R. v. Ellison, 2017 NSSC 202

SUPREME COURT OF Nova Scotia Citation: R. v. Ellison 2017 NSSC 202 Date: 20170817 Docket: Cr. No. 453189 Registry: Halifax Between: Her Majesty the Queen v. Arnelle Wellington Ellison Sentencing Decision Judge: The Honourable Justice Robert W.

Wright Heard: August 17, 2017 in Halifax, Nova Scotia Oral Decision: Written Decision: August 17, 2017 August 22, 2017 Counsel: Robert Kennedy for the Crown Peter Planetta for the Defence Wright, J. (orally) [ 1 ] On April 20, 2017 following a seven day trial, the accused Arnelle Wellington Ellison was found guilty of the offences of aggravated assault contrary to s. 268(1) of the Criminal Code , assault with a weapon (to wit, a golf club) contrary to s.267 (a), and possession of that same weapon for a purpose dangerous to the public peace or for the purpose of committing an offence, contrary to s.88(1) . [ 2 ] In addition, Mr.

Ellison plead guilty to the breach of a recognizance he was on at the time of the commission of these offences, by reason of non-compliance with his house arrest condition in effect at the time. [ 3 ] With the conviction entered on the lead charge of aggravated assault, the correlating convictions for assault with a weapon and possession of a weapon for a dangerous purpose were stayed under the Kienapple principle. [ 4 ] Sentencing for the offences of aggravated assault and breach of recognizance was put over until today’s date to enable the court to have the benefit of a pre-sentence report and sentencing submissions from counsel. [ 5 ] The essential facts upon which these convictions are based can be paraphrased from my trial decision as follows.

On October 21, 2015 Mr. Ellison became embroiled in a physical altercation with Mr. Derrick Munroe outside the Ellison residence on Brunswick Street in Halifax. Mr. Munroe was very seriously injured from Mr. Ellison’s attack upon him with a golf club, having sustained multiple fractures and internal bleeding around the brain. The injuries inflicted upon Mr.

Munroe included a depressed skull fracture (with associated 10-12 cm. laceration of the left frontal skull bone), and fractures of the cheekbone, eye socket and C2 spine, for which he was hospitalized for several days. [ 6 ] The way this incident began and rapidly escalated out of control is deplorable. Mr. Munroe was waiting outside the residence of his former partner next door to the Ellison residence (intending to help her move after she had been evicted). Waiting with him were other family members when along came Mr. Ellison’s mother, who tried to talk to Mr. Munroe only to be rebuffed. Ms.

Ellison then started cursing at Mr. Munroe and name calling which Mr. Munroe mimicked back to her as she returned to her house next door. [ 7 ] At this juncture Mr. Ellison, returning from work to his mother’s home where he lived as well, heard of this encounter from a neighbour and then took it upon himself to immediately go outside to confront Mr. Munroe. Video evidence taken from a cell phone showed very aggressive and belligerent behaviour by Mr. Ellison towards Mr. Munroe, suggesting that they go down between the two neighbouring houses to fight which Mr. Munroe declined to do. That is when Mr.

Ellison picked up a fan from a pile of curbside

garbage and chased Mr. Munroe down the street, striking him with the fan in the back when he caught up to him. [ 8 ] At this point, Mr. Ellison’s mother arrived on scene and escorted him back to their house with Mr. Ellison uttering death threats to Mr. Munroe along the way. [ 9 ] Mr. Ellison had no sooner returned to his residence when he came back out brandishing a 5 iron golf club. He then aggressively pursued Mr. Munroe across the street and viciously beat him in the head with the golf club multiple times, thereby causing his injuries. The court found that Mr.

Ellison delivered a number of forceful blows to Mr. Munroe, including when he was down on the street. Mr. Ellison then returned to his residence with the golf club whereupon the police and an ambulance were called by bystanders. [ 10 ] At trial, Mr. Ellison relied on the self defence provisions in s.34 of the Criminal Code . However, the court readily concluded that the Crown discharged its burden of disproving self defence on the evidence presented. Rather, the court concluded that Mr.

Ellison was the aggressor and completely lost his self-control, whether getting his revenge for feeling disrespected in public by Mr. Munroe or to teach him a lesson for disrespecting his mother. In any event, it was a senseless and needless act of violence from which Mr. Munroe continues to feel the effects to this day. [ 11 ] Mr. Munroe has now provided to the Court a Victim Impact Statement under date of July 13, 2017. It was actually handwritten by a friend of his from dictation by Mr. Munroe. [ 12 ] This incident has obviously had a profound and lasting effect on Mr.

Munroe, emotionally, physically and economically. He is not as active as he used to be and complains of ongoing headaches and memory loss. He has a permanent disfigurement from his skull fracture. He says he cannot work as he once did in the construction field and cannot keep up financially to provide for himself and his family members. [ 13 ] The court now has the benefit of a pre-sentence report prepared under date of June 29, 2017. Mr. Ellison is presently 26 years of age and when these offences were committed, he was living with his mother with whom he has a positive relationship.

He has had little contact with his father over the years although that appears to have improved just recently. Mr. Ellison described his childhood in positive terms and affirmed that he was not subjected to abuse within his family home during his formative years. [ 14 ] Mr. Ellison has three children in all from different previous relationships. He tries to maintain a relationship with two of them, the third child being a ward of the court. [ 15 ] Mr.

Ellison has a grade 12 education and at the time of the commission of these offences, was working with a maintenance company where he was doing snow removal, cleaning and maintenance. His employer continues to be supportive of him and advised the probation officer writing the pre-sentence report that he has a job waiting for Mr. Ellison upon his release if he wants it, and that he is willing to help him get on with his life. [ 16 ] In addition, Mr.

Ellison was operating a small business of his own where he was involved in planning parties and providing music services. [ 17 ] Prior to the commission of these offences, Mr. Ellison was also involved in community work and had been active in both the Cease Fire and 902 Man Up organizations and was said by an outreach worker to have a good rapport with the young people of his community. As summed up by the author of the pre-sentence report, it appears that Mr. Ellison was working towards a positive lifestyle by maintaining employment and being an active member in his children’s lives, as well as his community.

It was also noted that he continued to work towards bettering himself while in custody by participating in various core programs. [ 18 ] In discussing the offences currently before the court with his probation officer, Mr. Ellison accepted responsibility for his involvement and appeared to be remorseful for his actions. This was reinforced by the personal remarks made by Mr. Ellison to the Court today. [ 19 ] The contents of the pre-sentence report pertaining to Mr. Ellison’s past community work are supported by several letters of reference provided to the Court by defence counsel.

They are authored by Stella Wilson (a neighbour), Marcus James (co-founder and president of the 902 Man Up organization that supports the black community), Shawn Parker (an Outreach worker with the Ceasefire organization, Chriselle Ellison (his mother) and El Jones (a former teacher at NSCC and community mentor to the Ellison family). [ 20 ] All of these supporters describe Mr. Ellison’s past involvement with community work, his rapport with black youths, and his efforts to benefit himself and his community. In commenting on Mr.

Ellison’s future, El Jones felt that “The ability for Arnelle to participate in his community, to connect to supports, and to pursue education and culturally appropriate mentorship will play an important role”. [ 21 ] Defence counsel has also provided to the Court today a letter from the Registrar of Nova Scotia Community College confirming Mr. Ellison’s waitlist status for enrolment in its Music Business program. [ 22 ] All of these considerations are an indicator that there is some reasonable prospect for Mr.

Ellison’s rehabilitation upon release from prison which might be further enhanced by his continuing to participate in the core programs offered. [ 23 ] The pre-sentence report also discloses, however, that Mr. Ellison does have a prior criminal record including two adult convictions for offences of violence. In 2015 he was sentenced to 120 days imprisonment plus one year of probation for a domestic common assault. Prior to that, in 2009, he was sentenced to 46 days imprisonment plus two years of probation (after serving 134 days on remand) for assault causing bodily harm. [ 24 ] Mr.

Ellison also has a prior conviction from 2010 of drug possession for the purpose of trafficking for which he was sentenced to two years incarceration. He also has 10 convictions for breaches of recognizance which are clustered in the years 2010-2015 respectively.

[ 25 ] Based on this backdrop of the circumstances surrounding this offence and this offender, the Crown advocates a global sentence of five years imprisonment less credit for pre-trial custody at a ratio of 1.5 to 1. Of the global sentence recommended, the Crown submits that an apportionment in the range of 4 to 6 months is appropriate for the breach of recognizance charge as it constitutes a separate delict to the assault on Mr. Munroe. [ 26 ] Defence counsel advocates for an overall sentence of 3 years imprisonment less credit for time spent in pre-trial custody at that same ratio of 1.5 to 1. Since Mr.

Ellison has now been in custody for a total of 478 days relating to this offence, the recommended credit after applying a factor of 1.5 days for every day served comes to a total of 717 days. [ 27 ] I recently had occasion to summarize the applicable principles of sentencing in an aggravated assault case in R. v. Larade , [2017] N.S.J. No. 190 which are also apt to the present case. I will simply reproduce them below for convenience: The purpose and objectives of sentencing and the principles to be considered are set out in s.718 of the Criminal Code .

Those to be emphasized in this case are the denunciation of unlawful conduct, the deterrence of the offender and other persons from committing offences, assistance in rehabilitating offenders and the promotion of a sense of responsibility in offenders.

Section 718.1 contains the cardinal principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Also to be noted is s.718.2 which requires that the Court take into consideration whether a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. For crimes of violence such as this one, courts across the country have repeatedly placed emphasis on the sentencing objectives of denunciation and deterrence, both general and specific.

In many cases, this one included, those two sentencing objectives are to be balanced with the further objective of assisting in the rehabilitation of the offender. [ 28 ] In determining a fit and proper sentence in this case, there are a number of aggravating factors present which must be recognized. They can be summarized as follows: (

a) This was a brutal vicious attack that was perpetrated by Mr. Ellison on Mr. Munroe that was completely unjustified and grossly disproportionate to a perceived slight to his mother he had heard about from a neighbour. The attack consisted of repeated strikes to the head and neck area of Mr. Munroe with a steel headed golf club, a potentially lethal weapon, as Mr. Munroe attempted to get away. One or more of these blows were inflicted when Mr. Munroe was down on the street defenceless; (

b) Mr. Ellison inflicted serious injuries to Mr. Munroe’s head, neck and facial areas which demonstrates the use of a high degree of force. Mr. Munroe has been left with lasting effects from these injuries, including a permanent disfigurement from his skull fracture; (

c) After the throwing of the fan, the incident should have been over. Instead, Mr. Ellison came back outside with the intention of inflicting harm upon Mr. Munroe without facing any threat from him. The finding was made by the Court that there was no element of self defence nor any justifiable provocation; (

d) After the beating, Mr. Ellison offered no assistance to Mr. Munroe but rather left him lying on the road seriously injured and bleeding. He promptly left the scene, and disposed of the golf club in a nearby dumpster; (

e) Mr. Ellison was in breach of his release conditions at the time (although that breach is subsumed by the separate charge under s.145(3) of the Criminal Code ); (

f) Mr. Ellison’s criminal record includes two prior convictions for crimes of violence as above summarized for which he served time in jail of approximately 4 months and 6 months respectively. [ 29 ] Mitigating factors to be taken into account are: (

a) At 26 years of age (age 24 at the time of the offence), Mr. Ellison is a relatively youthful offender; (

b) He has since accepted responsibility for his actions and expressed remorse; (

c) The pre-sentence report is generally positive and coupled with the several letters of reference provided to the Court, portrays an individual with reasonably good prospects of rehabilitation with strong community ties and motivation to better himself. [ 30 ] I do not accept the defence proposition that there was some degree of provocation here that would constitute a mitigating factor. Undoubtedly, the verbal exchange between Mr. Munroe and Mr.

Ellison’s mother was the catalyst to this incident but in my view, that was far too minor an event to constitute provocation in the eyes of the law. [ 31 ] As stated by the Nova Scotia Court of Appeal in R. v. Willis , [2013] N.S.J. No. 322 (at para. 31 ), aggravated assault is one of the most serious offences in the Criminal Code . In an earlier decision of that Court in R. v. Marsman , 2007 NSCA 65 , Chief Justice MacDonald elaborated on the gravity of the offence as follows (at paras. 17-18): 17. In Canada, assault charges are organized along a continuum depending upon the severity of the attack.

They range from the least serious common assault to the ultimate "assault" - murder. Short of culpable homicide, aggravated assault represents the most serious indictment. It involves either wounding, maiming, disfiguring or the endangerment of life and carries a potential punishment of fourteen years: 268(1) - Aggravated Assault - Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.

(2) Every one who commits an aggravated assault is guilty of an indictable offence and liable to imprisonment for a term not

exceeding fourteen years. 18. R. v. D.S.K., 2005 SKCA 18 , [2005] S.J. No. 97 (Sk.C.A.), Cameron J.A. placed the seriousness of aggravated assaultinto context: para22 Judges are required, of course, to sentence offenders in accordance with the purpose, objectives and principles of sentencingfound in sections 718, 718.1 and 718.2 of the Criminal Code.

This includes the fundamental principle that "a sentence must beproportionate to the gravity of the offence and the degree of responsibility of the offender." para23 The gravity of an offence lies in the nature and comparative seriousness of the offence, in the circumstances of its commission,and in the harm caused. para24 Aggravated assault consists of wounding, maiming, disfiguring, or endangering the life of another person, according to section268(1) of the Code, and constitutes an indictable offence. That is the nature of the offence.

Some indication of the comparativeseriousness of the offence is apparent on the face of the provisions of the Criminal Code regarding various forms of assault. In thescheme of these provisions, assault is an offence against the person, and it ranges through common assault, assault causing bodily harm,sexual assault, aggravated assault, sexual assault with a weapon, and so on. para25 The first, second, and third of these are either indictable or

summary conviction offences, which are potentially punishable intheir indictable version by imprisonment of up to five years in the case of the first, and up to ten years in the case of the second and third.The fourth, aggravated assault, is an indictable offence, potentially punishable by imprisonment of up to fourteen years. So is sexualassault with a weapon other than a firearm.

In this lies Parliament's general view of the comparative seriousness of aggravated assault. [32] Within that continuum, the courts have developed a wide range of sentencing for aggravated assault, given the wide range ofcircumstances in which this offence may be committed and the degree of moral blameworthiness of the offender. Sentences can rangefrom a suspended sentence (in exceptional cases) to several years incarceration, as affirmed in R. v. Anderson, [2001] N.S.J. No. 28. [33] Counsel have provided me with 18 sentencing cases collectively, including several from this province.

Some are helpful indetermining an appropriate range of sentence; some are not. [34] Two recent Nova Scotia Court of Appeal cases worthy of note are R. v. Thomas, 2015 NSCA 112 and R. v. Willis, supra. InThomas, the victim was seriously wounded by an unprovoked stabbing outside a tavern. He was sentenced to 66 months imprisonmentfor aggravated assault.

That sentence was upheld on appeal albeit with the judicial comment that it was at the higher end of the range,but not demonstrably unfit. [35] In Willis, the accused plead guilty to aggravated assault involving an unprovoked beating of the victim repeatedly causing a lifethreatening injury. The Court of Appeal considered the offender’s moral blameworthiness to be high. After reviewing other casestherein cited (observing that no two cases will be exactly the same), the Court identified the most germane features of that case to be (

a) aserious assault with no weapon, resulting in immediate, but not lasting injury and that (

b) the offender was a relatively young man with apast record for violence (two convictions). The Court of Appeal imposed a sentence of 3 years’ imprisonment less a credit for pre-sentence custody. [36] I will also refer to the recent decision of Justice Coughlan in R. v. Reddick, 2017 NSSC 189. In that case, the offenderrepeatedly beat the victim in the head with a metal cane, inflicting multiple severe lacerations to his face and head. The assault wasunprovoked.

The offender, who already had an extensive serious criminal record, including crimes of violence, was sentenced to 4 years’imprisonment. [37] In reaching that conclusion, Justice Coughlan cited with approval the decision of the Ontario Superior Court of Justice in R. v.Tourville, 2011 ONSC 1677. In providing a detailed review of sentencing for the offence of aggravated assault, Justice Code concludedthat the range of sentencing ran from the bottom end of a suspended sentence plus probation (in exceptional cases) to the high end of 4 to6 years imprisonment.

Justice Code observed that cases at the high end of the range “generally involve recidivists, with serious priorcriminal records, or they involve “unprovoked” or “premeditated” assaults with no suggestion of any elements of consent or self-defence”. [38] I need not review all the other cases submitted to me, mostly from other provinces, for purposes of this decision. Many aredistinguishable on the facts.

Suffice it to say that they are generally consistent with those from this province, depending on the factualcircumstances of the assault and the degree of moral blameworthiness of the offender. [39] While I do not completely adopt the tiered approach outlined in Tourville, I nonetheless conclude that the present case is onewhere the sentence to be imposed should ascend toward the high end of the range identified in that case which is consistent with theNova Scotia jurisprudence.

That is because of the several aggravating factors present which are set out earlier in this decision. [40] Taking into account as well the mitigating factors present, and balancing the sentencing objectives of denunciation anddeterrence with the favourable prospects for rehabilitation of the offender, I conclude that a fit and proper global sentence to be imposedon Mr. Ellison is 4 years’ imprisonment. That will encompass a 30 day sentence for the breach of recognizance, to be servedconcurrently given the nexus between these two offences.

To be deducted from that is a credit for the time he has already served onremand which, factoring in a ratio of 1.5 to 1, amounts to 717 days in total (478 x 1.5). [41] The following ancillary orders will also be granted: (

a) a firearms prohibition for life (s.109); (

b) a DNA order (s.487.051); and

(

c) a victim surcharge fine of $200 which will be payable one year after this sentence is served. J.