WARNING
The court hearing this matter directs that the following notice should be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences.
(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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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) Mandatory order on application. — 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.
486.6 Offence.
(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.
Court Information
Court File No.: Halton 10-878
Date: September 7, 2012
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
R.H.
Before: Justice R. Zisman
Heard: August 1, 2012
Reasons for Judgment Released: September 7, 2012
Counsel:
- Amy Stevenson, for the Crown
- Bally S. Hundal, for the accused R.H.
Judgment
ZISMAN, J.:
Convictions
[1] On May 9, 2012 after a trial, I found the defendant guilty of assaulting his spouse, J.H., between July 1 to 31, 2008, of assaulting her on August 18, 2008 and causing her bodily harm and of sexually assaulting her between September to December 2008.
[2] I will not review the details of these incidents as they are set out in my judgment, but in order to consider the appropriate sentence it is important to understand the nature and severity of these offences.
[3] Between July 1 to 31, 2008, the defendant confronted his spouse about her long standing extramarital affair. He then hit his wife with a closed fist, beat, kicked, and punched her and then dragged her down the basement stairs. During this same time frame he would from time to time again hit, kick, push and throw her against the walls and grab her hair.
[4] On August 18, 2008 he assaulted her for a prolonged time. He kicked, punched and threw her against the wall and pulled her hair. As a result of this beating she suffered a fracture to her tailbone.
[5] Between September and December 2008 the defendant also forced his wife to have anal sex a few times without her consent. She testified about one specific disturbing incident when the defendant forced to have anal sex while the children were in the same bedroom and that caused her considerable discomfort and caused her to bleed.
Positions of the Parties
[6] The Crown submits that an appropriate sentence is five years, being three years for the sexual assault and one year each for the assault and the assault causing bodily harm. The Crown submits that these were very serious offences involving domestic violence and that despite the defendant's lack of a criminal record and other positive antecedents that a penitentiary sentence is required.
[7] The defence submits that an appropriate sentence is in the range of two years less a day to three years. It is submitted that the Court should consider that there was only one victim and that the offences all occurred within a relatively short period of time. It is further submitted that in imposing consecutive sentences the court should consider the totality of the sentence so that it is not unduly harsh.
[8] A pre-sentence report was filed as well as the victim's impact statement. Both counsel referred to several cases in their sentencing submissions.
General Principles and Specific Case Law
[9] The fundamental purpose of sentencing, as set out in s.718 of the Criminal Code, is to ensure respect for the law and the maintenance of a just, peaceful and safe society. The imposition of just sanctions requires the court to consider the sentencing objectives referred to in that section, which the sentence the court imposes should attempt to achieve. These are denunciation, deterrence, both specific and general, separation of offenders from society when necessary, rehabilitation, reparation for harm done and the promotion of a sense of responsibility in the offender and acknowledgement of the harm which criminal activity brings to our community. In addition, in imposing sentence the court must take into account the principles of proportionality and the applicable aggravating and mitigating circumstances relating to the offence as set out in s. 718.2 of the Criminal Code.
[10] As emphasized by defence counsel, a fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Further, as set out in s.718.2 (c) of the Criminal Code, where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh.
[11] However, s.718.2 (a) (ii) of the Criminal Code specifically deems it an aggravating factor when there is "evidence that the offender, in committing the offence, abused the offender's spouse or common law partner."
[12] Further, the jurisprudence is clear that in cases of domestic violence the principles of denunciation and specific and general deterrence are the overriding factors to be considered on sentencing.
[13] The importance of these sentencing principles were set out by the Alberta Court of Appeal in R. v. Brown (1973) 1992 ABCA 132, 73 C.C.C. (3d) 242 at page 249 as follows:
This court's experience is that the phenomenon of repeated beatings of a wife by a husband is a serious problem in our society. It is not one which may be solved solely by the nature of the sentencing policy applied by the courts where there are convictions for such assaults. It is a broad social problem which should be addressed by society outside the courts in ways which it is not within our power to create, to encourage, or to finance. But when such cases do result in prosecution and conviction, then the courts do have an opportunity, by their sentencing policy, to denounce wife-beating in clear terms and to attempt to deter its recurrence on the part of the accused man and its occurrence on the part of other men……
When a man assaults his wife or other female partner, his violence toward her can be accurately characterized as a breach of the position of trust which he occupies. It is an aggravating factor. Men who assault their wives are abusing the power and control which they so often have over the women with whom they live.
[14] The same principles were reiterated by the Ontario Court of Appeal in the case of R. v. Bates (2000), 146 C.C.C. (3d) 321 at page 330 as follows:
The courts have been made increasingly aware of the escalation of domestic violence and predatory criminal harassment in our society. Crimes involving abuse in domestic relationships are particularly heinous because they are not isolated events in the life of the victim. Rather, the victim is often subjected not only to continuing abuse, both physical and emotional, but also experiences perpetual fear of the offender.
[15] The Crown cited the following passages in the case of R. v. McCrow, [1991] S.C.R. No. 69, [1991] 3 S.C.R. 72, as a powerful reminder of the harm caused to victims of sexual assault. Justice Cory speaking for the court at paragraphs 29 to 32 states the following:
29 It seems to me that to argue that a woman who has been forced to have sexual intercourse has not necessarily suffered grave and serious violence is to ignore the perspective of women. For women rape under any circumstance must constitute a profound interference with their physical integrity. As well, by force or threat of force, it denies women the right to exercise freedom of choice as to their partner for sexual relations and the timing of those relations. These are choices of great importance that may have a substantial effect upon the life and health of every woman. Parliament's intention in replacing the rape laws with the sexual assault offences was to convey the message that rape is not just a sexual act but is basically an act of violence…...
30 It is difficult if not impossible to distinguish the sexual component of the act of rape from the context of violence in which it occurs. Rape throughout the ages has been synonymous with an act of forcibly imposing the will of the more powerful assailant upon the weaker victim. Necessarily implied in the act of rape is the imposition of the assailant's will on the victim through the use of force. Whether the victim is so overcome by fear that she submits or whether she struggles violently is of no consequence in determining whether the rape has actually been committed. In both situations the victim has been forced to undergo the ultimate violation of personal privacy by unwanted sexual intercourse. The assailant has imposed his will on the victim by means of actual violence or the threat of violence.
31 Violence and the threat of serious bodily harm are indeed the hallmarks of rape. While the bruises and physical results of the violent act will often disappear over time, the devastating psychological effects may last a lifetime. It seems to me that grave psychological harm could certainly result from an act of rape.
32 The psychological trauma suffered by rape victims has been well documented. It involves symptoms of depression, sleeplessness, a sense of defilement, the loss of sexual desire, fear and distrust of others, strong feelings of guilt, shame and loss of self-esteem. It is a crime committed against women which has a dramatic, traumatic impact….To ignore the fact that rape frequently results in serious psychological harm to the victim would be a retrograde step, contrary to any concept of sensitivity in the application of the law.
[16] Recently, in the case of R. v. Smith 2011 ONCA 564, [2011] O.J. No. 3832, the Ontario Court of Appeal confirmed that a sentence of one to two years was generally appropriate for a conviction of common assault committed against a spouse or partner in the context of a lengthy pattern of domestic violence and that in cases of sexual assault involving forced intercourse with a spouse or former spouse a sentence generally in the range from 21 months to four years was appropriate.
[17] The Crown relied on the following cases:
R. v. Chirimar 2007 ONCJ 385, [2007] O. J. No. 3323 (OCJ) — sentence of six months concurrent on a guilty plea to two counts of assault causing bodily harm. The court emphasising the principles of deterrence and denunciation and that only a term of imprisonment was appropriate despite accused's young age and no prior criminal record.
R. v. N. T. [2011] O.J. No. 551 (Ont. C.A.) — four year sentence upheld on appeal for first time offender from convictions for two counts of assault causing bodily harm and sexual assault.
R. v. Smith, supra — sentence of two months for criminal harassment, ten months for assault and two years for sexual assault to be served consecutively upheld on appeal for offender who was found guilty of offences against three long term partners. Court noted that crown did not cross-appeal the sentence and therefore court could not impose a sentence exceeding three years.
R. v. Ibrahim [2011] O.J. No. 4209 (Ont. C.A.) — on appeal court upheld conviction for assault causing bodily harm and sentence of a mature first offender of serious assault on spouse. Court emphasized that a conditional sentence was not appropriate and trial judge could exceed the crown position of a custodial sentence of only four to six months.
R. v. B.M. 2008 ONCA 645, [2008] O.J. No. 3653 (Ont. C.A.) — sentence of nine months increased on appeal to two years less a day for conviction of sexual assault by an offender of anal intercourse with his developmentally delayed spouse without her consent.
R. v. B.R. [2006] No. 3404 (Ont. C.A.) — sentence of 30 months for sexual assault and sentence of 12 months concurrent on charges of assault and assault with a weapon upheld on appeal. Court held that despite offender having no prior record the offences were serious, occasioned emotional trauma to the victim, the children were in close proximity and with respect to the sexual assault the children were in bed with the victim and the offences took place against the backdrop of a lengthy abusive relationship. The court also noted that the defence's cases could be distinguished as there was no guilty plea in mitigation.
R. v. C.A.P. [2000] O.J. No.1249 (Ont. C.A.) — sentence of 18 months imposed on a guilty plea to charge of sexual assault.
[18] The defence relied on the following cases:
R. v. O.T. [2005] O.J. No. 1499 (Ont. C.A.) — sentence of a two years for sexual assault and six months, concurrent, for assault against offender's spouse upheld on appeal. However, Justice Doherty speaking for the court indicated that the court might have imposed a greater sentence on the sexual assault but would not interfere with the total sentence of two years in the penitentiary.
R. v. C.M. [1991] O.J. No. 347 (Ont. C.A.) — sentence of eighteen months upheld on appeal for conviction of sexual assault and aggravated sexual assault against the offender's spouse. The court noted that the offender had a prior record for violence and showed little or no remorse.
R. v. A.M.P. [2006] O.J. No. 2773 (Ont. S.C.J.) — offender convicted at trial of sexual assault and entered guilty plea to a charge of assault against his common law spouse and sentenced to 32 months in jail.
R. v. Weig [2009] O.J. No. 5237 (Ont. C.A.) — sentence of 30 months upheld on appeal for eight charges, including four counts of sexual assault and two counts of unlawful confinement despite the offender's poor health.
R. v. T.J. [2003] O.J. No. 3020 (Ont. C.A.) — conviction and sentence of two and a half years upheld on appeal for three counts of assault causing bodily harm, forcible confinement and sexual assault.
R. v. Feick [2008] O.J. No. 2234 (Ont. S.C.J.) — global sentence of four years imposed for charges of harassment, assault and sexual assault.
[19] The Crown distinguishes many of the cases submitted on behalf of the defendant on the basis that either the defendant had pleaded guilty or on the sentence appeals by the defendant the Crown did not cross-appeal. The Crown also relies on the principle that where an appellate court increases a sentence imposed at trial it will substitute a sentence at the lower range of the appropriate range. See R. v. D.D., [2002] O.J. No.1061 (Ont. C.A).
[20] I have also reviewed the recent case of R. v. Q.(M.) (2012) 2012 ONCA 224, 110 O.R. (3d) 276, 2012 ONCA, in which the Ontario Court of Appeal upheld a sentence of five years imprisonment for an accused convicted of sexual assault, two counts of assault and assault with a weapon against his former wife. In upholding the sentence, the court stated that:
The appellant engaged in a pattern of serious crimes against a vulnerable victim during an abusive marital relationship. The trial judge took into account the mitigating factors, including the appellant's education, his employment history and the absence of any criminal record. However, the trial judge also properly took into account the extended time over which the abuse occurred, the serious consequences for the victim and the appellant's abuse of trust, physical dominance and sense of cultural entitlement to treat his wife as he did.
In these circumstances, denunciation and deterrence were of paramount importance. While the global sentence is at the upper range, it is not unfit.
Mitigating Factors
[21] I have considered the mitigating factors. The defendant is 36 years old. He has no prior criminal record, he has abided by the terms of his release and has not committed any further offences while on release.
[22] He has been steadily employed as a long distance truck driver and these outstanding charges have already impacted on his employment as he has not been permitted to enter the United States using his "Fast Card" and it is likely that these convictions will further impact on his employment opportunities.
[23] He has financially supported the children and he cares for and supports his elderly mother.
[24] He has the support of his family members and many members of his community. On his behalf, character letters were filed that indicate he is a kind and considerate person who is held in high regard in his community and that he has performed many services for his community.
[25] However, in cases of domestic violence the lack of a criminal record and an otherwise unblemished history is not unusual.
Aggravating Factors
[26] I have also considered the aggravating factors. The victim has filed a victim impact statement and it is clear that she continues to suffer both emotionally and physically from the defendant's assaults against her. She suffers from headaches and migraines and her tailbone still has not fully healed. She is in discomfort daily as her employment requires her to sit all day. She feels emotionally drained and does not have as much energy as she would like to care for the children. She feels she has been blamed by for the assaults that she has suffered and for removing the children form a normal life.
[27] In this case, there is also no guilty plea or remorse that mitigates the sentence.
[28] The defendant physically and emotionally harmed his spouse over a lengthy period of time because he felt he had the right to do so because she was unfaithful to him. He humiliated and degraded his spouse by exerting his power over her and forcing her to have anal sex while their children slept in the same room.
Conclusion
[29] I have considered the principles of law outlined in the cases I have reviewed in this judgment and the application of those principles to the facts of this case.
[30] The sentence I impose must emphasize the principles of denunciation and deterrence and promote a sense of responsibility among spousal abusers and an acknowledgement of the harm done not just to this victim but to the community at large. Domestic violence has no place in our society and the sentence imposed must emphasize that such conduct will not be tolerated and accordingly a lengthy custodial sentence is appropriate to deter and denounce such criminal behaviour.
[31] I consider that a fit sentence is a global sentence of four years. Three years for the count of sexual assault and a further sentence of one year for the count of assault causing bodily harm and six months for the count of assault. In considering the principles of proportionality and totality, the sentences for the assault causing bodily harm and assault are to be served concurrent to each other but consecutive to the count of sexual assault.
[32] There will also be ancillary orders as follows:
a mandatory DNA order pursuant to section 487.051 (1) authorizing the taking of a DNA sample;
a mandatory weapon's prohibition for 10 years pursuant to section 109 (1) (a) of the Criminal Code;
an order that your name be added to the Sex Offender Registry and that you comply with the Sex Offender Information Registration Act for 20 years pursuant to sections 490.012 (1) and 490.01 (2) (b) of the Criminal Code. This order is made because you have been convicted of a sexual assault which is a designated offence under section 490.01 (1)(a)(xvi) and that given the nature of the registry, this order will not have a grossly disproportionate impact on your privacy or liberty interests;
you will have no communication directly or indirectly with J.H. during your period of custody pursuant to section 743.21 of the Criminal Code.
[33] I wish to thank both counsel for their thorough and helpful submissions.
Released: September 7, 2012
Signed: Justice R. Zisman