DATE: 20050331

DOCKET: C42179

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) -and- JANUSZ KOSIK (Appellant)

BEFORE:

LABROSSE, LANG and LaFORME JJ.A.

COUNSEL:

Ernst Ashurov

for the appellant

Robert Gattrell

for the respondent

HEARD:

March 23, 2005

On appeal from the sentence imposed by Justice Bruce C. Hawkins of the Superior Court of Justice on May 5, 2004.

E N D O R S E M E N T

[1] The appellant pleaded guilty to charges of aggravated assault and obstructing justice. He was sentenced to the maximum of 14 years imprisonment (less 5 years credit for pre-trial custody and 1 year for his plea of guilty for a net sentence of 8 years) on the charge of aggravated assault, and 1 month concurrent on the charge of obstructing justice. The appellant appeals the sentence imposed on the charge of aggravated assault. He submits that the sentencing judge failed to take certain mitigation factors into consideration.

[2] This was a brutal and devastating assault within the context of a domestic relationship. The appellant beat up his common-law spouse who was in an advanced state of pregnancy. He sent away neighbours who inquired about smoke from burning food left on the stove during the beating. He then called 911, pretending to be a neighbour, and left the apartment, leaving his seriously injured, bloodied and unconscious wife alone, lying on the kitchen floor.

[3] The victim sustained a fracture of the skull, a fractured nose and jaw, numerous abrasions and bruises, and a severe closed head injury. As a result, she was left with the mental capacity of a 4-6 year-old child. She will remain in need of 24-hour-a-day supervision and will likely spend the rest of her life in an institutional setting. She does not know that she gave birth to a baby by way of Caesarian section.

[4] The appellant minimized his involvement in the assault, placed blame on the victim, and repeatedly minimized the seriousness of the victim’s injuries. He did not express any depth of remorse.

[5] The sentencing judge was of the view that there was not “a single positive thing” to be found in favour of the appellant. He gave credit for the pre-trial custody, partly on a 2½-for-1 basis, and recognized the plea of guilty as a mitigating factor for which he gave the appellant credit of another year. There is no mention in the reasons of the trial judge that the appellant was a first-time offender and that he has been a hard-working person and is unlikely to pose any future risk to the victim, or to society in general. However, there was little else by way of redeeming features that can be said for the appellant. We do not think that the appellant’s likely deportation as a result of this conviction is a relevant factor in this case.

[6] The extreme violence of the assault, the permanent, debilitating impact on the victim, and the absence of remorse on the part of the appellant, required the imposition of a severe sentence. There was also evidence of a history of violent behaviour toward the victim. Deterrence and denunciation were quite properly the predominant considerations. The offence was of sufficient gravity and the offender displayed sufficient blameworthiness to justify a lengthy sentence: see R. v. McArthur (2004), 2004 ONCA 8759, 182 C.C.C. (3d) 230 (Ont. C.A.).

[7] The trial judge imposed the maximum penalty of 14 years for the charge of aggravated assault. He ought to have factored into the sentence the appellant’s lack of any criminal record. It would also have been preferable if he had not defined a specific credit for the guilty plea. Importantly, however, the totality of the sentence is tempered by the six years credit given for the pretrial custody and the value assigned to the guilty plea. The effect is that, in the circumstances, the sentence imposed was more in the range of a 12-year total sentence if a less generous and more usual credit is given for the pretrial custody and no specific credit for the guilty plea.

[8] The sentence imposed by the trial judge is entitled to considerable deference. While at the high end of the range available to the trial judge, we do not think that the sentence is demonstrably unfit. We would not interfere.

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

Signed: “J.M. Labrosse J.A.”

“S.E. Lang J.A.”

“H.S. LaForme J.A.”