R. v. Stewart, 2011 ONCJ 617

Citation: R. v. Stewart , 2011 ONCJ 617 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — PHILLIP STEWART Before Justice H. Borenstein Heard on October 17 and November 22, 2011 Reasons for Sentence released on December 1, 2011 Mr. D. Theman .......................................................................................................... for the Crown Ms. S.

Boydell ..................................................................................................... for Phillip Stewart BORENSTEIN J.: [ 1 ] Phillip Stewart is to be sentenced today in relation to eleven offences committed on five different days. [ 2 ] He is 38 years old with a lengthy criminal record consisting of over 50 entries. He has breached more than 18 Court Orders and has many other entries on his criminal record including entries for crimes of violence, including domestic assaults. His record spans from 1987 to 2011 with little interruption. [ 3 ] Mr.

Stewart appeared for trial in October charged with eleven offences, ten of which related to his girlfriend Beth Webber. Those offences occurred on July 1, 2011. That was the date Ms. Webber gave birth to their child. [ 4 ] As to what occurred on July 1, Mr. Stewart was out of his residence and in the apartment of Ms. Webber. However, he was bound by two separate Probation Orders prohibiting him from having any contact or communication with Ms. Webber and prohibiting him from attending any place he knew her to be. One of those Probation Orders allowed contact with Ms. Webber with her consent. The other did not.

Mr. Stewart was also on bail with a condition prohibiting him from communicating with Ms. Webber. His bail also placed him on “house arrest” subject to certain exceptions, none of which applied that day. Mr. Stewart failed to appear in Court in relation to those outstanding charges. [ 5 ] Ms. Webber was about to go to the hospital to deliver their baby. Mr. Stewart would not accompany her to the hospital fearing he would be arrested. Ms. Webber went to the hospital alone. From the hospital, she called the police and told them that Mr.

Stewart was in contact with her, that he was at her home and she alleged that he committed other offences in relation to her such as theft, assault, unlawful entry and criminal harassment. The police attended the apartment and arrested Mr. Stewart. He has been in custody since that time. Taking other periods of detention into account, he has been in custody for eight and a half months. [ 6 ] In October, Mr. Stewart’s trial began on those eleven charges. The Crown proceeded by indictment. The complainant testified that she consented to the contact with Mr.

Stewart that day and that he did not commit any other offences. After the complainant’s evidence, on consent of the Crown, Mr. Stewart agreed to plead guilty to the failing to appear in Court, two counts of breaching his recognizance in relation to the house arrest condition and communicating with Ms. Webber and two counts of breaching his Probation Order by associating with Ms. Webber and being in a place he knew her to be (that last count will be conditionally stayed pursuant to Kienapple ). The other charges were dismissed on consent. [ 7 ] Counsel requested a pre-sentence report.

The sentencing was adjourned for the preparation of the report. Mr. Mark Nikolic, a probation officer, prepared the pre-sentence report. This was the first time a pre-sentence report was prepared in relation to Mr. Stewart since he has been an adult. This despite the some 50 entries on his record from 1987 onward. [ 8 ] On the return date, I was advised that Mr. Stewart wanted to waive in charges from Kitchener and plead guilty to those as well. They had already been set for trial. That was arranged. On the next return date, Mr.

Stewart plead guilty to the following additional charges: Two counts of assault, one count of uttering a threat to cause death and one count of possessing a weapon for a purpose dangerous to the public peace. Those four offences all occurred on March 21, 2010. He also pleaded guilty to breaching a recognizance on November 2, 2010 by consuming alcohol and another recognizance on June 4, 2011 by again communicating with Beth Webber.

[ 9 ] Turning to the March charges, Mr. Stewart was involved with a different woman, coincidentally named Weber: Stephanie Weber. He was at Ms. Weber’s home. Her 12- and 6-year-old children were there as well. Mr. Stewart was drinking. He and Ms. Weber argued. She told him to pack his bags and move out. He packed and they continued arguing. She wanted her keys back. He would not return them. She stood by the door preventing him from leaving until he returned her keys. He grabbed her arm and threw her from the doorway with such force that her body fell into a bookshelf. Ms.

Weber’s 12-year-old son saw this and tried to help his mother. Mr. Stewart kicked the son. Those are the two assaults. Mr. Stewart then went to a local bar. Ms. Weber called him wanting her keys returned. He told her he had thrown her keys in her backyard. She looked but could not find them. She asked three friends, two men and a woman, to go to the bar and get her keys back. They went to the bar. The female asked Mr. Stewart for Ms. Weber’s keys. He told her that he had thrown them behind the bar. He then went over to the two men and an argument followed. Mr.

Stewart picked up a knife and waved it in their faces saying he would kill them. He has pleaded guilty to that threatening count and to possessing the knife for a purpose dangerous to the peace. [ 10 ] He is to be sentenced on all of these charges. [ 11 ] A victim impact statement was presented by Stephanie Weber where she describes the effect Mr. Stewart’s conduct had on her and continues to have on her children. Her son, now 13, blames himself for not being able to protect her. He is angry and withdrawn. Her seven-year-old daughter is also affected and fears when her mother is out of her sight.

Stephanie Weber herself has felt overwhelmed coming to terms with the assault. [ 12 ] Mr. Stewart is 38 years old. He has a new baby with Beth Webber. He has an extensive criminal record. [ 13 ] The pre-sentence report prepared by Mr. Nikolic is one of the most thoughtful, compassionate and realistic reports I have read. It provides a great deal of information and insight into Mr. Stewart’s life. I will refer to it extensively. [ 14 ] Mr. Stewart was the only child born to his mother and father. He never knew his father. After Phillip’s birth, his mother married Raymond Stewart who was the only father figure Mr.

Stewart had known. He has two half siblings. [ 15 ] The pre-sentence report portrays a life that was marked by upheaval and instability from the start. At the age of five, his mother left the children alone while she went out drinking. The damage caused to Phillip was only beginning. All three children were placed in the care of the C.A.S. for the several months. They then returned home. [ 16 ] A year and a half later, Phillip’s mother re-married. She did not want the children to be part of her new relationship. Raymond Stewart took custody of Phillip and his two siblings.

Due to Raymond’s own battle with alcoholism, 18 months later, the children were back in care of the C.A.S. [ 17 ] The pre-sentence report alludes to an allegation that Phillip Stewart suffered sexual abuse after his involvement with C.A.S. [ 18 ] When Phillip turned nine, he became a Crown ward. His two siblings returned to their mother’s care but Phillip did not. He could not understand why he too was not going home. Mr. Stewart’s sister Phyllis told Mr. Nikolic that Phillip’s behavioural problems by this point were to such an extent that C.A.S. would not release him into his mother’s care.

Phyllis thinks Phillip may have been the luckier one as she herself asked to be placed back into foster care. [ 19 ] For the next six or seven years, Phillip rarely stayed in one home for more than six months at a time. He states that he has next to no positive memories of those years with one exception. He felt wanted in one foster home he was living in when he was 12. Sadly, he was removed, apparently due to his behavioural problems. [ 20 ] Mr. Stewart began using drugs when he was 15 years old. He left high school before graduating. He has been addicted to a host of hard drugs since then.

His substance abuse has held him back. He has tried counselling from time to time but needs more help. He is not motivated to follow through with any help that has been offered to him through probation over the years. He becomes belligerent if not violent when using drugs or when he is intoxicated. That is a problem that has plagued him throughout his life, all of which have contributed to this rather massive criminal record. [ 21 ] At 16, Phillip returned to live with his mother. Despite how he had been treated, he naturally craved family contact.

This reunion lasted less than a year and Phillip moved out and began living on the streets in Toronto. [ 22 ] Around that time, he had a five-year romantic relationship. This was a particularly positive time for Phillip. It provided him with a sense of family and a sense of stability. That relationship ended after five years. [ 23 ] When Phillip was 26, he enrolled in part-time classes to obtain his high school diploma. When he turned 30, he obtained his Ontario Secondary School Diploma. He obtained a certificate as a welder from the Institute of Technical Trades in 2010.

He has worked in construction and renovation and even started his own business. His work has been sporadic over the last few years. [ 24 ] According to Phillip’s sister Phyllis, her brother has had trouble with authority his whole life. He doesn’t like to be told what to do. Given his life experience, that is not altogether a surprise. [ 25 ] Nonetheless, he has to deal with his past and move forward. [ 26 ] Unfortunately for all of us, and unfortunately for Mr. Stewart himself, he has shown little desire to address his addictions. He is disdainful of supervision.

He knows what his triggers are: alcohol, substance abuse, and how it underlies his criminal behaviour. But he has not addressed it. [ 27 ] A year and a half ago, he met Beth Webber and they immediately became a couple. As noted earlier, they had a baby on July 1 of this year.

[28] He has now been in custody for 8 ½ months. That is considerably longer than ever before. [29] What then, is the fit sentence for Mr. Stewart for all of these offences. [30] The Crown submits that public safety is the paramount consideration. The Crown acknowledges the tragic background ofMr. Stewart but submits that Mr. Stewart has chosen not to try to help himself and the time has come for his rehabilitation to be less of afocus of sentencing. The Crown submits that Mr. Stewart should receive a global sentence of just over two years for these offences.Given the pre-trial custody, the Crown submits that Mr.

Stewart should be sentenced to a further 15 to 19 months in custody followed byprobation. [31] The defence submits that Mr. Stewart should be sentenced to probation. He has served enough time in custody. [32] The principles of sentencing are well known. They all aim to protect the public. The Court has to consider deterrence,denunciation and rehabilitation. How those factors are weighted will differ in case to case depending on all the circumstances. [33] Court Orders must be respected. Repeated acts of violence and threats cannot be ignored. Specific deterrence isparamount in this case. In this case, Mr.

Stewart needs to get the message that, continuing to violate the law will result in seriousconsequences. The other sentencing principles including denunciation remain important. However, ultimately, rehabilitation will be whatwill begin to redress the problem. The Crown submits that, at this point, the Court should not put any weight on rehabilitation. Mr.Stewart has up on himself and the Court should now be concerned about protecting. [34] However, while specific deterrence is the primary factor in this sentencing, it should be clear that Mr.

Stewart’srehabilitation is very much a concern for the Court as well. [35] The primary aggravating features of this care are: the violence done to Ms. Weber in front of her son, the assault on hisson, the threats and possession of knife used when threatening Ms. Weber’s friends. [36] Crimes of violence are always concerning. Mr. Stewart’s actions that day left Stephanie Weber and her children scaredand insecure. Of all places, a woman should feel safe in her home, safe from violence by the partner. So should her children. [37] The number of breaches of Court Orders is also extremely aggravating. Mr.

Stewart did not simply breach one CourtOrder or two, but five Orders that day in Toronto. Further, he breached two further Orders in Kitchener. [38] His conduct and his record compel me to conclude that Mr. Stewart has absolutely no respect or regard for Court Orders. [39] His record is also aggravating in this case. Not only is he not a first offender, he does not even try to control hisbehaviour. [40] There are many aggravating features to this case. [41] There are some mitigating features in this case as well. [42] He has pleaded guilty to these offences.

While the plea occurred during the trial, I do not consider this to be a late pleagiven that the Crown then withdrew most of the charges Mr. Stewart was facing. [43] Further, while awaiting sentence, Mr. Stewart decided to waive in a host of charges that had already been set for trial, andplead guilty to those as well. That is an indication of some remorse or possibly insight. [44] Despite the tragic start to his life, Mr. Stewart has shown himself and others that he is capable of succeeding. He hasmade progress. However, when things go badly, when he drinks, he becomes violent and threatening.

When things disappoint him, heseems to feel entitled to become violent, or to treat Court Orders as though they are meaningless. Mr Stewart’s habit of excusing hisbehaviour not only threatens the safety of others, it also prevents him from moving forward with his life and living the life he wants, iscapable of achieving and certainly deserves. That is the tragedy in this case. [45] I adopt the following words from the British Columbia Court of Appeal in R. v.

Mitchell (1990), (BCCA), 54 C.C.C. (3d) 132, which eloquently expresses my view of the circumstances of this case: It appears self evident to us that in any population there will be some disadvantaged members who, for many reasons, are likely to fall, ormore likely drift, into a life of idleness and crime.

Society must be protected from them as best it can, but in some cases it is unrealistic tothink that some of these unfortunate persons can be rehabilitated once the cycle starts, by successive and increased periods ofimprisonment, especially when, upon release, they are returned to the same environment, lifestyle, frustrations and temptations whichcontributed to their misfortune in the first place. [46] The Court then continues: Some of these persons are able to overcome their disadvantages, some may be able to benefit from the disciplines which societyimposes by imprisonment or otherwise, (although I suspect their number is small if not minuscule), but many, of which I suspect theaccused is typical, are not capable of reforming themselves.

For them, each sentence, including those of increasing severity, are onlystages of the cycle that, if allowed to continue, will probably become permanent, so that a life, which is always precious, becomeswasted. [47] Mr. Stewart has been in custody for 8 ½ months, longer than he has ever been before. That is a factor to be considered aswell. The longest period Mr. Stewart has ever served in custody before was six month in 1994. [48] Balancing all of these considerations as best I can, it is my view that the following sentence would be fit.

[ 49 ] Six months concurrent for the assaults and threatening from Kitchener. [ 50 ] One month consecutive for each of the Kitchener breaches of your recognizance. [ 51 ] With respect to the four breaches from Toronto that you remain to be sentenced on, you will be sentenced to a total of four months in jail, consecutive to the eight months in Kitchener. Therefore, the total sentence will 12 months in jail.

In my view, that sentence is at the very bottom end of what I consider acceptable sentence in view of all the circumstances. [ 52 ] I will reduce that sentence by eight and a half months in light of the pre-trial custody. Accordingly, your global sentence, as of today will be another three and a half months. To be exact, you will be sentenced to 105 further days in custody. There will also be an Order that you provide a sample of your DNA and a lifetime weapons prohibition. [ 53 ] Following your release from custody, you will then be placed on probation for 18 months.

You will be subject to the mandatory terms of probation. In addition, you will subject to the following additional terms of probation: report twice weekly to probation.

Reporting can be by telephone unless the probation officer directs otherwise; take and actively participate in any assessments and counselling for domestic violence and substance abuse recommended by your probation officer and sign all releases to enable your probation officer to monitor your compliance with counselling; not to possess or consume any alcohol or non-medically prescribed drugs; no contact with Beth Webber without her prior, written orally revocable consent. Any contact with Ms.

Webber must be in the continuous presence of another adult until you satisfactorily complete counselling in relation to domestic abuse; no contact or communication with Stephanie Weber or her children and not be within 500 metres of any place you know them to be; not to possess any weapons as defined by the Criminal Code ; you are to appear before me in approximately six months time on an a date to be arranged by probation for an updated progress report; a copy of the pre-sentence report and these reasons are to be given to your probation officer. Released: December 1, 2011 Signed: “Justice H. Borenstein”