R. v. Bailey, 2016 ONCJ 662

ONTARIO COURT OF JUSTICE CITATION: R. v. Bailey , 2016 ONCJ 662 DATE: 2016 10 31 COURT FILE No.: Central East Region-Newmarket 14-07136 BETWEEN: HER MAJESTY THE QUEEN — AND — ARTHUR WILLIAM BAILEY Before Justice Peter C. West Submissions as to Sentence Heard on October 12, 2016 Reasons for Sentence released on October 31, 2016 Ms. M. Rumble................................................................. counsel for the Crown Ms. L. Thomas...................... Counsel for the defendant Arthur William Bailey WEST J.: [ 1 ] On April 5, 2016, I found Mr.

Bailey guilty of aggravated assault, mischief under $5000 and 2 counts of breach of probation after a trial. I have set out in detail the facts of this case in my judgment dated April 5, 2016 and do not intend to repeat those facts again. [ 2 ] For the purposes of sentencing I will briefly set out my findings of fact. Mr. Bailey and Mr. Stephens had been friends, on and off again, for 25 years. In September 2014, Mr. Bailey agreed to rent a room in the house he rented to Mr. Stephens. He agreed to do this despite the fact that several months prior to September 2014, Mr. Bailey and Mr. Stephens had argued and Mr.

Stephens had knocked Mr. Bailey unconscious with one punch. There was very little evidence led by either the Crown or defence respecting the history of Mr. Bailey and Mr. Stephens’ friendship and relationship. [ 3 ] On September 29, 2014, Mr. Stephens began moving his personal belongings into Mr. Bailey’s house, while Mr. Bailey was working. After Mr. Bailey arrived home from work a considerable amount of beer was consumed by both Mr. Bailey and Mr. Stephens and a Mr. Callin, a friend of Mr. Bailey’s who was already a tenant.

There were approximately 30 empty cans of beer and a beer keg on the table in the living room. [ 4 ] While they were drinking beer an altercation involving Mr. Bailey and Mr. Stephens occurred, where the two men began to grapple and wrestle with each other and where punches were thrown by both. I did not accept Mr. Bailey’s version or Mr. Stephens’ version of how or why this altercation occurred. The altercation ended with Mr. Bailey telling Mr. Stephens to get out so Mr. Stephens left the residence and went back to his mother’s house, where he had been living. After Mr.

Stephens left the majority of the belongings he had brought into Mr. Bailey’s house were removed and thrown onto the boulevard outside. Exhibit 3A is a photograph, which depicts Mr. Stephens’ belongings strewn across the boulevard and front lawn in front of Mr. Bailey’s house. [ 5 ] Mr. Bailey called Mr. Stephens about an hour and a half after he left the residence to come and pick up his belongings which had been removed outside. I found Mr. Bailey knew Mr. Stephens would be upset when he saw how his belongings were broken and strewn across the boulevard and front lawn. Mr. Stephens told Mr.

Bailey he was coming to retrieve his belongings. [ 6 ] Despite knowing Mr. Stephens would be very upset by what Mr. Bailey and Mr. Callin had done to his belongings, the front

door to the house remained unlocked. I found Mr. Bailey obtained a knife from his kitchen, as there were a number of knives, in differentplaces, on the floor, counter and table. It appeared from the photographs Mr. Bailey had gone to the kitchen when he realized Mr.Stephens had arrived and armed himself with a knife. I found he then went to the hallway where the front door was located and waitedfor Mr. Stephens to enter the house. He did not lock the front door. He did not call the police if he was concerned about Mr. Stephenscoming into his house to assault him because of what he had done to Mr.

Stephens’ belongings. [7] The altercation at the front door, just inside the house in this hallway lasted only a matter of minutes. Mr. Stephens admitted hewas extremely angry when he saw the manner in which his belongings were thrown onto the front lawn and boulevard. He exited thepassenger’s seat from his mother’s truck and ran to the front door. He testified he was going into the house to assault Mr. Bailey. WhenMr. Stephens entered the front door, Mr. Bailey was right there in the hallway. They began to grapple with each other and they both fellto the ground. I found Mr.

Bailey either used the knife to stab Mr. Stephens as they were falling to the floor or while Mr. Stephens wason top of Mr. Bailey trying to hold him down. [8] I did not accept Mr. Bailey’s evidence he found the knife in the hallway or that he stabbed Mr. Stephens when Mr. Stephens wason top of Mr. Bailey “speed banging” him. Mr. Bailey did not have any injuries which would be consistent with Mr. Stephens repeatedlypunching him in the face and head and consequently, I found Mr. Stephens did not repeatedly punch Mr. Bailey in the head and face. [9] I found that Mr. Bailey locked the front door after stabbing Mr.

Stephens and after Mr. Stephens left the residence. Mr. Baileybroke the knife he used to stab Mr. Stephens and hid the blade in the back of the toilet, which was discovered by the police after theexecution of a search warrant. Mr. Bailey broke and hid the knife blade knowing the police were obtaining a warrant for his arrest and awarrant to search his house. [10] As I indicated above, I found that Mr. Bailey lay in wait for Mr. Stephens to come into his house, armed with a knife. Mr. Baileywas fully aware when Mr.

Stephens came through the unlocked front door he would be unarmed. [11] At the time of this incident, Mr. Bailey was on probation with terms of not to consume alcohol and to keep the peace and be ofgood behavior. As a result of his conviction for aggravated assault, Mr. Bailey was found guilty of the two breaches of probationcharges. I found Mr. Bailey was guilty of the charge of assault with a weapon but stayed that charge due to the principles set out inKienappple (1974), (SCC), 15 C.C.C. (2d) 524 (S.C.C.). I found Mr. Bailey was involved in trashing Mr.

Stephens’belongings by throwing them on the front lawn and boulevard and thereby was guilty of the mischief under charge. Position of the Parties [12] Ms. Rumble is seeking a sentence of two years less a day on the aggravated assault, four months concurrent on the mischiefunder $5000 and six months concurrent on the two counts of breach of probation. [13] In addition, the Crown is seeking the following ancillary orders: a DNA order, pursuant to s. 487.051(1) of the Criminal Codeand a weapons prohibition, pursuant to s. 109 of the Criminal Code for life.

It is the Crown’s position the jail sentence should befollowed by 3 years of probation with conditions as set out in the pre-sentence report (PSR). [14] The defence submits the appropriate sentence is 5 months, less credit given for pre-trial custody. Mr. Baily spent 42 days in pre-trial custody and on a 1.5 to 1 basis he should be given credit of 63 days. The defence agrees there should be a period of probation forthree years, with conditions to assist Mr. Bailey deal with his alcohol addiction. Background of the Offender [15] Mr. Bailey is 41 years of age and is the father of 5 children.

He has been involved in two long term relationships, the first for 13years and the second for 10 years, both of which have ended. He has two daughters, age 17 and 16 from his first relationship and threedaughters from his second relationship, 8 year old twins and a 4 year old. The PSR reflects Mr. Bailey is currently behind in his monthlysupport payments and he advised the probation officer he believes the sum is in excess of $30,000. He apparently anticipates declaringpersonal bankruptcy for the second time. [16] Mr.

Bailey is currently living with his mother, Judy Linley, who was a Canada Postal worker for 25 years, now retired. Ms.Linley attended court throughout Mr. Bailey’s trial and sentencing hearing and indicates in her letter (Exhibit 4, Tab 1) that she is verysupportive of her son. Mr. Bailey’s parents divorced when he was 20 years of age. His father is currently 83, living in a nursing homeand is quite ill. His mother remarried and his step-father died in June 2016. [17] Mr. Bailey’s mother, Judy Linley; his 17 year old daughter, Hunter; and his former girlfriend of 10 years, Katharyn Alston, alldescribe Mr.

Bailey as having a serious alcohol addiction. All of these individuals indicated Mr. Bailey needs alcohol counselling andtreatment. According to Ms. Linley, Mr. Bailey’s problems with alcohol arose as a result of his second daughter being diagnosed with abrain tumour in 2004. The stress of his daughter’s illness according to the PSR led to his first relationship ending. [18] Mr. Bailey completed high school at Manitoulin Secondary School. Mr. Bailey has been gainfully employed first with a truckingcompany, 2 years and then began working as a roofer.

His first roofing job lasted 6 years and he has worked with Clarence’s Roofing,where he is currently employed, for the past 5 years. Mr. William Clarence was contacted by the probation officer and he describes Mr.Bailey as a “hard worker” who gets along well with co-workers. Currently Mr. Bailey works in a supervisory role. According to Mr.Clarence there have been no issues involving Mr. Bailey missing work or coming to work under the influence of alcohol. If Mr. Baileywas incarcerated Mr. Clarence advised there would be a job waiting for him upon his release. [19] Mr. Bailey has an extensive criminal record:

Gore Bay 01/16/1995 1. Mischief 2. Assault 3. Cause disturbance 4. Fail to comply with disposition 1-2. 18 months’ probation and a $200 fine 3. $50 fine 4. $100 fine Brampton 04/29/1997 Drive Ability Impaired $400 fine, 12 month prohibition Brampton 09/11/2000 Robbery 18 days intermittent & 1 year probation (10 days PTC) & s. 109 order (10 years) Newmarket 08/17/2006 Fail to Comply Recognizance 15 days intermittent & 1 year probation Newmarket 04/16/2007 1. Assault 2. Uttering threats 3. Fail to comply recognizance x3 4. Mischief under 5. Fail to Comply Probation x2 6.

Impaired Driving 1-5. 30 days intermittent & probation 2 years (56 days PTC) 5. $700 fine & prohibition 1 year Newmarket 12/17/2008 1. Uttering Threats 2. Breach of Probation 30 days intermittent & probation 18 months Newmarket 07/19/2010 1. Assault 2. Fail to comply probation 3. Obstruct Peace Officer 4. Fail to comply recognizance 1-2. 7 days & 18 months’ probation (3 days PTC) 3-4. 7 days consec & 18 months’ probation conc (4 days PTC) Newmarket 04/19/2011 Assault 24 days intermittent & probation 2 years & s. 110 order 5 years (6 days PTC) Newmarket 05/06/2013 1. Assault 2. Mischief under 3.

Uttering threats 1. $500 fine & s. 110 order (10 years) & DNA 2-3. Suspended sentence & probation 18 months Newmarket 02/18/2016 1. Assault 2. Fail to comply recognizance 3. Fail to comply recognizance 4. Fail to comply recognizance 5. Disobey lawful order 1. Suspended sentence & probation 3 years, surcharge $100, s. 110 order (5 years) & DNA 2-4. Suspended sentence & probation 3 years, $100 each charge consec, (120 days PTC on Ct. 2), & (170 days PTC on Ct. 3) 5. Suspended sentence & probation 3 years, surcharge $100, s. 110 order (3 years) & DNA [ 20 ] A letter was provided by Ms.

Thomas in Exhibit 4, Tab 4 that reflects Mr. Bailey completed an assessment at Addiction Services of York Region on October 1, 2016. On March 10 and 24, 2016, Mr. Bailey attended an agency on Manitoulin Island that specializes in dealing with substance abuse issues for assessment. He advised the probation officer he intended to enter a 35 day residential treatment program when he was interviewed for the PSR but he did not follow through with his application. [ 21 ] Mr.

Bailey advised he has attended a few sessions with Addictions Services of York Region in the past, as well as attending the PAR program a “couple of times,” although according to the PSR, Mr. Bailey never completed any of the alcohol programs he was ordered to enter and only completed the PAR program once. He cited his work

schedule as the reason he was unable to complete these

counselling sessions, although the PSR reflects Mr. Bailey is off work in the winter and did not utilize this time to complete these programs. [ 22 ] The PSR reveals the probation officer’s report from 1996 is as relevant today as it was then, when it expressed concerns over Mr. Bailey’s alcohol use as well as anger problems when he is under the influence of alcohol. Mr. Bailey’s alcohol abuse is a common theme and cause relating to his extensive criminal record. The probation officer who prepared the PSR concluded from Mr.

Bailey’s previous probation orders that he has not approached his addiction to alcohol seriously and has never completed a treatment program. Mr. Bailey has not attempted to understand the underlying reasons behind his consumption of alcohol to excess and the probation officer indicates, “The flippant manner in which [Mr. Bailey] describes his alcohol use is unsettling and he does not appear to be reflective of a person who wants to change his pattern of use.” (p. 8 PSR) Mitigating Factors [ 23 ] The defence concedes there are very few mitigating factors that can be referred to in this case. Mr.

Bailey has indicated he wants to address his alcohol addiction; however, his track record for the past 20 years is abysmal. [ 24 ] On a positive note, Mr. Bailey has been gainfully employed for over 11 years as a roofer. He is described as a “hard worker” and his current employer is prepared to employ him after Mr. Bailey is released from custody. He is also described in the PSR as a good father when he is with his children; however, he is significantly in arrears in his child support obligations. Aggravating Factors [ 25 ] Mr. Bailey obtained a knife from his kitchen, having advised Mr.

Stephens to come to the house to pick up his belongings as they had been put outside. He knew Mr. Stephens was coming to the house and would be very upset and angry as a result of what Mr. Bailey and Mr. Callin had done to Mr. Stephen’s belongings. It is my view this is an aggravating circumstance, particularly because Mr. Bailey was also aware Mr. Stephens was unarmed. [ 26 ] Further, I found Mr. Bailey obtained the knife, went to the hallway and waited for Mr. Stephens to enter the house. I found Mr. Bailey, in effect, was lying in wait of Mr. Stephens. Mr.

Bailey had plenty of time to lock his front door if he was concerned about Mr. Stephens’ reaction to finding his clothing and furniture strewn all over the front lawn and boulevard yet the front door of the house was unlocked. This in my view is also an aggravating factor. [ 27 ] Mr.

Bailey has an extensive criminal record, which includes six previous convictions for assault; a conviction for robbery, which is an offence of violence; three prior convictions for mischief under; five convictions for breach of a probation order; eight convictions for failing to comply with a recognizance and a conviction for disobeying a court order, all from 1995 to 2016. His record reflects convictions for similar offences. He was on probation at the time these offences were committed. In my view these are all aggravating circumstances. [ 28 ] A further serious aggravating circumstance is that Mr.

Stephens suffered physical injuries, which required stitches to close the wound. He suffers from lasting nerve damage to his arm as a result of the stab wound to his left elbow. In his Victim Impact Statement, Exhibit 2, Mr. Stephens describes having no strength in his left hand and pain when he moves his left fingers. He takes medication to help him deal with the pain he experiences. Mr. Stephens is a welder by trade and has worked in that industry for 25 years. As a result of the injury caused by Mr. Bailey, Mr. Stephens is unable to use both of his hands to weld.

He is only able to perform his work by using his right hand, which has caused him to become concerned about losing his employment. He advised in the VIS he lost the job he had prior to being stabbed because he was unable to keep up with the pace the job he was working on demanded. Analysis [ 29 ] Under s. 718 of the Criminal Code , the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing a just sanction. Any sanction imposed must be the result of a fair and balanced consideration of the need to: (

a) Denounce the unlawful conduct; (

b) Deter the offender, and others, from committing such an offence; (

c) Separate the offender from society, where necessary; (

d) Assist in the rehabilitation of the offender; (

e) Provide reparation for harm done to “victims”, or the community; and (

f) Provide a sense of responsibility in the offender, while acknowledging the harm done to the “victims” and the community. [ 30 ] According to s. 718.1 of the Code , the "fundamental principle" of sentencing is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender." [ 31 ]

Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. This

section also requires that a sentence be similar to other sentences imposed on similar offenders in similar circumstances, that the combined duration of consecutive sentences not be unduly long, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered. [ 32 ] I was provided a number of cases by the Crown and defence, which set out some basic considerations in determining the

appropriate sentence in an aggravated assault case. The principles of deterrence and denunciation are the paramount sentencingprinciples to be applied, unless exceptional circumstances exist. The offence, contrary to s. 268 of the Criminal Code, carries a maximumsentence of 14 years imprisonment.

Sentences for aggravated assault range from suspended sentences to low reformatory sentences,where there are exceptional or extenuating circumstances; to high reformatory sentences of 18 months to 2 years less a day, where thecase contains some elements suggestive of a consent fight but the accused resorted to excessive force; to penitentiary sentences of four toten years, where the aggravated assault was “unprovoked” or “premeditated” assaults with no suggestion of consent or self-defence.

Theinjuries suffered by the victim range from relatively minor injuries involving sutures and no lasting effects to injuries requiring surgeryand long lasting effects and impact on the victim (see R. v. Tourville, 2011 ONSC 1677 , [2011] O.J. No. 1245 (S.C.J.); R. v.Moreira, (ON SC), [2006] O.J. No. 1248 (S.C.J.); R. v. Caster, [2016] O.J. No. 2141 (O.C.J.); R. v. Fernendes,[2000] O.J. No. 5064 (S.C.J.); R. v. Mann, [2006] O.J. No. 2446 (S.C.J.); R. v. Mann, 2007 ONCA 146 , [2007] O.J. No. 802(C.A.); R. v. Pulido, 2010 ONSC 3143 , [2010] O.J. No. 2282 (S.C.J.); R. v. Basilio, (ON CA), [2003]O.J.No. 1114; R. v.

Pangan, [2014] O.J. No. 3340; and R. v. Vang, (ON CA), [1999] O.J. No. 91 (C.A.)). [33] The longest sentence ever imposed on Mr. Bailey is 290 days of pre-trial custody in 2016 for offences involving assault, 3 countsof fail to comply with recognizance and disobey a court order. These offences occurred while Mr. Bailey was on bail respecting theaggravated assault, assault with a weapon, mischief under and two counts of probation charges I found him guilty on after trial.

TheCrown argues these most recent convictions are relevant to the issue of whether rehabilitation has much application in determining anappropriate sentence for Mr. Bailey’s conduct. Previous to this, the longest jail sentence served by Mr. Bailey was 86 days, whichincluded 56 days of pre-trial credit and a 30 day intermittent se3ntence. However, Mr. Bailey has an extensive criminal record spanning21 years, which is set out above. [34] As I have indicated, the paramount sentencing principles in this case are deterrence, both specific and general, and denunciation.Mr.

Bailey’s extensive record demonstrates he has not learned from his 21 years of involvement with the administration of criminaljustice. As I indicated above there are a number of aggravating circumstances that in my view, call for a reformatory sentence in theupper range. To reiterate the aggravating circumstances: 1. Mr. Bailey has an extensive criminal record for similar offences and was on probation at the time of these offences being committed; 2. Mr. Bailey obtained a knife from his kitchen knowing Mr.

Stephens was coming to his house and would be upset when he saw hisbelongings trashed on the front lawn and boulevard; 3. Mr. Bailey waited for Mr. Stephens to enter the house armed with the knife he obtained, knowing Mr. Stephens would be unarmed; 4. Mr. Bailey used the knife to stab Mr. Stephens either when they were both grappling in the front hallway or after they fell to thefloor; and 5. The injuries suffered by Mr. Stephens required sutures to close the wound to his left elbow and he has suffered lasting nerve damage,which affects his ability to perform his job as a welder. [35] Mr.

Bailey was under the influence of alcohol at the time he committed these offences. I was advised most of his record reflectshis serious addiction to alcohol. Mr. Bailey has been on numerous probation orders, which have included terms he attend for alcoholcounselling and treatment. He has never followed through and complied with those conditions. In fact, I convicted Mr. Bailey of breachof probation charges, one of which dealt with a term not to consume alcohol, on April 5, 2016.

He did not attend for an assessment withAddiction Services of York Region until October 1, 2016, just 11 days before he knew he was appearing in court for his sentencing. Theprobation officer in the PSR raises serious questions as to Mr. Bailey’s sincerity and genuineness concerning his desire to address hisalcoholism. It is my view, having regard to the serious aggravating circumstances outlined above; the principle of rehabilitation musttake a back seat to deterrence and denunciation. Further, the issue of rehabilitation is diminished by Mr.

Bailey’s poor track record indealing with his addiction to alcohol and his failure to accept responsibility for his actions. [36] In determining the appropriate sentence in this case, I am mindful the sentence to be imposed must reflect the gravity of theoffence and the degree of responsibility of Mr. Bailey. Sentencing is an individualized process and an appropriate sentence must betailored to meet the particular circumstances of the offence and consideration of the personal circumstances of the offender.

In my view,the sentence urged upon me by the defence does not address the serious aggravating circumstances present in this case, which call forboth specific and general deterrence. Further, it does not reflect the denunciation necessary considering Mr. Bailey lay in wait for Mr.Stephens armed with a knife knowing Mr. Stephens would be unarmed. [37] The appropriate sentence for the aggravated assault is a custodial sentence of 21 months in the reformatory less credit for pre-trial custody, to be followed by three years’ probation with conditions. I was advised Mr.

Bailey spent 42 days in pre-trial custody forwhich he will receive credit on a 1.5 to 1.0 basis of 63 days. [38] The sentence on the mischief under charge, which refers to the damage of Mr. Stephens’ belongings, is 60 days concurrent to theaggravated assault sentence. The sentence on the two charges of breach of probation is 90 days on each, concurrent to each other andconcurrent to the aggravated assault sentence. Consequently, Mr. Bailey’s remaining sentence is 18 months and 27 days in thereformatory. [39] Although Mr.

Bailey has not done well on probation in the past in terms of dealing with what I believe to be the underlyingcauses of his conflict with the criminal justice system, he has expressed to me he wants the opportunity to demonstrate he has reached apoint in his life where he wants to seriously attempt to tackle and deal with his issues. This is the reason why I am placing Mr. Bailey onprobation with conditions dealing specifically with counselling and treatment for his addiction to alcohol, as well as his anger issues, toassist him in his rehabilitation after his release from custody.

Counsel can address what the appropriate terms should be respecting Mr.Bailey’s probation, as well as any other ancillary orders that should be made. [40] I also want to express my appreciation to counsel for their submissions and materials, which I found helpful in determining theappropriate sentence.

Released: October 31, 2016 Signed: Justice Peter C. West