgery to fully recover from the injuries to his arm. However, they have advised him against it because of his age.

37Mr. Chomniak states he still has considerable pain in the arm that was broken. He states that it was weeks until he was able to care for himself after the assault. Because of the injuries, he is no longer able to partake in the activities that used to bring him joy. He cannot golf, he cannot play music, and he is no longer a playing member of the band he used to be in, which was an activity he enjoyed immensely.

38Mr. Chomniak reported that the toll of the assault on his mental and emotional health has been significant. He states that he feels depressed and hopeless a lot of the time, especially in light of the fact that he can no longer do the things he used to. He has trouble sleeping because when he closes his eyes, he pictures the person who attacked him. He states that the mental and emotional struggles with which he copes have also influenced his wife, to whom he has been married now for 60 years.

39Mr. Chomniak expresses that he is angry and that both he and his wife live in fear that Mr. Crompton will come back to hurt them. He says the assault has completely changed his life and he struggles to understand why it has happened to him. He no longer wishes to leave his home, and even ordinary tasks like going to the grocery store are difficult. He feels the aftermath of the assault has “consumed” his life, but reports that he is doing “everything in [his] power” to get back to his “old self”. He also says that he looks forward to moving on, but that some days are harder than others. He chose not to attend the sentencing hearing as he feels this has consumed enough of his life already. However, despite the extent of the impact this attack has had on his life, Mr. Chomniak states that he still hopes that Mr. Crompton can get the help he needs.

Sentencing Principles

40Section 718 of the Criminal Code sets out a list of principles and objectives which must guide a court in crafting a fit and just sentence. In particular, any sentence must bear on one or more of the following objectives:

(a) To denounce unlawful conduct;

(b) To deter the offender and other persons from committing crimes;

(c) To separate offenders from society where necessary;

(d) To assist in rehabilitating offenders;

(e) To provide reparations for harm done to victims of to the community; and

(f) To promote a sense of responsibility in offenders and an acknowledgement of the harm done to victims and to the community.

41The principle of denunciation relates to the expression of society’s attitude towards the offence. It focuses on the aspects of the conduct itself and not on the personal characteristics of the offender. Chief Justice Lamer, in R. v. M.(C.A.), 1996 CanLII 230 (SCC), 1996 SCC 230, [1996] 1 S.C.R. 500, at para. 81, stated that “[i]n short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law”.

42The principle of deterrence encompasses both the objective of deterring the offender from committing future offences (specific deterrence), as well as the objective of deterring other persons from committing such offences (general deterrence). The purpose is to discourage crime by making it clear that offences of this kind will result in the imposition of severe punishment.

43The principle of rehabilitation, broadly speaking, is meant to assist an accused in overcoming certain factors that may have contributed to their criminal behaviour in the first place. It can be seen as assisting in the protection of the public, as well, as it may help to prevent further offences: see R. v. Simmons, 13 C.C.C. (2d) 65, per Brooke J.A. (Dubin J.A. concurring) at para. 27.

44Ultimately, the discretion to craft an appropriate sentence in the particular circumstances of the case is left to the sentencing judge. It is an inherently individualized process which calls upon the judge to weigh competing principles and objectives of sentencing and determine which should be given greater weight. In particular, “[n]o one sentencing objective trumps the other”: see R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 43. In this way, the sentencing process follows a uniform approach, but within that approach, is shaped so as to correspond to the unique circumstances of a particular case and a particular accused.

Range of Sentence

45The range of sentence for aggravated assault convictions is broad and depends on the specific circumstances of each case. The Ontario Superior Court of Justice, in R. v. Tourville, 2011 ONSC 1677, [2011] O.J. No. 1245, provided a useful summary of the lower, middle, and higher end of the sentencing range. Code J. comments at paras. 28 and 30 are particularly relevant to the case at bar:

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 of consent fights but where the accused has resorted to excessive force. [...]

At the high end of the range are cases where four to six years imprisonment have been imposed. These cases generally involve recidivists, with serious prior criminal records, or they involve “unprovoked” or “premeditated” assaults with no suggestion of any elements of consent or self-defence. [Citations omitted.]

46The court in Tourville was dealing with an aggravated assault which took place outside of a Toronto bar. Justice Code ultimately found that the circumstances of that case fell within the middle range of sentences and imposed a custodial term of 21 months followed by two years of probation.

47At perhaps the extreme high end of the range is a case of the British Columbia Supreme Court, R. v. Lenon, 2002 BCSC 1015, [2002] B.C.J. No. 1987. In that case, the accused, together with two other individuals, committed an unprovoked and vicious assault on a passerby who happened to be on the street outside of his home. The attack resulted in life-threatening injuries which required several months of hospitalization. The accused in that case also suffered from anger management and substance use issues and Gladue factors were present.

48Although the accused was still a young man with the potential for rehabilitation, the court in Lenon felt compelled to impose a penitentiary sentence of 78 months, less enhanced credit of 42 months for the 22 months of actual time the accused had served in pre-sentence custody. This resulted in an actual sentence of 36 months, or three years. Baker J. stated, at para. 42 therein, that “[h]is future and the protection of society are both enhanced by encouraging him to take appropriate steps to deal with his anger and impulsivity and his reliance on alcohol and drugs.”

49Another case at the high end is R. v. Dunn, 2002 CanLII 53265 (ON CA), 156 O.A.C. 27, where the accused beat his friend so badly while drinking that he caused severe and lasting brain damage. The victim in that case lost most of the vision in his eye, was left with difficulties with his long-term memory, and required supervision while eating or bathing. The accused was given a sentence of nine years imprisonment which was left undisturbed on appeal.

50It is also worth noting that, on the day sentencing submissions were delivered to the court in this case, Justice Doody of the Ontario Court of Justice released reasons for the sentencing of two individuals who were involved in an unprovoked assault in a residential neighbourhood outside Ottawa (see R. v. Hussein, 2020 ONCJ 408). The similarities between that case and the present one are striking. Both accused were 18 and 19 years old at the time of the assault. Both victims were retired men who had been going about their daily routine when they were attacked without provocation. One victim suffered several broken bones and extensive bruising. Both victims were left on the street to fend for themselves. Both accused had prior criminal records. They were each sentenced to 30 and 36 months, respectively, less credit for time served in pre-sentence custody. This resulted in actual sentences of 23 and 22 months, respectively, plus a further period of probation.

Aggravating and Mitigating Circumstances

51The primary aggravating circumstance of this offence is that it was an unprovoked assault committed by a 19-year-old male on an elderly man. There was no reason for the attack. Mr. Crompton was high on drugs at the time.

52The attack took place in broad daylight near where Mr. Chomniak lived- in a quiet, peaceful residential area close to a school.

53The attack was vicious and continued even once Mr. Chomniak was knocked to the ground where he continued to be punched and kicked.

54The injuries sustained by Mr. Chomniak were serious as have been described above. They have left him with a partial disability with his arm. Surgery is required however his doctor has advised him against surgery because of his age. As a result, Mr. Chomniak can no longer enjoy playing the accordion in a band with his friends - something that gave him immense pleasure.

55The attack has profoundly affected Mr. Chomniak’s state of mind and happiness. He is depressed and terrified that Mr. Crompton will attach him again. He no longer feels safe in his home and neighbourhood. He indicates in his impact statement that the attack has also had an effect on his long-term marriage.

56There are mitigating circumstances that this court must consider however they are few. Mr. Crompton committed the attack when he was 19. He is 21 now and therefore is considered relatively young and a candidate for rehabilitation.

57Although this matter went to trial Mr. Crompton advised the author of the pre-sentence report that he was remorseful for what he had done and ashamed of himself.

Analysis

58Vicious attacks threaten the safety and peace of our community and must be denounced and deterred. The fact that this attack was committed by a young man on an elderly man for absolutely no reason is especially egregious.

59While I acknowledge that Mr. Crompton is remorseful his lengthy criminal record which includes several crimes of violence, the fact that he was high on drugs when it was committed; that is was unprovoked and resulted in serious physical and psychological damage to Mr. Chomniak justify the imposition of a jail sentence.

Disposition

60Mr. Crompton, I sentence you to a period of incarceration of four year to be served in a Federal penitentiary. It is my recommendation that you take advantage of the many programmes that will be available to you while in custody particularly for substance abuse and anger management.

61Counsel have advised the court that you have been incarcerated for 334 days and that they agree that in view of the condition of the jails that you will receive enhanced credit of 1.5 days for every day that you were incarcerated. Counsel have calculated this figure to be a total of 501 days to be credited against your sentence.

62It is therefore my order that a total of 501 days be deducted from your sentence of four years. By my calculation that leaves 959 days of your four year sentence remaining to be served.

Ancillary Orders

63Having been convicted of a primary designated offence as defined in s. 487.04 of the Criminal Code, Mr. Crompton is hereby ordered to provide a sample of his DNA suitable for forensic analysis pursuant to s. 487.051(1) of the Criminal Code.

64In accordance with ss. 109(1)(a) and 109(2)(a) of the Criminal Code, Mr. Crompton shall also be prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for a period of ten years

65Finally, pursuant to s. 743.21 of the Criminal Code, Mr. Crompton shall be prohibited from having any communication, either directly or indirectly, with Oles Chomniak or members of his family or with Douglas Munn for the duration of his custodial sentence.