Court of Appeal for Ontario

Date: 2025-05-20
Docket: COA-23-CR-0597
Coram: Paciocco, George and Wilson JJ.A.

Between:
His Majesty the King (Respondent)
and
Shawn Frederick Prindle (Appellant)

Appearances:
Howard Krongold, for the appellant
Adrianna Mills, for the respondent

Heard: May 13, 2025

On appeal from the sentence imposed on May 16, 2023 by Justice Timothy E. Breen of the Ontario Court of Justice.

Reasons for Decision

Introduction

[1] The appellant was convicted of four counts of assault, two counts of assault with a weapon, and one count each of theft, mischief to property, and fail to comply with a recognizance. He was sentenced to 430 days’ imprisonment and two years’ probation.

[2] The appellant appeals against sentence. He argues that the sentencing judge erred by (1) not granting him credit for the time he had spent subject to strict bail conditions (“Downes credit” [1]), and (2) rejecting the possibility of a conditional sentence without recognizing that it was capable of achieving denunciation and deterrence.

[3] At the conclusion of oral submissions, we advised counsel that the appeal was allowed in part and that our reasons would follow. These are our reasons.

Background

[4] The appellant and the complainant began dating in 2012. They married in 2015. They have two children, a daughter and a son, who were eight and six years old at the time the appellant was sentenced. In July 2018, after returning home from a baseball game, the appellant began yelling at the complainant while brandishing a baseball bat. He then threatened her, smashed her head against the bedrail of their daughter’s bed, tried to wrestle her phone away from her, pushed her against a wall, and grabbed her by the throat. The complainant recorded this incident on her phone, which was made an exhibit at trial. The complainant was eventually able to call 911 and make her way to the bathroom where she locked the door and waited for the police.

[5] Upon speaking to the police, the complainant disclosed several other incidents of abuse. She described how the appellant, in 2013, grabbed her by the arms, pushed her onto a bed, and straddled and choked her. She advised further that, in 2015, the appellant pushed her against a wall and choked her. In 2017 the appellant kicked in a door at the complainant’s parents’ home during an argument. In 2018 the appellant hit the complainant with a broom. In another incident that year, he pushed her into the headboard of a bed and struck her with a cutting board. Not long after his initial arrest and release following the July 2018 incident, the appellant breached his recognizance by communicating with the complainant.

[6] The appellant was arrested on the breach and subsequently released on new terms; he was now confined to his home unless in the presence of his surety. Two months after being released on this order he applied for and was granted a change in surety – his romantic partner. By the time of sentencing the appellant and this surety were married. About a month after the change in surety, his bail order was varied to allow him to work and to travel directly to and from work. Almost two years later, his bail was varied yet again converting the house arrest term to a 9 p.m. to 6 a.m. curfew.

Sentencing

[7] The appellant, 53 years old at the time of sentencing, has a criminal record. In 2011 he was convicted of fraud for which he received an 18-month conditional sentence, and in 2012 he was convicted of uttering a threat for which he received a ten-day jail sentence and 12 months’ probation.

[8] The sentencing judge, who acknowledged that a conditional sentence was available, declined to impose one as “the gravity of the offences, including the significant breach of trust, is such that a conditional sentence is inadequate to meet the demands of denunciation and deterrence”.

[9] The appellant’s trial counsel did not make submissions on the issue of Downes credit and the sentencing judge did not consider it. With respect to bail, trial counsel advised only that the appellant had been “on a curfew for the last, essentially five years”. Trial counsel has provided an affidavit, which the appellant seeks to have filed as fresh evidence, in which he deposes that he had forgotten the appellant spent time on house arrest.

Discussion

Downes Credit

[10] The appellant argues that he should have received Downes credit of 5 to 6.5 months. The appellant submits that, once the Downes credit is taken into account, it shifts the balance of the relevant sentencing factors such that a conditional sentence would provide a comparable level of denunciation and deterrence as a custodial sentence. In the event we decline to substitute a conditional sentence, the appellant asks that his custodial sentence be reduced to account for the time he was subject to strict bail conditions.

[11] The Crown concedes that the affidavit sworn by the appellant’s trial counsel, explaining why he overlooked Downes credit, should be admitted as fresh evidence. The Crown does not contest that a sentencing reduction is in order but argues that a two-month reduction is appropriate, and not 5 to 6.5 months as sought by the appellant. The Crown points out, among other things, that the house arrest was the result of the appellant’s breach of his recognizance, and that the appellant was able to continue working and to leave his residence whenever accompanied by his surety.

[12] Although sentencing judges often quantify Downes credit, and then reduce the sentence by the number of months or days credited, “pretrial bail is conceptually a mitigating factor”, which is to be weighed with all of the other relevant factors when determining a fit sentence: R. v. Joseph, 2020 ONCA 733, para 108.

[13] The criteria to be considered when assessing the weight of the mitigation include the amount of time spent subject to strict bail conditions; how stringent the bail terms were; their impact on the offender’s liberty; and the ability of the offender to carry on normal relationships, employment, and activity while on bail. The question to ask is, whether the bail conditions were punitive enough to be akin to punishment, thereby warranting mitigation: R. v. Downes, para 37; R. v. Joseph, 2020 ONCA 733, paras 107-108.

[14] We agree with counsel that the time the appellant spent subject to strict bail conditions should have been considered as a mitigating factor on sentence. Given the length of time the appellant was subject to house arrest while on bail, and after considering that with all of the other relevant factors, we find that a fit global sentence is one of 12 months, which is at the lowest end of the range of sentences identified by the trial judge for these offences.

Conditional Sentence

[15] In our view, the sentencing judge did not err in declining to impose a conditional sentence. He reasonably concluded that, given the nature of the assaultive behaviour and the fact it occurred in the context of a domestic relationship, a custodial sentence was required to meet the aims of denunciation and deterrence.

[16] The sentencing judge did not hold that a conditional sentence could not achieve denunciation and deterrence. Nor did he, as the appellant argues, rule out the availability of a conditional sentence; in fact, he expressly noted that, given the statutory preconditions had been met, a conditional sentence was an option. However, given “the gravity of the offences, including the significant breach of trust”, he found that it was not appropriate in the circumstances of this case. This does not reflect an error in principle.

[17] Lastly, the bail conditions here were not so restrictive as to tilt the balance towards a conditional sentence. Nor would we substitute a conditional sentence because the 1-year custodial period we are imposing is less than the 15-months the trial judge imposed. This difference is no doubt material to the appellant, but it does not alter our view that a conditional sentence is not fit in this case given all the circumstances, including the ongoing abuse, the pattern of physical domination, and the appellant’s high level of moral fault.

Conclusion

[18] For these reasons, the appeal is allowed. The global sentence is reduced to 365 days imprisonment. After deducting the equivalent of 21 days spent in presentence custody, we are substituting a sentence of 344 days for the sentence imposed by the trial judge. [2]

[19] This varied sentence is apportioned as follows:

• Counts 1 (assault) and 4 (assault) – 124 days on each count, concurrent with each other.
• Counts 3 (utter threat), 5 (weapons dangerous), and 9 (theft) – 30 days concurrent on each count, concurrent with all other counts.
• Count 6 (assault with a weapon) – 120 days consecutive.
• Count 7 (assault) – 20 days consecutive.
• Count 8 (assault with a weapon) – 60 days consecutive.
• Count 11 (assault) – 20 days consecutive.
• Count 12 (mischief to property) – 14 days concurrent.
• Breach of recognizance – time served of 21 days.

[20] All other aspects of the sentence remain the same.

“David M. Paciocco J.A.”
“J. George J.A.”
“D.A. Wilson J.A.”

[1] R. v. Downes, 79 O.R. (3d) 321 (C.A.).

[2] The appellant has already served a portion of this sentence. After sentence was imposed, and before being granted bail pending appeal, the appellant spent 25 days in custody.