Court upholds 12-year sentence in violent Brantford sexual assault

Ontario's Court of Appeal has upheld a 12-year sentence for a convicted rapist, despite finding the sentencing judge failed to properly consider his Inuit heritage.

Daryle Brown randomly attacked and raped a woman in Brantford early on Aug. 9, 2012. More than three years later, he pleaded guilty to aggravated sexual assault and was later sentenced to 12 years, minus credit for pretrial custody. But he appealed his sentence, arguing it was unduly harsh."

The facts of the crime, laid out in the Court of Appeal decision released this month, are not contested. Brown, who was 21 at the time, had been drinking, got into a fight and was hurt. He lost consciousness at home and was taken to hospital where his blood measured 198 milligrams of alcohol in 100 millilitres of blood, nearly two-and-a-half times greater than the legal limit for driving (he was not driving).

He was taken home and Brown said he didn't remember anything that happened after that. But at some point, he left home.

According to the court decision, he first began following a woman who managed to get help at a nearby home. A couple took the woman in and got their dog and a baseball bat. From their porch, they could see Brown in the bushes.

Brown walked away, but not long after this disturbing encounter" Brown turned his attention to the victim, who was walking home from her job at a restaurant. Brown jumped out and grabbed her by the neck, twisting her head, according to the court decision. Her head was bashed on rocks and she was choked until she was unconscious. When she woke up, she was partially unclothed and had been raped.

In her victim impact statement, she said it felt as though my head had been struck by a wrecking ball." Her identification and credit cards were stolen. She managed to get herself to a nearby gas station for help, leaving a trail of blood.

In hospital, she needed 100 stitches to her head, and she had cuts and bruises on her face that caused her eyes to swell shut. She couldn't speak for days because of a swollen tongue. She spent a week in hospital and a year later had to return to a doctor to have a rock fragment removed from her head. The psychological impact has been profound."

Brown pleaded guilty on Nov. 30, 2015. But a year passed while the Crown considered whether to begin a dangerous offender application that ultimately didn't happen.

During the sentencing hearing, the judge received a pre-sentence report on Brown, a psychological assessment and a Gladue report, a report used in sentencing Indigenous offenders that details their background and cultural considerations.

From the information gathered, a picture emerged of a person who had endured a very difficult upbringing," the court concluded.

This included growing up in a home with alcoholism, violence and neglect. He was placed in care as a youth. He has no family support, but is supported by a former foster mother and his ex-partner. He is now 29.

At the sentencing hearing, there was evidence that the appellant accepted responsibility for his actions, even though he had no memory of them," the Court of Appeal concluded. He also expressed remorse."

Alcohol clearly played a role in the offence, but the court also expressed concern that there is still no explanation for what triggered his behaviour that night. His risk to reoffend is considered moderate to moderate-high," according to the psychological assessment.

There was some confusion around his heritage as Brown had no relationship with the man he believes is his biological father. He is Inuit.

Brown met his biological father when he was 18 and said they look alike. But they argued and the man told him: you're not my son."

During sentencing, the Crown relied on this to say Gladue principles did not apply, but Brown argued the comment was said in the throes of anger."

An aunt, whom Brown had never met, told the Gladue report author that the family is Inuit and has a deep history of trauma, including residential schools. Brown's biological father was forcibly separated from his family and adopted into a non-Indigenous family.

The appeal argued the sentencing judge misapplied" Gladue principles by concluding that the seriousness of the offence outweighed consideration of his Inuit background.

Having observed that there is minimal connection between Mr. Brown and his alleged Aboriginal roots and that there is some issues as to his being identified as an Aboriginal, it must be said that these issues are somewhat moot because of the seriousness of the offence," Superior Court Justice Alan Whitten said in his 2016 sentencing.

The Court of Appeal agreed the sentencing judge erred in his application of Gladue.

The gravity of the offence did not, and could not, render the circumstances relating to the appellant's Indigenous heritage moot'," the Court of Appeal concluded.

However, this type of error is not necessarily fatal," the court continued. While his father's absence played a role in his traumatic upbringing," his tumultuous" childhood that included alcoholism and abuse are more likely factors.

Looking at this aspect of the case afresh, I am satisfied that 12 years' imprisonment is a fit sentence."

Nicole O'Reilly is a Hamilton-based reporter covering crime and justice for The Spectator. Reach her via email: noreilly@thespec.com