Court of Appeal for Ontario

Citation: R. v. Nolan, 2009 ONCA 727

Date: 2009-10-16

Docket: C50117

Between:

Her Majesty the Queen Appellant

and

Michael Nolan Respondent

Before: MacPherson, Rouleau and Epstein JJ.A.

Counsel: Karen Papadopoulos, for the appellant Gavin S. Mackenzie, for the respondent

Heard: October 13, 2009

On appeal from the sentence imposed by Madam Justice S. Ray of the Ontario Court of Justice February 2, 2009.

ENDORSEMENT

[1] The Crown appeals the sentence imposed upon Michael Nolan following his conviction after a guilty plea for sexual assault and forcible confinement.

[2] The charges arose out of an incident in October 2007. The respondent confined the victim, his wife of 19 years, by tying her down on the bed. He then covered her mouth with duct tape, punched her in the face, cut her underwear off with an exacto knife and threatened to cut her vagina. He was unsuccessful in his attempt have sex with her at this point but after cutting her loose, the respondent and his victim had sexual intercourse.

[3] Against this background the Crown sought a sentence of two years less one day of incarceration followed by three years’ probation. The defence sought a conditional sentence.

[4] The sentencing judge imposed a sentence of 100 days in custody and one year of probation. In her reasons for sentence, the sentencing judge observed that the degree of violence during the sexual assault and confinement was high and not necessarily out of character. She also noted the respondent’s guilty plea, his positive antecedents and his positive response to counselling.

[5] The appellant’s primary argument is that the sentence is outside the acceptable range and is therefore demonstrably unfit.

[6] We agree with the Crown that the length of sentence was not within an acceptable range. We appreciate that ranges are merely guidelines designed to assist trial judges, particularly in offences such as this where there is a myriad of circumstances that may constitute them. The overall message, however, must be clear. Individuals, even first offenders such as the respondent, who victimize their partners within the context of the marital relationship, must know that serious consequences will follow.

[7] Here, the offences were committed in the context of the breakdown of a long-term marriage. The victim was confined and violated in a particularly degrading manner in her own home. She suffered physical harm that included bruising and swelling on her face, ear and shoulder and emotional harm that included feelings of vulnerability and hopelessness. At the time of the attack the respondent was on bail for charges of assault with a weapon and threatening bodily harm. The pre-sentence report indicated the respondent’s tendency to justify and minimize his angry conduct.

[8] Against this background a 100-day sentence fails to reflect the gravity of the offences committed and give effect to the requisite sentencing principles.

[9] Where a sentencing judge commits an error in principle, the sentence imposed is no longer entitled to deference and it falls to this court to impose a fit sentence. Bearing in mind the gravity of these offences and the mitigating circumstances, we are of the view that a term of imprisonment of 21 months in custody would have been an appropriate sentence for the respondent.

[10] The question is whether the respondent should be sent to jail, now. While a conditional sentence for the offence of sexual assault is now no longer available, the respondent is not caught by this provision. The respondent submits that if the Crown appeal is allowed it would not be in the interests of justice to reincarcerate the respondent and in the peculiar circumstances of this case a conditional sentence would be appropriate.

[11] We agree.

[12] The respondent has shown a willingness to respect court orders, has already served his sentence of 100 days of confinement and is doing well in the community. There is no evidence to support a conclusion that the respondent would be a danger to society.

[13] Furthermore the fresh evidence demonstrates that the respondent is employed and is assisting his two children who are unemployed and rely on him to meet their day-to-day needs. These human realities cannot be ignored when this court is asked to impose a sentence well after the event. The administration of justice would not be served by reincarcerating the respondent. It is best served and the principles of sentencing are best met by imposing a conditional sentence.

[14] Leave to appeal sentence is granted. The sentence is set aside and a conditional sentence of 21 months plus one year of probation, on the same terms as those set out by the sentencing judge, is imposed. The respondent shall receive 100 days credit for the time spent in custody.

[15] In the result, starting today, the respondent will serve the remainder of his 21-month sentence in the community on the terms agreed upon by counsel.

“J.C. MacPherson J.A.”

“Paul Rouleau J.A.”

“Gloria Epstein J.A.”