WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Between:
Her Majesty the Queen
— AND —
David Partridge
Before: Justice E.A. Carlton
Heard on: October 2, 2019 (plea date)
Reasons for Judgment released on: November 18, 2019
Counsel:
- Miriam Villamil, counsel for the Crown
- Kim Miles, counsel for the accused David Partridge
Judgment
Guilty Pleas
1David Partridge has pled guilty to the following three counts:
- Sexual Assault on R.H. from October 2, 2018
- Sexual Assault on K.L. from November 9, 2018
- Assault Causing Bodily Harm on K.L. from November 9, 2018
2The Crown proceeded by indictment. R.H. was an adult at the date of the offence so the maximum sentence under section 271 is one of ten years. K.L. was fourteen at the time of the offence so the maximum sentence under section 271 is one of fourteen years and ten years on the charge of assault causing bodily harm.
3The Crown and the defence have markedly different positions on sentence. The Crown seeks a global sentence of 7 ½ years consisting of six months for the sexual assault on R.H. and a sentence totalling seven years for the offences on K.L.
4Counsel for Mr. Partridge recommends a sentence of 2 ½ to 3 years in total for the three offences.
5Mr. Partridge has now spent almost a full year in custody or eighteen months with enhanced credit. The effect of the Crown submission is for a sentence of six years from today. The effect of the defence submission is for a sentence of 12-18 months from today.
6Both counsel are largely in agreement that a number of ancillary orders flow from the three convictions.
Facts on the Plea
7Crown counsel read in an agreed statement of facts. The offences consist of two separate attacks on strangers to Mr. Partridge by him in October and November of 2018.
i) The Sexual Assault on R.H.
8R.H. was running along Ardagh Road in Barrie, Ontario on October 2, 2018. She was stopped at a light at an intersection. A van pulled up beside her and the passenger window was lowered. She observed a male driver but had no interaction with him.
9R.H. saw the van pass her and then saw the driver of the van approach her on foot at a fast walking pace. Mr. Partridge admits that "as he closed the distance, he moved directly at her, charged at her and reached around her, his hand coming in contact with her buttock".
10R.H. yelled at the male asking why he had done that, and the male answered "relax, it's only a joke" and then fled on foot.
11R.H. continued her run and took a photograph of the van she believed had been driven by the man who just assaulted her. That van is registered to Mr. Partridge.
ii) The Sexual Assault and Assault Causing Bodily Harm on K.L.
12As of November 9, 2018, K.L. was fourteen years old and a grade 10 student at her high school. She left the school shortly before 3 p.m. to walk home. Her walk took her through a gravel path and then into a wooded area or green space as it is described by the agreed statement of facts.
13K.L. was on her phone when she saw a man walking quickly towards her. He ran directly at her and punched her in the face with enough force to knock her to the ground and to cause her nose to bleed. The male then straddled her and punched her one or two more times in the face telling her to "shut up" and "get on your stomach".
14K.L. was screaming and the male grabbed her throat with both hands and choked her. K.L. thought the male was trying to kill her. The male then flipped K.L. onto her stomach, pulled her pants down and inserted his finger into her anus. K.L. recalls that the male was grunting and continued to yell at her to shut up. The male then grabbed K.L.'s phone and told her to go back to where she came from.
15K.L. ran back to her high school. The male fled in the other direction. K.L. gave a comprehensive description of her attacker to police and later participated in the creation of a composite drawing of her attacker.
16K.L. had significant injuries to her face and neck that are admitted to constitute bodily harm. When seen she had a bloody nose, blackening eyes and marks on her neck. She was taken to the hospital for treatment of the hematomas and swelling to her face.
17The release of the composite photograph caused R.H. to provide police with the photograph she had taken of the van on October 2, 2018.
18K.L. subsequently identified Mr. Partridge in a photo line-up as her attacker. Mr. Partridge was arrested on November 29, 2018 and has been in custody since that date.
19On arrest Mr. Partridge gave an inculpatory statement and told police he did not know why he had committed the assaults.
Effect on the Victim
20R.H. did not provide a victim impact statement.
21K.L., her mother and her sister presented victim impact statements to the court.
22The statements demonstrate the concrete harm that was caused by Mr. Partridge. K.L. was only fourteen at the time of the attack on her. K.L. spoke of thinking that she was going to die when she was being choked by Mr. Partridge and of the violence and terror she experienced during the assault.
23K.L. had to undergo an invasive exam after the assault and then numerous meetings with police. She describes herself prior to the assault, as does her mother and sister, as an independent and spirited young woman. In the last year she has been at times overwhelmed by the effects of the attack. She is now extremely vigilant about her movements and contact with strangers. Immediately after the attack she returned to her school and these events were well known within that community. Regrettably, she reports that not everyone has been supportive of her at her school. The attack has had a profound effect on her mental health. K.L. has real concerns about her ability to get past this event, to live independently and to have positive relationships with men. K.L. ends her statement with the following: "You changed my life so much and none of it for the better. I continually wish for my past life. I cry a lot over what I have lost, what you took from me when you made me your victim."
24The statements from K.L.'s mother, who spoke on behalf of she and K.L.'s father, and K.L.'s sister underline the wider effect on K.L.'s family. Each family member witnessed firsthand the effect of the attack on K.L. and has felt helpless in trying to undo the effects of that attack on their daughter or sister. Supporting K.L. has been the primary focus of this family over the past year.
25The impact detailed in these statements is what might be reasonably anticipated by such an attack. At a time when K.L. should be dealing with the issues usually faced by a grade 10 student she has been recovering from a violent and degrading attack committed on her by a stranger. K.L. is an intelligent and resilient young woman and has the support of a close and loving family. The proceedings here cannot end the effects of the offence but it does bring to a close the legal issues arising from the offence.
Background of Mr. Partridge
26Mr. Partridge is now 40 years of age and was 39 at the time of the offences. He has no criminal record. He reports that he has a high school education. His primary employment has been that of a delivery driver.
27Much of the information about Mr. Partridge comes from an assessment of him by Dr. Van Impe carried out under the Mental Health Act as well as exhibits filed on the plea.
28Mr. Partridge was raised in northeastern Ontario. He did have a close connection with his family but prior to the offences had been estranged from his family for approximately five years. Since his arrest Mr. Partridge has re-established a connection with his parents who are supportive of him.
29Mr. Partridge has a 12-year-old son from a prior relationship. He has not had contact with this son for approximately four years.
30Mr. Partridge has been in a common-law relationship for about five years prior to the offences. His spouse has three teenage boys and Mr. Partridge has been a step-parent and supporter of them throughout the relationship with his spouse. He and his spouse have three sons of their own, now ages 4, 3 and almost a year. The youngest son was born while Mr. Partridge was in custody.
31Mr. Partridge continues to have the support of his spouse and his mother-in-law. His mother-in-law is able to provide housing for Mr. Partridge if he is unable to return to the family home.
32Mr. Partridge has worked for the same employer for 13 years. His employer wrote a letter for the court setting out the positive work history of Mr. Partridge. While it is unlikely, given the offences, that Mr. Partridge can resume working for his former employer it is likely that he will be able to find similar work after he has served his sentence.
Mental Health Act Assessment
33The parties filed with the court a comprehensive 19-page report. It sets out Mr. Partridge's background as set out above.
34The report sets out a number of stressors in Mr. Partridge's life at the time of the offences.
35His spouse became pregnant with their third child in the spring of 2018. She had miscarried in November 2017 and was deeply affected by that event. Once pregnant the sexual relationship between Mr. Partridge and his spouse ended. Mr. Partridge's consumption of adult pornography increased in the time leading up to the offence.
36Mr. Partridge had experimented with cannabis in his youth and continued to use it occasionally as an adult. His use of cannabis increased to daily consumption after the start of the most recent pregnancy and he was consuming about 1 g per day. Mr. Partridge reported that the cannabis used on the day of the offence was from a different supplier and that it didn't make him feel right.
37Mr. Partridge reported feeling overwhelmed by work pressures and the parenting of three teenage step-sons and his two young sons. He had few associates outside of work and family. He began to spend time in the afternoons in the park to smoke cannabis before returning home. It is at these times that the offences were committed.
38The report concludes that Mr. Partridge does not meet the criteria for a Major Depressive Disorder. His mental state is described as consistent with an Adjustment Disorder in that "he was struggling to adjust to the demands of his life and developed a distressed mood but did not appear to be struggling with the other classic symptoms of depression". Supportive of this diagnosis is that although his conditions in detention have been restrictive with multiple lockdowns and only a short time out of his cell each day his mood has improved while in custody.
39Two actuarial risk assessments were carried out. In the Hare psychopathy test Mr. Partridge scored within the range for persons without a criminal record. His score of 5 out of 40 is considered "very low" and at the 2nd percentile when compared to other male offenders.
40In the Static-99R, a test for the risk of sexual offence recidivism, Mr. Partridge scored in the low risk category. Compared to other adult male sex offenders 60% are considered at higher risk to offend and 24% are considered at a lower risk to offend with the remaining 16% assessed at the same risk level.
Principles of Sentencing
41The fundamental principle of sentencing is that it must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
42The offences committed here are serious and particularly as they relate to K.L., constitute a profound violation of her bodily and sexual integrity. Mr. Partridge is the sole author of the offences. The report of Dr. Van Impe sets out a number of stressors in his life and Mr. Partridge's inability to deal with that stress. None of these stressors was exceptional. It remains the case that these offences were the voluntary and repeated acts of Mr. Partridge and his own personal responsibility is not reduced by the Adjustment Disorder he was experiencing at the time of the offences.
43It is clear that denunciation and deterrence are the principal objectives of sentencing to be applied in this case. This is statutorily set out in section 718.01 of the Criminal Code for offences, as here for the offences involving K.L., that involve the abuse of a person under the age of eighteen years.
44This statutory direction is supported by the judgement of Moldaver J. in R. v. D.D., [2002] O.J. No. 1061 (C.A.). In that case the court noted that in sentencing adult sexual predators of children that "denunciation, general and specific deterrence, and the need to separate offenders from society, must take precedence over the other recognized objectives of sentencing" (at para. 34). I appreciate that these comments were directed at the ongoing sexual abuse of a child by a person in a position of trust, but they nonetheless bear consideration in this case as well.
45Specific deterrence remains a key component of sentencing. I accept that Mr. Partridge is genuinely remorseful. This remorse is consistent with the very low score on the psychopathy assessment. The risk assessment for sexual offence recidivism shows a low but real risk of reoffending. I note that Mr. Partridge's first offence on a stranger was in October 2018 and he re-offended approximately five weeks later. The offences on K.L. were a considerable escalation from the first offence. It is not the case that there was a single isolated offence. While Mr. Partridge denies even a sexual motivation for the offences, Dr Van Impe cannot rule out a preference for non-consensual sexual activity. Dr. Van Impe's report sets out the need for sex offending treatment within an institution.
46I accept as well that rehabilitation is also an important objective of sentencing. Prior to the offences Mr. Partridge supported a large family and had a positive work history. He continues to have the support of his family and his employer who speak positively about his character and behaviour prior to the offences. The sentence should not crush his ability to re-integrate back into society.
47This will be Mr. Partridge's first jail sentence. Restraint must be used in fashioning the appropriate sentence.
Aggravating and Mitigating Factors
48I have already touched on many of the aggravating and mitigating aspects of this sentencing.
49Mr. Partridge was cooperative with police and gave them an inculpatory statement. Absent that confession there may have been triable issues on the issue of identity. I have no doubt that testifying in court, possibly on two occasions, would have been difficult for the two complainants and, in particular, for K.L.
50I take his conduct with police, his plea and his written statement to the court as a genuine expression of remorse. I accept that Mr. Partridge has long expressed his desire to plead guilty and the delay in hearing the plea is not attributable to him.
51It is also mitigating that Mr. Partridge has no prior record. He has strong family support. Coupled with appropriate treatment there is a low risk of re-offending.
52I have already set out a number of the aggravating factors in this case. Both of the attacks were committed in daylight in a public place on a woman who was alone at the time. In this case of R.H. it was committed on an adult woman out for a run. In the case of K.L. it was committed on a 14-year-old walking home from school. These offences have a real and damaging effect on the community's sense of safety and security and on the freedom of women to be out in the community on their own engaging in everyday activities without fear of being attacked.
53K.L. was fourteen at the time of the offence. In the assessment Mr. Partridge expresses surprise that K.L. was fourteen but admits that he thought it likely she was a high school student. The attack occurred at a location and time consistent with a student walking home from school. K.L. gave her victim impact statement in court when she was a full ten months older than at the time of the offence. To the court she appeared to be her stated age. Mr. Partridge pled guilty to the offence of sexual assault of a person under the age of sixteen. It is implicit in the plea that Mr. Partridge did not honestly believe K.L. was over the age of sixteen or did not take reasonable steps to ascertain her age (see R. v. George, 2017 SCC 38, [2017] 1 S.C.R. 1021 at para. 8).
54I note that the sexual assault of someone under the age of sixteen carries a maximum penalty of 14 years and a maximum sentence of ten years in other situations. This is again a statement of Parliament that the fact of K.L. being a minor is an aggravating factor on sentence.
55The facts of the sexual assault on K.L. are extremely serious. Significant violence was inflicted on K.L. She was punched and knocked to the ground. She was struck again and then choked. She thought she was going to die. The sexual assault was a profound assault on her dignity and a major violation of her sexual integrity. As set out at the beginning of this judgement the assault has had a deep and ongoing impact on K.L. and her family.
56I fully expect that the facts of the offence itself caused great concern and fear within the school community and the wider community.
Range of Sentence from Past Cases
57Counsel for the Crown and for Mr. Partridge referred to a number of cases to support their submission as to the appropriate sentence.
58Counsel for Mr. Partridge noted that many of the cases filed by the Crown involved forced intercourse and submits that the facts of the sexual offence here are less intrusive. I accept that if intercourse or other sexual acts had also occurred that this would be an aggravating feature on sentence. Nonetheless, it is not for the court to set out a set hierarchy of intrusiveness based principally on the specific act committed. The act perpetrated here and the circumstances of this offence constitute a profound violation of K.L.'s bodily and sexual integrity and will be considered as such when looking for guidance from other cases.
59There was no case directly addressing the main features of the offences on K.L. and in particular, no case that had as key components significant physical violence coupled with a serious sexual assault on a minor.
60The sentence sought by the Crown is similar to that imposed by Justice Hill in R. v. M.A., [1996] O.J. No. 2899. Justice Hill of the Superior Court sentenced the offender to 6 years and 8 months jail for a sexual assault. The offender attacked a 16-year-old girl that was walking home, dragged her down a path and forced an act of intercourse on her. The offender pled guilty. He was 23 and had previously served a two year less a day sentence for an act of forced intercourse on a 15-year-old girl.
61In comparison to M.A., the sexual assault was more prolonged in that case, but the court noted in M.A. that there was "no gratuitous sexual or physical violence inflicted upon the complainant". That description does not apply in this case.
62Notwithstanding the existence of this aggravating feature in the case of Mr. Partridge, in my view the sentence sought by the Crown is not supported by the decision of M.A. It is of signal importance in M.A. that the offender had recently served a maximum reformatory sentence for the very same conduct. This is an aggravating factor present in that case that substantially increases the range of sentence. M.A. had a lengthy criminal record and was resistant to treatment available to him when serving his sentence for the first sexual assault. In contrast, Mr. Partridge is a first offender, has been co-operative with the assessment order and open to treatment.
63I have reviewed all of the cases filed by the parties. A number of the decisions, including two recent Superior Court judgments in R. v. Henderson, 2018 ONSC 3550, [2018] O.J. No. 3158 (S.C.) and R. v. Alzoubi, [2018] O.J. No. 5513 (S.C.) summarize a range of sentencing decisions for similar offences. I will not repeat that analysis here. I do note in particular the following sentencings as helpful in fashioning a range of sentence for this offence.
64In R. v. K.T., [2002] O.J. No. 4649 (C.J.) a sentence of 4 ½ years was imposed for the sexual assault of a 39-year-old woman who was out running in a park. She was knocked to ground, punched and choked. The offender pulled down her shorts and engaged in vaginal intercourse against her will. The offender had a minor criminal record and pled guilty. The physical violence inflicted here is very similar to that inflicted on K.L.
65In R. v. Smith, [2001] O.J. No. 4512 (C.J.) the offender choked and dragged the complainant into a secluded area where he unsuccessfully attempted intercourse. The adult complainant had been walking home. The offender pled guilty and the court imposed a sentence of five years.
66In R. v. Hummell, [1994] A.J. No. 220 (Alta. C.A.), the offender "attacked the victim during the mid-afternoon, grabbing her from behind and pulling her to the ground. He then attempted to undo the fly on her jeans. She fought and scratched the accused and he ran from the scene". The offender had a lengthy record unlike Mr. Partridge. The Alberta Court of Appeal increased the sentence from one year to four years.
67While I have found that the authorities do not support the sentence sought by the Crown, equally they do not support a range of sentence at the very low end of the penitentiary range as sought on behalf of Mr. Partridge. In saying this I note that sentence of less than 3 ½ years would, after accounting for pretrial custody, allow for a reformatory sentence and a long period of probation. While such a sentence would serve the need for community supervision after release, I find that such a sentence would be outside the proper range of sentence and not proportional to the gravity of the offence and the responsibility of the offender.
68I find that the range of sentence for the offences relating to K.L. is one of four to five years.
69While less was said about the range of sentence for the sexual assault of R.H. in my view the range of sentence for that offence is 3-6 months in jail.
70I will return to this issue after considering the ancillary orders.
Ancillary Orders
71There is general agreement on the orders to make in addition to custody.
72There will be an order under s.490.013(2.1) of the Criminal Code obliging compliance with the Sex Offender Information Registration Act for life.
73There will be an order under s.109(2) of the Criminal Code prohibiting the possession of any firearm, other than a prohibited or restricted firearm, and any cross-bow, restricted weapon ammunition or explosive substance for a period of ten years following your release from custody and in respect of any prohibited firearm, restricted firearm, prohibited weapon, prohibited device or prohibited ammunition for life.
74Each offence is a primary DNA offence. A DNA order will be made for each offence and Mr. Partridge will comply with any direction of the Barrie Police Service to attend to provide such a sample.
75There will be an order under s.743.21 that Mr. Partridge not have contact with R.H. or K.L. or any members of their family while in custody.
76The last issue is s.161 of the Code. It is agreed that an order should be made although each party made submissions on the length of the order and the terms to be included.
77It is important to recognize that the purpose of s.161 is not to punish the offender in the same fashion as a jail sentence. It is to set out logical and defensible restrictions on the offender's liberty to prevent a reoccurrence of the offence and to protect the victim of this offence.
78In assessing this issue, the central fact is that the offence giving rise to the order was committed in a public park against a 14-year-old girl.
79It is also the case that Mr. Partridge is the father of young children. His access to them after serving his sentence may be restricted by a child protection agency. It is clear that these authorities are aware of this matter. The s.161 order should not prevent Mr. Partridge from having access to his children when that is found to be appropriate by the relevant authority.
80I make the following orders for a period of 20 years from the date of Mr. Partridge's release from custody:
s.161(1)(a) – not attend a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre unless in the company of his spouse.
s.161(1)(a.1) – Not be within 500m of any dwelling house where K.L. normally resides or attends school.
s.161(1)(b) – not seek, obtain or continue employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of sixteen years.
81I decline to make an order under s.161(1)(c) or (d).
Disposition
82The offence against R.H. was first in time. It is clear that to some degree Mr. Partridge stalked R.H. by following her after first seeing her at the stop light. The assault was a violation of the sexual integrity of R.H. and committed in a public place when she was simply engaging in exercise by running down a sidewalk. The assault itself was less intrusive but was stopped by the reaction of R.H. I find that the appropriate sentence for this offence is four months jail.
83The offences against K.L. involved senseless and brutal violence. The offences constitute a serious violation of K.L.'s dignity and sexual integrity. It was an assault on a 14-year-old girl when walking home from school through a wooded area. The offences have had a profound impact on the wellbeing of K.L. and her family. It is an offence that undermines the community's sense of safety and must be denounced. I find that the appropriate sentence for this offence is four years and six months concurrent with each other and consecutive to the offences involving R.H.
84The global sentence then is one of 58 months. I give credit of 18 months for the 12 months pretrial custody leaving a sentence from today of 40 months coupled with the ancillary orders.
Released: November 18, 2019
Signed: Justice E.A. Carlton