Court of Appeal for Ontario

Citation: R. v. Menary, 2012 ONCA 706 Date: 2012-10-23 Docket: C55731

Before: Cronk, Pepall and Tulloch JJ.A.

Between:

Her Majesty the Queen Respondent

and

Wayne Menary Appellant

Counsel: Joshua D. Frost, for the appellant Avene Derwa, for the respondent

Heard and released orally: October 12, 2012

On appeal from the sentence imposed on December 23, 2011 by Justice J.E. Allen of the Ontario Court of Justice.

Endorsement

[1] The appellant appeals against his sentence of 18 months’ incarceration for assault on his former domestic partner and three months’ incarceration, concurrent, for failure to comply with a probation order that prohibited contact by the appellant with his assault victim. He argues, first, that the sentencing judge erred by rejecting, without proper inquiry and reasons, a joint submission by counsel for a custodial sentence within the range of 60 to 90 days’ imprisonment. Second, he submits that in fashioning sentence, the sentencing judge erred by failing to fully consider the circumstances of this offender and these offences, resulting in the imposition of an unfit sentence. In particular, the appellant says, the sentencing judge failed to consider the ‘jump’ principle and the applicable mitigating circumstances.

[2] We do not agree that this is a joint sentencing submission case. The record, in our view, suggests to the contrary, although the overall range of sentence suggested by counsel was similar. Accordingly, we would not give effect to this ground of appeal.

[3] However, we do agree that the sentencing judge erred by ‘jumping’ the Crown’s position on sentence (60 to 90 days’ imprisonment) without regard to the fact that the appellant’s longest prior custodial sentence in more than 10 years prior to these offences was approximately 50 days. In so doing, contrary to the submissions of both Crown and defence counsel, the sentencing judge imposed a significant term of imprisonment for the assault (18 months) without first informing counsel of his concerns regarding the range of sentence proposed by them and affording them the opportunity to make submissions. See R. v. Hagen, [2011] ONCA 749. This occurred in a context where the appellant was represented by duty counsel who provided only limited information to the court regarding the appellant’s circumstances, and the sentencing judge failed to afford the appellant an opportunity to make any comments prior to sentencing, contrary to s. 726 of the Criminal Code.

[4] As a result of the sentencing judge’s error, it falls to us to fashion a fit sentence.

[5] The appellant has a horrific criminal record that includes five prior convictions for acts of violence against three different domestic partners. This was his second conviction for assault against the same victim. This assault occurred in breach of a probation order that precluded any contact by the appellant with this former partner and at a time when he was on bail in relation to an unrelated assault charge. Further, the appellant’s lengthy record reflects virtually no regard for compliance with court orders. These considerations, especially the domestic nature of this assault, are clearly aggravating factors.

[6] On the mitigation side, however, we note that alcohol was a contributing factor in this incident, the appellant appears to have a significant alcohol-related problem, the assault itself was relatively minor in nature resulting in no physical injuries, and the appellant was gainfully employed at the time of sentencing. Also relevant, as we have said, is the fact that the longest custodial sentence served by the appellant in the decade prior to sentencing in this case was about 50 days.

[7] The appellant’s offences warranted a significant term of imprisonment. Domestic violence cannot be tolerated in our community. As the sentencing judge recognized, denunciation and deterrence are the controlling sentencing principles.

[8] In all the circumstances, in our view, a sentence of 12 months’ imprisonment for the assault conviction and three months’ incarceration, concurrent, for the failure to comply conviction, followed by probation for three years on the terms imposed by the sentencing judge, together with the ancillary orders made by the sentencing judge, is a fit sentence.

[9] Accordingly, leave to appeal sentence is granted, the sentence appeal is allowed and the custodial part of the appellant’s sentence is varied in accordance with these reasons.

“E.A. Cronk J.A.”

“Sarah Pepall J.A.”

“M. Tulloch J.A.”