HIS MAJESTY THE KING — v. —, 2023 ONCJ 468

ONTARIO COURT OF JUSTICE CITATON: R. v. Greene, 2023 ONCJ 468 DATE: 2023 10 23 Newmarket, Ontario BETWEEN: HIS MAJESTY THE KING — AND — DWAYNE GREENE Before Justice R.M.

Robinson Heard on 3 May 2023, 17 July 2023, 28 July 2023 and 6 October 2023 Reasons for Sentence released on 23 October 2023 Moheb Tewfik...................................................................................... counsel for the Crown Carlos Rippell........................................................................... counsel for Dwayne Greene ROBINSON J.: INTRODUCTION [1] By reasons dated 28 July 2023, I found Dwayne Greene guilty after trial of assault causing bodily harm and assault. The latterconviction was conditionally stayed pursuant to the principles in R. v.

Kienapple, (SCC), [1975] 1 S.C.R. 729. [2] I must now determine the appropriate sentence. THE OFFENCE [3] On 27 August 2022, Dwayne Greene had been working as a janitor at Toro Aluminium for three weeks. His shift supervisor wasAlim Mohamed. [4] Mr. Mohamed tasked Mr. Greene and another janitor with cleaning up the parking lot in the morning. Mr. Mohamed estimatedthat the job would take approximately half an hour. [5] The other janitor came back inside but Mr. Greene did not. Throughout the course of the day, Mr. Mohamed and otheremployees of Toro Aluminum looked for but could not locate Mr.

Greene. [6] The next time Mr. Greene was spotted was at the end of the workday when he was lined up to punch out at the punch clock. [7] Mr. Mohamed asked Mr. Greene to accompany him to a meeting room so that they could have some privacy while Mr.Mohamed ascertained what had happened to Mr. Greene during the day.

[ 8 ] Mr. Greene maintained that he had been working. Mr. Mohamed was convinced that he had not. The conversation culminated in Mr. Mohamed directing Mr. Greene to gather his belongings and not return to work. [ 9 ] Mr. Greene sucker-punched Mr. Mohamed to the head, causing him to lose consciousness and fall. Mr. Greene got on top of Mr. Mohamed and punched him in the face and head approximately three or four more times. At the time, Mr. Mohamed was unable to defend himself. [ 10 ] Mr. Greene did not relent until two other employees pulled him off Mr. Mohamed.

He fled the scene while an ambulance and the police were en route. THE INJURIES [ 11 ] At trial, photos of Mr. Mohamed’s bloodied face were introduced. Mr. Mohamed also testified that he suffered a sprained left shoulder, received stitches above and below his eye and continues to suffer headaches. He testified about ongoing mental health therapy for Post Traumatic Stress Disorder as a result of this incident. [ 12 ] A Victim Impact Statement was filed as Exhibit 1 on sentence. In the statement, Mr.

Mohamed provided great detail about the significant physical and mental toll this incident has taken on him, including: • Permanent disfigurement to his face; • Permanent vision impairment in his right eye; • Ongoing pain and restrictive mobility in his left shoulder and right index finger, for which he has received multiple cortisone injections that only provide temporary relief; • Ongoing headaches and pain behind his right eye; • PTSD and depression resulting in him avoiding friends and family; • Inability to lift his grandson; and • Difficulty working at his workplace because of the constant reminder of what happened to him there.

THE OFFENDER [ 13 ] Mr. Greene is 39 years old now and was 38 at the time of the offence. [ 14 ] Mr. Greene has prior, relevant convictions. His criminal record, filed as Exhibit 2 on sentence, is summarized as follows: Date Offences Sentence 30 April 2012 ( 1 ) Uttering Threats

(2) Fail to Comply with Recognizance x 3 (1) 15 days (15 days PSC) + 12 months probation + s.110 order for 5 years (2) 15 days on each charge concurrent and concurrent + 1 year probation 20 July 2015 ( 1 ) Assault

(2) Fail to Comply with Probation (1-2) Suspended sentence (credit for equivalent of 15 days PSC) + 1 year probation. 28 May 2019 Fail to Comply with Probation Suspended sentence + 2 years probation 28 May 2019 Assault Suspended sentence (15 days PSC) + 2 years probation + s.110 order for 3 years 9 August 2019 Assault 27 days (63 days PSC) + 2 years probation + s.110 order for 10 years. [ 15 ] On 28 July 2023, I ordered the preparation of a Pre-Sentence Report (“PSR”). Accordingly, a PSR dated 4 October 2023 was prepared by Probation and Parole Officer Carissa Giacomelli and filed as Exhibit 3 on sentence.

I was advised that the defence was not disputing any of the contents of said report. [ 16 ] Although I have carefully reviewed the entirety of the PSR, the following findings by Ms. Giacomelli are particularly noteworthy: • Mr. Greene’s family environment during his upbringing was positive and supportive. • In the ninth grade, Mr. Greene was suspended from high school because of a physical altercation.

• Around the same time, Mr. Greene was shot in the head four times when he was 14 years old. In Mr. Greene’s own opinion, he has moved on from the incident both physically and mentally and has not suffered much trauma as a result. • Mr. Greene first became a father at the age of 16. He now has seven children. His eldest is 22 years old and his youngest is 2 years old. • As a result of having a child at 16, Mr. Greene dropped out of high school after completing grade 11 so that he could pursue employment. • Most of Mr.

Greene’s employment has been sporadic general labour through various employment agencies. • As of the completion of the PSR, Mr. Greene had been employed as an installer for a furniture company for four months. His manager, Michael Wilson, described Mr. Greene as a “good worker with a great attitude”, despite there being attendance issues near the beginning of his employment. Mr. Wilson described Mr. Greene as one of the most positive people he has ever met. • Nathalie Greene, Mr. Greene’s mother, opined that he could benefit from anger management counselling. However, Ministry records indicate that Mr.

Greene has “successfully” completed all counselling that was required under past probation orders. It appears that said prior counselling related to anger management and problem-solving deficits. • Ministry records describe Mr. Greene’s past performance on probation as “satisfactory”, although issues with non-reporting and re-offending while on supervision were noted. Minimization of criminal behaviours and lack of motivation were identified as barriers during prior supervision. • Mr.

Greene expressed no remorse regarding his actions or the serious consequences of his actions on Alim Mohamed: “The subject did not express any guilt or remorse for his actions, however did express regret for the use of derogatory language towards the victim.” [ 17 ] While the defence urges me to view the PSR as “glowing”, in my view it is best described as neutral in that it presents some positive factors but also presents significant areas of concern. [ 18 ] The defence advises that Mr. Greene is willing to take counselling and agrees with the probationary terms suggested in the PSR.

THE CROWN POSITION [ 19 ] The Crown acknowledges the wide range of sentences available for assault bodily harm and urges me to impose a 12 month custodial sentence followed by two years of probation. [ 20 ] In support of his position, the Crown relies on the nature of the attack, Mr. Greene’s related criminal record, the severity of Mr. Mohamed’s life-altering injuries and Mr. Greene’s lack of remorse. THE DEFENCE POSITION [ 21 ] The defence also acknowledges the wide range of sentences and argues that a conditional sentence is appropriate.

In the alternative, he submits that a custodial sentence of 90 days to be served intermittently is the appropriate disposition. He agrees that the sentence should be followed by terms of probation as suggested in the PSR. [ 22 ] In support of his position, the defence relies on the context of the assault, what he characterizes as Mr. Greene’s positive PSR, the “jump principle” and the implications that a significant custodial sentence would have on Mr. Greene’s employment and, in turn, on his ability to provide for his children.

PURPOSES AND PRINCIPLES OF SENTENCING [ 23 ] The fundamental principle of sentencing is proportionality. “The sentence must be severe enough to denounce the offence but must not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence.” [1] [ 24 ] Indeed, Parliament has codified this fundamental principle in s.718.1 of the Criminal Code , which holds that, “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” [ 25 ] In arriving at a just sentence for Mr.

Greene, the principle of proportionality requires that I give full consideration to both factors, without elevating one at the expense of the other. [2] [ 26 ] Parliament has set out the various sentencing objectives as follows: PURPOSE 718. The fundamental purpose of sentencing is to protect society and 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 and the harm done to victims or to the community that is caused by 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 or to the community. [27] Further sentencing principles that are codified are parity and restraint. [28] The principle of parity (s.718.2(

b) C.C.) directs that a sentence should be similar to sentences imposed on similar offenders forsimilar offences committed in similar circumstances. This is a notoriously difficult exercise, as no two cases are exactly the same. Assuccinctly stated by Lamer C.J. in R. v. C.A.M., (SCC), [1996] S.C.J. No. 28, at para 92, “…the search for a singleappropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic frustration.” [29] The principle of restraint (s.718.2(

d) and (

e) C.C.) recognizes that prison should be the sentence of last resort and that the courtshould consider the least intrusive alternatives, provided the other sentencing principles are appropriately addressed. [30] Finally, in determining a just sentence, I must consider relevant aggravating factors (including the statutory aggravating factors ins.718.2(

a) C.C.) and mitigating factors relating to the offence and the offender. ANALYSIS [31] For violent offences such as assault bodily harm, the predominant sentencing objectives are denunciation and deterrence, bothgeneral and specific[3]. However, rehabilitation remains an important consideration and is not a mere afterthought. This is especially sofor first offenders.[4] NEUTRAL FACTORS [32] In my view, there are several neutral factors pertaining to Mr. Greene that I do not consider mitigating or aggravating. [33] He is 39 years old, which is neither particularly young nor particularly old.

He is old enough to have changed his pattern ofconduct (as evidenced by his criminal record) by now, but not too old for me to conclude with certainty that he cannot change in thefuture. [34] His PSR has some elements that cut both ways, namely: • He was brought up in a positive family environment and is surrounded by law-abiding, supportive family members, including hismother. It would appear that Mr. Greene was provided with every tool necessary to succeed. • At a young age, Mr. Greene was the victim of gun violence. However, his experience as a victim did not deter him fromvictimizing others.

In addition, he reported to Ms. Giacomelli that being a victim has not resulted in any physical or mental trauma. • Mr. Greene also became a father at a young age and now has seven children ranging in age from two years old to twenty-two yearsold. He financially supports some of those children. Not only has Mr. Greene’s involvement in the criminal justice system arguably set abad example for his children, but it has also jeopardized his ability to provide for them when incarcerated. • Mr. Greene has been employed through employment agencies since a young age, but said employment was described as sporadic. • Mr.

Greene appeared to have impressed Michael Wilson, his employer at the time of the PSR, with his positive attitude. However,in only four months that Mr. Greene had worked for Mr. Wilson, he had to be cautioned about attendance issues. • Mr. Greene claims to be amenable to counselling. His mother confirms that she believes he would benefit from counselling.However, as part of prior probations, Mr. Greene “successfully” completed counselling with respect to anger management and problem-solving yet continued to re-offend. • Mr. Greene showed no remorse whatsoever for what happened to Mr. Mohamed.

While the absence of a guilty plea is not anaggravating factor, the presence of a guilty plea is usually considered a significant mitigating factor as a clear indication of remorse. Inthe present case, there is no indication of Mr. Greene’s remorse for his own actions, let alone any sympathy for the significant physicaland psychological consequences suffered by Mr. Mohamed. MITIGATING FACTORS [35] I am prepared to consider Mr. Greene’s relative youth, the support of his family, and his work history as modestly mitigating,notwithstanding what I have identified above.

[ 36 ] While not a mitigating factor per se , I take into account the fact that Mr. Greene is a Black male, a member of a marginalized group that has been historically over-represented in the criminal justice system and over-incarcerated. While s.718.2(

e) of the Criminal Code specifically adverts to the circumstances of Aboriginal offenders, it is clear to me that the rationale is equally applicable to Black offenders. Accordingly, I instruct myself to pay close attention to the restraint principle when considering all of the other sentencing principles in arriving at a just and appropriate sentence. AGGRAVATING FACTORS [ 37 ] There are many aggravating factors, both in terms of the offence and the offender. [ 38 ] A significant aggravating factor is the nature of the assault itself. Mr.

Mohamed was just doing his job, which included managing personnel such as Mr. Greene. Mr. Mohamed invited Mr. Greene into a private meeting room to safeguard Mr. Greene’s privacy and to give him a chance to tell his side of the story. [ 39 ] I reject the defence suggestion that Mr. Greene was essentially provoked because he was wrongfully accused of absenteeism and wrongfully terminated. The evidence of Mr. Mohamed and Mr. Mendez-Locada provides compelling evidence that Mr. Greene had, in fact, skipped out on work for the majority of the workday on 27 August 2022. [ 40 ] Mr. Greene’s response to Mr.

Mohamed’s professional and calm demeanour was to sucker-punch him in the face, causing him to lose consciousness and fall. Mr. Greene did not stop there. He straddled the defenseless Mr. Mohamed and rained down three or four punches to his head and face. He did not stop until two employees had to physically pull him off Mr. Mohamed. [ 41 ] Mr. Greene did not have the decency to stick around to ensure that Mr. Mohamed received medical attention. Instead, despite the direction from Mr.

Mendez-Locada to stay he fled the scene. [ 42 ] While I am not satisfied that the offence was motivated by bias, prejudice or hate (a statutory aggravating factor pursuant to s. 718.2(a)(

i) C.C .), I do note that during the course of the attack Mr. Greene referred to Mr. Mohamed as a “coolie”, a derogatory term for those of Indian descent. [ 43 ] The other significant aggravating factor is the impact on the victim (a statutory aggravating factor pursuant to s.718.2(a)(iii.

a) C.C. ). Mr. Mohamed’s testimony and Victim Impact Statement paint a stark picture of the devastating physical and mental toll Mr. Greene’s unprovoked attack has had, and continues to have, on him. I agree with the Crown that Mr.

Mohamed’s injuries were not life- threatening but can aptly be described as life-altering. [ 44 ] On the spectrum of seriousness of assaults involving bodily harm, I find that the circumstances of the present offence fall much closer to an aggravated assault than to an assault simpliciter . [ 45 ] As mentioned above, there are significant aggravating features relating to the offender, beginning with Mr. Greene’s criminal record. In chronological order, Mr.

Greene received the equivalent of a 30 day custodial sentence in 2012 for uttering threats; the equivalent of a 15 day custodial sentence in 2015 for an assault simpliciter ; the equivalent of a 15 day custodial sentence in 2019 for an assault simpliciter ; and the equivalent of a 90 day custodial sentence in 2019 for an assault simpliciter . The latter conviction came less than two and a half months after his previous conviction. The present offence occurred 18 days after his last probation order expired. [ 46 ] Mr.

Greene has a demonstrated propensity for violence that has not been deterred by increasingly severe sanctions. The present offence, an assault causing bodily harm, suggests an escalation in Mr. Greene’s resort to violence. [ 47 ] Further, Mr. Greene has been placed on probation on four occasions and has completed counselling for anger management. It would appear that the programming accomplished nothing. It is with this backdrop that I attach very little weight to Mr. Greene’s present willingness to attend for counselling.

APPROPRIATE SENTENCE [ 48 ] The defence and the Crown agree that a period of custody is warranted in the present case. They disagree on the quantum and on the manner in which the custody is to be served. [ 49 ] In R. v. Huh , supra , at para 15 , the Ontario Court of Appeal endorsed a six to eight month term of incarceration as the low end of the range of sentence for an assault bodily harm with serious injuries for an offender with no criminal record: …This was a crime of violence that left the victim with serious and longstanding injuries.

The principles of deterrence and denunciation cannot be met without a period of incarceration. The Crown has urged a period of six to eight months’ incarceration, followed by two years of probation. That appears to be at the low end of the appropriate range. [ 50 ] An intermittent sentence is not available, as I have concluded that the appropriate quantum of custody is in excess of 90 days, given the applicable sentencing principles and a careful consideration of the relevant mitigating and aggravating factors.

IS A CONDITIONAL SENTENCE APPROPRIATE? [ 51 ] The next issue to be determined is whether a conditional sentence would adequately reflect the principles of sentencing.

[52] Pursuant to s.742.1 C.C., a conditional sentence is available, as the Crown has proceeded summarily and the maximum sentenceavailable is eighteen months. However, for a conditional sentence to be appropriate, pursuant to s.742.1(

a) C.C., I must be satisfied that: (

a) Mr. Greene serving the sentence in the community would not endanger the safety of the community; and (

b) A conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss.718 to 718.2C.C.. Risk to the Community [53] In R. v. Proulx, 2000 SCC 5 , [2000] S.C.J. No. 6, at para 68, the Supreme Court of Canada, interpreted “safety to thecommunity” to refer to the threat posed by the specific offender were he to serve his sentence in the community. [54] The proper approach in assessing risk to the community involves considering (1) the risk of the offender re-offending; and (2)the gravity of the damage that could ensue in the event of re-offence.[5] 1.

Risk of Re-Offence [55] I have concluded that Mr. Greene poses an unacceptably high risk of re-offending. [56] Mr. Greene’s violent conduct has been escalating since 2012. His criminal record began with a conviction for uttering threats in2012 that was serious enough to warrant the equivalent of a 30 day jail sentence.

He acquired three subsequent convictions for assaultsimpliciter, with increasingly long prison sentences. [57] These convictions demonstrate a propensity for violence that has neither been deterred by increasing prison sentences nor bycounselling as a term of his probation orders. [58] In addition, his conduct is clearly escalating as the present offence involves an assault bodily harm resulting in life-alteringinjuries. [59] Mr.

Greene’s convictions for failing to comply with various court orders in 2012 (3 counts), 2015 and 2019, cause me furtherskepticism about the prospects of him staying out of trouble. [60] Finally, Mr. Greene’s clear lack of remorse demonstrates to me that he has no insight into his offending behaviour. Simply put, ifhe has no appreciation that he did anything wrong, what would stop him from doing it again? 2. Gravity of the Damage in the Event of Re-Offence [61] Mr. Mohamed’s Victim Impact Statement speaks directly to the gravity of the damage that would likely ensue should Mr.

Greenere-offend. [62] The only offences on Mr. Greene’s criminal record are crimes of violence and breaches of court orders. This not only creates asubstantial risk that he would not comply with a conditional sentence order, but a substantial risk that someone would end up seriouslyinjured at his hands. [63] I have concluded that a conditional sentence would pose an unacceptably high risk to the community. Any conditional sentencecontemplated would not sequester Mr.

Greene completely from all members of the community with whom he could potentially comeinto contact – and conflict. [64] Notwithstanding this conclusion, I will go on to consider the second part of the test established in Proulx. Consistent with the Fundamental Purposes and Principles of Sentencing Set Out in Sections 718 to 718.2 C.C. [65] In my view, a conditional sentence would not give proper regard to the principle of denunciation, in light of the circumstances ofMr. Greene’s violent attack on Mr. Mohamed, the harm done to Mr. Mohamed and the circumstances of Mr.

Greene. [66] Nor would the principle of general deterrence be adequately addressed considering the same factors. [67] I find that prior custodial sentences have been ineffective in specifically deterring Mr. Greene. This, coupled with his lack ofinsight into his offending behaviour, convinces me that a conditional sentence would have no individual deterrent effect. It is, however,possible that a lengthier term of incarceration will finally have the appropriate deterrent effect on Mr. Greene. [68] Although I recognize Mr.

Greene’s rehabilitative potential, his track record and his lack of insight do not provide me with muchoptimism. In any event, given the nature of the offence and the circumstances of the offender, the principle of rehabilitation cannot havepriority over the principles of denunciation and deterrence in this case. [69] For the foregoing reasons, I conclude that a conditional sentence would not be appropriate.

QUANTUM [ 70 ] I consider the defence submission for a 90 day sentence to be served intermittently to be woefully inadequate, given the circumstances of the offence, the harm caused to the victim and the circumstances of the offender. [ 71 ] I find that the “jump principle” referred to by the defence has limited application in this case, “where the severity of the offender’s crimes shows a dramatic increase in violence and seriousness.” [6] [ 72 ] As I noted above, the permanent injuries in the present case fall far closer to an aggravated assault than to the assault simpliciters that appear on Mr.

Greene’s criminal record. [ 73 ] While I do not consider the Crown’s request for 12 months in custody to be excessive, I remind myself of the principle of restraint, particularly as it applies to marginalized communities. [ 74 ] In my view, a custodial sentence of ten months, followed by two years’ probation addresses all relevant principles and objectives of sentencing. DISPOSITION [ 75 ] Mr. Greene is sentenced to ten months in custody. [ 76 ] This is to be followed by two years of probation with the following terms:

(1) Report to your probation officer by telephone within one business day of your release from custody.

(2) Report thereafter as directed by your probation officer.

(3) Reside at an address approved of by your probation officer.

(4) Do not have any direct or indirect contact or communication with Alim Mohamed or Rene Mendez-Locada.

(5) Do not attend within 100 m of anywhere you know Alim Mohamed or Rene Mendez-Locada to reside, work, go to school, worship, frequent, or anywhere you know them to be.

(6) Attend for counselling as directed by your probation officer, including for anger management.

(7) Sign all releases necessary to permit your probation officer to monitor your attendance and progress.

(8) Do not possess weapons as defined by the Criminal Code . [ 77 ] As assault bodily harm is a primary designated offence, I am ordering Mr. Greene to provide a sample of his DNA pursuant to s.487.051 C.C .. [ 78 ] I am also prohibiting Mr. Greene from possessing weapons, pursuant to s.110 C.C ., for a period of ten years. [ 79 ] Finally, given the sporadic nature of Mr. Greene’s past employment and his imminent incarceration, I am waiving the victim fine surcharge. Released: 23 October 2023 Signed: Justice R.M. Robinson