Court of Appeal for Ontario

CITATION: R. v. Chittamath, 2009 ONCA 239

DATE: 20090317

DOCKET: C49524

Before: Moldaver, MacFarland and Epstein JJ.A.

BETWEEN:

Her Majesty the Queen

Appellant

and

Toula Chittamath

Respondent

Counsel:

Alexandra Campbell, for the appellant

Peter Lindsay and Manoja Moorthy, for the respondent

Heard and released orally: March 6, 2009

On appeal from sentence imposed by Justice P. Bourque of the Ontario Court of Justice dated September 25, 2008.

ENDORSEMENT

[1] The respondent received a sentence of six months imprisonment plus probation for three years for failing to provide the necessaries of life. The Crown applies for leave to appeal and seeks to increase the sentence.

[2] This was a horrendous case of child neglect resulting in the tragic death of the respondent’s twenty-two month old son. At the time of the child’s death, he was badly injured and obviously in need of medical help. The post mortem examination revealed that the child had suffered multiple blunt force injuries to his head and neck resulting in internal injuries, as well as facial and neck contusions, facial abrasions and multiple scalp contusions.

[3] In addition, the child suffered blunt force injuries to his extremities which resulted in three fractures, one to his left thighbone and two to his left forearm. The examination further disclosed lesions on the child’s body and physical ailments and abnormalities. While there was no proof that the respondent was responsible for inflicting any of the injuries to the child, many of the injuries were obvious and demanded immediate medical attention. And yet, for a period of ten or so days before the child’s death, when the child was apparently in pain and suffering from his injuries, the respondent did nothing.

[4] At the time of sentencing, although the respondent pleaded guilty and showed limited remorse, the trial judge expressed his concern on three occasions that she did not appreciate the seriousness of her failure to obtain medical assistance for her son. Her failure in this regard, as found by the trial judge, contributed to the child’s death. In the circumstances, taking into account that the respondent was essentially a first offender, the trial judge imposed a sentence of six months imprisonment to be followed by probation for three years.

[5] In our view, having regard to the enormity of the crime, which resulted in the death of an innocent child, the sentence imposed by the trial judge was manifestly unfit even accepting that the respondent was a first offender. A sentence of eighteen months imprisonment would have been fit under the old regime where the maximum penalty was two years. We make no comment on what the appropriate sentence would be under the present regime in which Parliament has seen fit to raise the maximum penalty to five years.

[6] That said, the respondent has now served her sentence and is out of custody. Fresh evidence filed on her behalf answers to a considerable extent the trial judge’s concern about the respondent’s failure to appreciate the gravity and seriousness of her crime. The respondent has taken parenting and life skill courses while in custody and she has received counselling. She is required in accordance with the terms of her probation to participate in counselling as required by her probation officer. The probation order also contains terms that are designed to assist the respondent and ensure that she will never again engage in similar conduct.

[7] In all of the circumstances, while we would grant leave to appeal, we would dismiss the appeal from sentence.

Signed: “M. J. Moldaver J.A.”

“J. MacFarland J.A.”

“G. Epstein J.A.”