Her Majesty the Queen v. Kormendy

[Indexed as: R. v. Kormendy]

Ontario Reports

Court of Appeal for Ontario

K.N. Feldman, Paciocco and Zarnett JJ.A.

August 28, 2019

147 O.R. (3d) 701 | 2019 ONCA 676

Case Summary

Criminal law — Attempted murder — Sentence — Accused attempting to kill his girlfriend and two of her children by burning down their house and trapping them inside — One child suffering horrendous burns that resulted in permanent scarring and loss of functionality in her hands and feet — Crown's appeal from sentence of 11 years concurrent on each of three counts of attempted murder allowed — Sentence demonstrably unfit in light of gravity of offence and accused's high moral blameworthiness — Sentencing judge acknowledging that offences were carried out in domestic context but failing to treat deterrence and denunciation as primary sentencing considerations in that context — Sentences varied to 20 years' imprisonment.

The accused was convicted of three counts of attempted murder, one count of arson causing damage to property and one count of possession of incendiary materials. When his girlfriend S terminated their relationship and asked him to move out of her house because he was clinging and controlling, the accused attempted to kill her and two of her children (a seven-year-old girl and a one-year-old baby) by setting fire to the house and trapping them inside. The seven-year-old suffered horrendous burns that resulted in permanent scarring and a loss of functionality in her hands and feet. S was also seriously burned. The baby was unhurt. The accused's criminal record consisted of three prior convictions for alcohol-related driving offences. The trial judge sentenced the accused to 11 years' imprisonment on each count of attempted murder, to be served concurrently, one year concurrent for arson, and six months concurrent for possession of incendiary materials. The Crown appealed the attempted murder sentences.

Held, the appeal should be allowed.

The sentence was demonstrably unfit, as it was wholly inadequate in light of the accused's degree of responsibility and the gravity of the attempted murders. The accused's moral blameworthiness was at the highest level. While the trial judge acknowledged that the crimes were carried out in a domestic context, he failed to treat deterrence and denunciation as the primary sentencing objectives and failed to appreciate why those objectives are paramount in the domestic context. The court must send a message that abusers who feel entitled to control their domestic partners and punish them for resisting will be severely dealt with when their conduct is criminal. The trial judge also erred by purporting to distinguish this case from other cases of domestic violence on the basis that this was an isolated incident with no pattern of abuse. The trial judge failed to understand that the accused's controlling behaviour during his relationship with S, leading up to his refusal to leave the house when asked on the day of the fire, did constitute a pattern of abusive behaviour. Moreover, significant sentences have been imposed in other cases in which the violence seemed to be an isolated incident. The sentences for attempted murder were varied to 20 years' imprisonment on each count, concurrent.

Authorities Cited

Cases considered:

R. v. Adamson, 2018 ONCA 678; R. v. Borel (August 15, 2014), St. Catherines, 1883/12 (Ont. S.C.J.); R. v. Boucher; R. v. Cheddesingh, 2004 SCC 16; R. v. G. (K.), 2010 ONCA 177; R. v. Klair; R. v. M. (L.), 2008 SCC 31; R. v. Mann, 2016 ONSC 2675; R. v. McDonald, 2007 CarswellOnt 6241 (S.C.J.); R. v. Quance; R. v. Stubbs, 2013 ONCA 514; R. v. Tan, 2008 ONCA 574; R. v. Vienneau, 2015 ONCA 898; R. v. Simpson

Other cases referred to:

R. v. Campbell; R. v. Champagne; R. v. Charlebois, [1987] O.J. No. 886; R. v. D. (D.); R. v. Denkers; R. v. Lacasse, 2015 SCC 64; R. v. Lieug; R. v. Logan; R. v. McArthur; R. v. Mesgun; R. v. Spurway

Statutes referred to:

Criminal Code, R.S.C. 1985, c. C-46, ss. 718, 718.1, 718.2

Procedural History

APPEAL by the Crown from the sentence imposed by Bondy J., sitting without a jury, [2017] O.J. No. 5967, 2017 ONSC 6426 (S.C.J.).

Counsel:

Elise Nakelsky, for appellant.

Peter Copeland, for respondent.

The judgment of the court was delivered by

K.N. FELDMAN J.A.:

Overview

[1] The Crown is appealing the sentence of 11 years concurrent that Mr. Kormendy received for attempting to kill three people, his recent girlfriend and two of her children, by burning down their house and trying to trap them inside. While all three escaped, one of the children suffered horrendous burn injuries causing her terrible pain and resulting in permanent scarring on her face and a permanent loss of functionality in her hands and feet. The mother also suffered serious burn injuries. Mr. Kormendy was convicted of three counts of attempted murder as well as one count of arson causing damage to property and one count of possession of incendiary materials.

[2] The Crown submits that the sentence imposed was demonstrably unfit. At trial, the Crown sought a life sentence without eligibility for parole for ten years to adequately reflect the gravity of the offences and the moral blameworthiness of the respondent. It renews its request for a life sentence on appeal or, in the alternative, an elevated sentence.

[3] For the reasons that follow, I would grant leave to appeal the sentence, allow the appeal and impose a sentence of 20 years concurrent on each charge of attempted murder, less credit for pre-sentence custody.

Facts

[4] S.R. met Kenneth Kormendy online in 2015. After dating for a couple of weeks, in early September he moved into her house, where she lived with her two school-aged daughters, ages nine and seven, and her baby of one year. However, their domestic relationship quickly deteriorated, and after two weeks she asked him to move out. She found him controlling and clingy. He did not want her visiting family and friends during the day while he was at work or talking to her friends on the phone. He did not want her to attend her father's birthday dinner.

[5] Text messages presented at trial suggested that the respondent first accepted S.R.'s request for him to move out, but then he resumed his efforts to stay. In the days immediately preceding the fire, as well as the day of the fire (October 24, 2015), he was regularly texting her, generally without a response.

[6] In the morning of October 24, 2015, S.R. first drove the respondent to buy six to eight "tall boy" cans of Budweiser. Her nine-year-old daughter was already at her grandmother's residence. S.R. then left with her other two children, dropped the baby off with her father, and took the seven-year-old to visit with S.R.'s father for the day. She arrived home with the two girls at around 9:00 p.m. It was evident that the respondent had been drinking. He had consumed the beers but denied being intoxicated.

[7] S.R. put the baby to sleep in her crib. Then S.R. went to sleep with her seven-year-old daughter in her daughter's room. But the respondent kept coming in to debate her request for him to move out. S.R. kept asking him to leave. He came in a total of approximately eight times. The fifth or sixth time he smelled of gasoline. When S.R. asked him about the smell, he said he had made a campfire in the backyard. She asked him to wash his hands but he still smelled of gasoline when he came back. She told him they were "over seeing one another" and asked him to leave. When he came back in for the last time to talk, he asked if their relationship was finished. She said yes. He left again but this time he returned with a gasoline container that he poured onto the floor of the bedroom as well as on S.R.'s track pants and on the blankets and the bed where S.R. and her daughter were sleeping.

[8] When he tried to ignite the cigarette lighter in his hand, S.R. saw sparks, jumped up, led him out of the room and held the door shut with her body so that he couldn't get back in. She then heard the sound of gasoline being poured on the door and on the floor outside the bedroom. Then the respondent ignited the fire, which quickly appeared under the door. S.R.'s pants caught fire almost immediately.

[9] S.R. took off her burning pants, opened the window and pushed out the screen. Then she woke her seven-year-old daughter and they moved to the window. S.R. went through first and directed her daughter to follow through the window that was engulfed in flames. They were both screaming in pain. When the mother reached through the window to help her daughter, she burned her hands.

[10] The respondent did nothing to warn them, to help in any way or to call for help, including on his cell phone, which he had in his pocket.

[11] S.R. ran over to a cab that was dropping off some neighbours, screaming about the fire and that her baby was inside. The cab driver called 911 then entered the house with two neighbours to find the baby. Seeing that they were about to enter the house, the respondent went in and, after some time, came out with the baby. S.R. screamed at him that he had started the fire and tried to kill them.

[12] When the police arrived, S.R. and her daughter were screaming. The respondent was standing five to ten feet away in a bit of a daze, with the smells of gasoline and alcohol on him. The remains of a gasoline container were found on the lawn. The cab driver later testified that he found one burning gasoline container immediately outside the seven-year-old's bedroom door, which he moved outside of the house.

[13] The seven-year-old daughter suffered partial thickness (second degree) and full thickness (third degree) burns to approximately 15 per cent of her body. Most affected were her arms, hands, face, back, legs and feet. She underwent surgeries to multiple parts of her body. The surgeries involved removing the burnt tissue and replacing it with skin taken from other parts of her body in order to permit limited movement and function of her damaged extremities. At the time of sentencing, the seven-year-old still needed further surgeries for improved functionality. She will never recover full function of her hands and feet, and the scars on her face are permanent. She will also have long-term loss of sensitivity in her fingers, toes and feet.

[14] S.R. suffered painful burns to her hands, arms, neck and hip. Generally, her burns were partial thickness (second degree) burns. Luckily, the baby was not injured.

[15] The respondent testified at trial. He claimed that S.R. started the fire after he told her he was reconciling with a former girlfriend. According to him, she decided to kill all of them rather than lose him. The trial judge rejected Mr. Kormendy's evidence, finding him not credible and evasive. He found that the respondent's numerous text messages demonstrated his controlling nature.

[16] The trial judge found that the respondent intended to kill S.R. and the two children, and that his actions in setting the fire were "considered and deliberate". The trial judge further found that the respondent took no steps to warn them or to save them, although he could have, and that that demonstrated his continuing intent that they die in the fire. The respondent also intended the baby to die in the fire, but changed his mind when other people arrived. He only saved her because he perceived it to be in his interest to do so. Specifically, the trial judge concluded that his re-entry into the home was an effort to distance himself from having caused the fire.

[17] S.R. provided a victim impact statement but did not attend the sentencing hearing in person because she did not want to see the respondent. In her statement, she described the terrible toll on her seven-year-old daughter and herself physically and emotionally. Her daughter is angry and confused. Their relationship has changed. S.R. now only sees her daughters a couple of times a week for a couple of hours. Some days she feels like a failure as a mother. The seven-year-old's father also sent a victim impact statement again describing how his daughter was robbed of her childhood, her self-esteem and her enjoyment of life. After the fire, she was in hospital for a month in terrible pain. Following her discharge from hospital, she had to attend numerous medical appointments and endure follow-up surgeries to try to minimize her facial scarring. She wears a full mask at school. She is no longer a happy, playful child. Instead, she has persistent dread and anxiety and constant worry about her appearance. She is apprehensive about being in public or with strangers, and spends recess inside alone for fear of stares or hurtful words from classmates. The fire affected her relationship with her older sister, who was also traumatized and now sees a clinical psychologist. It also impeded her ability to enjoy the arrival of a baby brother from her father and his new partner.

[18] The respondent has a record consisting of three driving convictions involving alcohol, two for over 80 from 1992 and 2002, and one for impaired driving from 1996. The pre-sentence report noted alcohol as a problem for the respondent but he disagreed. He had a number of letters of support from family and friends and a co-worker.

[19] The Crown asked for a life sentence with no eligibility for parole for ten years. The respondent's position was ten years, with parole eligibility left to the Parole Board.

[20] In his reasons for sentence, the trial judge identified the range for a domestic attempted murder as 8.5 years to life imprisonment, although he found that where there was serious injury and a life sentence was not imposed, the range was ten to 14 years. While acknowledging the particularly egregious behaviour of the respondent, the horrific nature and degree of violence and consequences to the victims, and the fact that alcohol was involved, given his previous alcohol-related convictions, the trial judge focused on the fact that it was an isolated incident with no prior pattern of abuse and imposed a sentence of 11 years concurrent for each of the three charges of attempted murder, one-year concurrent for arson and six months for possession of incendiary materials.

Issues

(1) Should the sentences imposed by the trial judge be set aside as demonstrably unfit?

(2) If so, what is the appropriate sentence?

Analysis

(1) Appellate Review of Sentences

[21] In R. v. Lacasse, 2015 SCC 64, the Supreme Court revisited the test for appellate review of a sentence imposed by the trial judge. While re-emphasizing the importance of giving wide latitude to sentencing judges and according them deference on appeal, the court clearly stated how an appeal court is to approach a sentence appeal, at paras. 11 and 12:

Ultimately, except where a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit.

In such cases, proportionality is the cardinal principle that must guide appellate courts in considering the fitness of a sentence imposed on an offender. The more serious the crime and its consequences, or the greater the offender's degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime's consequences, but also on the moral blameworthiness of the offender.

[22] The court also discussed when a sentence may be considered "demonstrably unfit", at paras. 52 and 53:

It is possible for a sentence to be demonstrably unfit even if the judge has made no error in imposing it. As Laskin J.A. mentioned, writing for the Ontario Court of Appeal, the courts have used a variety of expressions to describe a sentence that is "demonstrably unfit": "clearly unreasonable", "clearly or manifestly excessive", "clearly excessive or inadequate", or representing a "substantial and marked departure" (R. v. Rezaie, at p. 720). All these expressions reflect the very high threshold that applies to appellate courts when determining whether they should intervene after reviewing the fitness of a sentence.

This inquiry must be focused on the fundamental principle of proportionality stated in s. 718.1 of the Criminal Code, which provides that a sentence must be "proportionate to the gravity of the offence and the degree of responsibility of the offender". A sentence will therefore be demonstrably unfit if it constitutes an unreasonable departure from this principle. Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances. Individualization and parity of sentences must be reconciled for a sentence to be proportionate: s. 718.2(a) and (b) of the Criminal Code.

[23] To summarize, while an appellate court must accord significant deference to the sentence imposed by the trial judge, it may set aside a sentence where the trial judge made an error of law or an error in principle that had an impact on the sentence, or where the sentence is demonstrably unfit. The test for unfitness rests on the proportionality principle. A sentence will be demonstrably unfit "if it constitutes an unreasonable departure" from a sentence that is "proportionate to the gravity of the offence and the degree of responsibility of the offender", examined in the context of the accused and the offence as well as similar offences committed in similar circumstances.

(2) Imposing the Maximum Sentence

[24] In R. v. Cheddesingh, 2004 SCC 16, an appeal by the accused from the imposition of the maximum sentence of life imprisonment on a conviction for manslaughter resulting from sexual assault, the Supreme Court held that the terms "stark horror", "worst offence" and "worst offender" should be avoided as they add nothing to the analysis of when the maximum penalty may be imposed. The court stated, at para. 1:

All relevant factors under the Criminal Code, R.S.C. 1985, c. C-46, must be considered. A maximum penalty of any kind will by its very nature be imposed only rarely (see A. Manson, Law of Sentencing (2001), at p. 106) and is only appropriate if the offence is of sufficient gravity and the offender displays sufficient blameworthiness. As is always the case with sentencing, the inquiry must proceed on a case-by-case basis. Here we are satisfied that the sentencing judge considered all the relevant factors and exercised his discretion judicially in sentencing the appellant to life imprisonment.

[25] The Supreme Court elaborated on its brief decision in Cheddesingh and clarified its meaning in R. v. M. (L.), 2008 SCC 31, where the court explained, at para. 22, that,

Thus, the maximum sentence cannot be reserved for the abstract case of the worst crime committed in the worst circumstances. The trial judge's decision will continue to be dictated by the fundamental principle that "a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender" (s. 718.1 Cr. C.).

(3) Sentencing Principles for Domestic Attempted Murder

[26] The moral blameworthiness for an attempt to murder someone is as serious as in a crime of murder. The only difference is that despite the accused's effort and intent, the victim did not die, although often the victim has suffered terrible long-term effects. The seriousness of a conviction for attempted murder was clearly explained by the Supreme Court in R. v. Logan, at p. 743 S.C.R.:

The stigma associated with a conviction for attempted murder is the same as it is for murder. Such a conviction reveals that although no death ensued from the actions of the accused, the intent to kill was still present in his or her mind. The attempted murderer is no less a killer than a murderer: he may be lucky -- the ambulance arrived early, or some other fortuitous circumstance -- but he still has the same killer instinct. Secondly, while a conviction for attempted murder does not automatically result in a life sentence, the offence is punishable by life and the usual penalty is very severe.

[27] The same concept was observed by Doherty J.A. in R. v. McArthur, at para. 47, where he stated:

Under our law, a person can only be convicted of attempted murder if he or she intended to kill. The moral culpability of the attempted murderer is at least equal to that of a murderer. He or she avoids a murder conviction and the automatic sentence of life imprisonment not because of any mitigating factor, but because through good fortune, the victim was not killed.

[28] While every attempted murder is a most serious crime, attempted murders in the domestic context are particularly heinous. The domestic partner victims are uniquely vulnerable because they are in a relationship of trust with the perpetrator. Even more vulnerable are children of the person in the relationship with the perpetrator, who often suffer terribly in a myriad of ways, if they survive the murder attempted on them.

[29] Our courts have continually emphasized that denunciation and deterrence are the paramount sentencing objectives for attempted murder in the domestic context: R. v. Tan, 2008 ONCA 574, at para. 31; R. v. Boucher, at para. 27; R. v. Denkers. In Boucher, this court specifically addressed the issue that people in romantic relationships must be able to end their relationships, if they want to, without fear of violence. The way the law sends that message is through a very heavy sentence that makes denunciation and deterrence the overriding considerations [at para. 27]:

[T]his court has repeatedly emphasized that the principles of denunciation and deterrence are of paramount importance in cases involving domestic violence: see, for example, Edwards and Levo (R. v. Edwards); Campbell (R. v. Campbell); and Denkers (R. v. Denkers). In Denkers, in particular, this court indicated that the sentences imposed in cases involving domestic violence must be such that they will foster an environment in which individuals can feel free to leave romantic relationships without fear of harassment or harm, and without fear of violence aimed at forcing a return to a no longer wanted relationship:

The victim, and others like her, are entitled to break off romantic relationships. When they do so they are entitled to live their lives normally and safely. They are entitled to live their lives free of harassment by and fear of their former lovers. The law must do what it can to protect persons in those circumstances. In this case its order that the appellant not have contact with the victim failed to provide that protection.

It follows that the principles of general and specific deterrence must be the overriding consideration in the determination of the sentence in this case. Those principles demand a very heavy sentence to act as a general deterrent to other persons who cannot abide their rejection by a person whom they love. The sentence must act as a specific deterrent to this appellant who was not deterred by the victim's requests that he leave her alone nor by a court order requiring him to do so.

[30] In R. v. Tan, 2008 ONCA 574, Laskin J.A. discussed the range of sentences for attempted murder that this court has upheld. While noting Boucher where this court granted a Crown appeal and raised a sentence of two years less a day plus probation to six years but did not reincarcerate, he identified the low end as nine years in R. v. Campbell. The high end is the maximum of life imposed in R. v. Charlebois, [1987] O.J. No. 886, R. v. Lieug and R. v. Mesgun. I would add to those cases R. v. Simpson. In the middle of the range is the case of R. v. Spurway, where the offender broke into his wife's home and attempted to shoot her in bed, but the gun was defective and did not fire. This court reduced the global sentence of 17 years for which 15 were for the attempted murder, to 13 with 11 for the attempted murder.

[31] Having identified the range, Laskin J.A. considered the sentence of 15 years imposed by the trial judge. The appellant was 34 at the time of the offence, while the victim was a university student acquaintance. After he helped her move out of her boyfriend's apartment, he told her he wanted to be her boyfriend. When she rejected his advances, he became enraged, refused to let her out of his car, bound her hands and feet and taped her mouth. He brandished a knife and told her to be quiet or he would kill her. He drove her three hours to a friend's cottage in Bancroft, where he tried to sexually assault her. He then put her in a chokehold, told her he was going to kill her and slit her throat with the knife, then kneeled on her back and stabbed her in the side collapsing her right lung. He obtained her PIN number for her bank accounts and took all of her identification. He then dragged her into the bush, covered her with a tarp and left her to die. Miraculously, she regained consciousness, got to the main road and was picked up by a passer-by and taken to a hospital. She suffered serious physical and psychological long-term effects. The appellant eventually pleaded guilty and expressed remorse.

[32] The court observed that a 15-year sentence for a first offender who entered an early guilty plea and expressed remorse was high. However, the court found that it was justified in this case for a number of reasons: (a) the domestic context was an aggravating factor; (b) the specific intent to kill; (c) the elements of planning and deliberation; (d) the prolonged duration of the attack; (e) the concealing of the body and the identity of the victim; (f) the victim was left to die; and (g) the serious physical and psychological injuries.

[33] A number of domestic attempted murder cases since Tan in 2008 have added to and filled in the range. In R. v. G. (K.), 2010 ONCA 177, the accused struck and then drove over his wife from whom he was separated, with his two young children in the car, and left her for dead. He pleaded guilty to attempted murder and was sentenced to 14 years. That sentence was upheld by this court. In R. v. Adamson, 2018 ONCA 678, the accused was the victim's boyfriend. The victim was pregnant with his child. He entered her room while she was asleep, punched her in the head, told her he loved her as he cut her neck. The appellant was convicted of attempted murder following a jury trial. On appeal, the court upheld the sentence of 13 years. The court identified the following aggravating factors in addition to the significant moral blameworthiness for the crime where there is intent to kill: (a) the domestic-like context; (b) the breach of trust; (c) the planned nature of the attack; (d) the invasion of the victim's home; (e) her pregnancy; and (f) the serious consequences for the victim and her family. The victim only escaped death because the knife was dull.

[34] Another relevant domestic case is R. v. Stubbs, 2013 ONCA 514, where the victim was the offender's ex-girlfriend. He broke down her apartment door and shot her in the head at close range while she was calling 911. The appellant received a global sentence of 22 years, 16 of which were for the attempted murder. On appeal, the court noted that 16 years was within the range established by this court for attempted murder committed in the context of a domestic relationship.

[35] R. v. Mann, 2016 ONSC 2675 is an Ontario trial decision. The accused believed he had a relationship with a woman he met as an escort and wanted to move in with her, but when she did not want to talk about it with him, he smashed her head into the floor, partially shearing both her carotid arteries and causing bleeding in her brain, and he choked her around the neck fracturing her larynx. Due to multiple high-velocity blows, her liver was broken into multiple pieces, which caused severe internal hemorrhaging. The victim's 17-year-old daughter came in and saw the appellant smashing her mother's head. The daughter's boyfriend, a large young man, tried to pull the appellant off the victim but was unable to do it. The appellant told the 911 operator, whom the daughter's boyfriend had called, that his "so-called girlfriend" had pissed him off so "I killed her". The intent to kill was clear. Healy J. imposed a life sentence. While counsel for the respondent argued in oral submissions that Mann is distinguishable from the present case because Healy J. found the accused to be "deeply disturbed" psychologically, there is nothing in the decision to indicate that Healy J. perceived this as an aggravating factor in sentencing.

[36] In R. v. Vienneau, 2015 ONCA 898, the victim was the appellant's ex-girlfriend. The appellant broke into her home while she and her new boyfriend were asleep. He slashed her throat, then tried to commit suicide. He appealed his sentence of 11 years but it was upheld by this court.

(4) Attempted Murder by Fire

[37] There have also been previous cases where the accused tried to kill a domestic partner by dousing the partner or the partner's residence in gasoline and lighting a fire. In R. v. Quance, the appellant went to the house where his estranged wife and her boyfriend were living, taking with him four containers of gasoline, which he began to splash around the house. There was an altercation between him and his wife and her boyfriend, during which gasoline was spilled or poured on them. The gasoline ignited and the two victims were horribly burned. The appellant was convicted by a jury of two counts of attempted murder as well as other charges that were conditionally stayed. He was sentenced to 14 years in addition to a credit of three years for pre-sentence custody for a total sentence of 17 years.

[38] On appeal, this court upheld the sentence imposed by the trial judge. While the appellant was of previously good character and presented psychiatric evidence that he was likely suffering from an adjustment disorder and was a low risk to reoffend, the court focused on the very high degree of responsibility for the crimes, which would have been first degree murder had the victims died. The court also considered the horrific effect on the victims of lifelong pain and suffering and permanent disabilities. The court commented that the sentence was high given the previous good character of the appellant and his pretrial custody, but it was not unwarranted.

[39] More recently, in R. v. Borel (August 15, 2014), St. Catherines, 1883/12 (Ont. S.C.J.), the offender who was again a man of previously good character, was convicted by a jury of attempted murder of his former girlfriend. The victim and the accused were involved in an intimate relationship for a few months. She described him as jealous, controlling and threatening. Following a "tumultuous break-up", he sent her a series of very disturbing e-mails that she forwarded to a friend in case something happened to her. And it did. The accused arranged to meet her at a community centre, where he arrived with a jerry can of gasoline and matches, doused her with the gasoline and lit her on fire.

[40] The victim suffered burns to 60 per cent of her body. The medical evidence at trial was that her risk of mortality was very high. She was significantly disfigured and would be traumatized for the rest of her life. The accused was 51 years old at trial. He was a first-time offender with two teenaged sons with whom he had a close and loving relationship. He was actively involved with coaching. He also had significant family support, including from a previous common-law spouse. He was described in letters filed as peaceful, kind and generous. At the time of the offence, he was employed as an I.T. specialist with the Ministry of Government Services of Ontario.

[41] The Crown asked for a sentence of life in prison. The defence submitted that the sentence should range between seven and 11 years, in addition to credit for his three years of pretrial custody.

[42] In fashioning the appropriate sentence, the trial judge grounded her analysis in ss. 718, 718.1 and 718.2 of the Criminal Code, R.S.C. 1985, c. C-46. She noted that s. 718.2 mandates that abuse of a spouse or common-law partner and significant effect of the crime on the victim are deemed to be aggravating factors on sentence. She also referred to the proposition established in the case law that for a conviction for attempted murder the paramount principles of sentencing are deterrence and denunciation, while rehabilitation of the offender is a lesser consideration.

[43] Focusing on the crime itself, the trial judge stated:

The circumstances of the offence are horrific and unimaginable. Mr. Borel purposely doused Ms. Campbell with gasoline, set her afire and watched her burn. This is an act of incomprehensible cruelty. I find that the gravity of this offence is very high, as is the degree of Mr. Borel's responsibility.

[44] Based on those circumstances, and taking account of the mitigating and aggravating factors, the trial judge concluded that the sentence must be at the higher end of the range for sentences for attempted murder. She rejected a life sentence only because of the accused's unblemished record with no history of violent behaviour. The total sentence she imposed was 19.5 years made up of a credit of 4.5 years for the three years in pre-sentence custody together with 15 additional years.

[45] The last case involving a fire is R. v. Klair, however, it was not an attempted murder nor did it occur in the domestic context. The appellant was a 70-year-old grandfather who was baby-sitting his four-year-old grandson at his son's home. There were also tenants living on the lower level of the home, some of whom were at home, although it was not clear whether the appellant was aware of that. Around 2:00 p.m., the appellant started three fires in the bedrooms of the home, using gasoline as an accelerant, then walked away from the home. One of the tenants coaxed the grandson to come outside and doused the flames covering him. The appellant returned the next day intoxicated, asking if the grandchild had been saved, and was relieved when he was told that he had been. The grandchild suffered terrible burn injuries with excruciating pain and lasting disabilities and scarring.

[46] The appellant pleaded guilty to one count of arson causing bodily harm. At sentencing, he denied any intention to harm his grandson and expressed remorse. The trial judge imposed a sentence of life in prison. On appeal, the majority of the panel reduced the sentence to 12 years, primarily because the appellant did not intend to cause harm.

(5) Is the Sentence of 11 Years Demonstrably Unfit?

[47] At trial, the Crown sought a sentence of life imprisonment for each of the three attempted murder convictions, with no parole eligibility for ten years. The respondent submitted that ten years was appropriate and asked that parole eligibility be left to the Parole Board. The trial judge sentenced the respondent to 11 years on each count of attempted murder concurrently, leaving parole eligibility to the Parole Board. On the appeal, the Crown again seeks a sentence of life imprisonment on each attempted murder offence but does not ask for a limit on parole eligibility, or alternatively, an elevated sentence.

[48] In my view, the sentence imposed must be set aside as demonstrably unfit, as it is wholly inadequate in light of the degree of responsibility of the offender and the gravity of these three attempted murders. The moral blameworthiness of these crimes is at the highest level. As in a number of other cases of especially violent attempted murders, the fact that the victims survived was by sheer luck. They continue to suffer terrible injuries. The respondent not only intentionally set fire to his girlfriend and her home, deliberately trapping her and the two children in the burning house, he stood outside without helping or calling for help.

[49] The trial judge made a number of errors that affected the sentence. First, he failed to give effect to the gravity of the offence and the moral blameworthiness of the offender. Second, while the trial judge acknowledged that the crimes were carried out in a domestic context, he failed to treat deterrence and denunciation as the primary sentencing objectives and failed to appreciate why those objectives are paramount in the domestic context: see Boucher, at para. 27. Third, although he reviewed the case law referred to him by counsel, the trial judge failed to use the most relevant cases to assist in gauging a fit sentence. As a result, the trial judge imposed a sentence that is wholly inadequate and therefore demonstrably unfit.

(a) Failure to Give Effect to the Gravity of the Crimes and the Moral Blameworthiness of the Offender

[50] In the context of setting out the background to the sentencing, the trial judge reiterated a number of findings that he had made in his reasons for conviction that are particularly significant for sentencing: (a) the respondent's reaction to S.R.'s request that he move out of her home was to pour gasoline on her and on her bed, around the room and outside the bedroom door, and then light it, effectively trapping her and her seven-year-old daughter in the room by fire; (b) the respondent acknowledged that he never called to warn them and that he passed by the bedroom window twice on the outside and did not stop to help or to call them; (c) he made no effort to seek help from neighbours, or to use his cellphone to call the fire department, an ambulance, or the police; (d) because he could hear the screams and did nothing to help, the trial judge found the respondent to be "steadfast" in his intent to kill them both; (e) the respondent only went in to get the baby when he realized that S.R. had escaped and help was on the way, and he did so for the purpose of trying to distance himself from causing the fire; and (f) both S.R. and the seven-year-old suffered serious injuries.

[51] These findings make very clear that the respondent's degree of responsibility was at the highest level. All of his actions in setting the fire and his failure to act to warn or save two of the victims were for the deliberate purpose of murdering S.R., her seven-year-old daughter and her one-year old baby -- and, doing it in a way that created maximum terror and horrendous physical and psychological suffering.

[52] There were three victims. While the trial judge was well aware of that, he failed to take it into account in discussing where, within the range of sentence, a triple attempted murder should properly fall. And the victims were the respondent's live-in girlfriend and her two young children. I will discuss the domestic aspect more fully below. However, the fact that two helpless children were targeted for murder is an aspect of the case that warrants separate consideration when assessing the moral blameworthiness of the offender. The trial judge noted that it is a statutory aggravating factor under s. 718.2 of the Criminal Code and a reason for denunciation, but did not address it in the context of placing the sentence within the appropriate range.

[53] The terrible gravity of this deliberate attempted murder of three victims and the high degree of responsibility of the offender called for a sentence at the high end of the range. It was an error to impose a sentence that was at the lower end of the range for the attempted murder of a single victim, and this error resulted in the imposition of a sentence that was demonstrably unfit.

(b) Failure to Treat Denunciation and Deterrence as Primary Sentencing Objectives

[54] In his discussion of the objectives of sentencing, the trial judge stated that denunciation and specific and general deterrence were both "important considerations". However, while he referred to the case of Boucher, and quoted this court's directive that the principles of denunciation and deterrence are of paramount importance in cases of domestic violence, he did not make them the paramount considerations.

[55] Rather, he talked about the need to balance the principles of denunciation and rehabilitation. While the need to balance these factors is generally part of the sentencing analysis, when the offence is attempted murder in the domestic context, it is an error for the sentencing judge not to make denunciation and deterrence the paramount principles to be applied. Further, the trial judge appeared to give significant weight in the balancing to the fact that the respondent was taking courses in prison in "anger management" and "supportive relationships", which he found demonstrated some insight on the part of the respondent into the factors that contributed to his actions, and also to the contents of the supportive letters that described the respondent as considerate, non-violent and helpful. The trial judge discussed the respondent's rehabilitation at length, in paras. 51-59 of his reasons, and specifically listed the potential for rehabilitation in his discussion of mitigating factors, at paras. 65-66 of his reasons:

As a result, I have good reason to believe Mr. Kormendy can, with time, be rehabilitated.

Mr. Kormendy has significant support from both his family and friends who will no doubt assist with continued rehabilitation once Mr. Kormendy is released from prison.

[56] While the trial judge was entitled to take this evidence into account in determining the appropriate sentence, it was an error for him to give it as much or more weight than the paramount factors of denunciation and deterrence. This error contributed to the imposition of a demonstrably unfit sentence.

[57] More significantly, although the trial judge mentioned that, under s. 718.2 of the Criminal Code, the fact that the crimes were committed "in a domestic context" is deemed to be an aggravating factor, he did not refer to the reason that the courts have continued to emphasize the critical need for denunciation and deterrence to be the paramount considerations in sentencing for domestic abuse, and in particular, attempted murder. That reason, fully applicable in this case, is that the abuser feels entitled to control the victim, and when that control is rejected, the abuser feels entitled to attack the victim, terrorize her, kill her, or kill her and her children.

[58] In this case, the respondent had moved into the victim's home. He then tried to control her actions, whom she spoke to and where she went. When she told him to move out, he first argued with her, trying to get her to allow him to stay. But when she would not do that, he decided if he wasn't staying, neither was she. He proceeded to burn down the house with her and her children inside. The fact that this kind of situation continues to recur in the case law is shocking. The need for denunciation and deterrence is obvious.

[59] Two comments in particular by the trial judge in his reasons for sentence demonstrate his failure to fully appreciate the dynamic in a domestic abuse situation. First, when discussing, at para. 44 of his reasons, the fact that the violence was directed in part at the two children, the trial judge refers to them as "innocent victims" who had nothing to do with "the conflict between the adults".

[60] The reference to a conflict between the adults in comparison to the innocence of the children fails to acknowledge and reflect the reality of the abusive situation where the victim was rejecting the respondent's attempt to control her. This was not a conflict involving two active participants; this was a one-sided attempt to control and then, when that failed, to kill. The message the court must send is that abusers who feel entitled to control their domestic partners and punish them for resisting will be severely dealt with when their conduct is criminal. They are not entitled to exercise control over the other person.

[61] Second, to distinguish the case of Mann, where a life sentence was imposed, the trial judge in this case stated that the victim in Mann was not a common-law partner but a sex-trade worker whom the accused believed he had the right to control. Again, the trial judge failed to appreciate that the offender wanted a relationship and that it is the belief in the right to control in a domestic situation that defines the problem in domestic abuse and attempted murder scenarios and is the basis for the need for denunciation and deterrence.

[62] The trial judge also erred by purporting to distinguish this case from other cases of domestic violence on the basis that this was an isolated incident with no pattern of abuse. First, while the trial judge correctly recognized that the respondent had never before been convicted of a violent crime, the trial judge erred in going further than that, and finding that "there was no evidence of a pattern of abuse". The trial judge failed to understand that the respondent's controlling behaviour during their relationship, leading up to his refusal to leave the house when asked on the day of the fire, does constitute a pattern of abusive behaviour, and one that ultimately resulted in violence as his solution. Second, in a number of other cases, the violence also seemed to be an isolated incident, significantly in Quance and Borel, two very similar cases to this one, and in Mann, but significant sentences were still imposed to express the required denunciation and deterrence.

(c) Failure to Apply the Most Relevant Cases

[63] The trial judge did refer to many cases in his case law review, including the three cases where the accused started a fire in a home. He focused initially on the case of Klair, where this court reduced a sentence of life in prison imposed by the trial judge to 12 years. However, Klair is not a similar case because he was not convicted of attempted murder, nor was it a case of domestic abuse. In that case, the appellant pleaded guilty only to arson causing bodily harm and denied any intention to harm the child. Even then, the sentence of 12 years was higher than the one imposed by the trial judge in this case.

[64] The trial judge also referred briefly to Quance, but effectively discounted its importance and relevance. There the appellant went to the home of his estranged wife and her boyfriend with four gas cans, spread the gas around the house, spilled or poured it on the victims, then lit it, causing terrible burns to the victims. He was convicted of attempted murder and sentenced effectively to 17 years (14 years plus three years credit for presentence custody). That sentence was upheld by this court. In upholding the sentence, Rosenberg J.A. stated, at para. 40:

On the findings made by the trial judge, this was in effect an attempted first degree murder. The gravity of the crime could only have been greater if the victims had died. The appellant's degree of responsibility was also very high. The psychiatric report, aside from indicating an "adjustment disorder with mixed disturbance of emotions and conduct", offered no psychiatric explanation for this conduct.

[65] In referencing Quance, the trial judge incorrectly stated that the sentence was 14 years (not 17). The trial judge also stated that the facts were somewhat distinguishable because the offender had made prior threats. While that is true, the fact of the prior threats was not the stated basis for upholding the sentence.

[66] Finally, the trial judge also referred only briefly to Borel. In Borel, the trial judge imposed an effective sentence of 19.5 years on the appellant who was controlling of his girlfriend and, following a breakup, set her on fire, causing her terrible burns and pain. The trial judge in the case at bar focused only on the fact that the trial judge in Borel rejected a life sentence because of the appellant's prior unblemished record and no previous violence. He did not acknowledge the relevance of the significant sentence of 19.5 years imposed on a similarly situated offender.

[67] In my view, in imposing an 11-year sentence, the trial judge effectively excluded the importance and similarity of these cases, where significantly higher sentences were imposed in situations where there were fewer than three victims and where the offender was of previously good character.

[68] The trial judge's failure to give adequate weight to these highly analogous cases to discern the proper application of the underlying principles in a case such as this led to a sentence that is demonstrably unfit.

[69] The trial judge and the respondent referred to some domestic attempted murder cases in which sentences of 11 and 12 years were imposed or upheld on appeal by the offender, including R. v. McDonald, 2007 CarswellOnt 6241 (S.C.J.); R. v. Champagne; and R. v. Vienneau, 2015 ONCA 898. While these are also terrible cases of domestic abuse, they are all distinguishable from the present case. In McDonald, a trial decision, there was no history of controlling behaviour, no prior convictions, no child victims and the offender pleaded guilty and demonstrated remorse. Similarly, in Vienneau, there was only one victim, no children were targeted, the appellant pleaded guilty, expressed remorse and had no prior criminal record. Finally, Champagne involved only one victim, and the sentence imposed was still higher than the respondent's sentence in this case.

The Proper Sentence

[70] Having found that the trial judge erred in law and imposed a sentence that is demonstrably unfit, it falls to this court to impose the appropriate sentence.

[71] Having regard to all of the circumstances discussed above, including the gravity of the offences, the moral blameworthiness of the offender, the paramountcy of the objectives of deterrence and denunciation in the domestic context, the fact of three victims including two children and the terrible, lasting injuries to the seven-year-old child, a sentence at the high end of the range is required. I would impose a sentence of 20 years in prison less the credit for pre-sentence custody that was granted by the trial judge.

[72] In light of all the circumstances in this case, a life sentence may well have been fit. However, for the reasons I have articulated, a 20-year sentence is also fit. Thus, in accordance with this court's customary practice when increasing a sentence imposed at trial, I will impose the lower of the two -- a 20-year sentence: see R. v. D. (D.), at para. 30.

Conclusion

[73] I would grant the Crown leave to appeal sentence, set aside the sentence and impose a sentence of 20 years, less credit for pre-sentence custody.

Appeal allowed.

Notes

1 Mr. Kormendy is also appealing his conviction as an inmate appeal (C64638). On November 16, 2018, by order of MacPherson J.A., on consent of all parties, this Crown sentence appeal, where Mr. Kormendy is represented by counsel, was bifurcated from the inmate conviction appeal and allowed to proceed before the conviction appeal.

2 In such appeals, the only issue is whether the sentence should be lowered, not raised.

End of Document