COURT FILE NO. 14848/18
DATE: 20201126
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
NATASHA MEREDETH
Sean O’Neill, for the Crown
Trudy Newby, for the offender
Heard: February 13, 2020
REASONS FOR SENTENCE
S.T. Bale J.
Introduction
[1] Following pleas of not guilty, a jury found the offender guilty on one count each of aggravated assault (s. 268(2)), assault with a weapon (s. 267), and possession of weapon for a dangerous purpose (s. 88(1)). The victim of the aggravated assault was Desirae James; the victim of the assault with a weapon was Norman Chaves. The trial evidence was given by Ms. James and Mr. Chaves, and a police officer who arrived at the scene, following commission of the offences.
Circumstances of the offence
[2] Nadine and Rodney were married on July 18, 2015. Following the ceremony, and as dinner was being served, an altercation arose involving a number of guests. In particular, it involved Rodney’s mother, his sister Gabrielle, the bride’s cousin Tracy and Dorette Webb (referred to throughout the trial as “Dee”). Gabrielle and Desirae are twin sisters. Tracy is Mr. Chaves’ wife. Dee is the offender’s mother.
[3] The altercation began in a washroom. Desirae went into the washroom when she heard yelling. Her mother did likewise. They knew Gabrielle was there. When the altercation became physical, her mother said, “we don’t know these people, let’s go to the car and get out of here.” When they were all outside, Dee and Gabrielle continued to yell back and forth. Dee then grabbed Gabrielle, and when she did, Desirae took out her phone and began video recording.
[4] At some point, Dee grabbed Gabrielle’s hair, pulled her to the ground and began pummelling her. Seeing this, Desirae grabbed Dee’s shoulders and tried to pull her off. Dee elbowed her. She then grabbed Dee’s hair and successfully pulled her off Gabrielle. The offender then punched Desirae in the face and said: “Why the fuck are you pulling my mum’s hair.” Desirae grabbed the offender’s hair and her wig came off. The offender began to walk away, and Desirae began walking toward her car. She then saw the offender out of the corner of her eye and suddenly, felt a blow to her head and fell to the ground. She was in and out of consciousness, her face was burning, she had glass in her hair and in her ears, there was blood everywhere, she could taste beer and she could taste blood. An ambulance arrived and took her to hospital.
[5] Norman Chaves had been trying to break up the fight. He saw the offender come out of the hall with a beer bottle. He told her to put it away and go back into the hall. He knew what might happen and did not want things to escalate to that point. The offender turned around and went back toward the hall; Mr. Chaves turned back toward the fight and continued to try to get things under control. He saw the offender come back with the beer bottle and saw her raise it to strike Desirae. He put his hand up to protect Desirae and the bottle broke over his hand, cutting it in the process. The offender took a second swing with the now broken bottle cutting Desirae’s face. She then disappeared into the bush.
Circumstances of the offender
[6] The offender is 32 years old.
[7] A pre-sentence report was filed at the sentence hearing. The offender has both an older brother and a younger brother. Her parents separated when she was about six months old. She reported that she has never been close to her mother as her father was her primary care-giver during her childhood years. She has fond memories of her father and grandmother from those years and reported that the family household was free from neglect and free from substance use and abuse. She has a grade 12 education. She has never been employed and has been in receipt of Ontario Works for the past 10 years. She would like to return to school to obtain a diploma in the culinary field and obtain employment within that field. She does not use drugs or alcohol and was not under the influence of drugs or alcohol at the time of the offences.
[8] The offender has three children, ages 14, 10 and 1. She resides with the children and her common law partner of 13 years. The eldest child was born of a previous relationship. She fears a custodial sentence, because “everyone around [her] works and will be unable to care for her children in her absence.”
[9] Although the offender does not have a criminal record, she was subject to community supervision in 2012. Although she frequently rescheduled and failed to report, she kept in touch with probation services and proceedings for breach of probation were never pursued. She completed all other requirements of the probation order, including an anger management program and an anti-theft program.
[10] The arresting officer was contacted for the purpose of completing the pre-sentence report. He advised that the offender had been respectful when turning herself in and during questioning. He believes that she is remorseful. However, at the same time, in speaking with the probation officer who prepared the pre-sentence report, the offender “maintain[ed] her innocence advising that she was defending herself and her mother the day of the offence.”
Effect on the victims
Desirae James
[11] Desirae James gave evidence at trial concerning the effects of the offence on her, she reported those effects to the probation officer who prepared the pre-sentence report and she submitted a victim impact statement.
[12] When struck with the bottle, her “life passed before her eyes” and she feared she would die. She received three facial wounds: one on the left side of her forehead, one beneath her left eyebrow and one going down her left cheek. At the time of trial, the resulting scar on her left cheek was prominent. She has been advised by a plastic surgeon that the scar cannot be corrected.
[13] At the hospital, following the incident, after irrigating and cleaning the wounds, needles were used to numb them, before stitching them up. The needles were the most painful part of the process. She had trouble sleeping for four months or more, was prescribed Percocets for pain, had to live on shakes and smoothies, couldn’t smile, had difficulty speaking, and was off work without pay for a number of months. She continues to experience pain, numbness and headaches.
[14] The injuries have taken an emotional toll on Desirae and her family. She found it difficult to look at herself for about four months. Patients (she is a nurse), children and strangers ask her what happened. Her grandchildren will ask her what happened. She knows that this is something that she will have to deal with for the rest of her life.
Norman Chaves
[15] Norman Chaves’ hand was cut when he raised it to protect Desirae. He did not provide a victim impact statement and advised the probation officer who prepared the pre-sentence report that he had already invested so much of his time and money in the case that he did no wish to have any further involvement with the matter.
Sentence range
[16] In support of his position with respect to the appropriate range of sentence, Crown counsel relies upon R. v. Tourville, 2011 ONSC 1677. In Tourville, following a review of a significant number of cases, the court described the range of sentence as “bottom end”, “mid-range” and high-end”, at paras. 27-30:
At the bottom end is an exceptional case like R. v. Peters (2010), 2010 ONCA 30, 250 C.C.C. (3d) 277 (Ont. C.A.) where an Aboriginal offender received a suspended sentence and three years probation on her guilty plea to aggravated assault. She was twenty-six years old with no prior adult record. She had used a broken beer bottle in the assault, during a bar room dispute, causing serious facial lacerations to the victim. The Gladue report disclosed a very difficult upbringing in a violent and abusive home, leading to alcoholism and drug abuse. By the time of sentencing, she had obtained employment and was making real progress in counseling for her substance abuse problems.
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. See: R. v. Chickekoo (2008), 79 W.C.B. (2d) 66 (Ont. C.A.); R. v. Moreira, 2006 CanLII 9709 (ON SC), [2006] O.J. No. 1248 (S.C.J.); R. v. Basilio (2003), 2003 CanLII 15531 (ON CA), 175 C.C.C. (3d) 440 (Ont. C.A.).
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. See: R. v. Scott, [2002] O.J. No. 1210 (C.A.); R. v. Thompson, [2005] O.J. No. 1033 (C.A.); R. v. Vickerson (2005), 2005 CanLII 23678 (ON CA), 199 C.C.C. (3d) 165 (Ont. C.A.); R. v. Pakul, [2008] O.J. No. 1198 (C.A).
Position of Crown counsel
[17] Crown counsel’s position is that the offence in this case lies somewhere between the mid and high ranges outlined in Tourville. He accepts that it was an emotionally charged situation and that the offence was out of character for the offender, given that she is a 32-year-old first offender. However, he argues that this offence was a serious act of violence resulting in serious injuries and that the predominant sentencing principles must therefore be denunciation and deterrence. He argues that there is nothing exceptional about the case that would bring it below the mid-range.
[18] In addition to Tourville, Crown counsel relies upon R. v. Chickekoo, 2008 ONCA 488. In that case, the offender smashed a beer bottle over the head of the victim causing serious injuries and following a trial by judge alone was sentenced to eighteen months in jail, followed by two years of probation. On a defence appeal, the court found the sentence to be fit and appropriate.
[19] In arguing that the sentence in the present case should be significantly higher, despite the similar facts, Crown counsel points to the fact that in Chickekoo, the principles enunciated in Gladue and the requirements of s. 718.2(e) of the Criminal Code were applicable. In that case, the offender was an alcoholic. As a child, she had been verbally and physically abused by other children on the reserve. She was gang-raped at the age of 14. And the murder of her common law spouse had remained unsolved. Crown counsel points out that in upholding the sentence imposed by the trial judge, the Court of Appeal found it to be fall at the lower end of the appropriate range and reflected the full benefit of the mitigating factors. Crown counsel argues that there are no mitigating factors in the present case.
Position of defence counsel
[20] Defence counsel argues that I should suspend the passing of sentence and direct that the offender be placed on probation. She says that the offender expressed remorse to the arresting officer and to the probation officer preparing the pre-sentence report and argues that Ms. James was an aggressor in relation to the incident. She argues that the injuries caused by her to the offender are less serious than those caused by the offenders in the cases relied upon by Crown counsel. She says that the offender grew up in a “ghetto neighbourhood”. She refers to s. 719.2(e) of the Code and argues that a custodial term is not necessary to satisfy the need for denunciation and deterrence. She argues that this case is an exceptional one and falls within the low range outlined in Tourville. She relies upon R. v. Peters, 2010 ONCA 30, in which the court upheld a suspended sentence with a three-year probationary term, following a guilty plea. I disagree.
[21] While it is true that the arresting officer reported to the probation officer who prepared the pre-sentence report that he believed the offender to be remorseful, the basis of such belief is not apparent. There is no indication in the report that the offender expressed remorse to the probation officer, and in fact, she “maintain[ed] her innocence advising that she was defending herself and her mother the day of the offence.”
[22] There was no evidence that Ms. James was, in any respect, an aggressor. She only became involved when, after seeing her sister being pummeled by Dorette Webb, she intervened to pull Ms. Webb away from her sister.
[23] I am not sure what defence counsel was referring to when she argued that the offender grew up in a “ghetto neighbourhood”. In any event, the offender told the probation officer that she has fond childhood memories of her father and grandmother and that the family household was free from neglect and free from substance use and abuse.
[24] The facts in Peters were very different from the facts in the present case. In Peters, the aboriginal offender was brought up in a home of violence and alcohol abuse. She had a history of abuse at the hands of her parents, of friends of her parents, and others, which started when she was three or four years of age. She had problems with alcohol and anger management, both arising from her background. The confrontation leading to the offence was directly related to her consumption of alcohol. Fresh evidence filed at the appeal hearing demonstrated that she had taken significant steps toward rehabilitation.
Analysis
[25] The fundamental principle of sentencing is that the sentence imposed must be proportionate to the gravity of the offence committed and the degree of responsibility of the offender: Criminal Code, s. 718.1.
[26] The fundamental purposes of sentencing are set out in s. 718 of the Code. I agree with Crown counsel that in the present case, the predominant sentencing objectives are denunciation and deterrence, as well as promotion of a sense of responsibility in offenders, and an acknowledgment of harm done to the victims and the community.
[27] I find that this case falls within the mid-range of sentences described in Tourville and do not accept that a term of probation would be fit and adequate to satisfy the objectives of denunciation and deterrence.
[28] The offence did not arise from a consensual fight between the offender and the victims. The attack was not an impulsive one made in the context of an ongoing struggle. Prior to the assault, the offender had not been involved in the fight. After having been warned by Mr. Chaves to go back to the hall, she returned to the scene, brandishing a beer bottle, and after breaking it over Mr. Chaves’ hand, used it to inflict serious injuries on Ms. James.
[29] I have concluded that a fit sentence for this offender on these offences is a custodial term of two years less a day, followed by a two-year probationary term. The terms of probation shall be as follows:
• Keep the peace and be of good behaviour;
• Report to a probation officer immediately upon release from custody, and thereafter when required by the probation officer, and in the manner directed by the probation officer;
• Abstain from communicating, directly or indirectly, with Desirae James and Norman Chaves;
• Abstain from owning, possessing or carrying a weapon;
• Appear before the court when required by the court to do so;
• Notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or probation officer of any change of employment or occupation;
• Attend counselling, as directed by your probation officer; and
• Sign any necessary releases of information to allow your probation officer to monitor your compliance.
[30] In addition, the offender will comply with the following ancillary orders:
• an order prohibiting her from communicating directly, or indirectly, with Desirae James and Norman Chaves, during the custodial period of her sentence;
• a firearms prohibition order, for 10 years, pursuant to s. 109 of the Criminal Code; and
• an order authorizing the taking of a DNA sample, and an order that she report and submit to the taking of the sample.
“S.T. Bale J.”
November 26, 2020
REASONS FOR SENTENCE
S.T. BALE J.
November 26, 2020