WARNING

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. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. D.S., 2013 ONCA 244

DATE: 20130418

DOCKET: C54958

MacPherson, Blair and Juriansz JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

D.S.

Respondent

Peter Scrutton, for the appellant

Misha Feldmann, for the respondent

Heard: March 27, 2013

On appeal from the sentence imposed by Justice Laurence A. Pattillo of the Superior Court of Justice on January 9, 2012.

By the Court:

A. introduction

[1] Following a jury trial, the respondent, D.S., was convicted of 32 counts relating to sexual assaults against his common law partner and domestic violence against his partner and four children. The trial judge imposed a sentence of six years imprisonment.

[2] The Crown appeals the sentence. The Crown contends that the trial judge made several errors in principle in his sentencing reasons and that the sentence is manifestly unfit.

B. Facts

(1) The parties and events

[3] The respondent was convicted of 32 offences that took place over the almost ten-year period from October 1999 to April 2009. The offences included six counts of sexual assault, 14 counts of assault with a weapon, one count of assault causing bodily harm, four counts of assault, five counts of uttering threats, one count of possession of a prohibited weapon, and one count of breach of a recognizance.

[4] The respondent sexually assaulted his common law partner, R.B. The sexual assaults occurred on three occasions in 2007 when the respondent came home drunk, called his partner a whore, and threatened to kill her if she refused to have sex with a friend he had brought home. Each time, the respondent forced his partner to have sex with the friend and then with himself afterwards. On one occasion, the respondent, a martial arts and weapons enthusiast, punched his partner in the face with the flat part of a sword handle when she initially refused to have sex with the stranger. On a second occasion, he put the tip of a sword blade against his partner’s neck to force her to have sex with the stranger. On the third occasion, the stranger paid the respondent $50 for the sex with his partner.

[5] The respondent assaulted his partner and four of his five children on numerous occasions throughout the ten-year period. The assaults escalated toward the end of the period, from 2006 to 2009. The assaults were violent and very dangerous, often involving weapons such as swords, knives, poles, an axe, a meat cleaver, and a homemade spear. They caused injuries to R.B. and the children.

[6] After his arrest on April 15, 2009, the respondent was released on a recognizance. One of the conditions was that he not communicate with R.B. The respondent breached the recognizance on April 20, 2009 by calling R.B. three times in the middle of the night and then sending a text trying to cover up the breach.

(2) The sentencing reasons

[7] In comprehensive reasons, the trial judge canvassed the details of the 32 offences arising out of 17 incidents over a ten-year period. He said that “the offences here involved a reign of terror... which has destroyed the lives of [R.B.] and their sons.”

[8] The only mitigating factors the trial judge found were the strong support of the respondent’s family (not his former partner and children) and current girlfriend and the fact that his criminal record was stale-dated, with no convictions in the 15 years prior to the case.

[9] The trial judge listed a number of aggravating factors. The offences consisted of significant physical, verbal and mental abuse. Serious weapons were used in many of the attacks. The abuse continued over almost ten years, with a significant escalation from 2006 to 2009. The abuse of a common law spouse is a statutory aggravating factor, provided for in s. 718.2(a)(ii) of the Criminal Code. The abuse of young children was extremely aggravating.

[10] The trial judge first determined the appropriate sentence for each offence, then whether it should be imposed consecutively or concurrently, and then whether the totality principle was offended by the aggregate amount. He imposed a total sentence of 26 years and seven months for all of the offences. Combining only the consecutive sentences, the sentence was ten years. He then said:

I consider, however, ten years to be too great a sentence, given all of the circumstances here. In my view, the totality principle requires that I reduce that. You have effectively no prior time in jail and your prior offences go way back. So I’m going to sentence you, sir, in total to six years in the penitentiary. I consider that to be a serious sentence for serious misconduct on your part.

[11] The trial judge then credited the respondent’s two years of pre-sentence custody on a 2:1 basis, resulting in a further custodial sentence of two years less a day, to be followed by a three-year period of probation.

[12] The Crown appeals this sentence.

C. Analysis

[13] A trial judge who has presided over a trial, heard the witnesses, and considered the evidence should be accorded considerable deference with respect to the sentence he or she imposes on a convicted person. The sentence should be set aside only if the trial judge has made an error in principle or if the sentence is manifestly unfit: see R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227, at para. 46; and R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at paras. 90-91.

[14] The Crown contends that the trial judge made several errors in principle in his sentencing reasons, including his application of the ‘totality’ and ‘jump’ principles, arbitrary assignment of concurrent sentences to some offences, and overemphasis of the respondent’s rehabilitation prospects.

[15] In our view, all of these submissions flow into what we take to be the Crown’s main submission, namely, that a six-year sentence for this offender and this offence is manifestly unfit. As this submission is dispositive of the appeal, it is not necessary to address the others.

[16] The respondent committed 32 crimes of violence against his common law spouse and four male children. He did so over a ten-year period, with the violence escalating toward the end of the period.

[17] Here is how the trial judge described, in a general way, the respondent’s assaults against his family:

As noted, [the respondent] physically and verbally abused [R.B.] first and then later the children on a regular basis. He would curse at them, push or hit them, and in the case of [J.], who had long hair and a pony tail, pull his hair. Often, he would get a knife, a sword or a metal pole or poles from the closet in the apartment to facilitate his assaults. On one occasion, he used a spear which he’d made by taping a knife to a broom handle. He also used a meat cleaver from the kitchen.

His favourite weapon, however, was a sword, of which he had many. He also used the sheath of a sword. He would wave the sword around in front of [R.B.] and the children and hold it up to their face or neck. At times, he would hit them with the flat side of the blade. On occasion, his assaults would cut [R.B.] or the boys and end up leaving a scar.

[18] Here is how the trial judge described, in a general way, the respondent’s sexual assaults on his partner:

In addition to the verbal and physical abuse, [the respondent] also forced [R.B.], on three separate occasions, against her will, to have sex with his friends and then afterwards to have sex with him. It was very demeaning and upsetting for [R.B.].

[19] The trial judge reviewed the facts underlying each of the 32 offences. He described one incident of assault – sadly, a typical one – in this fashion:

The evidence is that in the summer of 2006, when [J.] was 4, he went into [the respondent] and [R.B.’s] bedroom in their apartment and locked the door. He didn’t know how to open it. [R.B.] tried to explain to him how to open it, but [J.] didn’t understand. [The respondent] got angry and frustrated and began to swear at [J.]. He then went to the kitchen and got a knife. He put the knife under the door to scare [J.]. [J.] was saying that he didn’t know how to open the door and was crying. [The respondent] kept jamming the knife under the door and yelling at [J.]. He told him he was stupid. [The respondent] then went around to the window on the outside of the apartment and crawled in the bedroom window. [The respondent] then unlocked the door and [J.] came out crying.

During the incident, [the respondent] told [J.], [A.] and [E.] they were stupid and he could put a knife into them and kill them. [The respondent] and [R.B.] got into an argument on how to get [J.] out of the room. He pushed her pretty hard up against the wall by the throat at the base of her neck. They kept on yelling at each other. She said during the incident, [the respondent] told her she was an unfit mother and he could kill her right there and right now because she was stupid. She also said that when he opened the bedroom door after releasing [J.], he put the knife up against her face and said: I’m going to kill you. You are a dumb mother.

[20] There were three incidents of sexual assault that resulted in convictions. All three were quite similar and involved forced sex on R.B. by the respondent and one of his friends. The trial judge described one of these incidents in this fashion:

The evidence is that sometime in 2007, [the respondent] came home around 2:00 a.m. after drinking with friends. [R.B.] and the kids were asleep.

[The respondent] came into the bedroom and told her he brought someone home for her to sleep with. She said no. He told her that if she embarrassed him, he would kill her. She could smell the alcohol and said he was intoxicated. [The respondent] then left the bedroom.

The door then opened and someone came into the room. She thought it was [the respondent] coming back. She asked who it was. The person responded that [the respondent] said, you are a whore and you’re going to sleep with me. She refused. The person left the room. She didn’t see what he looked like.

[The respondent] then came back into the room. He swore at her and told her that she was going to sleep with his friend. She again refused and he punched her in the face with the flat part of a blade of a long handle of a silver sword which had a blue jean cloth wrapped around the handle. She felt threatened, hurt, ashamed and very scared.

[The respondent] left and the person, again, entered the room. He got into bed. She said she didn’t want to have sex. He ignored her, climbed on top of her and forced his penis into her vagina. When it was done, he got off her and said, thank you for a good time, and left the room. She was crying.

About five minutes later, [the respondent] came back into the room. She was still crying in bed. He took off his clothes and lay on the bed beside her. He said: It’s my turn now. You serviced my friend; now it’s time for you to service me. She said nothing. She was scared and did whatever he wanted. She didn’t want to have sex with him at this point. He climbed on top of her, pulled her underwear off, put his penis in her vagina and had sex with her. She lay there and let him do whatever he wanted. When he finished he said to her that that’s what a good whore does and then fell asleep.

[21] The descriptions of the assaults and sexual assaults committed by the respondent against his common law spouse and children provide overwhelming support for the trial judge’s observation, noted above, that “the offences here involved a reign of terror... which has destroyed the lives of [R.B.] and their sons.”

[22] The victim impact statements by R.B. and the four boys also stand as graphic and sad indictments of the respondent’s attacks on them and the terrible effects of those attacks. The trial judge reviewed them in his reasons. By way of illustration, we set out what the trial judge said about R.B.’s and one son’s statements:

With respect to [R.B.], needless to say, [the respondent’s] actions have had a significant impact on her. There is no question that she was afraid for her safety, for herself and her children, and what [the respondent] might do to them both before he was arrested and afterwards. That fear remains with her today. She talks about having long and painful sleepless nights. She has very little self-esteem and feels she can’t trust anyone or have another relationship. She is particularly concerned for the children and what [the respondent] has done to them. The important thing is that she and the children are in counselling and are putting their lives back together. It will take a long time, however, and in the meantime she is left to raise the children herself.

[E.] was 11 when [the respondent] was arrested. He says that when his father was in his life he had no fun at school, no friends and all he had to look forward to coming home was being beaten. He’s much happier now and feels safer and doesn’t want to see or talk to his father again.

[23] Against this background, we agree with the Crown that the six-year sentence imposed by the trial judge was manifestly unfit. The number of offences (32), the number of incidents (17), the duration of the attacks (ten years), the escalation in the attacks, the number of victims (five), the extreme vulnerability of the victims, especially the children, the violence of the attacks, often involving dangerous weapons, the stark horror of the sexual assaults involving forced sex with a complete stranger, and the significant effects of the attacks on all of the victims, require a more substantial punishment.

[24] In R. v. D.K. (2003), 2003 CanLII 8845 (ON CA), 169 O.A.C. 97, this court upheld a ten-year sentence on a guilty plea to five counts of sexual assault with a weapon. The offender sexually assaulted his wife five times over ten years using different weapons, twice threatening to kill her. The offences were characterized as dehumanizing treatment designed to demean, terrorize, humiliate, and subjugate the victim.

[25] In R. v. Young, [2003] O.J. No. 5124, this court upheld an 11-year sentence imposed for abuse of a spouse on an almost daily basis for two years, punctuated by several acts of unspeakable cruelty involving violence and one sadistic sexual assault that went on for several hours.

[26] In our view, this appeal is similar to these cases. The respondent forced his partner to have sex with a stranger on three occasions. Twice he used a weapon to make her succumb. All of this, in our view, amounts to unspeakable cruelty involving violence, designed to demean and humiliate.

[27] Both D.K. and Young involved a single victim, a spouse. In this appeal, there is a spousal victim. However, the respondent’s “reign of terror” was also visited on four young children, with devastating consequences.

[28] In these circumstances, it is our view that a fit global sentence in this case is 12 years imprisonment.

D. disposition

[29] The appeal is allowed and the sentence is varied to 12 years imprisonment.

Released: April 18, 2013 (“J.C.M.”)

“J.C. MacPherson J.A.”

“R.A. Blair J.A.”

“R.G. Juriansz J.A.”