R. v. Cormier

R. v. Cormier Court Court of Appeal Date 1994-04-08 Citation 1994 NSCA 83 Docket CAC 02932 Judge/Registrar/Adjudicator Jones, Malachi C. (Honourable Justice) (CA); Pugsley, Ronald N. (Honourable Justice); Roscoe, Elizabeth A. (Honourable Justice) (CA) Document Type Decision Decision Content C.A.C. No. 02932 NOVA SCOTIA COURT OF APPEAL Cite as: R. v. Cormier, 1994 NSCA 83 Jones, Roscoe and Pugsley, JJ.A. BETWEEN: ) ) HER MAJESTY THE QUEEN ) Robert C. Hagell ) for the Appellant Appellant ) ) - and - ) ) RENEE JOSEPH DONALD CORMIER ) Robert J. McCleave ) for the Respondent Respondent ) ) ) ) ) Appeal Heard: ) April 5, 1994 ) ) ) Judgment Delivered: ) April 8, 1994 THE COURT: Leave to appeal is granted and the appeal is allowed as per reasons for judgment of Pugsley, J.A.; Jones and Roscoe, JJ.A., concurring. PUGSLEY, J.A.: When Bernard Gunning left his home in Dartmouth to pick up his car from a repair garage in Halifax one afternoon in early May 1992, he must have been looking forward to an uneventful ride on public transit across the Macdonald bridge. His expectations were shattered by the brutal attack of three men (the respondent and his accomplices, James Harvey and Giles Berniquez) resulting in Mr. Gunning being treated in the hospital for a bloodied and fractured nose, two black eyes and severe headaches. On June 23, 1993, the three entered pleas of guilty to assault causing bodily harm, contrary to s. 267(1)(b) of the Criminal Code. The respondent also entered a plea of guilty to escaping from lawful custody, contrary to s. 145(1)(a) of the Code. Mr. Berniquez was unlawfully absent from the jurisdiction on the date of sentencing (August 23, 1993). The trial judge, after hearing Crown evidence and viewing pre-sentence reports, sentenced Harvey to a term of incarceration of 18 months to be served consecutively to time he was already serving. He suspended the passing of sentence with respect to the respondent in view of his youth and his clean record concluding that the public interest could best be served and protection more likely afforded by a non-custodial sentence. The trial judge placed the respondent on probation for a period of two years during which time he was directed to perform 100 hours of community service. The passing of sentence with respect to the s. 145(1)(a) offence was also suspended and a weapons restriction pursuant to s. 100 of the Criminal Code was directed. The Crown applies for leave, and if granted, appeals from the sentence imposed, submitting that it inadequately reflects the element of deterrence, and is inadequate, having regard to the nature of the offence committed. FACTS: Mr. Gunning was, at the time of attack, 42 years of age, wore glasses, and was 5'7" tall. The respondent was 18, Berniquez 21 and Harvey 22. They were taller and heavier than Mr. Gunning and the evidence discloses the respondent was in excellent physical condition, competing in a Junior A baseball league. They boarded the bus on which Mr. Gunning was travelling and took seats behind him. One of them removed a strip of plastic bordering an advertising sign located inside the bus. A female passenger criticized them for destroying public property. She was told, in a threatening manner, to mind her own business. Mr. Gunning responded that they should have respect for others and not destroy public property. According to another passenger, Sharon Huntington, this prompted remarks of "four eyes ... old man". He was told by one of the group "don't you fucking well tell me what to do". Mr. Berniquez then commenced to tap Mr. Gunning on the head and shoulders with the plastic strip. When Mr. Gunning pulled the bus cord, and rose to get off at his stop, one of the group said "he's getting off, let's get off with him". As Mr. Gunning walked up the street, the three followed, close behind. Berniquez recommenced tapping Mr. Gunning on the head with the plastic. The respondent and Harvey positioned themselves on either side of Mr. Gunning, crowding him, jostling him, elbowing him, and pushing him back and forth between them. Mr. Gunning kept on walking, too frightened to respond to the attacks. He concluded he could not out run them. All three started to shove him back and forth between them. Mr. Gunning then turned to face them and asked to be left alone. This request prompted Berniquez to strike the victim in the face knocking his glasses to the sidewalk. While Mr. Gunning searched for his glasses, they pushed him back with their feet, similar to a slow motion karate kick. Mr. Gunning testified he bent over to pick up his glasses and "was just within inches of grabbing them and suddenly a foot came down and just smashed them". The respondent was identified by Ms. Huntington, who had also exited the bus, as being the individual who smashed the glasses. At this point Mr. Gunning placed both his arms around the respondent's waist. The respondent retaliated by punching him in the left temple, a blow that almost rendered him unconscious. Berniquez then struck the defenceless Gunning causing him to fall sideways. Ms. Huntington was approximately 20 feet away from the group while the attack took place. Swinging her purse and yelling at the attackers, she ran to Mr. Gunning to afford him assistance. Her actions were sufficient to distract the three for a short interval until the police arrived. Although taken into custody by the police the respondent broke free and was not picked up until later in the day. Mr. Gunning was taken to the hospital where it was determined that his nose was fractured. He had two black eyes and suffered from severe headaches that caused him to miss work for a week. He testified that he continued to experience the headaches at the time of the sentence hearing (August, 1993) some fifteen months after the assault occurred. The pre-sentence report, prepared for the trial judge, discloses that the respondent presently resides with his mother, his parents having been divorced about five years ago. She states that he is not normally an aggressive or violent individual and presents no problem at home. The respondent completed grade 10 in 1991. His attendance at high school, thereafter, was only on a sporadic basis. He has held a number of jobs in service industries since the summer of 1991, but all were of short duration. The father of the respondent's former girlfriend advised the probation officer that the respondent could become a productive member of the community. He confirmed that, both he and his wife, would continue to offer support to the respondent. The probation officer noted that with respect to his involvement in the offences, the respondent limited his responsibility placing blame on the co-accused. "As far as remorse is concerned, it appears that the offender was remorseful with respect to how these offences affected himself, however, little or no mention was made of the victim during the subject's conversation with this writer." OPINION: In considering the fitness of the sentence appealed against (s. 687(1)) this Court may only vary the sentence if it is satisfied that it is "clearly or manifestly excessive or inadequate in relation to the offence and the offender" (R. v. Dzikowski (1990), 99 N.S.R. (2d) 362). The overriding consideration in sentencing with respect to crimes of violence is deterrence, both general and specific with the emphasis on general deterrence (R. v. Delanney (1983), 55 N.S.R. (2d) 595). Save "for exceptional circumstances, substantial terms of imprisonment must be imposed for crimes of violence" (R. v. Perlin 23 N.S.R. (2d) 66). Counsel for the respondent submits that this case falls into that exceptional category. He stresses the respondent's age, the fact that he had no prior record, that the evidence indicates that he may have struck Mr. Gunning only on one occasion, that Berniquez was the prime actor and finally points out that a substantial period of time has passed since the imposition of sentence by the trial judge. The question is whether, in the light of the submissions, the offence is of such a gravity that this youthful first offender should receive a custodial sentence? (R. v. Stein (1974), 15 C.C.C. (2d) 376, R. v. McCormick (1979), 47 C.C.C. (2d) 224). I have no hesitation in concluding that a custodial sentence is mandated. I come to this conclusion for the following reasons: 1. The attack on Mr. Gunning was completely unprovoked. He made no response to the provocative and aggressive behaviour directed towards him on the bus. The group of three made the choice to get off at Mr. Gunning's stop, only because he exited. 2. The physical abuse started in the bus. The respondent could reasonably expect it would continue, and accelerate, once the group decided to exit and pursue Mr. Gunning. 3. Mr. Gunning was struck repeatedly on the back and shoulders with the plastic strip by Berniquez. The respondent actively joined in the violence and intimidation by elbowing and jostling Mr. Gunning on one side while Harvey performed the same role on the other side. All three attempted to intimidate the victim by directing karate kicks towards him. Mr. Gunning testified their actions were meant "to terrorize me . . . and they worked". 4. Mr. Gunning's plea to be left alone was greeted with a blow knocking his glasses off. When he attempted to retrieve them, they were stomped on by the respondent. 5. The violence reached a new level when the respondent struck Mr. Gunning in the temple while the victim's arms were about the respondent's waist. This blow, it is acknowledged by the respondent, was the most significant blow struck by any of the three. It is not unreasonable to conclude that it was a major cause of the physical injuries suffered by Mr. Gunning. 6. Mr. Gunning was an older man of small stature. Berniquez, Harvey and the respondent were a great deal younger, much larger and significantly more robust. 7. Judicial notice can be taken of the increased activity of gangs of youths "swarming" innocent citizens on the streets of Halifax-Dartmouth over the last several years. This was one such attack. It was directed at an older man of small stature, who was acting as a good samaritan. The public has a right to walk the streets of the metropolitan area without fear of being terrorized and beaten by groups of young men. Those who engage in such activities must know that such acts of random violence will be punished by custodial sentences. The perfunctory apology tendered by the respondent to the trial judge, viewed in light of the lack of remorse and self-concern evidenced to the probation officer, is illustrative of the attitude of the respondent. In my opinion the sentence was not fit. It was clearly inadequate, both in respect to the offence committed, and the offender. Only seven months have elapsed since the disposition by the trial judge. In my opinion this is not one of those cases where the public interest is best served by permitting the sentence originally imposed to stand. I would grant leave to appeal and allow the appeal by setting aside the disposition of the trial judge and substituting a custodial sentence of six months for the assault causing bodily harm, a custodial sentence of two months for escaping lawful custody, to be served concurrently, to be followed by probation for a period of two years containing the same provisions as directed by the trial judge. A weapons restriction for ten years pursuant to s. 100 of the Code is also directed. J.A. Concurred in: Jones, J.A. Roscoe, J.A.