W A R N I N G

The President of the panel hearing this appeal directs that the following should be attached to the file:

A non-publication and non-broadcast order in this proceeding under s. 486(3) of the Criminal Code shall continue.

DATE: 20030224

DOCKET: C35032

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – D. K. (Appellant)

BEFORE: CRONK, GILLESE and ARMSTRONG JJ. A.

COUNSEL: Anil Kapoor, for the appellant David Lepofsky, for the respondent

HEARD: February 19, 2003

On appeal from the sentence imposed by Justice R. N. Weekes of the Superior Court of Justice on March 24, 2000.

E N D O R S E M E N T

Released Orally: February 19, 2003

[1] The appellant, D. K., applies for leave to appeal and, if leave be granted, appeals against his sentence of 10 years imprisonment, consecutive to any term being served, imposed on March 24, 2000 by Weekes J. of the Superior Court of Justice in respect of the appellant’s conviction for 5 counts of sexual assault with a weapon on his wife.

[2] The appellant was charged with 11 counts of sexual assault on his wife (now his former wife). He entered a plea of guilty to 5 counts of sexual assault with a weapon. At the time of his sentencing on those charges, he was serving a sentence of 4 years, in addition to 10 months and 11 days of pre-trial detention, in connection with the sexual assault of a stranger, A. B., which occurred one month after the appellant’s last sexual assault on his former wife.

[3] An agreed statement of facts was filed at trial. It recites a horrific series of sexual assaults with various weapons over a protracted period. They involved sexual assaults by the appellant on his former wife 5 times over 12 years, on two occasions using a gun, on one occasion using a hatchet, and on three occasions using knives. On two of those occasions, the appellant threatened to kill his former wife. On one occasion, he videotaped his former wife while she was forced, with a knife pointed at her, to fellate him. On two occasions, the appellant threatened to kill himself in front of her. The admitted circumstances of the offences reveal cruel, dehumanizing treatment by the appellant of his former wife, and conduct which, as argued by the Crown, was designed by the appellant to demean, terrorize, humiliate, and subjugate his former wife.

[4] The appellant argues that the trial judge erred by concluding that he was a sexual sadist and, in light of that finding, by imposing a sentence which was outside the acceptable range for this type of offence. He argues, in accordance with the totality principle, that his sentence was harsh and excessive. We reject those submissions.

[5] The Crown called an expert forensic psychiatrist as a witness at the appellant’s sentencing hearing. That expert testified that the appellant suffered from a sexual deviation which “probably” included rape proneness and sexual sadism. However, as he had not personally examined the appellant, or conducted tests on him, the expert candidly acknowledged that his diagnosis of the appellant’s psychiatric condition was “an educated guess”. The appellant argues that the trial judge erred in relying on that evidence by finding that the appellant was a sexual sadist, and that that erroneous finding tainted the sentence imposed.

[6] In our view, as argued by the Crown on this appeal, it is unnecessary to consider the sufficiency of the Crown’s demonstration of sexual sadism. Even if the Crown had not adduced opinion evidence on that issue, the sentence of 10 years imprisonment was fit and appropriate given the nature of these offences and the circumstances of the appellant.

[7] The admitted offences are horrendous in nature. They arose from a domestic relationship. They were carried out in a brutal and horrifying manner over a lengthy time. Thus, they were not isolated occurrences. The victim impact statement of the appellant’s former wife confirms the profoundly scaring and continuing aftermath of the assaults. Several of the offences showed clear hallmarks of planning and deliberation. Two of the offences were committed while the appellant’s two young children were at home. Although the appellant pleaded guilty to the offences, the record reveals no evidence of remorse. Indeed, on the record before us, the prospects for the appellant’s rehabilitation are highly speculative.

[8] The appellant also has a criminal record dating from 1975.

[9] All of those facts, we conclude, warrant a substantial penitentiary term of imprisonment.

[10] At trial, the Crown proposed a custodial sentence in the range of 10 to 12 years, while the defence proposed a range of 6 to 8 years. On this appeal, the appellant seeks to reduce his sentence to the lowest end of either proposed range, namely, 6 years. He argues that the totality principle operates here to reduce the length of his sentence. We disagree. The trial judge committed no error in principle and the sentence imposed is fit.

[11] Leave to appeal against sentence is granted, and the appeal is dismissed.

Signed: “E.A. Cronk J.A.” “E.E. Gillese J.A.” “Robert P. Armstrong J.A.”