IN THE PROVINCIAL COURT OF NOVA SCOTIA
R. v. MacNeil, 2013 NSPC 6
Date: January 17, 2013
Docket: 2356880, 2356881
Registry: Halifax
BETWEEN:
Her Majesty The Queen
v.
Ashton Thomas MacNeil
SENTENCING DECISION
JUDGE: The Honourable Anne S. Derrick
HEARD: January 4, 2013
DECISION: January 17, 2013
CHARGES: sections 268(1) and 267(b) of the Criminal Code
COUNSEL: Christine Driscoll, for the Crown
DEFENCE: Luke Merrimen, for Ashton MacNeil
By the Court:
Introduction
[1] On November 20, 2012 I convicted Ashton MacNeil of unlawfully assaulting Brett Myketyn and Jonathan Clarke. I found that the assault of Mr. Myketyn constituted aggravated assault as charged. On December 3, 2012, I found Mr. MacNeil guilty of assault causing bodily harm to Mr. Clarke, an included offence of the original aggravated assault charge. These decisions are reported as follows: R. v. MacNeil, [2012] N.S.J. No. 635 and R. v. MacNeil, [2012] N.S.J. No. 636.
[2] The assaults of Mr. Myketyn and Mr. Clarke were perpetrated just over a minute apart on August 26, 2011. Everyone involved had been out for a good time and had been drinking at the Pogue Fado, a bar on Barrington Street in downtown Halifax. Mr. Myketyn and Mr. Clarke were close friends but did not know Mr. MacNeil. Each of them had innocently approached Mr. MacNeil and been knocked unconscious by single, hard punches, falling to the street and sustaining serious injuries.
Brett Mysketsyn’s Injuries
[3] Mr. Myketyn’s injuries were life-threatening. He was diagnosed with an epidural hematoma, an associated skull fracture, a contrecoup cerebral contusion, and a minor facial laceration. A portion of his skull had to be surgically removed to relieve pressure on his brain. He spent two weeks in hospital but upon discharge was still not feeling well. He could not concentrate or think and was “cranky” and tired. According to his mother’s Victim Impact Statement, he had endured excruciating headaches in hospital. Mr. Myketyn has a massive surgical scar on the left side of his head.
[4] Out of hospital and recovering at home, Mr. Myketyn had to undergo rehabilitation and was followed by a neurosurgeon. He went back to construction work part-time in January 2012 and then full-time in February. He is now not experiencing difficulties and seems to have made a full recovery. Formerly a track star, as of September 2012, he is once again training three times a week with the Dalhousie track team after slowly easing his way back into the gym. He took a year off from physical exercise as he was “in no shape to do it.” He can no longer play contact sports.
[5] His mother has indicated that Mr. Myketyn’s education was postponed and he missed a year of athletic training. He was unable to play his final year of Junior Lacrosse.
Jonathan Clarke’s Injuries
[6] A CT scan indicated that Mr. Clarke had areas of patchy, small bleeds throughout the brain and some blood in the ventricles. No neurosurgical intervention was required. Mr. Clarke’s right cheek bone and his eye bone were fractured. They were left to heal on their own as was a cut by the corner of his right eye. He spent three days in hospital. His injuries were not life-threatening.
[7] Mr. Clarke testified that his injuries affected him for 2 – 4 months. Once out of the hospital, Mr. Clarke was tired all the time and had headaches. It took a while for his facial fractures to heal up. He has a small scar by his right eye.
[8] Mr. Clarke underwent some rehabilitation. He has been working full-time since March 2012 with no difficulties. He returned to playing competitive hockey although not at the level he was playing before the August 26 incident. In August 2011 Mr. Clarke had been waiting to move to Bridgewater to play hockey but, due to the assault, that did not happen.
Victim Impact Statement of Jennifer Myketyn
[9] Jennifer Myketyn is Brett Myketyn’s mother. She described the horror of being called to the QEII hospital on August 26, 2011 to be told that Mr. Myketyn had major head injuries and required immediate neurosurgery to save his life. In light of the gravity of the situation – Mr. Myketyn’s life-threatening injuries and the risks of surgery – the Myketyn family was advised to say their good byes. This experience has left an indelible mark. In Ms. Myketyn’s words:
How does a parent prepare for that? That was a defining moment in my life. I now know what terror, heartbreak, and raw fear really mean. There is a hole burned in me from that night that still has not healed.
[10] Even after Mr. Myketyn survived the surgery, the extent of his brain injuries was not known and his parents wondered whether he would ever breathe on his own, walk, speak, or even recognize them. His recovery leaves his family “thankful beyond words.”
Position of the Crown and Defence
[11] The Crown’s position on sentence is influenced by Mr. MacNeil’s related prior record and the seriousness of these two assaults – the fact of there being two victims, each of whom sustained significant head injuries. Ms. Driscoll submits that the fit and proper sentence for Mr. MacNeil is five years in prison. Ms. Driscoll does not take a strong position on the issue of whether the sentences should be consecutive or concurrent, and acknowledges that totality is a consideration. It is her view that the aggravated assault of Mr. Myketyn justifies a five year sentence by itself, even before considering what sentence should be imposed for the assault on Mr. Clarke.
[12] Ms. Driscoll concluded her submissions on the quantum issue by indicating that a concurrent sentence of three years for the assault causing bodily harm to Mr. Clarke would be appropriate. With remand time credited, this would leave Mr. MacNeil to serve a “go forward” sentence of approximately four and a half years.
[13] The Defence argues that a five year sentence for Mr. MacNeil is too high, in view of his age, strong family and community support, and precedent. Mr. Merrimen submits that Mr. MacNeil should receive a two year prison sentence to be followed by three years’ probation under strict conditions.
[14] Mr. MacNeil has been on remand since May 24, 2012 when he was arrested and charged with new offences. His bail on the charges before me was revoked on June 1. Mr. Merrimen calculated remand time of 223 days up to the date of the sentencing hearing (that calculation should now be 236 days) which it is agreed should be credited on a 1:1 basis due to the fact of Mr. MacNeil’s bail revocation. It is the Defence position that Mr. MacNeil’s sentence should be two years’ federal custody in addition to the time he has already served in pre-sentence custody.
Summary of Facts from the Trial Decision
[15] In convicting Mr. MacNeil of assaulting Mr. Myketyn and Mr. Clarke I found the subjective belief he claimed to have had that he was at imminent risk of being assaulted himself, was not reasonable. I did however accept that Mr. MacNeil had not gone downtown that night looking to get into an altercation with anyone. I also accepted that he never intended to cause serious injury to either Mr. Myketyn or Mr. Clarke. I was satisfied there was nothing in Mr. Clarke’s actions that could have led Mr. MacNeil to reasonably believe he was about to be assaulted and needed to defend himself. (R. v. MacNeil, [2012] N.S.J. No. 635, paragraph 87)
[16] I found that Mr. Myketyn was equally non-threatening toward Mr. MacNeil and did nothing to provoke an attack. Mr. MacNeil punched Mr. Myketyn a little over a minute after he had knocked Mr. Clarke to the ground. (R. v. MacNeil, [2012] N.S.J. No. 635, paragraph 62) Mr. Myketyn was hit after retreating a few steps away from Mr. MacNeil whom he had been following down Sackville Street. The CCTV camera shot of the scene showed Mr. MacNeil take a few steps toward Mr. Myketyn to deliver a hard, effective punch that literally stopped Mr. Myketyn in his tracks and dropped him to the street. (R. v. MacNeil, [2012] N.S.J. No. 635, paragraph 88)
[17] It was Mr. MacNeil’s evidence at trial that he had been drinking that night, both before going to the Pogue and while there. His best recollection is that he had no more than 2 glasses of draft beer earlier and then 3 – 4 beers at the Pogue. There was no independent evidence about his alcohol consumption.
The Offender
[18] A pre-sentence report was prepared for this sentencing. It indicates that Ashton MacNeil is now 23. On August 26, 2011, he was two months past his 22nd birthday. He comes from a very supportive and loving family who provided him with a stable and nurturent upbringing. A measure of the devotion of Mr. MacNeil’s parents is reflected in their weekly visits to him in jail and almost daily telephone conversations. For the past 5 years, Mr. MacNeil’s father has been working out west but returned home to support Ashton and the family while his son is before the courts.
[19] Mr. MacNeil’s father described the assaults as out of character for Ashton. He told the author of the pre-sentence report that his son caused no trouble at home or at school, got good marks, and played competitive hockey and baseball. His father views his son as having no issues with anger and having been “in the wrong place at the wrong time” when the assaults occurred. He said that Ashton would not intentionally harm someone.
[20] Ashton MacNeil graduated with his Grade 12 from Cole Harbour High School in 2007. His time in high school was a success, with Mr. MacNeil achieving good marks and enjoying positive relations with school staff and his peers. He was never suspended from school. After graduation he went on to complete one year of carpentry at the Nova Scotia Community College.
[21] Mr. MacNeil also provided information about himself to Dr. Scott Theriault, who prepared a psychiatric report. Dr. Theriault’s report confirms that Mr. MacNeil has enjoyed a stable, harmonious family life. He was active in sports and successful at school, and involved with a pro-social peer group. He worked part-time as a teenager and participated in volunteer activities.
[22] For six months after finishing Grade 12, Mr. MacNeil worked full-time in a warehouse. Interested in the construction trade, he began working as a labourer for a bricklaying company in the spring of 2008. This continued until approximately June 2009. Over the next two years, Mr. MacNeil was employed locally and made three separate trips to Fort MacMurray for work. He returned home from out west in July 2011.
[23] Mr. MacNeil had been working for two months with Barns Construction doing renovations and new construction before being remanded into custody. He has been told that he has a job once he is no longer incarcerated.
Letters of Reference
[24] I have also reviewed 31 letters of reference submitted by Mr. Merrimen without objection by the Crown. They demonstrate the depth of support and affection Mr. MacNeil enjoys from his immediate and extended family and various members of the community. These letters were written by:
Family – Mr. MacNeil’s parents, younger sister, twin brother, aunts, uncles and cousins
Neighbours
Friends - including Yulanda Luka, Mr. MacNeil’s former girlfriend, and her father; friends who have known him since childhood, friends from school; the parents of friends, family friends
Employers
Other community members, including Mr. MacNeil’s pastor, and a member of the Carpentry Faculty at the Nova Scotia Community College
[25] These reference letters are glowing testimonials to Mr. MacNeil and his highly-regarded family. They are heartfelt and chronicle his kind-heartedness, his support for others, his reliability, and his unimpeachable work ethic. Mr. MacNeil is described as caring, loyal, considerate, generous, and positive. He shows a genuine concern for younger cousins and his friends. Descriptions of him as “the greatest friend anyone could ask for” and someone who would “do anything for anyone” represent repeated themes in the letters. No one identifies any issues with anger or aggression. Writers speak of being “shocked” upon learning about Mr. MacNeil’s charges. Mr. MacNeil’s remorse and willingness to take responsibility for his actions are noted. One of his cousins writes sympathetically about Mr. MacNeil’s struggles with learning difficulties, alcohol and depression. Several writers offer their opinion that Mr. MacNeil has learned some valuable lessons from his involvement with the criminal justice system.
[26] One of the letters is from Colin J. Campbell, a member of the Carpentry Faculty at the Nova Scotia Community College who met Mr. MacNeil in September 2011. He described Mr. MacNeil as a student who enjoyed the learning process, even when faced with frustrations associated with academic challenges. Mr. Campbell’s letter indicates that Mr. MacNeil “excelled” in group assignments. “He seemed to be a natural leader, easily gaining the respect of his peers. He was always willing to help his classmates and would encourage and celebrate their successes.” Mr. Campbell concluded his letter by saying: “I could see a lot of potential in Ashton – he would be a good Carpenter with the personality required to work well on large jobsites or to work one-on-one with a customer.”
[27] Other writers comment on Mr. MacNeil’s enthusiasm for his chosen career in carpentry which his parents describe as “a passion”. It appears that Mr. MacNeil now has a focus for his future and has embraced a career plan.
Psychiatric Opinion of Dr. Scott Theriault dated December 3, 2012
[28] Dr. Theriault, a well-known and well-respected forensic psychiatrist was retained by the Defence to prepare a psychiatric assessment of Mr. MacNeil for use in sentencing. Dr. Theriault’s report was tendered as an exhibit by consent. He met with Mr. MacNeil for nearly 3 hours on December 1, 2012.
[29] According to Dr. Theriault, Mr. MacNeil has had “a relatively brief, albeit, important psychiatric history.” Dr. Theriault describes the development of Mr. MacNeil’s symptoms. They began to surface soon after Mr. MacNeil began dating Yulanda Luka in the spring of 2010. He felt increasingly nervous and apprehensive. The feelings intensified and Mr. MacNeil began to withdraw socially. He became more and more lethargic and fatigued, and lacked motivation. His mood began to deteriorate and he became tearful, at times for no apparent reason. This led to him quitting work – he had been working locally as a labourer - in October 2010. He tried taking a prerequisite physics course as part of a plan to attend a community college program but he was unable to concentrate and eventually dropped out. He began to experience passive suicidal ideation.
[30] Mr. MacNeil was ultimately diagnosed by his family physician with clinical depression, and subsequently by the mental health nurse at the Cole Harbour Mental Health Clinic, with a major depression. He responded well to Cipralex, an SSRI antidepressant medication. Dr. Theriault notes that Mr. MacNeil reported a beneficial response to the medication, was less anxious and in a brighter mood. He began to socialize with his friends again and felt his life was returning to normal.
[31] By May 2011, Mr. MacNeil had gone out to Fort MacMurray to work. This was a time when his mood began to undergo a significant shift. He told Dr. Theriault that he “had more energy than I had my whole life.” He described his mood as “overly good” and he experienced an unusual increase in his self-confidence, energy, and need for socialization. Associated with enhanced energy levels was less need for sleep. Although Mr. MacNeil indicated in his interview with Dr. Theriault that he wondered if his elevated mood was related to the euphoria of having his life back on track, and a sense of freedom due to living away from home, as I will discuss, Dr. Theriault has raised the possibility that Mr. MacNeil was having an “iatrogenic” reaction to the antidepressant medication.
[32] When Mr. MacNeil returned home in July 2011, his mood settled somewhat but the high drive and energy remained. He is presently still on Cipralex 20 mg a day but indicates his mood is stable.
[33] Mr. MacNeil also discussed his alcohol and drug use with Dr. Theriault. He has been drinking since the age of 16, typically beer. A pattern of binge drinking continued once he reached legal drinking age. When he was assessed at the Cole Harbour Mental Health Clinic in February 2011, he reported that he had been smoking one marijuana joint per day for the previous four years and was binge drinking. Although Mr. MacNeil’s alcohol and marijuana use decreased when he was feeling depressed as their consumption made him more depressed and anxious, once he started to take the antidepressant medication and feel better, his alcohol consumption increased again.
[34] Dr. Theriault has diagnosed Mr. MacNeil with an Axis I Major Depression, moderate, in remission; a substance induced mood disorder, in remission, and alcohol abuse (binge pattern), in remission. He has no Axis II or Axis III diagnoses.
[35] Dr. Theriault has found no evidence that Mr. MacNeil has any significant personality disorder. He “does not show any features of an antisocial personality disorder and does not show any evidence of pro-criminal attitudes, beliefs, or values.” Dr. Theriault also notes that Mr. MacNeil did not experience a disruptive childhood and continues to enjoy the support of his family. (Dr. Theriault’s Report, page 8)
[36] According to Dr. Theriault, Mr. MacNeil does show evidence of a history of alcohol abuse, although “not a history of alcohol dependence.” Dr. Theriault indicates that there may have been a “potential interactive effect” between the antidepressant medication and Mr. MacNeil’s alcohol use, “such that the intoxicating and disinhibiting effects of the alcohol may have been enhanced by the concurrent use of the antidepressant medication.” (Dr. Theriault’s Report, page 8)
[37] Dr. Theriault suggests there is “the possibility that Mr. MacNeil, at the time of the offense, was experiencing a drug induced mood change brought on by his antidepressant medication.” He offers the following opinion: “All antidepressant medications can induce a mood “switch” from a depressed state to an elevated (hypomanic or manic) mood state.” Noting that Mr. MacNeil reports his mood becoming elevated in or about May 2011, several months after starting the antidepressant medication, and remained elevated throughout that summer, Dr. Theriault goes on to say:
…one of the defining features of such an elevated mood state is not just an elevated (happy, expansive) mood but also an irritable mood. People with hypomanic or manic mood states are generally energetic, outgoing, and happy but can become irritable when their goals or actions are thwarted in some fashion. It would be appropriate therefore, in my opinion, to consider Mr. MacNeil’s actions in light of this, factoring in the effects of alcohol, the potential interaction between the alcohol and his antidepressant medication, and the possibility of a pre-existing drug induced mood disturbance related to the use of the antidepressant. (Dr. Theriault’s Report, pages 8 – 9)
[38] It is also relevant to note that in Dr. Theriault’s opinion Mr. MacNeil appears to be a “good rehabilitation candidate.” He discusses this as follows:
…His lack of antisocial traits and beliefs and his general adherence to pro-social values and a positive work ethic would appear to be advantageous. Clearly, Mr. MacNeil would benefit from ongoing management of any propensity towards mood disturbances. He reports his mood is stable at the moment but this should be monitored on an ongoing basis and in particular any propensity towards an elevated mood suggestive of a diagnosis of bipolar disorder should be watched for. He would benefit from work directed at his alcohol consumption and his binge style drinking…
Purpose and Principles of Sentencing
[39] Aggravated assault can attract a maximum sentence of fourteen years in prison. The maximum sentence 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. MacNeil I must consider the purpose and principles of sentencing and weigh and balance the aggravating and mitigating factors.
[40] 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.
[41] Section 718.2 recites the other principles that the sentencing court is mandated to take 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 ...
[42] The proportionality principle set out in Section 718.1 is also relevant to sentencing Mr. MacNeil: 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. (R. v. L.M., [2008] S.C.J. No. 31 at paragraph 22)
[43] Sentencing has been explicitly recognized as a "profoundly subjective process." (R. v. Shropshire, [1995] 4 S.C.R. 227, 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 to 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. (L.M., supra, at paragraph 15)
[44] 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.), [1996] S.C.J. No. 28, paragraph 81)
Aggravating Factors
Prior Record
[45] Mr. MacNeil has a related criminal record that discloses issues with violence and alcohol. On August 31, 2008 he was charged with assault causing bodily harm. According to what he told Dr. Theriault, Mr. MacNeil became embroiled in a verbal altercation with three men in downtown Halifax and struck two of the men inflicting injuries – a broken nose and a cut lip. He was released on conditions that prohibited him from drinking. He breached that condition on May 24, 2009 and was charged. On May 6, 2010 he was sentenced for the assault and the breach. Just 19 at the time, he received a conditional discharge and 70 hours community service.
[46] Mr. MacNeil stayed out of trouble until late June 2011 in Fort MacMurray. I will note that this was during the time when he has told Dr. Theriault he was experiencing an unusually elevated mood. Mr. MacNeil was intoxicated outside a casino and his response to police when they arrived resulted in charges for obstruction by resisting arrest and causing a disturbance. He pleaded guilty and was fined.
[47] On July 24, 2012, Mr. MacNeil was sentenced for simple possession on May 27, 2012 of a controlled substance and received one day deemed served.
[48] As I noted at the start of these reasons when addressing the issue of remand credit, Mr. MacNeil was charged in late May 2012 with new charges, including an aggravated assault. The lawyers will understand but the public may not: these fresh charges are irrelevant to the determination of my sentence for the assaults on Mr. Myketyn and Mr. Clarke. Mr. MacNeil is presumed innocent of the May 2012 charges and, for my purposes, it is as though they do not exist. I will note that Mr. MacNeil’s remand as a result of the new charges is his first experience of jail.
Circumstances of Offence
[49] The circumstances of the assaults on Mr. Myketyn and Mr. Clarke are aggravating. These were particularly serious assaults: Mr. Myketyn teetering on the brink of death, and Mr. Clarke, although not as badly hurt, still suffering a serious head injury. Neither Mr. Clarke nor Mr. Myketyn did anything that could reasonably have been seen as provoking a punch to the head.
Mitigating Factors
[50] There are a number of mitigating factors in Mr. MacNeil’s case: he is a youthful offender, he is remorseful, his prospects for rehabilitation are good, and he has significant family and community support. Another mitigating factor is his mental health, which I will be discussing in due course.
[51] Mr. MacNeil has been remorseful since turning himself in to the police on September 1, 2011. It appears that he hesitated about doing so but went in voluntarily to take responsibility for the assaults. He testified at trial he felt “sick” that he had put the two young men in the hospital. He understood the Myketyn and Clarke families would want to know who had done this to their sons.
[52] Near the conclusion of the police interview, at D/Cst. Thomas’ suggestion, Mr. MacNeil wrote a letter to the Myketyn and Clarke families. In it he offered his “deepest apologies and sympathy.” He accepted “full responsibility” and acknowledged the pain he had caused. Emphasizing that he had had no intention of hurting Mr. Myketyn and Mr. Clarke, he wished them “the best of luck and a quick recovery.”
[53] Mr. MacNeil concluded the September 1 apology letter by saying, “…I did make a mistake I just wasn’t ready for my family, friends, or my community to look at me that way because that is not who I am.” In his interview for the pre-sentence report, Mr. MacNeil was still describing himself as having felt threatened by Mr. Clarke and Mr. Myketyn. He expressed the same view in his interview with Dr. Theriault, who reported that Mr. MacNeil maintained his actions were “directed by a subjective sense of feeling threatened.” (Dr. Theriault’s Report, page 7)
[54] While I accept that Mr. MacNeil is genuinely remorseful and expressed his remorse at a very early point, I do not think he has truly confronted the nature and extent of his responsibility for what he did to his victims. A consistent theme in the apology letter, his trial evidence, the pre-sentence report, his comments to Dr. Theriault, and his statement at the end of his sentencing hearing, all indicate that Mr. MacNeil does not understand yet that this was not a “random” act (as he described it in the pre-sentence report), and that he is a person whose reactions under stress have included violence.
[55] Mr. MacNeil does describe how during his remand he has walked away from stressful situations. In his remarks at the end of the sentencing hearing, Mr. MacNeil talked about how he has used the last seven months to “build [his] self-control and…make better choices…” However he continues to struggle with the contrast between who he understands himself to be and the offences he is being sentenced for, saying, for example: “I don’t really think that is me”. In his comments at the sentencing hearing he did say “…the situation got out of hand pretty quick and my lack of good judgment obviously led to some terrible consequences…” And further on: “…I’ve made a mistake and it caused something terrible to happen and [I] feel really bad about that.”
[56] Mr. MacNeil still has some distance to go in achieving a full understanding of his actions on August 26, 2011. In his sentencing submissions Mr. Merrimen observed that Mr. MacNeil is “still learning about himself and his weaknesses…still maturing.” Mr. MacNeil shows strong potential for addressing his issues. It is also relevant for me to consider these mitigating factors: at 23, Mr. MacNeil is a youthful offender, he has significant pro-social supports and pro-social goals and capabilities, and he is seen as a good candidate for rehabilitation.
[57] Mr. MacNeil’s mental health is also a mitigating factor. (R. v. Marsman, [2007] N.S.J. No. 222 (C.A.), paragraph 27; R. v. Kagan, [2008] N.S.J. No. 26 (S.C.), paragraphs 22, 33; R. v. Rhyno, [2009] N.S.J. No. 474 (C.A.), paragraph 27) In Mr. MacNeil’s case I have clear evidence that he experienced a major depression, starting in the spring of 2010. It is now in remission. Mr. MacNeil was stabilized with antidepressant medication but that medication may, in Dr. Theriault’s opinion, have contributed to Mr. MacNeil’s reactions on the night of August 26, 2011.
[58] Ms. Driscoll submits that Mr. MacNeil simply should not have been drinking. She is of the view that any mitigation due to Mr. MacNeil’s mental health must be tempered. She points to Mr. MacNeil’s assault causing bodily harm charge from 2008, before his depression and treatment with antidepressant medication. She submits that Mr. MacNeil had anger and alcohol issues then and did not adjust his behaviour notwithstanding his awareness that alcohol aggravated his condition.
[59] While it is correct that Mr. MacNeil’s culpability for these assaults is not mitigated by the fact that he was under the influence, in my opinion that does not end my assessment of how the issue of Mr. MacNeil’s mental health should be factored into the determination of the appropriate sentence in this case.
Analysis
[60] It is recognized by both Crown and Defence that the question in this case is not whether there should be a period of incarceration in a federal penitentiary but how long that period of incarceration should be. The positions of Crown and Defence are an acknowledgment that the sentencing principles of denunciation and deterrence must be emphasized in Mr. MacNeil’s case.
[61] What must be denounced and deterred in this case is what Jennifer Myketyn referred to at the end of her Victim Impact Statement as “stupid, senseless violence.” 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. Young men like Brett Myketyn and Jonathan Clarke are entitled to enjoy a night in downtown Halifax without ending up in an ambulance, or as could have happened here, in the morgue. Mr. MacNeil already knew from his experience in August 2008 that a punch can lead to injuries and criminal charges. The significance of that incident plainly did not register with him.
[62] I must not however lose sight of the fact that not only will this be Mr. MacNeil’s first sentence of incarceration, it will be a federal prison sentence. This is a relevant consideration in determining how long a prison sentence it should be. As the Nova Scotia Court of Appeal noted in R. v. Colley, [1991] N.S.J. No. 62: "If the need to protect society can be well served by a shorter sentence as by a longer one, the shorter is to be preferred." The Ontario Court of Appeal has expressed a similar view: "... a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused [rather] than solely for the purpose of general deterrence."(R. v. Priest, [1996] O.J. No. 3369) This consideration is related to the principle of restraint in sentencing: that the court should impose “the least quantum that will achieve the overall purpose of being appropriate and just.” (R. v. Best, [2005] N.S.J. No. 347 (S.C.), paragraph 25)
[63] Generally, the sentencing of even serious, violent offences should be governed by this principle. I note that the Colley case involved an aggravated assault committed to facilitate a robbery attempt. As Rosenberg, J. has indicated in R. v. Borde, [2003] O.J. No. 354 (C.A.), at paragraph 36:
…The length of a first penitentiary sentence for a youthful offender should rarely be determined solely by the objectives of denunciation and deterrence. Where, as here, the offender has not previously been to penitentiary or served a long adult sentence, the courts ought to proceed on the basis that the shortest possible sentence will achieve the relevant objectives…
[64] Mr. MacNeil has a high degree of moral culpability for the assaults he committed against Mr. Clarke and Mr. Myketyn. The circumstances of the offences, the nature and extent of the victims’ injuries, and Mr. MacNeil’s prior record justify the imposition of a federal term of imprisonment. Ms. Driscoll has submitted that for the aggravated assault on Mr. Myketyn alone this should be for five years. She did not urge that there be a consecutive sentence for the assault of Mr. Clarke, submitting that three years for the assault causing bodily harm on Mr. Clarke served concurrently, is appropriate.
[65] In responding to the Crown’s position, Mr. Merrimen provided me with a number of cases involving serious violence, some of which resulted in the victim’s death. Mr. Merrimen’s point is that there is precedent for a sentence of less than five years even in cases of a manslaughter conviction after a similar incident - a one-punch assault.
[66] In three Nova Scotia cases – R. v. Hickey, [2011] N.S.J. No. 244 (S.C.), R. v. Isenor, [2007] N.S.J. No. 487 (S.C.), and R. v. Henry, [2002] N.S.J. No. 113 (C.A.), sentences of 3 – 4 years were imposed for one-punch manslaughter convictions. The offenders either had no criminal record (Hickey and Henry) or an unrelated one (Isenor). Various aggravating factors, and an emphasis on denunciation and deterrence, justified the prison terms. The Ontario Court of Justice in R. v. Braun, [2006] O.J. No. 679 imposed a 30 month custodial sentence for a one-punch manslaughter, reducing it by a remand credit of 14 months.
[67] Mr. Merrimen also provided me with six aggravated assault cases decided by Nova Scotia courts: R. v. Marsman, [2007] N.S.J. No. 222 (C.A.); R. v. MacDonald, [2010] N.S.J. No. 405 (S.C.); R. v. Gaudet, [2009] N.S.J. No. 489 (P.C.); R. v. Moller, [2008] N.S.J. No. 409 (S.C.); R. v. Ashley, [2008] N.S.J. No. 82 (P.C.); and R. v. Kagan, [2008] N.S.J. No. 26 (S.C.).
[68] The Marsman case makes the point that short of culpable homicide, aggravated assault “represents the most serious indictment.” (paragraph 17) Marsman subjected an on-duty police officer to a “vicious beating of short duration.” (paragraph 5) The officer was rendered unconscious and suffered facial bruises and swelling, and several facial cuts that required stitches. Due to a concussion he was off work for six weeks but required only out-patient hospital treatment for his injuries. Marsman’s three-year suspended sentence was overturned on appeal and a conditional sentence of two years less a day was substituted. The Court of Appeal found that Marsman’s rehabilitation had been promoted over the principles of denunciation and deterrence. Mitigating factors were cited: Marsman’s sincere and constant remorse, his lack of adult record, mental illness, and his “overwhelming community support.”
[69] In MacDonald, a significant record for past assaults (five prior convictions – four of them in the preceding 8 years) and injuries from a single punch that required surgery to insert plates and screws into a fractured jaw resulted in a 12 month sentence followed by a year’s probation. The victim suffered permanent nerve damage. MacDonald was convicted of aggravated assault committed while he was going through Dilaudid withdrawal. The Crown sought a period of incarceration between 12 – 18 months.
[70] In Gaudet, a stabbing by a 21 year old, first time offender attracted a sentence of nine months in jail followed by a year’s probation. Gaudet pleaded guilty to two counts of assault in a related but separate incident, and one count of aggravated assault by stabbing. The wounds were not life-threatening but there was a significant loss of blood and one of them was 3 – 4 inches deep and required several stitches. Alcohol appeared to be an issue for Gaudet and he displayed a lack of empathy toward his victim or any “real remorse.” (paragraph 14) However he was a successful community college student. While a period of incarceration was deemed “unavoidable”, the court referred to balancing the “obvious need to see the offender rehabilitated” with the principles of denunciation and deterrence. (paragraph 24)
[71] In Moller, there were guilty pleas by a 23 year old offender to aggravated assault (a blow to the head with a pool ball causing a gash that required medical treatment), assault causing bodily harm (tossing a second victim who attempted to intervene causing her to gash her head) and a breach of a recognizance. Moller’s actions were described as “planned, premeditated violence” that was perpetrated in a private residence. (paragraphs 6 and 16) He was found to have no remorse, and to have made no effort to deal with previously identified alcohol and anger issues. The court however found a “real possibility” of rehabilitation and strong family support was noted. In imposing a two year sentence for the assaults, to run concurrently to each other, Coady, J. took note of there being “very little opportunity for any true rehabilitation of the kind Mr. Moller needs in a provincial facility.” (paragraph 19) This suggests that the minimum federal prison term was preferred by the court over a shorter sentence in a provincial correctional facility in order to secure rehabilitation opportunities for the offender.
[72] In Ashley, a fairly superficial stabbing attracted a conditional sentence of two years less a day. The court took into account Ashley’s guilty plea to aggravated assault, her remorse, her mental health issues and “rotten social background”, her modest progress, lack of related record, and the context-specific nature of the assault.
[73] In Kagan, a conviction for aggravated assault also resulted in a conditional sentence. As a result of an appeal and re-trial, it was four and a half years since the stabbing and Kagan was found to have made positive progress in dealing with his mental health issues. He was functioning independently, and going to university. Rejecting the Crown’s recommendation for 10 months’ incarceration, the court found that a conditional sentence of 12 months with strict conditions reflected denunciation but allowed Kagan to continue his efforts to rehabilitate himself.
[74] Mr. Merrimen also supplied me with three Nova Scotia assault causing bodily harm sentencing cases: R. v. Withrow, [2008] N.S.J. No. 229 (P.C.); R. v. Metzler, [2008] N.S.J. No. 124 (C.A.); and R. v. Sutton, [2012] N.S.J. No. 599 (P.C.)
[75] In Withrow, a punch to the face broke the victim’s false teeth. Additional punches were delivered “while [the victim] was down and unable to defend himself.” In the court’s view it was “not a fight. It was a beating.” (paragraph 4) Withrow had a related criminal record but was highly regarded by his family, friends, and employer. Alcohol was found to be an issue. A conditional sentence was held to be unsuitable because Withrow had skipped out on his sentencing and been a fugitive for a year. A six month jail term was imposed for the assault causing bodily harm followed by 12 months’ probation.
[76] In Metzler, the victim suffered a broken jaw, two damaged teeth, and sustained a permanent scar. Metzler, who delivered one of the punches to the victim’s jaw, was convicted as a party to an “incomprehensible, brutal, unprovoked and random attack…” Alcohol was a factor in the assault. Metzler was 20 years old and employed. He had no criminal record but had breached release conditions. The Court of Appeal upheld his 22 week jail sentence to be followed by 12 months’ probation.
[77] The Sutton case was characterized by a high degree of responsibility for an unprovoked attack and significant injuries. Sutton pleaded guilty to assault causing bodily harm. While highly intoxicated he punched his victim in the face knocking him to the ground, and rendering him unconscious. Sutton and three accomplices further assaulted him for about 30 seconds. The victim’s injuries included a concussion that kept him off work for 2 weeks, damage to his teeth, and a cut that required stitches. Sutton, aged 20, accepted responsibility, had the support of his family, and was a highly-regarded employee. He had no prior record. Tax, P.C.J. tempered denunciation and specific and general deterrence with restraint, imposing a sentence intended to promote Sutton’s rehabilitation and his sense of responsibility for the offence. He noted that one-punch assaults all too often end in tragic consequences. He imposed a 90 day intermittent jail sentence followed by two years’ probation. He observed that straight jail time would likely cause Sutton to lose his job.
[78] Whatever else the cases illustrate, they make it apparent that each case is unique. Offenders are unique as are the facts that bring them before the courts, even if there are common threads, such as immaturity, poor judgment, and alcohol. Certain aggravating features seen in other cases are not present here: Mr. MacNeil was not on bail or probation at the time of these assaults. He was not out looking for trouble or a participant in a collective attack. These assaults were not planned or premeditated acts of violence. There was no prolonged interaction: everything happened very quickly. No weapons were used. Mr. Myketyn and Mr. Clarke were not targeted as occurred in R. v. Woodward, [2011] B.C.J. No. 964 (C.A.), a case supplied by the Crown, where Woodward sucker-punched a man he perceived to be gay, causing him to sustain catastrophic brain injuries. Woodward’s sentence of six years was upheld on appeal.
[79] There are strongly mitigating factors in this case. Most important are those that support Mr. MacNeil’s rehabilitation. It is his full rehabilitation that will most effectively protect the public. That fundamental sentencing objective cannot be lost sight of. Mr. MacNeil has gained greater insight into his issues, which includes his recognition that he cannot drink. He has a committed and supportive family. He has embarked upon the necessary training for a career in carpentry and he is resolved to pursue his goal of becoming a fully qualified carpenter.
[80] Mr. MacNeil’s mental health issues, while relevant in my view in the determination of his sentence, are of significance primarily because there is a possibility his mental health played a role in these assaults. I observed in my trial decision that when Mr. Clarke came on the scene, Mr. MacNeil was already edgy. Some of this edginess may have been contributed to, as Dr. Theriault suggests, by the effects of alcohol, the potential interaction between the alcohol and the Cipralex, and the possibility of a pre-existing drug induced mood disturbance related to the use of the antidepressant. In Dr. Theriault’s opinion it is appropriate to consider Mr. MacNeil’s actions in light of these factors. This opinion has not been challenged and should be given weight.
[81] However Mr. MacNeil’s mental health cannot be permitted to obscure his moral culpability for the assaults on Mr. Clarke and Mr. Myketyn. It would be unhelpful to the cause of Mr. MacNeil’s rehabilitation if he or anyone else were to treat his mental health as the primary reason behind his use of violence. There are no indications that Mr. MacNeil has interpersonal difficulties in other aspects of his life: what his conflicts with the law reveal is that he has unresolved problems with alcohol and aggression. I have no reason to doubt the decent people who have supplied positive testimonials, but their experience of Mr. MacNeil only goes so far. He is not only the person whom they have described, he is also the person who is capable of punching people and injuring them, as he did in 2008 and again in 2011. It may have been out of character in 2008: it isn’t out of character anymore. Mr. MacNeil cannot rehabilitate himself until he is prepared to confront that fact and overcome whatever it is that has caused him to resort to violence. I see no reason why he should not be able to do so.
[82] It will also be counter-productive to Mr. MacNeil’s efforts to rehabilitate himself if he is viewed as having been “in the wrong place at the wrong time.” There were a number of people in that same place on August 26, 2011 but only Mr. MacNeil used violence. His family and friends need to acknowledge that and hold Mr. MacNeil to account if they are going to provide truly effective support.
[83] The assaults on Mr. Clarke and Mr. Myketyn were very serious. This could so easily have been a manslaughter sentencing. If the singular focus for this sentencing was denunciation and deterrence, a sentence above the minimum term of federal incarceration could be justified although, having reviewed the cases I discussed earlier, I find that five years, as urged by the Crown for Mr. Myketyn’s aggravated assault, would be outside the range. But I believe it would be a mistake if I permitted denunciation and deterrence to structure my discretion without the leavening effects of rehabilitation. The mitigating factors in this case have to mean something; they have to contribute to a sentence that achieves all of the objectives emphasized in section 718 of the Criminal Code.
[84] I have determined that a five year sentence is the appropriate sentence here but not as a five year sentence of incarceration. After evaluating and weighing the sentencing principles applicable to this case, and the aggravating and mitigating factors, and taking into account the time that Mr. MacNeil has spent in pre-sentence custody, I have concluded that the most appropriate sentence is a federal term of imprisonment for two years representing the denunciation and deterrence that should be emphasized in this case, followed by three years of probation under strict conditions aimed at supporting Mr. MacNeil’s rehabilitation when he returns to the community. It is indisputable that Mr. MacNeil’s best opportunities for rehabilitation – the support of, and exposure to, his family, the pro-social benefits of education and employment, and access to individualized therapeutic services, lie in the community. These benefits would be unduly delayed by a lengthy prison term.
[85] On the charge of aggravated assault I sentence Mr. MacNeil to two years in prison followed by three years’ probation. On the charge of assault causing bodily harm, I sentence Mr. MacNeil to a twelve month concurrent term of incarceration followed by three years’ probation, both sentences to be served concurrently. I will repeat what I said earlier, in imposing these sentences I have taken into account the fact that Mr. MacNeil has been in custody for some time now already.
[86] I am also granting the ancillary orders sought by the Crown: a mandatory weapons prohibition for life pursuant to section 109(3) of the Criminal Code and a DNA order for primary designated offences pursuant to section 487.051 of the Code. I waive the Victim Surcharge as it would be an undue hardship to impose it as Mr. MacNeil is being incarcerated.
[87] As for the terms of Mr. MacNeil’s probation order, he shall be subject to the statutory terms and conditions: 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. I am going to direct that Mr. MacNeil is to appear before me or another judge of this court to advise as to his progress under his probation order, his first appearance to be four months after his release from prison.
[88] As for the optional conditions of the probation order, Mr. MacNeil will be required to: (1) report to the probation office at 277 Pleasant Street in Dartmouth within 5 days of your release from prison 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 Brett Myketyn or Jonathan Clarke; (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) not to be in any place where alcohol is sold as a primary product; (7) attend for assessment, counseling, and treatment in relation to anger management, as directed by your probation officer; (8) attend for assessment, counseling, and treatment in relation to substance abuse, as directed by your probation officer; (9) attend for assessment, counseling, and treatment in relation to mental health, as directed by your probation officer, including psychological or psychiatric assessment, counseling, and treatment; (10) participate in and cooperate with any assessment, counseling or program directed by your probation officer; (11) abide by a curfew, seven days a week, from 10:30 p.m. – 6 a.m., with the following exceptions: for a medical emergency involving you or a member of your household or with the written permission of your probation officer for other purposes approved in advance by your probation officer; (12) 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.
[89] Mr. MacNeil, this is not a lenient sentence. You are going to prison. You will be under state control and supervision for the next five years. You will be expected to work hard on your issues and your rehabilitation over that time. This will require you to be brutally honest with yourself, resolute, and disciplined. You must spare no effort. You are extraordinarily fortunate to have what it takes to succeed, both within yourself and with the support and encouragement of your family, friends, and community.