R. v. Dechamp, 2012 NSSC 275

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Dechamp, 2012 NSSC 275 Date: 20120718 Docket: CRH 388053 Registry: Halifax Between: Her Majesty The Queen v. Tyrell Peter Dechamp SENTENCING DECISION Judge: The Honourable Chief Justice Joseph P. Kennedy Sentencing Date: July 18, 2012 at Halifax, Nova Scotia Counsel: John Scott for the Crown Joshua Bearden for the accused By the Court : [ 1 ] THE COURT : Good afternoon counsel, ladies and gentlemen, welcome to the Supreme Court of Nova Scotia. I have before me Tyrell Peter Dechamp for sentencing on a s. 268 of the Criminal Code - aggravated assault. Mr.

Scott? [ 2 ] MR. SCOTT : Yes, My Lord. The facts in this matter occurred on .. actually last Fall on the Thanksgiving weekend. Ashley Harrison, the victim, went downtown with some of her friends and Ashley .. and I think one of her friends .. but I know Ashley, although going downtown and maybe being out in the early hours of the morning and not even a drinker, so it wasn ’ t a case of her going

downtown - she might have been with one of her friends but it wasn ’ t a case of going and finding how many bars she could go into, so she was out with her friends. It was approximately 2:00 - 2:10 in the morning and they were coming out of a Club Soda place that ’ s on .. I believe it ’ s near The Keg restaurant, almost on Brunswick Street near the Palace and a place called The Ale House on the corner of Brunswick. [ 3 ] In any event, one of the ladies that she was with - these ladies would be in their twenties too by the way - got into a verbal argument with a person unknown to her. Ms.

Harrison, who was up near the corner, came down .. in response to what ’ s her friend doing .. or what ’ s going on so that they could get on their way to wherever they were going .. home .. or wherever they were going, but anyway came down the street there a little bit from Brunswick Street down, and at that time she was trying to figure out what was going on with her and her friend, and at that particular point Mr. Dechamp was out that night - I believe his brother was out with him - and when she [Ms.

Harrison] asked what was going on and she saw her friend I think, got a slap maybe, but in any event with full force, and it was captured on a tape, but Mr. Dechamp laid on and almost though it was a running thing, but with full force anyway, hit her in the head with full force. She didn ’ t even ... Ms. Harrison wouldn ’ t even know it was coming, I mean, because she really didn ’ t know what the arguing was about or whatever was happening there, what it centred around. It couldn ’ t have been very long, but in any event she had no chance to protect herself.

She was knocked unconscious, onto the ground .. knocked out and obviously then .. people came around ... the ambulance and police were called to the scene. [ 4 ] She was taken down to the QEII - Ms. Harrison. She was diagnosed with a traumatic brain bleed and she required hospitalization. At first I believe she was in the hospital for perhaps a couple of days as a result of what happened. But the worst

part is she got back home and as a result of some complications arising from the blow, she had to be readmitted to the Dartmouth General Hospital after being released, as I say, from the QEII, so I think it was only a matter of a day or so she was back in - but this time to the Dartmouth General from further complications of her injuries. [ 5 ] I think at this time, without using any medical terminology, what better source than to give you an idea of what happened to her in a physical way, I ’ m going to [read from] Ashley ’ s victim impact statement. [ 6 ] She was put on a ventilator because she was unable to breathe on her own when she first went to the QEII.

She had a brain injury which caused bleeding and swelling on her brain. She was suffering from seizures during this period of time. One side of her face was bruised and swollen. She had indescribable migraines that she still gets. Her speech for awhile there was certainly unclear and not really discernable. She had to stay in the hospital for a day or two at the QEII but when she went back into the hospital she was at the Dartmouth General for a couple of weeks and she could not take care of herself.

She was having problems communicating with her family and, as she indicated, most importantly, communicating with her five year old daughter. [ 7 ] She had to be off work for three months without pay. She had rent, car payments - things that most people have - and she had to do those and being off work without pay. She had no control over that. I know her mother, who is present today, she helped her out a lot in looking after the child and perhaps in financial ways, but she had no other choice, after three months she returned to work.

She didn ’ t want to lose everything she had so she was back to work and has been back to work. She ’ s still trying to catch up though with her financial obligations.

So when I .. without having to give doctor ’ s reports of this bleed that occurred in what part of the brain, suffice to say it was a serious one punch blow, but a blow that certainly had violent and long lasting and still lasting repercussions. [ 8 ] Just so that you would have an idea, I checked with Ashley today - she is in court in case you do have any questions of her, My Lord, but what I did ask is how the lasting effects ... so that ’ s October and we ’ re into July now ... so we ’ re into eight or nine months later, but she still suffers from headaches and basically, as she describes, she ’ s in a depression so to speak based on ... the psychological and emotional impact ... those things are the results of the blow that she took that night. [ 9 ] So the police had some witnesses who gave their statements, especially her friends who were with her that night. [ 10 ] There was a surveillance tape from the Ale House, I believe, that was on Brunswick Street.

Anyway, as a result of information, approximately less than a week or approximately a week later, the police conducted surveillance at 57 Westgrove and at that time they went up and, based on information, they were pretty certain they knew they had Mr. Dechamp inside that residence and the person who

came to the door indicated to the police and he was inside the apartment and that he would have him come out and the police arrested him when he came out of the apartment there that he was in that night, placed under arrest and brought before the Court. [ 11 ] He was brought before the Court for two reasons, My Lord, and I think it ’ s certainly relevant and it had a relevance back in the Fall of last year. [ 12 ] Mr. Dechamp, in 2007 was involved in a murder charge as a youth. He was 17 at the time - would have been 18 the end of January of that year.

So, as a result of that matter and the sentence of Justice Hood he was given on the second degree murder charge as a youth under the Youth Criminal Justice Act , he was given four years in custody and a three year ... basically I would say he ’ s on parole for three years following that, and I believe I sent a copy of that over to you ... but the matter - Mr. Nickerson and myself had been involved actually so it ’ s .. this is my second time with Mr.

Dechamp in his last two matters that have come before the Court. [ 13 ] But at that time in the Fall of last year, Justice Hood under the provisions of the Youth Criminal Justice Act there were certain things that she could do in that circumstance and I think the keys that Mr. Nickerson, who did handle it for the Crown, was able to impress upon her was ... the short period of time between him being placed on parole. [ 14 ] Now when he was put out from the .. I believe he spent his four years in Waterville, but when he was put out, he was put out with the ankle braclet on.

Now, I don ’ t know if that was creating too much confinement for Mr. Dechamp but one of the things the Crown is aware of is that ankle bracelet got cut off, so that monitoring ceased. [ 15 ] He was on a curfew and he was to stay with his mother. Well, needless to say you don ’ t take the bracelet off if you ’ re going to abide by a curfew so the curfew went by the boards.

Staying at his parents ’ place went by the boards. [ 16 ] So when the Crown approached Justice Hood on what they think should happen on the remaining three years - almost three years to do, which we ’ ll call the parole time, under the Youth Criminal Justice Act she could put him in an institution to serve the remaining time.

There was other options but she certainly opted out for that - I can indicate because I was there, but we were hoping at the time when .. even though he was a youth at the time when he committed the second degree murder, we were hoping for an adult sentence. [ 17 ] As you can see, one of the things I sent you was an update because they don ’ t really do pre-sentence reports, but they do very comprehensive assessment reports and I didn ’ t mean to inundate Your Lordship with a lot of background, but I certainly .. if you read the Assessment Report, it gives you quite the background on Mr. Dechamp.

I went through it again today, as I ’ ve read it before, and remembered some of the things. But I guess if I just suffice to say this, he grew up at least with his parents in Uniacke Square.

Although he admits to having behaviour issues between 10 and 13, his parents only found, or suggested, it was at about 13 they noticed some behaviour issues. [ 18 ] At age 16, and probably because of what I call the bad performance or not doing very well and where they were living in Uniacke Square, the family wanted to get out of there and maybe give him a new start and get him away from there, moved to Dartmouth. [ 19 ] But when I read that Assessment Report, or re-read it, basically Mr.

Dechamp, I take it, really liked it .. what he was doing or liked what was going on in Uniacke Square because although they left and moved to Dartmouth, he more or less maintained his friendship with his peers over there and remained over in Uniacke Square. So, he was hanging round there and in fact, the circumstances of the actual second degree murder charge was he was on the street at about 3 - 3:30 in the morning. A man comes by in his late twenties - he was in his last year of nursing at Dal, and whether ... I don ’ t know whether Mr.

Dechamp was actively looking to sell anything at that time along the street there by way of drugs, but the person approached him so I certainly say ... approached him I don ’ t know if to ask him something .. if he would give him something, but the evidence was very quickly he took a knife and stabbed that gentleman in the neck. And the only reason I wanted to even give you that detail, My Lord, is the fact that - I deal with a word sometimes and it ’ s called impulsivity - and for me, from my point of view, one of the things that stands out with these two offences that I see Mr.

Dechamp involved with .. it just doesn ’ t really add up, but I don ’ t have all the answers to say, you know, why things don ’ t add up, but that happened on that occurrence where somebody went by him that night and he ended up stabbing that person and they died on

the street there. [ 20 ] This occasion here, as an adult now and just after a week getting out, whatever the argument he had with this other girl, I don ’ t ... you know, it ’ s a girl, I mean .. whatever the argument is ... walk away. But .. so I ’ m not saying that he went looking for this girl .. looking for that girl .. he wanted to hit his girl ... but very impulsively, for whatever reason, he laid off and Ms. Harrison took the blow to her head and the resulting injuries.

So, again, very impulsive. [ 21 ] So two instances that he ’ s been out in the early morning hours of the night and for some .. whatever reason that comes over him in that circumstance, he .. one is he knifed the gentleman in the neck and caused a death, and in this case caused significant repercussions for Ms. Harrison by punching her in the head for, you know ..

I don ’ t have a good reason other than I guess he was arguing with her friend, and she might have come down and said what ’ s going on and that ’ s what she got for it. [ 22 ] So, in that Assessment Report, My Lord, and I have a copy and can pass it up to you, but you can see they did get some of the background and on one of the pages there it did show you where he .. what his criminal record was.

There is substance abuse in his history - alcohol was mainly that, but as I ’ ve said, I think back when he, in 2007, would have been selling the drugs on the street there, that ’ s what certainly was going on at 3 - 3:30 in the morning back in 2007 when that other matter occurred as a young offender. [ 23 ] So you have his record set out there. He had a number of prior convictions, a number of breaches of probation and breaches of releases, 27 priors at that point, various court orders - 15 were for breaches of undertakings, probation failures, failure to comply with conditions of a court orders.

Theft - two theft unders, one punishment for theft. Two are robbery, one mischief. So he had a background on that and, as I say, I certainly remember at the sentencing on his other matter - the second degree murder - that certainly one of the people that was standing behind him at all times was his mother.

I ’ m not saying the father wasn ’ t but I know the mother was and that was her action, but it appeared he had his own course in life, what he wanted to do and even though they moved to Dartmouth he wanted to maintain his contact with his peers in Halifax. [ 24 ] So that background I ’ ve given you by way of that Assessment Report, although it set out a lot of the background for him, some you may have found certainly relevant others not so relevant, but the bottom line is that after doing four years in jail and mostly I think it was all in Waterville .. so Mr.

Dechamp has spent a period of time in his life, I suppose everybody would like to be free and doing as they please, but to come out and be out only such a short period of time and, again, as an adult, this is his first time before the Court as an adult by being sentenced. [ 25 ] So again, aggravated assault .. he ’ s not picking on the breaches anymore and the thefts and stuff like that. He ’ s made a major graduation, I mean, as a youth - second degree murder on the record.

Now, as an adult - aggravated assault. [ 26 ] So sometimes, you know, you come out and you want to break the law and there ’ s probation, or short periods and that, well Mr.

Dechamp has gone to the top of the class so to speak in a negative way by picking on offences that you don ’ t get minor terms or probation for. [ 27 ] I don ’ t know, My Lord, and I say this with all due respect, if he ’ s going to turn anything around in his life because, as I say, he ’ s missing out on what a lot of people consider the best time of your life, but he seems to have penchant for wanting to strike people with no really good motive for background or understanding as to why he ’ s doing it.

At least from the Crown ’ s perspective, I can ’ t give you that. [ 28 ] The further background on the victim impact statement - I ’ ll just highlight it as well, and as I say, My Lord, if there ’ s anything you wish to ask I know Ashley ’ s here with her mom today and some friends, but she would more than, I think, be happy to answer them for you. [ 29 ] She doesn ’ t like to be outside in the evening ... “ because I ’ m nervous someone will assault me. I always see your face when I close my eyes. I don ’ t like to be around large groups of people.

My daughter always thinks someone is going to take her mommy away. I don ’ t trust men. Being assaulted affects my job on a day to day basis. ” And ... “ I ’ m so thankful to have my life and to be able to watch

my daughter grow. ” [ 30 ] And you know, that last comment about she is ... and that ’ s how she referred it to me when she said something about the lasting effects, she really, really was pleased that, you know, she has a life and is still with her daughter and it ’ s not .. nothing by way of her hitting her head didn ’ t cause anything further .. more significant. [ 31 ] You know, when I did re-read that Assessment Report, I don ’ t know then if that would strike home to Mr. Dechamp.

I see where he has a daughter and I ’ m sure - and I only say that - when you want to strike somebody whether it be male or female, but when you ’ re going to strike somebody, you could be striking somebody that ’ s taking a young child ’ s mother or father away from them and I don ’ t know if he really loves his daughter, maybe then he could understand where Ashley Harrison comes from when the biggest thing that she ’ s able to do now that she was really about, I ’ m sure, for those two weeks following this matter and maybe even after that too, was to be able to have her daughter and to be around her daughter and help her and grow up with her as a mother.

So, I ’ m not trying to appeal to emotions here, it ’ s just that I see where he has a daughter and I don ’ t know if he gets the connection between that ’ s all that Ashley Harrison wants is to be the mother and have her daughter grow up and see her become a young lady. [ 32 ] So, My Lord, the principles of sentencing are known to the Court. They are codified under s. 718 of the Code . We used to have what they call those words “ deterrence ” and “ rehabilitation ” .

Well obviously the Crown is not looking for any rehabilitation sentence. [ 33 ] Mr. .. ah .. for four years up in Waterville he ’ d been given all the rehabilitation supposedly that .. even though it was in Waterville, he should have gotten courses, the programs, or whatever. Maybe that ’ s obviously not good enough for Mr. ah ... whatever those programs were, doesn ’ t appear to have worked for Mr.

Dechamp. [ 34 ] I know from first dealing with him that he was very adamant about wanting to go to the federal penitentiary so .. well, that was taken care of by Justice Hood because he had almost three years of time to do because he was very early into his parole period of time from that sentence that ... I think he was only a week or two into that.

So, back from last Fall he ’ s now serving the remainder of that parole period which she revoked and ordered him to serve, so he ’ s doing approximately, I don ’ t know now ... probably two and a half years to go on that or approximately in that range - two to two and a half years. [ 35 ] My recommendation to the Court is for a term of three years added to any time he ’ s subject to. So that would be consecutive to any time he ’ s now subject to. Now I think totally that would bring it up to five, five and a half years of time that he would be serving in a federal penitentiary.

I would like to think, My Lord, but I probably .. although I wasn ’ t on the side of trying to do Mr. Dechamp any favours in seeking an adult sentence when he was before the Court as a young offender, I can only say that I don ’ t know if it ’ s going to work. I don ’ t know if he ’ s going enjoy that lifestyle up in a federal penitentiary.

It would appear that he ’ s hell bent on the fact of wanting to be in a federal institution, but life is passing him by and I don ’ t know if he ’ s even going to get the message, so I need deterrence and that ’ s what I suggest a three year sentence will hopefully achieve by way of ... it will keep him off the street, it ’ ll show people for aggravated assault, as I say which carries a maximum of 14 years, it ’ ll hopefully give him further time - whether that ’ s going to be used wisely or not - further time to reflect that when you get out, or you know, eventually you do get out of .. hopefully .. it ’ ll happen - he gets out of prison - that, you know, if you ’ re going to continue to go some night or do whatever you want to do, or be with whomever you ’ re going to be with, if somebody either looks at you the wrong way or says something to you that you don ’ t like, if you don ’ t take .. remove yourself and keep your hands to your side and just remove yourself from there - Mr.

Dechamp will continue to come before the courts. [ 36 ] And as I say, he doesn ’ t seem to come on these minor .. it ’ s not minor theft anymore, it ’ s not mischief, it ’ s not anything like that - it ’ s on major, major matters and .. so as an adult now, his first sentence is .. if the Court deems it appropriate to go along with this joint recommendation, if that ’ s the case, well he ’ s graduating into a three year sentence to start with. [ 37 ] Time I guess will tell.

As I say, I have my victim here in court today and, My Lord, she ’ s with her mother and some friends, but ah ... [ 38 ] THE COURT : Does the victim have any interest in reading the Victim Impact Statement?

[ 39 ] MR. SCOTT : No, that ’ s fine. [ 40 ] THE COURT : I will say that I ’ ve read the Victim Impact Statement and I ’ m very familiar with what it contains. [ 41 ] MR. SCOTT : I have a copy of the JEIN report which will outline the previous convictions but you ’ ve read them in the Assessment Report what they were.

He ’ s had probation as a young offender and he ’ s had short terms of deferred custody and supervision, and he ’ s had jail time as you ’ ve read in the Assessment, so I made an extra copy if Your Lordship wants it, but from the point of view of the Crown, you know, his last sentence as a youth and his first sentence as an adult - it doesn ’ t matter if he had 27 prior convictions mainly for breaches, doesn ’ t paint a very rosy picture, so if you do want it, My Lord, I have it. [ 42 ] Those are my comments .. if you have questions.

So I ’ d ask three years in a federal penitentiary consecutive to the time that he ’ s now subject to because he is doing I think somewhere in the two - two and a half year range on the murder that the parole period of time that Justice Hood revoked back in the Fall of last year. [ 43 ] THE COURT : Mr. Bearden? [ 44 ] MR. BEARDEN : Thank you, My Lord.

Although this is a joint commendation, the Defence is agreeing ... joining the Crown on the recommendation of three years, we ’ ll state on the record that this recommendation is the product of negotiation between the parties ... took into consideration available defences, aggravating, mitigating factors. [ 45 ] There was a Preliminary Inquiry. Additional facts did come out during the Preliminary Inquiry. The only one that provides perhaps a slightest mitigating factor was in fact that witnesses at the Preliminary Inquiry admitted that there was a considerable dispute in progress between Mr.

Dechamp and some other people - not Ms. Harrison herself, but people associated with Ms. Harrison, so again, there was activity going on at that time - there was definitely a heated argument going on, possibly it had already begun to get physical. [ 46 ] As far as this disposition, there is case law that would suggest the range for aggravated assault runs in Nova Scotia between suspended sentences up to extremely long sentences, just shy of what might be found for attempted murder or manslaughter. [ 47 ] I provided my friend with a case and I ’ ll pass it up to the Court - R. v. MacDonald 2010, NSSC 281 .

This is a case with similar facts in terms of the violence of the offence and injuries to a person that lasted, resulting from a single physical blow. [ 48 ] What I ’ ll agree with my friend on is that the major distinguishing feature between MacDonald and Mr.

Dechamp ’ s case is that in the MacDonald case this man was not serving parole or was not on the run or on a ... violating parole principles of parole at the time of the offence. [ 49 ] In MacDonald , the Crown sought and received a sentence of twelve months for an aggravated assault which consisted of a single blow to a woman ’ s head which left her .. which caused further injuries when she struck the pavement. Mr. Dechamp ’ s personal situation - he ’ s 22 years old, he has a serious record - defence acknowledges everything that ’ s been said about his record by Mr. Scott.

The Assessment Report that was provided about him earlier is before you, My Lord. Again, we agree with what ’ s in it and would agree and submit, My Lord, that this is a case of not of someone who goes out seeking trouble per se but who has a serious difficulty controlling impulses when in a heated interpersonal conflict, and unfortunate for Mr. Dechamp and for Ms. Harrison, Mr. Dechamp is an extremely fit and healthy and strong young man. What between two other people might be a common assault when it comes from him, it caused serious damage and serious repercussions, both for his victim and for himself.

[ 50 ] However, part of the consequences of that altercation on the night that we ’ re speaking of, My Lord, was that he lost all of his qualifications from release on an earlier sentence so there have been consequences already and because that affected his existing sentence, I would submit, My Lord, that totality is still a factor. [ 51 ] For all those reasons as well as the reasons my friend has submitted, subject to any questions, defence submits that the three years is a fit and proper sentence. [ 52 ] THE COURT : Thank you, Mr. Bearden. [ 53 ] I have a joint recommendation.

I have a few comments. [ 54 ] There used to be a time, you know, that men, even violent men, the last thing you would contemplate doing in this life would be to strike a woman. You would never strike a woman. [ 55 ] Mr. Dechamp, when you think about it, is a very lucky man. He ’ s a lucky guy. He ’ s lucky because he ’ s not here today on another murder charge, and that ’ s only dumb luck because that woman ’ s brain was swelling. That ’ s dumb luck. So he is a lucky man. People who aren ’ t so lucky are people who run into Mr.

Dechamp in circumstances where he ’ s likely to become angry because he does dramatic damage to them - and that ’ s not unheard of in our society - we have dangerous people in this society. People who cannot be free and that ’ s why we build federal institutions. And there ’ s been some indication, Mr. Dechamp, that you are interested in being in that federal institution which is good because you are likely to be there for most of the rest of your life - most of the rest of your life. [ 56 ] There ’ s something the matter with you, Mr.

Dechamp - seriously the matter, and we cannot allow you to function in society. [ 57 ] This man at the time of this offence was subject to probation. In the early hours of the morning, because of some dispute, he punches a woman in the head. He ’ s proud of himself. [ 58 ] In this specific, I don ’ t know - he ’ s only a young man - couldn ’ t possibly in his 22 years or so have gotten off to a worse start. I don ’ t know how he could have screwed up much worse than he has to this point, but what do I know. I know people change.

I know there ’ s a possibility in the worst of people to do better - maybe that will happen here. [ 59 ] In the meantime, keeping in mind the circumstances of this matter, keeping in mind the fact that Mr. Dechamp has a history, keeping in mind the absolute total futility to this point of trying to do anything with him this side of the jail house, I will accept the joint recommendation - it will be three years federal time consecutive to time presently served which the Crown informs me will be federal time in combination remaining in the area of about five years. [ 60 ] Close court, please. Kennedy, C.J.S.C.