DATE: 20041202

DOCKET: C41940

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and - KEMMY KING (Appellant)

BEFORE:

CRONK, ARMSTRONG and BLAIR JJ.A.

COUNSEL:

Paul Slocombe

for the appellant

Andrew Cappell

for the respondent

HEARD

AND RELEASED ORALLY: November 30, 2004

On appeal from the sentence imposed by Justice Ian V.B. Nordheimer of the Superior Court of Justice on May 13, 2004.

E N D O R S E M E N T

[1] The appellant and the complainant were involved in an intermittent domestic relationship for 16 years. On the night in question, the appellant arrived at the complainant’s home in an intoxicated state. When the complainant told him that she no longer wished to be involved romantically with him, the appellant repeatedly stabbed the complainant in the legs. Although the complainant’s injuries were not life-threatening, they required 51 stitches, left scarring on her legs, and inflicted nerve damage to one of her legs. She may never recover full feeling in that leg.

[2] The appellant pleaded guilty to assaulting the complainant with a knife and was sentenced to 18 months incarceration, followed by 2 years probation.

[3] The appellant seeks leave to appeal sentence and, if leave be granted, appeals his sentence. He asserts that the sentencing judge erred in declining to impose a conditional sentence, in particular, on the basis of his conclusions that the appellant posed a threat to community safety and that a conditional sentence would not achieve the sentencing objectives of deterrence and denunciation. The appellant also argues that an 18-month custodial sentence is outside the accepted range of sentences for similar offences and offenders.

[4] We reject these submissions.

[5] At trial, the Crown sought a 3-year custodial sentence, while the defence urged the imposition of a conditional sentence.

[6] The sentencing judge gave serious consideration to the imposition of a conditional sentence and was alert to the legal pre-conditions that must be satisfied before such a sentence can be imposed. On this record, it was open to the trial judge to conclude that he was not satisfied that the safety of the community would not be endangered if the appellant served his sentence in the community. He was also justified, in our view, in concluding that a conditional sentence would not adequately address the need for denunciation and specific and general deterrence.

[7] The appellant’s admitted attack on the complainant was serious, persistent and impulsive. It occurred in the complainant’s home in the context of a lengthy domestic relationship that left the complainant unsuspecting of the potential for danger. The trial judge’s description of the context as involving the breakdown of the relationship was not inaccurate. The attack was provoked by the complainant’s rejection of further intimacy with the appellant. The appellant’s criminal record is dated, but it reveals a prior conviction for a crime of violence.

[8] Finally, although the appellant has voluntarily participated in various substance abuse and victim awareness programs since his incarceration, the record at the sentence hearing indicated that he had an alcohol abuse problem and alcohol figured prominently in the commission of this offence.

[9] The sentencing judge properly noted the existing mitigating circumstances in this case, including the appellant’s unfortunate past, the involvement of alcohol in the commission of this offence, the appellant’s expression of remorse, his dated criminal record and his guilty plea.

[10] In our view, the trial judge committed no error in rejecting the defence request for a conditional sentence.

[11] The sentence imposed falls within the range of accepted sentences for similar offences and offenders. In particular, the domestic relationship context of this crime, the unprovoked and serious nature of the assault and the trauma of the effects of the attack on the complainant support the imposition of an 18-month custodial term.

[12] The trial judge committed no error in principle in sentencing the appellant and the sentence imposed is fit. Accordingly, there is no basis for appellate intervention.

[13] Leave to appeal sentence is granted and the sentence appeal is dismissed.

“E.A. Cronk J.A.”

“Robert P. Armstrong J.A.”

“R.A. Blair J.A.”