Court of Appeal for Ontario

CITATION: R. v. Vienneau, 2015 ONCA 898

DATE: 20151216

DOCKET: C58790

Doherty, Pepall and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Joseph Vienneau

Appellant

Howard Krongold for the Appellant

Dayna Arron for the Respondent

Heard: December 9, 2015

On appeal from the sentence imposed on September 5, 2013 by Justice Lynne Leitch of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant was convicted of attempted murder for attacking his ex-girlfriend on October 12, 2011. The appellant broke into her home in the early afternoon while she and her new boyfriend were asleep. The appellant and his ex-girlfriend had a brief, heated conversation. The appellant then swung a knife at her neck, causing a serious laceration and extensive injury to her trachea and voice box. The appellant then attempted to commit suicide by cutting his own throat.

[2] At trial, the appellant conceded his culpability for the offence of aggravated assault, but pleaded not guilty to attempted murder. He was convicted of attempted murder on June 24, 2013, and the charge of aggravated assault was stayed. The appellant does not appeal his conviction.

[3] He was sentenced to 11 years’ imprisonment, less a 34-month credit for pre-sentence custody. He seeks leave to appeal his sentence and argues that his sentence should be reduced by two years.

[4] In her reasons for sentence, the judge found that there were mitigating factors in this case, including that the appellant has no prior criminal record, had been gainfully employed throughout his life, and that he was a positive contributing member of society.

[5] The context of a former domestic relationship and that the crime involved a degree of planning and deliberation were aggravating factors. The nature of the victim’s injuries and the serious impact on her and her family members were also aggravating.

[6] Overall, the judge determined that an 11-year sentence was appropriate, less credit for pre-sentence custody on a 1:1.5 basis. The sentence imposed was near the mid-point of the range of sentences for the offence of attempted murder in a domestic context. This range is generally accepted as being eight and a half years to life imprisonment: see, for example, R. v. Boucher (2004), 2004 CanLII 17719 (ON CA), 186 C.C.C. (3d) 479 (Ont. C.A.).

[7] The appellant argues that the trial judge erred in balancing the aggravating and mitigating factors at sentencing, leading her to depart from the low end of the sentencing range.

[8] Appellate courts must show great deference in reviewing sentences. Courts will not vary a sentence imposed by a trial judge absent an error in principle, failure to consider a relevant factor, an overemphasis of the appropriate factors, or the imposition of a sentence that is demonstrably unfit: R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at para. 14; R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 90.

[9] The appellant argues that the trial judge did not refer to all the mitigating factors. Though the trial judge did not explicitly refer to all of the circumstances raised by the appellant in her discussion of mitigating and aggravating factors, it is clear from the reasons for sentence that she was alive to the personal circumstances of the accused. The trial judge reviewed the appellant’s steps toward rehabilitation in jail, his cooperation with parole and probation officers, interest in counselling, and the support of his family.

[10] The appellant submits that the trial judge did not advert to the fact that there was no history of violence in the appellant’s relationship with the victim. The trial judge did consider his lack of prior criminal record as a mitigating factor. Importantly, she distinguished the appellant’s situation from the case law submitted by the Crown on the basis that the authorities supporting a sentence at the high end of the range involved circumstances where there was a record of assault on the victim and prior court orders against the accused. That this was not the case here was recognized by the trial judge.

[11] The trial judge also discussed the appellant’s remorse, expressed both to the author of the pre-sentence report and during the appellant’s statement to the court at sentencing. The judge found that much of his statement to the court focused on the injury that he had sustained as a result of his own actions, which, according to the appellant, included complete memory loss of the offence. Her assessment of the appellant’s statement to the court on sentencing does not constitute a failure to consider a relevant factor. In addition to the brief comment that the appellant focused on his own injuries during his statement, the judge noted that the appellant apologized to the victim and her family and acknowledged committing a heinous crime. The trial judge was entitled to consider his statement in this manner and to weigh it accordingly.

[12] We also do not see any error in the trial judge’s consideration of the aggravating factors. First, the domestic context is an aggravating feature: Boucher, at paras. 24 and 26. Second, the trial judge was entitled to consider what she found was a degree of planning and deliberation, meaning that the attack was not a spontaneous reaction to an event or an incident.

[13] Finally, the appellant submits that the injuries suffered by the victim were not a basis on which the trial judge should have increased the sentence. We disagree. The impact of the attack on the victim and her family was properly considered as an aggravating factor: R. v. Stubbs, 2013 ONCA 514, 300 C.C.C. (3d) 181, at paras. 148-149. The victim suffered a serious, life threatening injury and continues to experience pain and other difficulties because of the attack. The psychological toll on her family and friends was evident through numerous victim impact statements.

[14] The sentence of 11 years’ imprisonment clearly falls within the acceptable range for attempted murder in this context. The trial judge emphasized the principles of denunciation and deterrence, which are of paramount importance in cases involving domestic violence: Boucher, para. 27. Her consideration and balancing of the circumstances of the offender and the offence are entitled to significant deference. In light of this, we conclude that there was no error requiring appellate intervention.

[15] For the above reasons, the application for leave to appeal sentence is allowed, but the sentence appeal is dismissed.

“Doherty J.A.”

“S.E. Pepall J.A.”

“M. Tulloch J.A.”