COURT FILE NO.: CR-20-211
DATE: 2023 04 04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
Sheldon Daley
Mr. Ameen Al Rohani, for the Crown
Mr. Fielding Burgoyne, for Mr. Sheldon Daley
HEARD: April 4, 2023
REASONS FOR DECISION ON SENTENCING
Conlan j.
I. The Background
[1] The offender, Sheldon Daley (“Daley”), on May 20, 2022, pleaded not guilty to aggravated assault but guilty to the lesser and included offence of assault causing bodily harm. The plea was accepted by the Crown.
[2] The facts are as follows. Daley, the victim J.P., and two other men named T.G. and J.L. were all inmates at the Maplehurst Correctional Complex in Milton, Ontario. They were sharing the same living unit.
[3] On the offence date, April 8, 2020, the victim and T.G. got into an argument. A physical altercation ensued, and Daley and J.L. entered the fray. Daley and T.G. repeatedly kicked and punched the victim. A final blow to the victim by T.G. caused the victim to fall to the ground and hit the rear of his head, rendering the victim unconscious.
[4] The assault was captured on CCTV. The video of the altercation, from two different camera angles, was played in the courtroom today. It shows what was clearly a gang-style and vicious attack on the victim. It is also true, however, that the video shows that at least some of the strikes that the offender made to the victim were with an open hand and surely did not, by themselves, cause the victim to fall down and hit his head on the hard floor.
[5] The victim was transported to the local hospital. His condition worsened, and he was taken by air ambulance to a hospital in Toronto. The victim was diagnosed with a brain bleed, and life support measures had to be initiated, including intubation and a ventilator.
[6] Fortunately, the victim survived, though he was kept in the hospital for three months and still has lingering effects from the attack, including vision impairment in one eye and short-term memory loss.
[7] The sentencing was adjourned for a lengthy period of time, for good reasons, with the hearing eventually taking place today, April 4, 2023.
II. Victim Input
[8] There is no victim input before the Court. The author of the presentence report was unable to speak to J.P., who is currently incarcerated at Beaver Creek Institution and scheduled to be released in late June 2023.
III. The Circumstances of the Offender
[9] The following is taken from the presentence report (“PSR”).
[10] The offender is currently 28 years of age, a Canadian citizen, single, and without any dependants. He has a criminal record for possession of a controlled substance (Schedule I) for the purpose of trafficking (October 2018 – 9 months in jail). He also has a conviction for dangerous operation of a motor vehicle from December 2019, for which he received a penalty of 12 months of probation.
[11] The offender has other very serious convictions on his record, for a firearm and narcotics, but those convictions are from October 2022 and, thus, post-date the incident at Maplehurst Correctional Complex and the resulting guilty plea and finding of guilt.
[12] The offender’s parents separated before he was born. Daley advised the author of the PSR that both of his parents have been supportive of him as he has faced this criminal justice process.
[13] Daley has his Ontario Secondary School Diploma. He completed one year of a three-year post-secondary school business administration program, and he has expressed an interest in returning to school to study clinical psychology. Upon his release from custody, through the help of his godfather, he has a potential job opportunity as an intern at a robotics company.
[14] Substance abuse issues are not reported to be a concern for Daley.
[15] In speaking with the author of the PSR, the offender stated that he “takes responsibility” for the offence. He reported that he feels extremely remorseful for what transpired. He informed the author of the PSR that the victim was being belligerent with the others in the same living unit and was yelling racial slurs at them. It should be noted that Daley is a Black man.
[16] Daley’s prior experience with community supervision, that is probation, was, according to Ministry records, quite positive.
[17] Some character reference letters were filed on behalf of Daley, authored by his aunt, his mother, and his godfather. They all speak highly of the offender in terms of his genuine remorse for what happened, his acceptance of responsibility for his criminal actions, and his strong commitment to change his life going forward.
[18] While in custody, the offender has started that process. He completed courses in anger management, substance abuse, and religious studies, and he has worked at the correctional facility as a food server and as a cleaner.
IV. The Legal Parameters and the Positions of the Crown and the Defence
[19] Under section 269(a) of the Criminal Code, the maximum punishment for unlawfully causing bodily harm is ten years’ imprisonment. There is no minimum penalty.
[20] The Crown recommends a sentence of 18-24 months in jail, less presentence custody, plus a period of probation to follow, and some ancillary orders.
[21] The defence suggests a sentence of 12 months in custody, less time served. The defence position was silent on probation and expressly did not oppose the ancillary orders being requested by the Crown.
V. The Sentence of the Court
[22] Even if it is true that the victim uttered racial slurs against Daley and others before the attack, which would be highly offensive to any bystander and would be to this Court as well, this was a cowardly beating of a man at the hands of multiple offenders.
[23] To add insult to injury, the video shows that Daley rendered no assistance to the helpless victim after he dropped to the floor and appeared unconscious. Instead, others had to intervene while the offender simply walked away and out of view of the cameras.
[24] Similar to the case before Justice Fuerst in R. v. Taylor, 2017 ONSC 7822 (S.C.J.), the paramount sentencing principles here are denunciation and deterrence, both general and specific (paragraph 46).
[25] Further, many of the same aggravating factors identified by Justice Fuerst in the decision cited are present in our case: a vicious attack; one committed by an inmate against another inmate at a correctional facility; one committed where the victim had no chance to defend himself; one involving multiple blows to the victim; one involving very serious injuries to the victim; and one committed by someone with a prior criminal record, albeit not for assault (paragraphs 42-43).
[26] The mitigating factors here, as in Taylor, supra (paragraph 44), are few – the guilty plea, and the genuine expressions of remorse and acceptance of responsibility, and the fairly positive PSR and the positive character letters, and, perhaps most important, the very impressive remarks from Daley that he spoke to the Court today. He apologized to the victim, unreservedly. He made no excuses for his conduct. He accepted full responsibility for what happened. And he spoke about his future and how he intends to make it different than his past.
[27] In Taylor, supra, the sentence imposed was 4 years in jail, less presentence custody.
[28] In the normal course, this Court would have no hesitation imposing on Daley the high end of the range suggested by the Crown, 24 months in custody less credit for time served.
[29] There is another important consideration, however, one that relates to the principle of parity. The Court has been advised that another attacker shown on the video pleaded guilty to simple assault for kicking and punching the victim during the altercation. In fact, that attacker, J.L., is seen on the video jumping over a table to get at the victim. That attacker received a sentence of just six months in jail, less presentence custody. That attacker was not without a criminal record, I am told.
[30] Granted, assault causing bodily harm is a more serious offence than simple assault, but to impose a sentence of 24 months on Daley, four times what J.L. received, would, I think, offend the parity principle.
[31] I have decided that a fit sentence for this offender on these facts is 450 days (approximately 15 months) in custody, less credit for time served in the agreed-upon amount of 252 days (168 days credited, 1 to 1.5, to 252 days). That leaves a net sentence from today of 198 days in jail (just over 6.5 months).
[32] To be clear, I consider this to be a rather lenient sentence and one without much precedential value. It is driven significantly by the parity principle.
[33] The custodial sentence will be followed by a period of probation for two years. All of the statutory conditions apply, plus reporting within two working days after release and thereafter as directed; attendance for counselling as directed; no firearms or weapons; no contact or communication with the victim; and 100 hours of community service work to be completed as directed and as approved by the probation officer.
[34] The victim fine surcharge is waived.
[35] All of the ancillary orders sought by the Crown are granted – the non-communication order with the victim while serving the sentence under section 743.21; the primary DNA order; and the section 109 order for 10 years and life according to the two subsections.
Conlan J.
Released: April 4, 2023
COURT FILE NO.: CR-20-211
DATE: 2023 04 04
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
Sheldon Daley
REASONS FOR decision on sentencing
Conlan J.
Released: April 4, 2023