W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486(1), (2), or (3) of the Criminal Code shall continue. These sections of the Criminal Code provide:
- (1) Any proceedings against an accused shall be held in open court, but the presiding judge or justice may order the exclusion of all or any members of the public from the court room for all or part of the proceedings if the judge or justice is of the opinion that such an order is in the interest of public morals, the maintenance of order or the proper administration of justice or is necessary to prevent injury to international relations or national defence or national security.
(2) For the purpose of subsection (1), the “proper administration of justice” includes ensuring that
(a) the interests of the witnesses under the age of eighteen years are safeguarded in all proceedings; and
(b) justice system participants who are involved in the proceedings are protected
(3) If an accused is charged with an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 163.1, 171, 172, 172.1, 173, 212, 271, 272 or 273 and the prosecutor or the accused applies for an order under subsection (1), the judge or justice shall, if no such order is made, state, reference to the circumstances of the case, the reason for not making an order. R.S., c. C-34, s. 442; 174-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29; 2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s. 20; 2005, c. 32, s. 15; 2005, c. 43, ss. 4 and 8(3)(a).
CITATION: R. v. K.G., 2010 ONCA 177
DATE: 20100309
DOCKET: C46585
COURT OF APPEAL FOR ONTARIO
Weiler, Gillese and MacFarland JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
K.G.
Appellant
Paul J.I. Alexander, for the appellant
Kim Crosbie, for the respondent
Heard and released orally: February 3, 2010
On appeal from the sentence imposed on January 2, 2007 by Justice Frances P. Kiteley of the Superior Court of Justice, sitting without a jury.
ENDORSEMENT
[1] The appellant pleaded guilty to one count of attempted murder and was sentenced to fourteen years’ incarceration. The sentence imposed took into account pre-trial custody of fourteen months for which credit was given on a 2:1 basis. In addition, the appellant was sentenced to nine months’ consecutive for one count of threatening the death of the victim’s family.
[2] The appellant seeks leave to appeal his sentence for attempted murder and, if leave is granted, requests that it be reduced to 9 years and 3 months, less credit for pre-trial custody. He alleges that the trial judge made three errors in principle:
The trial judge erred in finding that the appellant knew that the victim was dragged under the car;
The trial judge erred in categorizing the offence as one of “stark horror”; and
The trial judge misapprehended the burden of proof relating to aggravating sentencing factors and overemphasized the seriousness of the offence. She admitted prejudicial and manifestly inadmissible portions of the victim impact statements, which affected the fairness of the proceedings.
[3] It is appropriate at this stage to include a brief summary of the facts to place the appellant’s arguments in context.
Facts
[4] The appellant and the victim were married for eight years. They have two children, ages seven (the daughter) and four (the son) at the time of the incident. The couple had been separated for three months when the appellant tried to kill her.
[5] After separating, the appellant came to believe that his wife was seeing someone else. This infuriated him and he talked openly about how he would “show her”. Shortly before the incident, he told his roommate that he was going to kill his wife and said he would rather die than go to jail.
[6] On October 28, 2005, the victim and the children picked up the appellant to go grocery shopping. While on route to the store, the appellant told the victim to pull the car over. Upon stopping in an industrial area parking lot, the couple began to argue. The appellant struck the victim across the face. The impact was so severe, blood splattered onto the clothing and shoes of their children, who were sitting in the back seat.
[7] The son got out of his car seat, crawled between his parents and took his mother’s cell phone from her purse. He gave it to his sister, who called their mother’s sister. The aunt could hear the children crying and the victim screaming hysterically. The appellant told his daughter to turn off the phone or else he would kill her. She dropped the phone, but did not end the call. As a result, the aunt and her family began searching for the victim.
[8] The appellant and the victim got out of the car and continued the argument. The victim started to walk away. The appellant got into the driver’s seat and drove the car into and over the victim accelerating as he did so. She fell to the ground and was caught in the undercarriage of the car. The appellant kept driving. The victim was dragged by the hair under the car for 82 feet before finally being thrown free.
[9] The appellant proceeded to drive to the grocery store, some 8.5 km away. He put his two children in a taxi and had them taken to this mother-in-law’s home. The appellant abandoned the car and fled the scene.
[10] Two people who were leaving work discovered the victim that evening and called 911. The victim was bleeding from the head and pieces of her scalp and hair were located near her body. Her right ear had been severed and was found on the ground near her. She was in critical condition and was rushed to the hospital.
[11] The victim’s injuries were extensive and required numerous surgeries. She continues to require medical care and therapy. In addition to the severed right ear, her injuries included: severe facial injuries, broken ribs, a severed right ear, severe abrasive burning to both legs, tendon damage to her right arm, burns to the left side of her body, a broken neck and pelvis, a lacerated liver and spleen, a collapsed lung and a broken nose.
[12] The day after the incident, the appellant called 911 and asked if the victim was alive. He told the operator that he knew who the perpetrator was. On October 31, 3 days after the incident, he called 911 again and told the operator that he had a machine gun, which he intended to use to kill the victim’s family which led to the threatening death charge. The police located the appellant through the cell phone call and he was arrested.
[13] The appellant plead guilty before Kiteley J. on December 14, 2006. At his sentencing hearing, the appellant accepted responsibility for his conduct and read a note apologizing to his wife and children. The sentencing proceeded on the basis of an agreed statement of facts.
[14] The appellant has a criminal record from the U.S.A, which includes: attempted robbery in 1991, a burglary in 1992, possession of marijuana in 2002, and possession of property obtained by crime and possession of marijuana in 2003.
Analysis
[15] We turn now to the appellant’s arguments. In the agreed statement of facts, the appellant did not specifically admit that he knew he dragged the victim some 80 feet while she was trapped in the undercarriage of the car. Accordingly, he submits that it was not open to the trial judge to draw this inference and that there was but a single act of attempted murder, driving over her, which was of brief duration.
[16] Even accepting the appellant’s argument, he had to be aware of the risk he created that the victim would be trapped under the car while he continued to drive and he was indifferent to that risk. On this basis, the sentencing judge was entitled to infer that the appellant’s conduct in continuing to drive was an aggravating feature because it exposed the victim to greater risk of injury and death. As the trial judge stated, “Even if he didn’t know he had dragged her for such a distance, he did know that he had deliberately struck her with the vehicle and yet he drove without stopping to determine her condition”
[17] The appellant’s second argument, that the offence is not one of stark horror, is related to his first. Stark horror cases involve unusual features of brutality over and above the intent to kill. The trial judge did not err in her categorization. In continuing to drive, the appellant exhibited brutality and callous indifference to the victim’s plight. The trial judge used the phrase “stark horror” when describing the impact of the extensive and serious physical and emotional injuries the victim suffered. She did not exaggerate the appellant’s moral blameworthiness or overemphasize the seriousness of the offence. Nor did she misapprehend the burden of proof relating to aggravating sentencing factors.
[18] Finally, in relation to the victim impact statements the Crown concedes that certain impugned passages ought to have been deemed inadmissible or redacted. However, defence counsel did not object to their admission although having ample time to do so. They were tendered at sentencing on December 14, 2006 and submissions were not made until January 2, 2007. In all of the circumstances, the sentencing proceedings were not unfair.
[19] Having regard to the global sentence, we see no basis to interfere. While the sentence may have been at the high end of the range it reflects the moral culpability of the appellant. As the trial judge noted there are numerous aggravating features in this case. They include the following:
a) the domestic context of the offence;
b) after the appellant deliberately drove over the victim with his car he continued to drive knowing he had created the risk that she was trapped underneath thereby exposing her to the risk of greater injury and death;
c) the violence took place in front of the children;
d) the appellant beat the victim inside his car prior to attempting to kill her;
e) the appellant’s treatment of the children in the car; and
f) the physical injuries and emotional trauma suffered by the victim.
[20] The sentence was not unfit. Accordingly, while leave to appeal sentence is granted, the appeal as to sentence is dismissed.
“K.M. Weiler J.A.”
“E.E. Gillese J.A.”
“J. MacFarland J.A.”```