DATE: 20040512

DOCKET: C40917

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Appellant) –and– XHEVAT BYTYQI (Respondent)

BEFORE: CRONK, ARMSTRONG and LANG JJ.A.

COUNSEL: Nadia Thomas, for the appellant

John E. Lang, for the respondent

HEARD: April 29, 2004

On appeal from the sentence imposed by Justice Robert D. Reilly of the Superior Court of Justice, sitting without a jury, dated October 17, 2003.

E N D O R S E M E N T

[1] After a seven-day trial, Mr. Bytyqi was convicted of three counts of assault with a weapon and two counts of uttering death threats. The incidents involved his wife and his two children. The trial judge imposed a suspended sentence and two years probation, a fire arms prohibition, and a D.N.A. order. The Crown appeals, seeking a custodial sentence.

[2] Mr. Bytyqi’s assault on his ten- and six-year-old children occurred because he thought they were being too noisy. He held a knife to each of their throats, telling them that he was going to kill them. His assault on his wife occurred when Mr. Bytyqi was in a jealous rage during which he slapped and kicked his wife, hit her with a chair, and chased her out of their home. When she attempted to return, he locked her out. When he permitted her to enter the house, he accused her of being with another man and demanded that she undress so that he could inspect her to confirm his accusation.

[3] The reasons for judgment of the very experienced trial judge show great compassion and concern for this family and its plight. It is our view, however, that they reflect error in over-emphasizing Mr. Bytyqi’s prospects for rehabilitation and integration into Canadian society over the need, in circumstances of domestic violence, for deterrence and denunciation.

[4] By the time of trial, the family was separated, the children lived with the wife, and there was no contact between the children and their father or their paternal grandparents. The trial judge expressed his hope that the children would resume seeing their father and grandparents. He also expressed his appreciation of the “pressures and frustrations” caused by the family’s move from Kosovo to Canada. In his reasons, the trial judge said that had Mr. Bytyqi been born or raised in Canada, he would have imposed a significant jail term. In our view, it is an error in principle to hold individuals “born or raised” in Canada – on that ground alone – to a higher standard of conduct than those who chose to move to Canada as adults.

[5] There were reasons not to impose a lengthy custodial sentence. This was a first offence. Since the commission of the offence, the respondent had lost touch with his children, who no longer wished to see him. He posed no further danger to his wife or to his children. He expressed great remorse. A number of factors, however, compel the imposition of a custodial sentence, including the use of a weapon against vulnerable children and the extent of the assault on the respondent’s wife. Further, these incidents were not the first incidents of unacceptable behaviour by Mr. Bytyqi towards his family. The evidence at trial suggested that the respondent had exhibited some violent behaviour towards his spouse before he and his family immigrated to Canada.

[6] In fashioning a sentence, the trial judge expressed concern that a custodial sentence would make it difficult for Mr. Bytyqi to provide financial and other support for his parents. There was evidence, however, that his parents, who were in their late sixties, were able to care for themselves and had help from their extended family. Since Mr. Bytyqi remained unemployed, they were not financially dependent upon him and their income would remain unchanged.

[7] Denunciation and general deterrence were the paramount considerations in the circumstances of this case. A custodial sentence was required. A further period of six months has passed, however, since the suspended sentence was imposed on Mr. Bytyqi. We take that into account, together with the five days that Mr. Bytyqi spent in pretrial custody, and the other factors set out in these reasons, in determining an appropriate sentence.

[8] Leave to appeal sentence is granted, the appeal is allowed and the sentence is varied to substitute a custodial term of six months incarceration for the suspended sentence. The balance of the sentence remains unchanged.

Signed: “E.A. Cronk J.A.”

“Robert P. Armstrong J.A.”

“S.E. Lang J.A.”