Provincial Court of Nova Scotia
Citation: R. v. MacDonald, 2014 NSPC 14
Date: 2014-04-08
Docket: 2555749 - 2555750
Registry: Halifax
Between:
Her Majesty the Queen
v.
Jeffrey MacDonald
Decision ON SENTENCE
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Judge: |
The Honourable Judge Anne S. Derrick |
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Heard: |
March 21, 2014, in Halifax, Nova Scotia |
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Decision: |
April 8, 2014 |
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Charges |
Sections 267(a) and 267(b) of the Criminal Code |
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Counsel: |
Sean MacCarroll, for the Crown Stan MacDonald, Q.C., for Jeffrey MacDonald |
By the Court:
Introduction
[1] On November 18, 2013 I convicted Jeffrey MacDonald of assault with a weapon contrary to section 267(a) of the Criminal Code and assault causing bodily harm contrary to section 267(b). (R. v. MacDonald, [2013] N.S.J. 620) The fundamental question I now have to answer is this: after calibrating the applicable factors and principles, should Mr. MacDonald be sentenced to a short jail sentence followed by probation or a suspended sentence with probation?
[2] In any sentencing the facts are a material factor. In my decision on Mr. MacDonald’s guilt, I found as follows:
[102] …he was jumping around in a congested area of the bar and bumped into Mr. Sanford. He had a beer in his hand…I find that he was intoxicated and behaving in a disinhibited fashion. He took issue with Mr. Sanford moving the beer bottle that he had been holding. He became belligerent. He smashed the beer bottle against Mr. Sanford’s face and then sliced him with it in various places injuring him as the photographs depict. Mr. Sanford tried to defend himself. He ended up underneath Mr. MacDonald on the floor and this is how they were positioned when Mr. Rossiter [a member of the bar’s security staff] grabbed hold of Mr. MacDonald.
[3] The beer bottle wielded by Mr. MacDonald shattered on impact, breaking Mr. Sanford’s nose. Mr. Sanford sustained a cut on the bridge of his nose, a blackened left eye, little cuts to his forehead, and cuts on his left cheek, neck, and head. His arm was cut and he received a laceration to his knuckles. His injuries all resolved satisfactorily without stitches and he, thankfully, has not been left with any lingering effects. And while no Victim Impact Statement was forthcoming, this cannot be taken to indicate that Mr. Sanford suffered no psychological effects from the assault.
[4] There was nothing in the trial evidence that adequately explains why Mr. MacDonald attacked Mr. Sanford, a complete stranger who was simply trying to enjoy an evening with his friends.. Beyond Mr. MacDonald accidently bumping into Mr. Sanford the men had no interaction until Mr. Sanford moved Mr. MacDonald’s beer bottle, following which Mr. MacDonald threw a drink or drinks into Mr. Sanford’s face before smashing his beer bottle down on Mr. Sanford’s nose. As I noted, Mr. MacDonald, who was intoxicated, became belligerent and violent. While this toxic cocktail of drunkenness and physical aggression is not uncommon in Halifax’s downtown bars, there is nothing that would have predicted Mr. MacDonald lashing out and injuring someone during a night on the town. It is undisputed that his assault on Joseph Sanford was out of character and, as my reasons will explain, this is what drives the divergence between the Crown and Defence on what represents the fit and proper sentence in this case.
The Position of Crown and Defence on Sentence
[5] The Crown heavily emphasizes denunciation and deterrence for Mr. MacDonald’s violent assault on Mr. Sanford and submits that a fit and proper sentence is a four (4) month jail sentence followed by twelve (12) months of probation with conditions. The Defence submits that Mr. MacDonald’s sentence should be suspended and he should be placed on probation for two (2) years.
Purpose and Principles of Sentencing
[6] Sentencing has been explicitly recognized as a "profoundly subjective process." (R. v. Shropshire, [1995] S.C.J. No. 52, paragraph 46) Determining "a just and appropriate sentence is a delicate art" which requires the careful balancing of "the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence…” (R. v. M. (C.A.), [1996] S.C.J. No. 28, paragraph 91) An appropriate sentence cannot be determined in isolation. Regard must be had for all the circumstances of the offence and the offender. (R. v. Nasogaluak, [2010] 1 S.C.R. 206, paragraph 44) It is a "profoundly contextual" process in which the sentencing judge has broad discretion. (R .v. L.M.,[2008] S.C. J. No. 31, paragraph 15)
[7] The maximum sentence for assault with a weapon and for assault causing bodily harm is ten years. There is no mandatory minimum sentence applicable in this case. In arriving at the appropriate sentence for Mr. MacDonald I must consider the purpose and principles of sentencing and weigh and balance the aggravating and mitigating factors.
[8] Parliament has articulated the fundamental purpose and principles of sentencing in sections 718 and 718.1 of the Criminal Code:
718 [Purpose] The fundamental purpose of sentencing is 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;
(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 and to the community.
[9] Section 718.2 recites the other principles to be taken into consideration, which for the purposes of this case are:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender ...
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders ...
[10] The proportionality principle set out in Section 718.1 is also relevant to sentencing Mr. MacDonald: a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Assessing proportionality requires a "complicated calculus" by the sentencing judge. (L.M., paragraph 22)
[11] Sentencing includes a retributive aspect. Retribution is constrained by proportionality. It
…represents an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender's conduct. Furthermore, unlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothing more. (C.(M.A.), paragraph 81)
Aggravating Factors
[12] Mr. MacDonald’s attack on Mr. Sanford was unprovoked. It was not a situation where Mr. Sanford had initiated or pursued a belligerent exchange with Mr. MacDonald. All he did was move Mr. MacDonald’s beer bottle because Mr. MacDonald had been getting beer on the people around him. (R. v. MacDonald, paragraphs 16 and 65) Mr. MacDonald not only broke the beer bottle on Mr. Sanford’s nose, he then used it to jab at him.
Mitigating Factors
[13] There are a number of mitigating factors to be taken into account. Mr. MacDonald is a youthful, first offender. He was 21 when he assaulted Mr. Sanford. He has an unblemished record. I find that he is genuinely remorseful: at the end of the sentencing hearing he apologized to Mr. Sanford. I watched as Mr. MacDonald turned to look around the courtroom as he made his apology, noting that Mr. Sanford was not in attendance. I was satisfied that Mr. MacDonald was not just going through the motions of an apology but was sincere and would have directed his words, that he is “truly sorry”, to Mr. Sanford had he been present.
[14] Mr. MacDonald took this matter to trial, as he was entitled to, and testified to his version of events, which I rejected. That he did not enter a guilty plea is a neutral factor at sentencing. While a guilty plea is usually a mitigating factor, the absence of a guilty plea is never an aggravating factor.
[15] In the mitigating column also go Mr. MacDonald’s positive pre-sentence report and the sixteen (16) letters of recommendation submitted by Mr. MacDonald for his sentencing. The pre-sentence report and the letters indicate that Mr. MacDonald has significant pro-social supports and very good prospects for rehabilitation. I will discuss the pre-sentence report and the letters next.
Jeffrey MacDonald’s Pre-sentence Report
[16] Mr. MacDonald was brought up by a single mother. He never had any contact with his father. His mother has been a loving and devoted parent and she and Mr. MacDonald remain very close. He describes his mother as his “best friend” and says: “She is always there to help me and I her.”
[17] Ms. MacDonald left the workforce some years ago to go on disability due to a back problem. Mr. MacDonald, who lives with her, is a source of support and assistance.
[18] In her interview with the author of the pre-sentence report, Ms. MacDonald described her son as a good, kind person. She said she attended the trial and commented that “it was apparent alcohol use was a contributing factor in the incident.”
[19] The author of the pre-sentence report also interviewed Mr. MacDonald’s girlfriend who described him as kind, generous, and thoughtful. Both his girlfriend and his mother indicated that Mr. MacDonald does not have a substance abuse problem. They noted his remorse and how he has learned from this experience.
[20] Mr. MacDonald has a Grade 12 education which he followed up with a Heavy Equipment course in 2011. Since the fall of 2013, he has been using his heavy equipment training in his employment with a landscaping company. He has previously worked as a labourer with a roofing company and as a warehouse forklift operator. Mr. MacDonald’s current supervisor told the author of the pre-sentence report that Mr. MacDonald is a reliable worker with no addiction or anger issues.
[21] In his own interview with the author of the pre-sentence report, Mr. MacDonald was candid and forthright, saying: “I take responsibility, alcohol played a part, I was intoxicated and this led to unfortunate events.” I find Mr. MacDonald’s acknowledgement that alcohol was a factor was not a minimization of responsibility but his recognition of what contributed to him becoming violent. There is nothing to indicate that Mr. MacDonald has had previous problems with alcohol and while he does not believe he needs counselling in relation to substance abuse or anger management, he has indicated he will comply with any such direction from the court.
Letters of Recommendation
[22] Mr. MacDonald submitted sixteen (16) letters of recommendation from family, friends, and members of the community. Each letter indicates a high level of regard and affection for Mr. MacDonald. The letters are from Mr. MacDonald’s friends, parents of his friends, and neighbours and friends of his mother, former teachers, his girlfriend, and his mother. Eight (8) of the letters are from friends of Mr. MacDonald’s mother or parents of Mr. MacDonald’s friends. In other words, the letters are not just from Mr. MacDonald’s peers.
[23] The letters describe Mr. MacDonald as a person who has made a universally positive impression on a variety of people. They characterize him in enviable terms: genuine, trustworthy, positive, personable, hardworking, very respectful, courteous, kind-hearted, generous, affectionate in his relationships with friends, family and the family of his friends, gentle, dependable, talented, friendly, intelligent, and loyal. He is seen as a fine young man with great potential, someone who is helpful to neighbours by shovelling snow and mowing lawns. He is consistently described as being supportive and encouraging of others. Shocked by his involvement in a violent offence, the letter writers indicate they have seen no signs of aggression, anger, or temper in him.
[24] The aunt of friends of Mr. MacDonald describes him as “…a fine young man, worthy of a second chance and an opportunity to become the man I know he can be…” A relatively recent friend of three years describes Mr. MacDonald in the context of playing flag-football: “…when emotions are running high, Jeff is the first guy there trying to settle everyone down and restore peacefulness.” This friend also notes that Mr. MacDonald is an excellent athlete and has been a volunteer on the boys’ volleyball coaching staff for his former high school, although he has had to step away from this role during the criminal proceedings. The letter from Mr. MacDonald’s Grade 9 French teacher indicates he has also volunteered at his junior high school, working with students on the volleyball court and refereeing. Other letters talk about Mr. MacDonald’s role as, and aspiration to be, a role model.
[25] A consistent theme running through the letters is Mr. MacDonald’s remorse. He is described as very remorseful, embarrassed, and deeply regretting the harm he has caused. His mother’s letter says: “Jeff…regrets this incident from the bottom of his heart.” A number of the letter writers remark on Mr. MacDonald having learned from this experience. It is very clear that Mr. MacDonald has not been and does not want to be someone who acts out aggressively. His orientation to his future is reflected in the letter written by the father of one of his friends: “Over the last several months I have had a number of discussions with Jeff about his future. Jeff is a bright young man who is very committed in maintaining steady employment, and increasing his employment opportunities by improving his education. Jeff has also expressed a strong desire to stay away from any situations that could compromise his personal situation or future employment.” These comments indicate that Mr. MacDonald is highly motivated to be a law-abiding and responsible member of the community.
Examining and Balancing the Principles of Sentencing
[26] The primary objective of sentencing is protection of the public. This is achieved by the appropriate balancing of denunciation, deterrence, and rehabilitation. Crimes of violence must be strongly condemned and deterred. Mr. MacDonald’s moral culpability for the assault on Mr. Sanford is high. It was a violent, unprovoked attack by an alcohol-disinhibited perpetrator.
[27] What is indicated by Mr. MacDonald’s lack of criminal history, positive pre-sentence report, and letters of recommendation – all of which indicate a pro-social character – is that specific deterrence is not a significant issue in this case. I do not find it to be irrelevant: Mr. MacDonald himself has acknowledged that excessive alcohol consumption played a role in his antisocial conduct.
[28] The Crown’s submission is that Mr. MacDonald’s sentence must emphasize denunciation and deterrence, notably general deterrence. Mr. McCarroll described the attack on Mr. Sanford as “vicious” and “extremely dangerous.” While this choice of words is not unreasonable, in terms of what could have happened - that is, worse injuries to Mr. Sanford - I have to be mindful that I am sentencing Mr. MacDonald for an assault causing bodily harm and assault with a weapon, not aggravated assault.
[29] The Crown cited three cases in support of its sentencing submission, one of these being the Alberta Court of Appeal’s decision in R. v. Moller,[2012] A.J. No. 1327. In Moller, an aggravated assault sentencing, the Court noted that “In cases of serious assault with a weapon, denunciation and deterrence must be important factors.” (Moller, paragraph 20) The Court also held that rehabilitation must be taken into account, even in serious cases where the offender is a repeat offender.
[30] Mr. McCarroll referred to R. v. MacDonald, [2010] O.J. No. 912, a decision of the Ontario Court of Appeal where a youthful first offender received a 12 month custodial sentence and 12 months’ probation for an aggravated assault. He had thrown a beer bottle at the victim, knocking him unconscious and leaving him with lacerations and an injury to his jaw. According “a high degree of deference” to the sentencing judge, who emphasized denunciation and deterrence given the extent of violence, the Ontario Court of Appeal held that the one year custodial term could not be said to fall “outside the appropriate range…” (MacDonald, paragraph 30)
[31] Mr. McCarroll also played back to me a statement from my decision in R. v. MacNeil, [2013] N.S.J. 620, where I said: “Mr. MacNeil and others like him – young men out for a good time on the town – who resort to violence after a night of drinking will find themselves sent to prison by a criminal justice system that does not tolerate the failure to reign in aggression.” (MacNeil, paragraph 61) That comment was in the context of sentencing of a repeat offender for the aggravated assault of one victim and assault causing bodily harm of another, both assaults occurring within a minute of each other, the aggravated assault causing life-threatening injuries. In the case of Mr. MacDonald there is no submission being made that he should be sentenced to a penitentiary term: there was no dispute that this is what Mr. MacNeil, a repeat violent offender, had in store. For the purposes of this case, my comment in MacNeil is recognition that protection of the public is the paramount objective in sentencing.
[32] Notwithstanding the need to emphasize denunciation and deterrence, violent assaults do not inexorably attract a custodial sentence. As I mentioned earlier, sentencing is a nuanced process and “profoundly contextual.” (L.M., paragraph 15) The Defence referenced a couple of decisions – R. v. Boyle, [1990] N.S.J. No. 371 and R. v. Hafez, [2006] N.S.J. No. 161 – where conditional discharges were ordered. In the Nova Scotia Court of Appeal’s decision in R. v. Powell, [1994] N.S.J. No. 455, the sentence for an aggravated assault involving bruising and cuts, including a cut requiring four stitches, was suspended and a three-year probation order imposed.
[33] Each case very much turns on its own facts and the circumstances of a particular offender. It is usually difficult to draw comparisons: the circumstances of the assaults, the injuries, and the perpetrator are all going to be different from one case to the next. Nothing alleviates the burden on each sentencing judge to find, having regard to all the relevant factors and principles, the sentence that is most appropriate for the specific case under consideration.
[34] Kelly, J. was faced with precisely that challenge in Boyle. He understood that protection of the public was the primary objective of sentencing and acknowledged the principles to be weighed in achieving this objective. He noted the highly individualized nature of sentencing. He was attuned to the fact that a jail sentence is a fit and proper response to acts of “mindless violence” and said Mr. Boyle’s offence “almost demands incarceration.” He did not however decide that Mr. Boyle should be incarcerated.
[35] Kelly, J. had before him “an articulate, intelligent young man” with permanent employment and no criminal record. He observed the following: “…On the one hand, a serious offence has been committed…and on the other hand, I have before me a young man of great promise who is starting to show some of that promise.” He was very candid with Mr. Boyle, telling him he had entered the courtroom giving serious consideration to a sentence of several months’ incarceration “considering the offence that had occurred and the vicious brutality of it…” Mr. Boyle’s victim, assaulted even after being knocked to the ground and saying he was giving up, was rendered unconscious and seriously injured, requiring surgery to insert a steel plate in his head and the wiring of a broken jaw.
[36] In framing his sentence for Mr. Boyle, Kelly, J. emphasized the principles of denunciation and deterrence that have consistently been foregrounded by our Court of Appeal. He referred to “the importance of letting the public know that the courts will react on every occasion to express the abhorrence that the public feels at the violence in our streets.” He was satisfied that placing Mr. Boyle on two years’ worth of strict conditions of reporting, alcohol abstinence, and 100 hours of community service was a fit and proper sentence in all the circumstances. He granted a conditional discharge largely because Mr. Boyle was intending to apply for Canadian citizenship.
[37] Mr. Boyle was sentenced in 1990, well before the codification of sections 718.2(d) and (e) in the Criminal Code, but the principles of restraint and least restrictive sanction were given their proper role in his sentencing. These principles have been oxygenated by codification and they cannot be accorded only marginal significance. In R. v. Butler, [2008] N.S.J. No. 478, the Nova Scotia Court of Appeal referenced its approval in R. v. Riley, [1996] N.S.J. No. 183 at paragraph 26 of a passage from Ruby on Sentencing, 4th ed at page 204:
The proper sentencing of first offenders requires that the sentencing judge exhaust all other possibilities before concluding that imprisonment is required ... thus, in examining the possibility of a custodial term, the court should ask whether it is the only appropriate sentence to be imposed ... The notion that a first offender should be treated leniently in the hope that lesser punishment would be effective has been characterized as doubly so in the case of youthful first offenders. There is a presumption of fact that one who has not offended previously is capable of reform and ought to be dealt with accordingly.
[38] It is appropriate to apply these principles in Mr. MacDonald’s case.
[39] I also note the comments of the Nova Scotia Court of Appeal in R. v. Bratzer, [2001] N.S.J. No. 461 that "there is ample authority for the proposition that sentences for youthful offenders should be directed at rehabilitation and reformation, not general deterrence." (paragraph 40) This was said in the context of upholding the conditional sentence imposed on Mr. Bratzer for three armed robberies, offences which the Court described as “serious and dangerous crimes which had a lasting impact on the victims…crimes which do attract denunciatory and deterrent sentences.” (Bratzer, paragraph 14)
[40] The factors that influenced Kelly, J. in Boyle and the Nova Scotia Court of Appeal in Bratzer resonate here. Mr. MacDonald has no history of the aggressive, mindless behaviour that brought him before me. He has a very supportive family and community of friends that include mentors and role models. I accept the Defence submission that these are people he does not want to disappoint. He has been engaged with the broader community as a volunteer coach and is a helpful and considerate neighbour. He has worked hard to obtain vocational skills and has secured a full-time job. He is intending to build a solid career on the foundation of his education and experience. Denunciation and deterrence must be given recognition in this case but it is my carefully considered view that a jail sentence is not the only sentence that respects these principles. And, I have concluded, a jail sentence in this case would not give sufficient attention to the important principles of rehabilitation and restraint. Indeed, I believe a jail sentence would undermine the role these principles can play in this case in protecting the public.
[41] I will enlarge upon the conclusion I have reached: even a jail sentence followed by probation does not satisfactorily balance all the relevant sentencing principles that apply in this case. Such a sentence would weight denunciation and deterrence too heavily and fail to afford the principle of restraint enough of a role. And rehabilitation is best achieved in Mr. MacDonald’s case by not disrupting his pro-social context of family and community supports and employment and by requiring him to engage with court-ordered assessment and counselling to address issues that likely led to the assault on Mr. Sanford.
[42] Mr. MacDonald’s experience of the criminal justice system is not one that any young man would envy. He spent two nights in custody before he was released on January 29, 2013 on strict bail conditions including a curfew. He has observed these strict conditions without incident for fifteen months, including a condition requiring alcohol abstinence, and a prohibition from being near premises that have the serving of alcohol as their primary function. No doubt his friends have enjoyed many evenings out on the town, without incident I will assume, while Mr. MacDonald has had to forego these typical social experiences. It takes discipline and resolve to comply with fifteen months of court-imposed conditions in the community and the restrictions on liberty represent some of the consequences of involvement in the criminal justice system for Mr. MacDonald and others like him.
[43] Neither deterrence, nor denunciation for Mr. MacDonald’s conduct on January 27, 2013, are expressed exclusively through his sentence. He has been subjected to the criminal justice process, including relatively onerous release conditions, and will bear the burden of a criminal record. There can be no suggestion that the criminal justice system has any tolerance for violence such as occurred in this case.
[44] The sentence I am imposing on Mr. MacDonald carries a message of denunciation and deterrence. Suspending Mr. MacDonald’s sentence and placing him on conditions means that he can be brought back before the Court and sentenced for the original offences and any breaches of his probationary conditions. For the entire time he is serving his sentence, these potential consequences will be hanging over his head. I also intend certain conditions will serve the objectives of denunciation and deterrence, such as a curfew which represents a curtailment of Mr. MacDonald’s liberty.
[45] I am suspending Mr. MacDonald’s sentence for two years on each conviction, concurrent, and placing him on probation with the following conditions: he shall be subject to the statutory terms and conditions to keep the peace and be of good behaviour; appear before the court as and when required to do so; and notify the court or his probation officer of any change of name, address, employment or occupation.
[46] As for the additional conditions of the probation order, Mr. MacDonald, you will be required to: (1) report to the probation office in Halifax within two (2) days and thereafter as directed by your probation officer; (2) remain in Nova Scotia unless you receive permission from the court to leave; (3) have no direct or indirect contact or communication with Joseph Sanford; (4) make reasonable efforts to locate and maintain employment or be accepted to an educational program as directed by your probation officer; (5) abstain absolutely from the consumption of alcohol and substances prohibited by the Controlled Drugs and Substances Act, except prescriptions provided to you by your physician; (6) after 10 p.m. not to be in any place where alcohol is sold as a primary product; (7) not to own, possess or carry a weapon, ammunition or explosive substance; (8) attend for assessment, counseling, and treatment in relation to anger management, as directed by your probation officer; (9) attend for assessment, counseling, and treatment in relation to substance abuse, as directed by your probation officer; (10) participate in and cooperate with any assessment, counseling or program directed by your probation officer; (11) perform 60 hours of community service, arranged through your probation officer, to be completed by the end of February 2016; (12) abide by a curfew, seven days a week, from 11 p.m. – 6 a.m., with the following exceptions: for a medical emergency involving you or a member of your household; when at regularly scheduled employment and travel to and from by a direct route; or with the written permission of your probation officer for other purposes approved in advance by your probation officer; (13) prove compliance with your curfew condition by presenting yourself at the entrance of your residence should a peace officer attend to check that you are there.
[47] It is important that the requirement for Mr. MacDonald to perform community service not interfere with his employment or any upgrading or further education he may undertake during the probationary period. It is my expectation that a suitable placement can be arranged for Mr. MacDonald that will be compatible with his skills and his work responsibilities.
[48] I am going to direct that Mr. MacDonald return to Court in twelve months’ time for a review of his probation.
[49] Mr. MacDonald, I have seen from the letters of recommendation filed for your sentencing that many decent and thoughtful people believe in your ability to move forward without again committing an act of violence. They have confidence in you and high expectations. I do as well.
[50] I grant the DNA order sought by the Crown and impose a Criminal Code section 109 mandatory weapons prohibition order.
Anne S. Derrick, P.C.J.