CITATION: R. v. Kopriva, 2008 ONCA 54
DATE: 20080125
DOCKET: C47315
COURT OF APPEAL FOR ONTARIO
FELDMAN, LANG and JURIANSZ JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
JAMIE LEE KOPRIVA
Respondent
Michelle Campbell for the appellant
Richard Litkowsi for the respondent
Heard and released orally: January 22, 2008
On appeal from the sentence imposed by Justice David P. Cole of the Ontario Court of Justice on May 29, 2007.
ENDORSEMENT
[1] This is a Crown appeal from the 60-day sentence imposed on the respondent on his third conviction for a domestic assault on his same-sex partner. The Crown argues that this sentence reflected an error in principle and was manifestly unfit.
[2] This was the respondent’s sixth assault-related offence, his third on the same victim, and his tenth violence-related offence. The sentence was imposed for a domestic assault committed less than 48 hours after the respondent was released from jail for a previous assault on the same victim. It also occurred in circumstances that were in contravention of his terms of release, including the term that he not consume alcohol; alcohol consumption was a known trigger for the respondent’s violent behaviour.
[3] In determining the appropriate sentence, the trial judge considered the victim’s wish to reconcile with the respondent, that there was no physical harm to the victim on this occasion, that the victim was a psychiatrist who had knowledge of and compassion for those with emotional difficulties and that the victim was not economically dependent on the respondent.
[4] We recognize that in sentencing matters significant deference is accorded by this court to a trial judge’s decision. However, in this case we agree with the Crown’s submission that the trial judge’s assessment of the gravity of the offence was erroneous. Although he appeared to consider all the factual circumstances, in assessing those circumstances he did not give sufficient weight to the factors of specific and general deterrence and denunciation.
[5] In this case the trial judge emphasized compassion to the respondent in circumstances where the ongoing pattern of violence against the victim, together with the respondent’s criminal antecedents and the vulnerability of the victim, required emphasis on other sentencing factors in order to arrive at a fit sentence.
[6] The trial judge focused on the fact that on this occasion that there was no physical harm when the respondent pinned the victim to the bed and threatened to bash his head in with an empty liquor bottle. Apart from the psychological violence, this act was not an isolated one but part of a continuing course of violent behaviour against the victim.
[7] The trial judge also erred in taking into consideration that the victim was a psychiatrist “with a tremendous amount of knowledge and compassion for those who have a lot of emotional difficulties.” In our view, the victim’s professional knowledge was not a factor that could be used to reduce the appropriate sentence.
[8] In addition, it was not determinative that the victim was not financially dependent on the respondent, particularly when the victim was disabled and physically vulnerable, as well as emotionally dependent on the respondent.
[9] Given these errors, we would allow the appeal and substitute a sentence of twelve months, which was the sentence initially proposed by the trial Crown at the time of the guilty plea. We were not asked to interfere with the three-year term of probation.
“K. Feldman J.A.”
“S.E. Lang J.A.”
“R.G. Juriansz J.A.”