R. v. Abraham, 2014 MBPC 20

CITATION: R. v. Abraham , 2014 MBPC 20 Date: 20140513 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Michael Himmelman, ) for the Crown ) and ) ) ) Alex John Abraham ) Michael Lazar, Accused ) for the Accused ) ) ) Reasons for Decision delivered ) May 13, 2014 ) Corrin P.J. Reasons for Sentencing Decision [ 1 ] The 41 year old accused entered a guilty plea to one count of assault with a weapon contrary to s. 267 (

a) of the Criminal Code on November 14, 2013, the date of his trial. He had originally been charged with aggravated assault. [ 2 ] The circumstances of the offence were thereafter outlined by counsel in an Agreed Statement of Facts which was filed as an exhibit at the sentencing hearing convened on March 11, 2014. Such Statement of Facts also detailed the injuries and recovery of the 33 year old victim, Reynold Ross. [ 3 ] The Crown informed the Court that its efforts to obtain a Victim Impact Statement proved unsuccessful. [ 4 ] The defendant, Mr.

Abraham, was diagnosed with a serious mental illness, schizophrenia, approximately 10 years ago and had been prescribed medication in pill format at that time. [ 5 ] The admissions of fact related that the accused and the victim, Mr. Ross, were casual acquaintances. At the time of the offence they had known each other approximately three years. The accused at the time lived with his sisters, Alexis Abraham and Harriet Abraham-Crockford, in a suite in an apartment building on Maryland Street in Winnipeg.

The victim was Ms Abraham’s ex-boyfriend. [ 6 ] Early on June 29, 2012 the victim returned home with the accused’s sisters and went to sleep alone in the accused’s bedroom upstairs. Sometime later, Ms Abraham and Ms Abraham-Crockford were woken up by the accused, who was threatening to hit Ms Abraham’s adult daughter, Sandy. The accused’s brother, Barry Abraham, intervened. In the meantime the accused went upstairs and struck the sleeping victim in the head with a hammer, then left the suite. The victim somehow managed to come downstairs. According to Ms Abraham, he was “bleeding like crazy” from his head.

Ms Abraham and the other occupants assisted him until paramedics arrived.

[ 7 ] The victim was transported by ambulance to the Health Sciences Centre where he presented with two depressed skull fractures, requiring surgery to repair his skull. At that time, he had the fragments of bone reconstructed and gaps were secured with titanium plates and screws. Mr. Ross was last seen by the neurosurgeon on August 13, 2012. At that time, he had made a good recovery and had returned to what he felt to be his baseline level of functioning with no signs or symptoms of infection. [ 8 ] The accused was arrested on January 3, 2013.

After speaking with legal counsel, he gave a video-recorded statement to police. He admitted that he was not taking his schizophrenic medication at the time of the offence, got upset that the victim was in his room, and hit him on the head with a hammer, which police found in the suite during their investigation. [ 9 ] Counsel have agreed by way of joint submission that an appropriate range of sentence is between three and five years. Their individual recommendations were polarized; the Crown requested a five-year sentence and the defence advocated a three-year term. Mr.

Lazar also requested that his client receive a 1.5:1 pre-sentencing custody credit. At the time of sentencing, March 11, counsel agree that Mr. Abraham had spent 410 days in custody since his arrest on January 3, 2013. [ 10 ] The accused has relatively few mitigating factors other than his guilty plea and his expressions of remorse. Indeed, as the Crown informed the Court, Mr. Abraham has had a lengthy history of criminal involvement since his first conviction in 1990.

His record reveals a number of violent offences including an assault cause bodily harm in 2011, an assault with a weapon in 2012, and an assault on another sister’s spouse in 2012 which resulted in three months incarceration. [ 11 ] It is also noteworthy that Mr. Abraham was on two probation orders requiring him to abstain from alcohol at the time of the assault on Mr. Ross. The Crown asserts that his consumption of alcohol is an aggravating factor. The Court concurs. [ 12 ] That the assault in question involved a weapon, the hammer, and was essentially unprovoked are also significant aggravating factors.

The same can be said for Mr. Abraham’s disregard for the victim’s need for medical assistance following the assault. If Mr. Ross had been unable to come downstairs and make his situation known to the other occupants of the house he might well have died in the upstairs bedroom. [ 13 ] In my opinion it is also an aggravating factor that Mr. Abraham’s criminal conduct was almost certainly related to his failure and/or disinclination to comply with his medication regimen in relation to his schizophrenia. I am of the opinion that there is, as was suggested by the defence, a strong possibility that Mr.

Abraham was indeed subject to possible delusions, paranoia, hallucinations, depersonalization or mental confusion as a result of not taking his medication. In my view, because his psychiatric disorder placed him at high risk to violently reoffend he was obliged to discipline himself and ensure that he took his psychiatric medication. [ 14 ] While I do believe that Mr. Abraham’s mental illness is relevant to sentencing in the sense that it provides a general context for his criminal actions, I do not see it as a specific mitigating factor in this case.

This is because I perceive the incident to relate more to the offender’s heavy drinking and consequent self-admitted extreme intoxication, than his mental illness. This is not a case where an offender’s level of moral culpability was directly affected or negated by his mental illness. This is a case where Mr. Abraham’s failure to maintain his medication regimen almost certainly resulted in his breaching of his abstain conditions, the observance of which would most probably have avoided the unprovoked assault on Mr.

Ross. [ 15 ] The principles of sentencing are set out in ss. 718.01 , 718.02 , 718.1 and 718.2 of the Criminal Code . The main applicable principles in the case at bar must be specific and general deterrence and denunciation of the offender’s conduct. [ 16 ] The Crown filed two cases in support of its position. The defence filed none. Both cases involved assaults which resulted in serious head injuries. In the first case, a 2012 decision of the Manitoba Court of Appeal, cited as R. v. Barnsdale , the 28 year old offender, who had no criminal record, threw a bottle at the victim, causing him a serious eye injury.

The victim later confronted the accused and threatened to kill him. The accused, who was shoveling snow at the time, hit him in the head with the shovel. As the victim fell he was struck two more times causing what were described as “catastrophic” head injuries. The accused was immediately remorseful and called 911 for help, staying with the victim until police and emergency services arrived. He also entered a guilty plea at the first opportunity. The victim’s brain injuries were long-term and left him suffering from seizures and depression.

He also was related as unable to work because of his short-term memory problems. The Court described the two-year sentence imposed by the sentencing judge to be “low” but not “so low as to be unfit.” Significantly, the Appeal Court described the Barnsdale assault to be somewhat less serious than the circumstances relating to an aggravated assault committed by an accused in R. v. Hogg , a 2004 decision of the Manitoba Court of Appeal, because it did not have the same degree of planning. [ 17 ] R. v. Hogg is the second case that was filed by the Crown in support of its five-year sentencing recommendation.

Hogg was a 21 year old student with no criminal record who had been drinking heavily when he thought he saw another student who had previously assaulted him. He followed the victim home and struck him on the side of his head with a steel bar without warning. The victim suffered a fractured skull and almost died from his injuries. He was left with mild brain damage which included working memory and speaking deficits. The sentencing judge had indicated a desire to stress rehabilitation when he pronounced sentence.

The Appeal Court determined that the two-year conditional sentence imposed by the sentencing judge was unfit, proclaiming that a four-year sentence would have been appropriate. The Court substituted a three-year sentence because the accused was “entitled to a credit for the time he has been subject to the restrictions of a conditional sentence.” [ 18 ] The Court observes that Mr. Abraham, unlike Hogg or Barnsdale, has a serious record which includes several violent crimes. The Court further notes that Mr. Abraham’s assault on Mr.

Ross was almost certainly directly related to his non-compliance with two existing court orders to abstain. Mr. Abraham’s assault on Mr. Ross was as brutal and senseless as Hogg’s and Barnsdale’s and even more callous and potentially endangering because of his immediate flight from the scene of the crime and total disregard for the possible consequences. And while Mr. Ross appears to have suffered less long-term disability than the Hogg or Barnsdale victims, the assault on his person was nevertheless equally violent and no less serious. The Court also agrees with Mr. Himmelman’s contention that Mr.

Abraham’s seeming willingness to participate in substance abuse programming and abstain going forward should be viewed with skepticism, that his record, i.e., his past history of non-compliance, is predictive of likely future non-compliance. This having been said, this Court wishes to emphasize that this prospect and the potential public risk it entails, as same was assessed in the pre-sentence report

before the Court, does not however mean that a sentence beyond the acceptable range should be imposed. (See R. v. Hynes (1991), (NL CA), 64 C.C.C. (3d) 421 (Nfld. C.A.), at p. 6; R. v. Keefe (1978), (ON CA), 44 C.C.C. (2d) 193(Ont. C.A.), at p. 7; and, R. v. Knoblauch (2000), 2000 SCC 58 , 2 S.C.R. 780 at para. 16.) [19] In R. v.

Craig, 2005 BCCA 484, 201 C.C.C. (3d) 495, the British Columbia Court of Appeal stated as follows at paragraph 10: In determining an appropriate sentence within this broad range, an unprovoked attack with a weapon tends to result in the imposition of asentence at the higher end (of the acceptable range) while a consensual fight that has escalated with resulting injury tends to result in asentence at the lower end. (words in parentheses added) [20] Having considered the foregoing case law and the applicable sentencing principles and concluded that the aggravating factorsfar outweigh the mitigating ones necessitating specific deterrence, I am of the view that a 48-month or four-year sentence is appropriatein the case at bar. [21] I now turn my attention to the defence request for a 1.5:1 credit for pre-sentence custody.

Section 719(3.1) of the CriminalCode provides that credit for pre-sentencing custody (PSC) of up to a maximum of one and one-half days for each day spent in PSC maybe awarded only if “the circumstances justify it.” In R. v. Stonefish, 2012 MBCA 116, the Manitoba Court of Appeal held that thecircumstances justifying enhanced credit need not be exceptional, only “individual to the accused” (see para. 81). The Court also ruledthat the legal burden lies with the accused on a balance of probabilities. [22] The basis of the defence application in this respect was not based on loss of remission or statutory release.

It was, rather,predicated on the offender’s reported good behaviour and cooperation during the time he has been in custody. The pre-sentence reportindicated that Mr. Abraham has regularly participated in organized activities and programming at the Headingley Correctional Centre(HCC) and has been attentive and occasionally responsive during group programming. [23] The range of acceptable evidence presented by an accused in such circumstances was described by Steel J.A. in Stonefish asencompassing viva voce testimony by the accused, by prison officials, through affidavits or even agreed statements of facts.

At paragraph92 she describes counsel’s oral submissions as also being acceptable.

At paragraph 93 she observes that “While the accused must providesome reason for the court to award enhanced credit, the nature of the evidence required should not overly complicate the sentencingprocess”, that “the emphasis should be on credible and relevant information.” [24] The Crown takes the position that the accused should not be granted enhanced credit as he never applied for bail and there is noevidence of untoward or harsh conditions that would justify departure from the normal 1:1 credit rule. [25] It is the Court’s view that the accused has failed to bring any evidence to fulfill his onus of showing on a balance ofprobabilities that his individual circumstances justified enhanced credit. [26] The Court agrees there is nothing before the Court suggestive that his remand time was more onerous than that of a sentencedprisoner.

In fact, the evidence indicates that he spent most of his remand time in a conventional incarcetory setting, the HCC. There isalso no evidence before the Court that Mr. Abraham would be entitled to early remission because of his good behaviour. Neither is thereanything before this Court really suggestive of the defendant being a particularly exceptional inmate at HCC. [27] As a final point, the Court wishes to emphasize that most of Mr. Abraham’s PSC related to two factors: his late guilty plea onthe first day of trial and his unexplained failure to apply for bail.

I accordingly deny the accused’s enhanced credit application. [28] The accused is therefore sentenced to 48 months incarceration with credit being given on a one-for-one basis for 496 days ofpre-trial custody. He is further ordered to provide a DNA sample and is subject to a weapons prohibition for life pursuant to s. 109 of theCriminal Code. Original signed by: CORRIN, P.J.