Offender out of jail less than two years after violent attack

Judge says COVID-19 in prisons a factor in ruling; criminal beat woman with bat

COVID-19 has made jail a dangerous place to be, said a Windsor judge who allowed a man to walk free after serving less than two years for a brutal assault that left a Leamington woman clinging to life.

The victim, Haifa Gebrail, spent weeks in a coma and months in hospital after being attacked in her own home and left for dead on June 22, 2018. After having her scalp lacerated and skull fractured with a bat, Gebrail was back at home by the end of that year, but she still has nightmares and suffers post-traumatic stress disorder.

Essex OPP charged Leamington’s Robert Hearns — a meth addict boasting a long criminal record — with attempted murder.

Hearns recently pleaded guilty to aggravated assault, and Superior Court Justice Renee Pomerance agreed to a joint sentencing proposal by the Crown and defence in which he was given 1,001 days credit for 667 days (about one year and 10 months) spent in pre-sentence custody. After one further day in jail, he began a three-year period of probation.

“This disposition is appropriate given the current social and medical context,” Pomerance said in an April 17 written ruling. “A sentence of time served plus probation is appropriate having regard to several factors, including the global COVID-19 pandemic and the increased risk of infection faced by inmates in Canadian jails.

“As a matter of logic and common sense, the risk of contracting the virus is higher in an environment where people are forced to habitually congregate with one another,” said Pomerance, who cited five recent court rulings in which fellow judges referenced COVID -19 in bail and sentencing decisions.

Given the gravity of the crime and the accused’s long criminal record, Pomerance said Hearns’ sentence “might be seen by some to fall short of reflecting the seriousness of the offence and moral blameworthiness of the offender. However, we are not presently in normal circumstances.”

Hearns’ lawyer, Jennifer Comand, said the judge “took into account the reality we’re living in — (COVID-19) was definitely a factor.”

Comand told the Star she did not want to discuss details of discussions she had with the Crown leading up to the joint submission.

In the recent case law cited by Pomerance, one judge spoke of the near-impossibility of social distancing during incarceration while another described jail as “one of the most dangerous places imaginable” during COVID -19, for both inmates and staff.

Given the potential for overburdening the health-care system, Pomerance said “the risk of COVID -19 in prison settings translates into an increased risk for the community at large.”

The judge described the 2018 incident as “a brutal and unprovoked attack on a vulnerable and defenceless victim.” In a statement to the court, Gebrail said, “it will take my whole life to heal.” Her uncle said his niece’s “friendly, optimistic and positive outlook has now been replaced with anger, fear and suspicion.”

Precedence plays a big role in sentencing, with judges guided by previous court rulings in determining an appropriate range of sentence, but Pomerance referred in her ruling to current circumstances being “without precedent.” Given the pandemic, “jails have become harsher environments ... punishment is increased,” she said.

Pomerance said she was “not suggesting that the pandemic has generated a ‘get out of jail free’ card.” But the “sense of community, decency and humanity” people are being asked to call upon during challenging times, she said, “must obviously extend to all individuals, including those incarcerated.”

Hearns, 44 at the time of the attack, was ordered to attend counselling during his first year on probation and was ordered not to communicate directly or indirectly with the victim and not to attend within 100 metres of her residence, place of education or employment.

Crystal methamphetamine addiction was the catalyst for much of Hearns’ “substantial criminal record,” said the judge, including four prior assault convictions. At the time of the 2018 attack, he was bound by four separate probation orders. Pomerance said Hearns has remained sober since being incarcerated and pursued education and had taken advantage of jail programs.