Wayne Wesley’s intoxicated attack on a 12-year-old boy last year demands a jail sentence, a judge decided Friday.
The youngster was assaulted in the middle of the night during a sleepover with friends, after Wesley kicked in a bedroom door at a P-Patch home.
The children were traumatized by his actions in the early morning hours of Sept. 15, 2022, Ontario Court Justice John Condon said.
Homes are sources of security and “sanctity from the craziness around us,” he told the 46-year-old man.
“Those three children and an adult lost their sense of security.”
Wesley pleaded guilty in April to break and enter to commit assault and mischief.
He went into an acquaintance’s Placid Avenue home, demanding to know where the boy’s mother was, and struck the child in the face.
During Friday’s sentencing hearing, the Crown called for a sentence of two years less a day behind bars, followed by three years probation.
The defence proposed a suspended sentence, plus 36 months probation.
After hearing from the lawyers and Wesley, the judge concluded a conditional sentence, which will be served in the community, followed by 30 months probation, is appropriate.
Prosecutor David Didiodato argued that the accused had assaulted a young boy in his bed in the middle of the night, and in the presence of other children.
“This was a traumatic event.”
When an adult kicks in the door of a room this is a home invasion, not a break-in, the assistant Crown attorney said.
It violates the sanctity and security of home because it is perpetrated against vulnerable individuals, Didiodato said.
There must be serious repercussions for such actions “to ensure all citizens feel safe in their homes.”
Defence lawyer Eric McCooeye said his client has no criminal record and immediately took responsibility for his actions.
Wesley was “highly intoxicated at the time” and ”blacked out,” leaving him with little memory of what happened.
He takes responsibility, “doesn't want to shirk this” and say “alcohol did this,” McCooeye told the court.
This has weighed on his mind since that day and in his words he “was mortified.”
Wesley owns what he did, admits it, is sorry and knows there are consequences.
“Owning it is important,” and his client is remorseful, the defence said.
What happened on “one terrible night” was a “combination of factors boiling over.”
McCooeye referred to the pre-sentence and Gladue reports that were provided to the court for the sentencing hearing.
During his childhood Wesley experienced many traumas, has “suffered discrimination his entire life” and been subjected to violence, the defence said.
There was very little escape from his difficult personal history and background and he turned to alcohol and drugs.
Wesley is viewed in his communities “as a nice person who drinks too much.”
Describing this as “an exceptional case” involving “an exceptional individual,” McCooeye suggested a suspended sentence is an available sanction and asked the court to consider it.
Wesley is attending classes in Sault Ste. Marie four days a week, then drives to his camp in Oba on Friday where he lives in the bush on the weekend and then returns on Sunday.
He makes this 10-hour round trip to maintain his Indigenous connection with the land, which includes hunting and fishing, McCooeye said.
An emotional Wesley wiped tears from his eyes as he apologized for his actions.
“I’m deeply sorry,” he told Condon, indicating he understands the effect they had on the kids and people in the house.
“I'm not minimizing (what happened). I take full responsibility for what I did and am taking steps to move forward,” Wesley said.
“I'm taking the proper steps to fix my mental health. I’m doing my best.”
Condon said he has to impose a sentence that is appropriate in all the circumstances.
This is difficult because what occurred was the invasion of a home, where children were present, and one youngster was assaulted.
This case is more than someone walking into a house, the judge told Wesley.
“You kicked in a door, assaulted a child and told police ‘kill me or I'll come back.’”
Condon said he also has to take into account Wesley’s circumstances then and now, as well as the Gladue factors.
These factors arise out of the mistreatment of Indigenous people in Canada, he said.
“I have to be mindful of that.”
We know these factors impact people and “you are an example.”
Condon also noted Wesley graduated from a Sault College social work program, and has been employed as a youth worker, a substance abuse counsellor, mental health worker and an aboriginal support worker.
“From your background, when you are sober you are clearly one who tries to help people, but you have not been successful at it.”
The judge said he isn't sentencing a man in his early 20s, who broke into a home and stole a TV or was hanging around with the wrong people.
“You are an individual who has contributed to society,” Condon said. “You're still on a journey of recovery that goes on for the rest of your life.”
As well, “you are a person who wants to be rehabilitated” and is determined not to do this again.
Condon said he is satisfied that he can impose a two-years-less-a day conditional sentence in the community, rather than the real jail sought by the Crown.
Just because this sentence is in the community doesn't mean it's not detention, he warned Wesley, telling him if he breaches he can be brought back to court and sentenced to time behind bars.
During the first year, Wesley will be under house arrest.
He can only leave home for medical emergencies, employment and school, to obtain the necessities of life, and to go to Oba on the weekends.
During the second year, he will have a 10 p.m. to 7 a.m. curfew.
Throughout the entire sentence, he must have no contact with the victims and can't be within 100 metres of them.
He must take any recommended counselling, assessment and rehabilitative programs.
“This is custody served in the community,” which means no alcohol or drugs, Condon told him.
On the weekends, he is permitted to travel directly from his residence in the Sault to his camp.
Condon imposed a 10-year weapons prohibition order that has an exemption for sustenance hunting.
Wesley can only use the weapon within a 50 km radius of his camp.