COURT FILE NO.: CR-21-10000405-0000
DATE: 20220914
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
- and -
MARLON dAVIS
Michael Cantlon and Tara Cassidy, for the Crown
Ari Goldkind, for Mr. Davis
HEARD: May 27, June 30 and July 7, 2022
M. Forestell J.
REASONS FOR SENTENCE
Overview
[1] In the early morning hours of December 5, 2020, Marlon Davis became involved in a verbal confrontation with Paluku Sewe in the vestibule of a bank ATM area. Mr. Davis punched Mr. Sewe multiple times and forcefully kicked Mr. Sewe in the head. The blunt force injuries to Mr. Sewe’s head and neck area caused his death.
[2] On May 27, 2022 Marlon Davis entered a guilty plea to the offence of manslaughter in relation to the death of Mr. Sewe.
[3] Sentencing submissions were heard on June 30, 2022 and the matter was adjourned to today for sentencing.
[4] The Crown sought a sentence of 10 to 12 years’ imprisonment before credit for presentence custody. Counsel for Mr. Davis argued that a sentence of 5 to 8 years before credit for presentence custody would be appropriate.
[5] Both parties agree that Mr. Davis’s sentence should be mitigated because of the exceptionally harsh conditions of his presentence custody. They agree that the otherwise appropriate sentence should, for this reason, be reduced by one year.
[6] They also agree that Mr. Davis should receive 1.5 days’ credit for every day of presentence custody. He has served 649 days of actual presentence custody. Credited at 1.5:1, this amounts to 974 days.
[7] The issue for me to determine is the appropriate sentence before any credit for presentence custody.
[8] In these reasons, I will set out the circumstances of the offence, the impact on the victim’s family and the circumstances of Mr. Davis before turning to my analysis.
Circumstances of the Offence
[9] The facts underlying the offence are set out in an agreed statement of facts. In addition, the Crown filed the video footage of aspects of the confrontation and physical assault that were captured on the surveillance cameras of the bank and the surrounding businesses.
[10] This record discloses that sometime before 4:00 a.m. on December 5, 2020, Mr. Davis left an illegal after-hours establishment. He bought food at a restaurant and then went to the ATM area of a bank. He used the ATM for a transaction and then began eating the food that he had bought.
[11] Between the ATM area and the street there was a vestibule area. About five minutes after Mr. Davis entered the ATM lobby, Mr. Sewe entered the separate vestibule area. Mr. Davis and Mr. Sewe were strangers to each other.
[12] Video footage shows that shortly after Mr. Sewe entered the vestibule, a heated conversation began between Mr. Davis and Mr. Sewe. Mr. Davis entered the vestibule area and can be seen on video gesturing with his phone in the direction of Mr. Sewe. Mr. Davis can be seen on the video entering the vestibule on three separate occasions to interact with Mr. Sewe.
[13] On the third occasion that Mr. Davis entered the vestibule, at 4:06:56 a.m., Mr. Davis lunged towards Mr. Sewe. The initial physical contact is not visible on the video footage. From 4:08:38 until 4:08:42 a.m., the video shows that Mr. Sewe appears to be bent over while Mr. Davis grapples with him and pushes him.
[14] The struggle moved onto the street where Mr. Davis hit and dragged Mr. Sewe. Mr. Davis was seen by witnesses to deliver 6 to 10 punches to the head and back area of Mr. Sewe while Mr. Sewe was on the ground. At 4:11:41 a.m., Mr. Davis forcefully kicked Mr. Sewe in the head area when Mr. Sewe was lying on the ground. Onlookers tried to stop the fight without success.
[15] It is an agreed fact that Mr. Davis asserts that during the course of the altercation Mr. Sewe held onto parts of Mr. Davis’s clothing and that, at one point, Mr. Sewe’s hand went into Mr. Davis’s pocket. The Crown is not in a position to dispute this and I have treated it as a fact.
[16] It is also an agreed fact that Mr. Sewe was not aggressive and was unable to defend himself.
[17] After Mr. Davis kicked Mr. Sewe in the head, Mr. Sewe rolled over and was unconscious and motionless. He did not regain consciousness.
[18] After the assault, Mr. Davis returned to the ATM vestibule. When he left the ATM vestibule, he stepped over Mr. Sewe’s body and walked away from the scene. Police arrived about a minute later. Bystanders pointed out Mr. Davis to the responding police officer. Mr. Davis was arrested a short distance away. In the presentence report it is noted that Mr. Davis was located in the immediate area although he had time to leave the area. He was cooperative with the police upon his arrest.
[19] Mr. Sewe was taken to hospital and died the next day from his injuries. The post-mortem examination determined that he sustained subdural hematomas on the left and right sides of his brain which demonstrated that there were at least two impact sites to the brain. He suffered a minimum of three impacts which caused hemorrhages to the muscles of his back and spine and hemorrhages to the muscle and tissue of his head and face.
[20] The blunt injuries to Mr. Sewe’s brain caused swelling of the brain and death. No defensive injuries were observed in the course of the port-mortem examination.
[21] At the time of the offence, Mr. Davis was 30 years old, 6’ in height and weighed 170 to 180 pounds. Mr. Sewe was 47 years old, 5’7” in height and weighed about 137 pounds.
[22] Counsel for Mr. Davis invited me to draw an inference that Mr. Davis’s actions in assaulting Mr. Sewe were, in some way, explained by the agreed fact that Mr. Sewe was behind in his rent and had promised to give his landlord the rent by December 7th and by the agreed fact that Mr. Sewe held onto Mr. Davis’s clothing and put his hand in Mr. Davis’s pocket during the assault. I am of the view that it would be speculative to construct some explanation from these facts. There is no basis to infer that Mr. Sewe was in any way provocative during this incident. The reason for the attack on Mr. Sewe is simply unexplained.
Victim Impact
[23] Mr. Sewe was a landed immigrant who had immigrated to Canada from the Democratic Republic of Congo. He was an artist and sculptor who had won a first-place prize for his artwork at the Toronto Refugee Centre. He had also worked as a translator.
[24] Mr. Sewe’s brother provided a Victim Impact Statement. Mr. Sewe was very close to his family in the Democratic Republic of Congo. He called them three or four times a week. His family lost a beloved family member and also lost the financial support that Mr. Sewe provided.
Circumstances of Mr. Davis
[25] Mr. Davis is now 32 years old. He was born in Toronto. His parents separated when he was 13 years old. His father then moved to Barrie. Both of Mr. Davis’s parents were employed and supported Mr. Davis although they did not have a lot of money.
[26] Mr. Davis’s father remained involved in Mr. Davis’s life after the separation from Mr. Davis’s mother. Mr. Davis’s father ended his contact with Mr. Davis after Mr. Davis was arrested for this offence. Mr. Davis’s mother remains supportive of Mr. Davis.
[27] Mr. Davis began to have problems in school around grade eight and went to a special school to deal with his behavioural issues. His difficulties in school continued into high school. He frequently skipped school and did not finish high school until he was sentenced to the federal penitentiary and completed his high school education through a program offered by Corrections Canada.
[28] Mr. Davis’s first youth finding of guilt was in 2007 when he was 17 years old. He was found guilty of three counts of robbery and one count of theft under. Further offences as a youth included possession of a weapon, break, enter and theft and obstruct peace officer in 2007 and 2008. Mr. Davis has 45 entries on his adult record. Most of the convictions are for property offences and breaches of court orders.
[29] Mr. Davis has held some employment in construction, roofing and landscaping.
[30] Mr. Davis has three children. His eldest son is 12 years old and resides with Mr. Davis’s mother. Mr. Davis’s mother also has custody of Mr. Davis’s stepchild who is 9 years old. Mr. Davis has one other child by a different mother, Ms. Rushton. That child is three years old now and resides with Ms. Rushton.
[31] Ms. Rushton reported having a good relationship with Mr. Davis before his arrest. She did not know him to be violent.
[32] Mr. Davis has been involved with the organization “Kids with Incarcerated Parents” (“KIP”) since his federal sentence in 2012 for breaking and entering and trafficking in property obtained by crime. KIP assisted Mr. Davis’s family with transportation to visit him while he was incarcerated. It also engaged his sons in after school programs. Following his release from prison, Mr. Davis volunteered with the organization in various capacities, including talking to high school students about the reality of involvement with the criminal justice system.
[33] The author of the presentence report in this case writes that: “The subject takes responsibility for his actions and appears deeply affected by the outcome of the violence he perpetrated on the victim. He appears insightful into the gravity of his actions and their impact, which extend beyond the victim to the victim’s family and the greater community. The subject states that he has a desire to be a productive community member and wants to continue to give back by speaking to others about his experience in the future. He states he will struggle to live with the fact that a man’s life was lost and expresses that his life will be “forever changed”.”
[34] The pre-sentence report also notes that Mr. Davis believed that he did not have an anger management problem but would participate in an anger management program if it was recommended by the Court.
Legal Principles and Analysis
Purpose and Principles
[35] In considering the appropriate sentence to be imposed on Mr. Davis I have considered the general purposes, principles and objectives of sentencing, set out in the Criminal Code, R.S.C., 1985, c. C-46. The fundamental principle of sentencing set out in s. 718.1 of the Code is that the sentence should be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[36] Section 718 of the Criminal Code identifies the objectives of sentencing, including denunciation, specific and general deterrence, separation of the offender from society, the rehabilitation of the offender and the promotion of a sense of responsibility in the offender, and an acknowledgement of the harm done to victims and to the community.
[37] In sentencing for this serious offence of violence, the objectives of denunciation and deterrence are paramount.
[38] The sentencing objective of promoting a sense of responsibility in the offender and acknowledging the harm done to the victim and the community is also important in this case. Mr. Sewe’s family has lost a valued family member. Mr. Sewe’s communities in Canada and in the Democratic Republic of Congo have lost the contribution that Mr. Sewe would have made as an artist and as a sculptor had his life not been ended by Mr. Davis.
Aggravating and Mitigating Factors
[39] In arriving at an appropriate sentence, s. 718.2 of the Code directs that I take into account other principles as well, including the principle that a sentence may be increased or decreased depending upon the presence of any relevant aggravating or mitigating circumstances relating to the offence or the offender.
[40] There are several aggravating factors relating to the circumstances of the offence. Mr. Davis was bigger, stronger and younger than the victim. The victim was unable to defend himself. Mr. Davis applied force repeatedly to the victim. There are also aggravating factors relating to the circumstances of Mr. Davis. Mr. Davis has a criminal record. While the majority of the offences on his record are for property offences, he has been found guilty of robberies.
[41] Mitigating factors relating to the circumstances of the offence are that Mr. Davis did not leave the area and was cooperative upon his arrest. There are mitigating factors relating to Mr. Davis’s circumstances. Mr. Davis is a fairly young man. He has made efforts to rehabilitate himself. He obtained his high school diploma while in custody on a previous sentence. He was involved in a positive relationship at the time of this offence. He has support from his family and others in the community. Mr. Davis has demonstrated remorse by his guilty plea. He has also expressed his remorse for his actions.
Parity and the Range of Sentence
[42] The principle of parity demands that the sentence I impose should be similar to sentences imposed on similar offenders for similar offences in similar circumstances.
[43] The range of sentences imposed in manslaughter cases is very broad. The reason for the range of sentencing for manslaughter was explained by the Supreme Court of Canada in R. v. Creighton:[^1]
…Because manslaughter can occur in a wide variety of circumstances, the penalties must be flexible. An unintentional killing while committing a minor offence, for example, properly attracts a much lighter sentence than an unintentional killing where the circumstances indicate an awareness of risk of death just short of what would be required to infer the intent required for murder. The point is, the sentence can be and is tailored to suit the degree of moral fault of the offender. …
[44] Although sentencing is an individualized process, sentences imposed in other cases with similar circumstances provide guidance on the appropriate range of sentence
[45] In R. v. Henderson,[^2] two offenders beat a man to death at a crack house. They left him unconscious, and he was not found for two hours. The offender who had instigated the fight was sentenced to 8 years’ imprisonment. He was 30 years old with a criminal record that included a conviction for robbery. He was on probation at the time of this offence. The British Columbia Court of Appeal upheld the sentence.
[46] In R. v. Johnson[^3], Boswell J. of this Court found that an eight-year sentence was appropriate before a reduction of 120 days for harsh presentence conditions. In that case, the offender assaulted his frail roommate, causing multiple injuries including fractured ribs and a ruptured spleen. The offender had a criminal record. He also had considerable community support and had been out of trouble for about five years prior to the manslaughter. He was remorseful. Like the case before me, it was not possible to say why the offender assaulted the victim.
[47] In R. v. Garrison,[^4] an offender grabbed the victim on the street and pushed or threw him to the ground, then went through his pockets. The offender used the victim's credit card a short time later. The victim, who was an older man with health problems, suffered a head injury and died approximately four months after the attack. The offender in that case was convicted after a trial. He appealed his conviction and sentence. The Court of Appeal dismissed the conviction appeal but held that the sentence imposed, of 14 years' imprisonment in addition to 10 months' pre-sentence custody, was excessive. The accused in Garrison had approximately 80 convictions on his criminal record. Twenty-four of those convictions were for violence. The Court of Appeal imposed a sentence of 10 years' imprisonment, noting that the cowardly attack on a vulnerable victim called for a denunciatory sentence and that the background of the offender was a significant aggravating factor.
[48] In R. v. Killiktee,[^5] a sentence of 9 years’ imprisonment was upheld for woman who pleaded guilty to manslaughter in relation to the beating death of a stranger outside a shelter. The victim had called the offender offensive names and slapped her on the back of the head. The offender then grabbed the victim from behind and threw her to the ground. She kicked the victim four times in the head before bystanders intervened and stopped the attack. Ms. Killiktee had a criminal record for violence and a substance abuse problem. Gladue principles applied to Ms. Killiktee who was Inuit.
Appropriate sentence
[49] The circumstances of the offence and the circumstances of Mr. Davis are similar to those in the cases set out above.
[50] Mr. Davis has a lengthy record but his convictions are primarily for property offences. Mr. Davis has taken responsibility for his actions by pleading guilty and there is reason to believe that he has the capacity to rehabilitate himself.
[51] However, this was a brutal and senseless beating of a defenceless victim. It must attract a substantial sentence that denounces this conduct.
[52] The sentence that in my view achieves the objectives of denunciation and deterrence without abandoning the hope of rehabilitation is one of 9 years’ imprisonment before consideration for exceptionally harsh conditions of presentence custody.
[53] I accept the submission of counsel that the otherwise appropriate sentence should be reduced because of the harsh conditions of presentence custody.
[54] In R. v. Marshall,[^6] the Court of Appeal has reiterated that exceptionally harsh conditions of presentence custody should be taken into account and recognized by reducing the sentence to a limited extent.
[55] Mr. Davis has been in custody through the COVID-19 pandemic. There have been frequent and lengthy lockdowns. During lockdowns there was limited access to showers, phones and exercise.
[56] I agree with the submission of counsel, that the otherwise appropriate sentence should be reduced by one year because of the harsh conditions. This leaves a sentence of 8 years’ imprisonment before statutory credit for pre-sentence custody.
Conclusion
[57] I therefore sentence Mr. Davis to imprisonment for 8 years before statutory credit for pre-sentence custody. With credit of 974 days for 649 actual days of presentence custody, this leaves 5 years and four months to serve.
Ancillary orders
[58] There will be a weapons prohibition order under s. 109 of the Criminal Code for life.
[59] Manslaughter is a primary designated offence under the Criminal Code. I therefore make the order that Mr. Davis provide such number of samples of bodily substances that are reasonably required for the purpose of forensic DNA analysis.
[60] I further order, pursuant to s. 743.21, that Mr. Davis have no contact with: Jason Merrow; Amber Muneer; and Mustafa Shafi.
[61] Mr. Davis will be incarcerated for a substantial period of time. In the circumstances, I waive the Victim Fine Surcharge.
M. Forestell J.
Released: September 14, 2022
COURT FILE NO.: CR-21-10000405-0000
DATE: 20220914
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
- and -
MARLON DAVIS
REASONS FOR SENTENCE
M. Forestell J.
Released: September 14, 2022
[^1]: 1993 SCC 61, [1993] S.C.J. No. 91 (S.C.C.) at para. 86 [^2]: [2005] BCCA 3 [^3]: 2017 ONSC 3512 [^4]: 1999 2875 (ON CA), [1999] O.J. No. 3782 (C.A.) [^5]: 2013 ONCA 332 upholding 2011 ONSC 5910 [^6]: 2021 ONCA 344