R. v. Mitton, 2022 NSSC 123

SUPREME COURT OF Nova Scotia Citation: R. v. Mitton , 2022 NSSC 123 Date: 20220505 Docket: CRH 505889 Registry: Halifax Between: Her Majesty the Queen v. Austin Michael Mitton SENTENCE DECISION Judge: The Honourable Justice Jamie Campbell Heard: May 4, 2022, in Halifax, Nova Scotia Counsel: Rick Woodburn and Scott Morrison, for the Crown Briann Smith, Q.C., for the Defence By the Court (Orally): [ 1 ] Austin Mitton is being sentenced for his

part in the assault of Stephen Anderson at the Central Nova Scotia Correctional Facility in Burnside. After 2 trials 12 people were found guilty of aggravated assault and one of obstruction. The person found guilty of obstruction has been sentenced, R. v. Nagendran , 2022 NSSC 14 , and three of the people found guilty of aggravated assault have been sentenced, R. v. Ladelpha , 2021 NSSC 352 , R. v. McIntosh , 2021 NSSC 351 , and R. v. Clarke- McNeil, 2022 NSSC 63 . Mr. Ladelpha was sentenced to 6 years, Mr. McIntosh to 5½ years, and Mr. Clarke-McNeil to 6 years. Mr.

Mitton’s sentence should not be set only in reference to those sentences, but the sentencing principle of parity must be applied. What Mr. Mitton did was very similar to what Mr. Ladelpha and Mr. Clarke-McNeil did. His personal circumstances are different. But fairness would require some explanation for why his sentence should be different when the circumstances of the offence are in every relevant way, the same. [ 2 ] Mr. Mitton is being sentenced as an individual. His personal circumstances are important. Austin Mitton’s Background [ 3 ] Austin Mitton was born in 1994. He is 27 years old.

When he was 7 years old, he and his siblings were taken into care by the Department of Community Services. They were placed in different foster homes, and he eventually ended up in a group home. He went back to living with his mother when he was 12 years old. At that time, he was diagnosed with both Attention Deficit Disorder and Oppositional Defiance Disorder. He completed Grade 10 at the Halifax Youth Attendance Centre.

That program, among other things, provides programming for young people who are serving sentences under the Youth Criminal Justice Act and allows them to access education in a way that is designed to promote their success having regard to their own circumstances. That was Mr. Mitton’s last formal education. [ 4 ] Mr. Mitton left home at the age of 18 and went to Edmonton where he found a job with a siding company. He worked there for a year then went to Saskatoon where he started his own company doing concrete siding. He stayed in Saskatoon for 2 years then came back to Nova Scotia. Criminal Record [ 5 ] Mr.

Mitton has a criminal record. On October 16, 2017, he was sentenced for offences that took place in the fall of 2013. The offences were two counts of driving while disqualified, and two counts relating to possession of a firearm. On that same sentencing date,

October 16, 2017, he was sentenced for other offences. One was a failure to comply from July 2014. Others were failing to attend court as directed from October 2014 and March 2015, and 2 counts of failure to comply with an undertaking from August 16, 2017. At the October 16, 2017 sentencing Mr. Mitton was sentenced to 1 day in custody after receiving credit for 105 days on remand. [ 6 ] On June 19, 2018, he was sentenced for two counts of failure to comply with a recognizance or undertaking, breach of probation and driving while disqualified. The offences dated from January 2018.

He was sentenced to one day in jail and two years of probation. [ 7 ] On November 26, 2020, Mr. Mitton was sentenced for several offences that took place in July 2018. [ 8 ] Mr. Mitton and another person approached a person sitting in a car. They had their faces masked as a disguise. One was armed with a baton and the other had a gun. They assaulted and robbed the victim in the car. They fled and a high speed chase took place when Mr. Mitton was driving a car in an attempt to evade capture. After the car was stopped, they fled but were eventually apprehended by the police. Mr.

Mitton was taken into custody and placed on remand. He was on remand for those charges when the offence took place on December 2, 2019. [ 9 ] A sentencing was done on November 26, 2020. Mr. Mitton was sentenced to a total of 6 years and 6 months and was given credit for the time on remand from the date of his arrest to the date of sentencing. For assault causing bodily harm he was sentenced to 9 months. For robbery he was sentenced to 5 years, 6 months. For the offence of operating a motor vehicle in evading a peace officer he was sentenced to 3 months.

Those were consecutive sentences totally 6 years and 6 months. He received concurrent sentences for the offences of committing an indictable offence with his face covered, possession of a prohibited or restricted firearm with ammunition, resisting or obstructing a peace officer, possession of a firearm while prohibited, breach of probation, and driving while disqualified. [ 10 ] Mr. Mitton’s warrant expiry date on those sentences is November 1, 2023. When the incident at Burnside took place Mr. Mitton was on remand and when he was sentenced on November 26, 2020, he used up his remand credit.

Since then, he has been serving a sentence, so he has no remand credit to apply in this sentencing. Programming [ 11 ] Mr. Mitton acknowledges that he has anger management issues. He reported that it all came to a head when he went into custody, but he has been working on it. His social worker at the Burnside facility noted that while there he had been very engaged in programming and had expressed an interest in doing more. He knows that it is a long process and will take time.

She has created a program called “Prosocial Skill Building” which focuses on acknowledging strengths and values, while unpacking defence mechanisms and building coping strategies. She has reported that Mr. Mitton is very open and honest about his childhood and family life and has been receptive to recognizing and naming traumatic events that he has experienced and how these have impacted his behaviours and outlook on life. Mr. Mitton has been very keen on discussing the goals that he has for his future. [ 12 ] Those programs and Mr. Mitton’s active involvement in them provide hope for his future.

But his situation is more complicated than that. The internal reports indicate that he has continued to be accused of involvement in violent and disruptive behaviour. There have been no further criminal charges that have arisen while Mr. Mitton has been serving time. Those internal reports are not the equivalent of a criminal record because there has been no external adjudication. They do provide some context within which to assess Mr. Mitton’s apparent progress in counselling and programming. It can be said that it appears as though things may be gradually getting better. Mr.

Mitton is beginning to understand the ways in which he can control his own behaviour so that he can eventually self-regulate in a noncustodial environment. Burnside Incident [ 13 ] Mr. Mitton was one of the people who had been in cell 28, where the assault was planned. He waited outside Stephen Anderson’s cell. He went into the cell with the others. He did not wait or have to be cajoled into entering the cell. There is no evidence to indicate that he was the person with a weapon or even that he knew that a weapon was going to be used.

But he knew, when he entered the cell with several others, that Stephen Anderson was going to be assaulted in a way that would cause him physical harm. [ 14 ] There was evidence from one of the correctional officers that Mr. Mitton kicked Mr. Anderson as he was leaving the cell and Mr. Anderson was lying on the floor. [ 15 ] This was a planned and coordinated attack within a jail. The rule of law applies there. Prison culture cannot be permitted to take its place.

The safety of inmates and staff demands that the rule of law run to the internal working of correctional facilities of all kinds. [ 16 ] The inmates involved ganged up on and assaulted Stephen Anderson and did that in a way designed to prevent correctional officers from intervening. Sentencing Principles [ 17 ] There have been other cases that have addressed sentencing in individual assaults within a prison. They can range from 3.5 years to 10 years in length. All stress the importance of deterrence: R. v. McNeil , 2020 ONCA 595 , R. v. Laverdiere , 2020 ABCA 290 , R. v. Slade , 2007 NBQB 415 , and R. v.

Thompson , 2017 NBQB 81 . [ 18 ] Setting a sentence for an offence of this kind does not involve simply finding cases that are the same in some respects and different in others. The offence of aggravated assault is a broad spectrum one. It covers a broad range of offences, from a relatively minor stab wound to a case in which the victim is very close to death. It can happen in a broad range of circumstances, from bar fights to premediated gang beatings. [ 19 ] Deterrence and denunciation must be the primary purposes of the sentence in crimes of violence.

An assault within a jail takes the aggravated assault to another level. Serious injuries take it further. Coordinated activity resulting in a gang assault take it even further. Open defiance of the authorities seeking to intervene, as part of the coordinated effort take this case to a level more serious than the other prison assaults provided as examples.

[ 20 ] In any sentencing several factors remain in tension with each other. They are not necessarily contradictory, but they can pull in different directions. They are not merely a checklist of factors. Courts must consider the potential for rehabilitation. That may suggest a shorter sentence of incarceration. But the crime may be one that requires denunciation and deterrence, which cries out for a substantial punitive jail sentence. Similarly situated offenders should be treated similarly. But no two offenders commit the exact same offence, in the exact same way, with the same personal circumstances.

A person may have a long criminal record, but it may be, in part, a function of the condition of that person’s mental health. A person may be a member of a racialized group and the history of racism and marginalization of those groups as well as their overrepresentation in jails is a factor. Another person may not be a member of a racialized group but may come from an economically disadvantaged family. Parity in sentencing exists in tension with those considerations. [ 21 ] A person should be sentenced in a way that is proportional to their degree of moral blameworthiness.

Deterrence may be a factor in crafting an appropriate sentence, but it should never descend to the point of making an example of a person. [ 22 ] Courts must keep all those tensions in mind. A list of sentencing factors may make it easier to explain what is being considered but it loses some of the nuance. Each factor exists in tension with all or some of the others and it is not possible to assign a percentage weight to each of them. Sentencing is not done by algorithm. The Sentence [ 23 ] Mr. Mitton is still a young man. He has an entrepreneurial spirit but only has a Grade 10 education.

He has shown a willingness to work on dealing with his anger management issues. But he has a lot of work to do. [ 24 ] Mr. Mitton is already facing a long time in a federal penitentiary. The sentence imposed in November 2020 for the robbery and other offences that took place in July 2018 involved a prison sentence of over 6 years. That sentence was imposed after this offence took place. Sentencing does not operate on the principle that each sentence imposed must be longer on the assumption that the person “doesn’t get it”.

That sentence does not factor into the determination of the sentence to be imposed here. [ 25 ] Mr. Mitton was however not a first time offender. He is a person with a criminal record. His personal circumstances involving significant childhood trauma must be noted. But at the same time, he must be held responsible for his acts. Like anyone he is a product of his childhood but not only a product of his childhood. [ 26 ] What Austin Mitton did when he became involved in the assault on Stephen Anderson requires a serious response. Like the others, Mr.

Mitton may not have known that someone was going to bring a weapon. He may not have known that Mr. Anderson would be wounded to the extent that he was. Like some of the others Mr. Mitton might have felt indirect or perhaps very direct and pointed pressure to become involved. He may now know that the best course of action was to just walk away. But he did not. He became directly involved. [ 27 ] For an assault of this kind, within the highly structured and regulated environment of a jail, serious consequences involve a significant period of incarceration. Mr.

Mitton’s behaviour was not different in any real way from that of the other individuals, like Mr. Ladelpha and Mr. Clarke-McNeil, who went into Stephen Anderson’s cell. His personal circumstances are different. But they are not of a kind that would justify differentiating him from the others who have received sentences of 6 years. [ 28 ] Austin Mitton is sentenced to 6 years and he has no remand credit to apply to this sentencing, so that would be total of 2,190 days, without regard to leap years.

Time served will be consecutive to the time he is currently serving. [ 29 ] The s. 109 firearms prohibition and DNA order will be signed. Campbell, J.