Court File and Parties

Court File No.: Guelph 0799/13 Date: 2014-01-16 Ontario Court of Justice

Between:

Her Majesty the Queen

— AND —

Gersham Cornelius White

Before: Justice G. F. Hearn

Heard on: December 10, 2013

Reasons for Sentence released on: January 16, 2014

Counsel:

• J. MacDonald, for the Crown
• B. Smart, for the accused Gersham Cornelius White

HEARN J.:

BACKGROUND

[1] On December 10, 2013 Mr. White entered a plea of guilty to the attempted murder of his wife, Lorna Robinson-White, on October 28, 2012. An agreed statement of facts was filed and read in by the Crown. The court has also had an opportunity to listen to a recording of a 911 call made by the victim the night of the incident and while the event was unfolding.

[2] In addition to the agreed statement of facts, there has also been filed a victim impact statement of Ms. Robinson-White, photos of the injuries she received as a result of the attack by her husband and a report from the Office of the Fire Marshal setting out the particulars of the investigation concerning the origins of various fires set within the residence of the victim and the accused on October 28, 2012.

[3] Marked as Exhibit #7 is a psychiatric assessment of Dr. Dickey completed at the Waypoint Centre for Mental Health Care which was conducted pursuant to the order of the court. The report is dated August 2, 2013 and sets out in some detail the background of Mr. White as well as the findings of Dr. Dickey.

[4] Submissions were made by counsel, books of authorities were referred to and filed and sentencing was put over to today's date in order that the court might consider the material filed and the submissions received.

CIRCUMSTANCES OF THE OFFENCE

[5] The accused's date of birth is October 5, 1934. At the time of the offence he had just turned 78 years of age. The victim's birthdate is September 18, 1960 and she was 52 years of age at that time.

[6] The victim and the accused had known each other for approximately 25 years and as of October of 2012 had been married for 14 years. They have one son, Shane, who is noted to be 18 years of age.

[7] The marriage was the third marriage for the accused. His first marriage which had produced three children ended tragically when his wife died in a motor vehicle accident in 1980. He then married again in 1984 but that marriage was of short duration. It was during the course of that marriage that the accused met the victim who in fact worked with the accused's second wife as a nurse at Sunnybrook Hospital.

[8] The marriage by all accounts seems to have been a good one for the majority of its duration, however during the months leading up to the night of October 28, 2012 there had been stresses in place caused primarily by financial issues.

[9] There had also been issues with the behaviour of their son which resulted in Mr. White being convicted on a charge of assault with a weapon on July 17, 2009. He received a suspended sentence on that matter and was placed on probation. The victim in that incident was the son and from the material filed it appears that incident evolved as a result of behavioural issues and the inappropriate response to those issues by the accused. From Dr. Dickey's report it appears the son thereafter no longer resided with the accused and his wife but resided out of province with a son of the victim from a previous relationship.

[10] Earlier in October 2012, on October 10 the police had been called to the family residence as a result of a call made by the victim alleging that her husband had assaulted her by choking her. Mr. White was arrested at that time, charged with assault and released on a promise to appear with an officer-in-charge undertaking. One of the terms of the undertaking was that he was to have no communication directly or indirectly with the victim. Notwithstanding that condition the accused and the victim in fact communicated repeatedly from October 10, 2012 up to and including October 28, 2012.

[11] In the early morning hours on October 28, 2012 the Ontario Provincial Police received a 911 call reporting a fire at the family residence. The call was from the victim who advised of the fire and reported also that she had been stabbed a number of times by her husband. While making the call the victim was able to crawl out of a bathroom window and make her way to the roof of the residence. The court has heard the 911 call and the fear and upset of the victim during the course of this event unfolding are readily apparent to anyone listening to the call.

[12] The police responded, located the victim on the roof of the residence and with some effort were able to extricate the victim from the roof. The victim advised that her husband had stabbed her and was still in the residence. She had received multiple stab wounds and was transported to hospital.

[13] Mr. White was still found to be in the residence which at the time was on fire. The police were unable to enter the residence due to the thick smoke and remained outside until firefighters arrived. Efforts to locate the accused within the residence were unsuccessful initially but approximately 20 minutes after the arrival of the police the accused was seen within the basement area of the residence. The police yelled at the accused to leave the residence. The accused was naked with the exception of a shirt he was wearing, attempted to coax the police into the residence and would not comply with their directions. However, after several minutes the accused eventually exited the residence on his own and was removed from the area. He was then arrested on counts of attempted murder and arson.

[14] The agreed statement of facts sets out in considerable detail the circumstances and events leading up to and including October 28, 2012. Those details indicate that during one of the contacts with the victim after October 10 and prior to October 28, 2012 the accused had stated to the victim that he was going to burn down their residence and kill himself. The victim had indicated to the accused that was his decision and his problem and that she was not going to attend the residence "for you to do it".

[15] The victim had attended at the residence after October 10, 2012 on at least three occasions. On the first occasion as a result of the hydro bill not having been paid the house was in darkness. She attended and asked the accused to leave which he did. He then spent the night at his daughter's residence while the victim slept at the family home.

[16] On another occasion the victim had gone back to the residence, the accused was there, the conversation was limited and she simply went to bed. Apparently prior to doing so, however, it was agreed she looked under her pillows to see if anything was hidden.

[17] After October 10, 2012 it appears the victim stayed primarily at her mother's residence or on occasion would sleep in her car as a result of her shift work and her desire not to wake her mother. On October 26, 2012 the accused had called the victim who was asleep in her car at the time. That call was never answered.

[18] On the following day, October 27, 2012, the victim was working a day shift and the accused was able to reach her by phone early during that shift. The victim advised the accused she was busy and would call him later. However, she did not return the call and near the end of her shift the victim was contacted again by the accused. During that conversation she agreed to go to the residence after her shift to "talk about things".

[19] The accused made dinner for himself and the victim expecting her to arrive. She did not and he believed she was working late and while waiting for her to come to the residence the accused consumed one drink of whiskey and watched a World Series game.

[20] The victim completed her shift about three o'clock in the afternoon that day and due to the weather remained in her vehicle until about five. She then had dinner on her own and went to a movie. As a result of her not attending at the residence as expected by the accused he continued to call her repeatedly but she did not respond to the calls. After the movie she returned to her mother's residence in Brampton.

[21] Upon returning to that residence she noticed the lights at her mother's home to be out. She remained in her vehicle, called a friend and indicated she was going to go to the matrimonial home to do some laundry. On October 28, 2012 at 1:00 a.m. she in fact did return to the matrimonial home. The accused called her about 1:30 a.m. and she advised the accused she was on her way.

[22] She entered the residence and could hear the accused watching television in an upstairs room. She found the accused sitting calmly on the bed in the master bedroom listening to music on the television. She returned to the main floor and started to do her laundry, retrieved her purse and went back to the master bedroom.

[23] The accused and the victim exchanged some pleasantries at which time the accused began a conversation with the victim about financial matters. The victim refused to speak to the accused and attempted to avoid the conversation. She went to the hallway to do some ironing, the accused approached her, attempted to solicit a kiss which she declined and the accused returned to the master bedroom.

[24] The victim completed her chores, prepared for bed, went to the bathroom and while there the accused approached her and attempted to speak to her about the incident from October 10. He apologized for his actions on that date and returned to the bed. The victim then went to the bed ready to sleep. The accused was there as well. She entered the bed and rested beside the accused who attempted to kiss her, but she again refused. Then suddenly and without warning the victim was stabbed twice in the back. The accused told the victim that she would not be leaving after 25 years and that she was "going to die tonight".

[25] The victim quickly left the bed, the accused rushed towards her still holding the knife and a struggle occurred with respect to the knife. The victim was then stabbed a third time in the chest and at some point both the accused and the victim fell to the floor with the victim bleeding.

[26] The accused was able to get up, lunged at the victim, punched her in the face and the victim was then able to push the accused backwards, grabbed a foot spa and struck the accused in the face. At some point during this happening the accused also stabbed the victim in the lower abdomen. While trying to defend herself with her hands held up she also suffered cuts on her hands as noted in the photographs filed.

[27] There was a considerable amount of blood on the floor which made the floor slippery, the victim fell and grabbed a footstool to defend herself. The accused then grabbed the footstool from her and hit her in the neck. She finally was able to escape to the hallway while being chased by the accused still holding the knife in his hands.

[28] The victim then grabbed an iron and threw it at the accused. The iron hit the accused and the victim ran to the laundry room again followed by the accused who forced himself into the laundry room. The victim tried to lock the accused inside the laundry room, but was unable to do so and ran back to the master bedroom where with the use of a deadbolt lock she was able to lock herself in the bedroom.

[29] She then commenced a search for her phone. Meanwhile the accused had retrieved a gas can and used the gasoline to ignite a fire directly in front of the master bedroom door. He also set the house on fire in other locations as set out in the report from the Office of the Fire Marshal.

[30] The victim was continuing the search for her phone which was finally successful. She noted the flames at the base of the bedroom door. She called her mother, told her mother that the accused had tried to kill her and set the house on fire and asked that she call the police. She then called 911 from her cell phone. That call was recorded and the recording has been played for the court as noted previously.

[31] The bedroom began to fill with smoke and feeling trapped the victim went to the shower and turned on the shower to wet her head. While talking to the 911 call-taker she managed to remove the screen and open the bathroom window to receive fresh air. She then ran back into the bedroom, grabbed her purse and ran to the bathroom window. She used a towel rack, stood on it to boost herself onto the window ledge and managed to crawl out the window and make her way out onto the roof ledge all the while still on the phone and waiting for help to arrive.

[32] While all of this was occurring the accused went to the basement area of the residence and used a wrench to unscrew the coupling which connected the propane line to the furnace. He was successful in doing so allowing propane to flow freely into the residence. He was ultimately found by the police in the basement area and after some unsuccessful efforts by the police to have him come out of the residence he finally did so.

[33] The report from the Office of the Fire Marshal indicates there were four separate and distinct areas of origin of fires set within the residence, one in the basement, one in the kitchen, one at the doorframe outside of the master bedroom and another around the base of the en suite bathtub off of the master bedroom. That report has been filed with the court as well. There is also a report from the Centre of Forensic Sciences indicating that the gas coupling that had been removed had been manually removed. The accused acknowledges doing so.

[34] The agreed statement of facts acknowledges that Mr. White not only attempted to murder his wife on that particular evening, he also endangered the lives of the first responders by deliberately setting fires throughout the residence and uncoupling the gas line creating a significant risk that an explosion could have occurred.

[35] The victim was transported initially to a hospital in Orangeville, but due to the extent of her injuries was ultimately transported to Sunnybrook where she was hospitalized for three days.

[36] There are a number of photographs filed showing the injuries suffered by the victim as a result of the attack by the accused. These included various stab wounds, including defensive knife wounds on her hands, a collapsed lung, swollen left eye and other injuries, some of which required and/or will require surgical procedures and continue to cause her difficulty as set out in the victim impact statement.

[37] All of the above facts were acknowledged to be true and accurate as evidenced by both Mr. White's plea of guilty to the charge and as a result of submissions made by his counsel.

VICTIM IMPACT STATEMENT

[38] Filed as Exhibit #8 is a victim impact statement completed by one of the victim's sons on behalf of the victim. The victim herself chose not to attend court due to the emotional stress that would be involved, but her statement speaks to the significant impact this particular event has had on her life. Within the statement she speaks of the physical injuries she has suffered which are also set out in some detail in the agreed statement of facts. She speaks of the scars caused by the knife, the surgical procedures she has had to undergo as a result of a collapsed lung and the severing of ligaments in her fingers. She speaks of the requirement for at least one more surgical procedure and of the unsightly scars she now bears on her body which have made her very self-conscious.

[39] The victim was off work for a number of months and has been unable to do a full workload as she puts it as a result of the injuries to her hands that have left her in pain. Emotionally she states she is a "wreck" and is unable to attend court due to that. She states she was traumatized by this event and in particular by how someone that she had known for so long and had been married to had so "brutally and without warning tried so hard to end her life".

[40] She continues to have what she refers to as bad dreams since the event and often wakes up. She states she does not know if she will ever feel safe again for herself or her family and lives in constant fear and although she appreciates the accused is in custody, as she puts it, she does not know "what he will do if ever given another chance".

[41] She has suffered financial loss as a result of lost wages and expenses incurred for physiotherapy. She also lost a good deal of her personal belongings as a result of the fire and has had the cost of storage and other expenses as a result of the conduct of Mr. White.

[42] The victim impact statement as well as the contents of the 911 call speak clearly to the emotional toll Mr. White's conduct has taken on the victim.

CIRCUMSTANCES OF THE OFFENDER

[43] Although there is no pre-sentence report before the court as none was requested, the assessment of Dr. Dickey dated August 2, 2013 together with the thorough submissions of defence counsel have provided the court with a great deal of information with regard to Mr. White and his antecedents.

[44] As noted, Mr. White is currently 79 years of age and will be 80 in October of this year. He was born in Jamaica and has one sister who resides in France with whom he has contact and who has expressed her support for Mr. White.

[45] His childhood seems to have been uneventful. His father spent a good deal of time travelling to the United States to earn money to support the family. Mr. White was able to complete Grade 12 and then attended a trade school thereafter. He obtained employment as a mechanical engineer in Jamaica and was so employed for 11 years before immigrating to Canada in 1968 at the age of 34.

[46] Upon arrival in Canada he was able to obtain employment and remained in that employment for well over 20 years before retiring in 1994 at the age of 60. He is described by his counsel as a responsible and valued employee who left the employment because of physical ailments and who then became the primary caregiver for the child born of his relationship with the victim.

[47] Mr. White has been married on three occasions. He has three adult children from his first marriage which ended when his first wife died as a result of injuries sustained in a car accident in 1980. His three children are adults now and remain supportive of their father. He appears to be proud of them and describes them as successful both socially and vocationally.

[48] Mr. White married on the second occasion in 1984. His wife at that time was a nurse at Sunnybrook Hospital and it was as a result of that relationship that the accused met Ms. Robinson-White. The second marriage broke down, although apparently his second wife continues to provide support to Mr. White even at the present time. According to Dr. Dickey's report she denies any physical or emotional abuse during her relationship with Mr. White.

[49] It was as a result of that relationship that Mr. White met and ultimately married the victim in this matter. The victim is 26 years younger than the accused and they have one child, Shane, who is currently 18 years of age. Dr. Dickey reports by most accounts and counsel submits the relationship between the accused and the victim has been described as a good relationship, although there have been stressors within the relationship as a result of their son's behaviour and some issues with respect to financial matters. The relationship does not present as a relationship dominated by controlling actions of the accused or conflict. Counsel for Mr. White indicates the relationship up until the events before the court and for some months before was basically "trouble-free".

[50] Dr. Dickey's report sets out that the first incident of physical aggression appears to have been in May 2012 when there was a disagreement and Mr. White became angry and slapped his wife. This matter was not reported to the police, however in October 2010 there was an allegation of an assault which led to the criminal charge for which Mr. White was on release at the time of the matter now before the court.

[51] Mr. White has a criminal record. There is an entry with respect to assault police officer for which he received a fine in February 1986. There is also an entry on his record as a result of a conviction for assault with a weapon which was registered on July 17, 2009. That incident involved his teenage son who was presenting with some significant behavioural issues and resulted from frustration on the part of Mr. White. The son was involved in drug and alcohol use, apparently had made a poor choice of friends and seemed to be unmotivated with respect to his schooling. Dr. Dickey's report sets out that the assault in 2009 when Mr. White was 75 years of age was the result of him striking his son with a fan belt during a "moment of frustration". Mr. White was sentenced to probation and completed that probation without issue.

[52] Drugs and alcohol do not seem to be a difficulty for the accused. He had consumed an alcoholic drink on the night in question, but alcohol does not seem to have been an ongoing issue in his life. He does suffer some physical ailments which required him to retire from his place of employment as noted. He and the victim were also involved in a car accident which resulted in some neck and shoulder issues for Mr. White. He is noted to be a non-insulin dependent diabetic and suffers from hypertension, glaucoma and high cholesterol. His counsel describes him at the time of his arrest as a 180 lb. robust gentleman of advanced years, but now well over a year after the event and having been in custody he presents as a 130 lb. "somewhat diminutive gentleman".

[53] Mr. White had an opportunity to address the court and it is evident after listening to him speak that he is well spoken, soft spoken and clearly from his emotional presentation very remorseful and ashamed of his conduct.

PSYCHIATRIC ASSESSMENT OF DR. ROBERT DICKEY

[54] Filed as Exhibit #7 is the psychiatric assessment completed by Dr. Dickey with regard to Mr. White. That assessment had been ordered to provide an opinion pertaining to the issue of criminal responsibility and was done with the consent of the accused. The report sets out in some detail the background of Mr. White as well as the circumstances surrounding the offence itself and the opinions of Dr. Dickey.

[55] Dr. Dickey and his staff reviewed a good deal of material in preparation for the assessment and as well as had an opportunity to conduct various psychological testing.

[56] Dr. Dickey describes Mr. White as cooperative with no demonstration of any evidence of psychosis. He described Mr. White's emotional expression and moods at the time he dealt with him as appropriate to the situation and found nothing that was present to be consistent with a primary mood or affective disorder.

[57] Mr. White appears to have an excellent memory, participated in various activities and socialized well with co-patients. He appeared to be polite and co-operative with the clinical staff, although when the doctor spoke to him with respect to the events before the court and questioned some of the issues raised, Mr. White became quite upset, specifically as it related to memories of specifics of the event and the quantity of alcohol consumed that evening.

[58] Mr. White underwent psychological assessment and testing. No serious personality pathology was revealed, although the testing characterized him as in individual who was anxious about his current situation, somewhat distrusting of others and one who felt easily mistreated. His distrust, however, apparently evolved around failing to understand why his wife wanted to leave him. The psychological testing did not warrant a finding of not criminally responsible, but certainly according to the doctor the issues identified by that testing may have contributed to Mr. White's difficulty in coping with the marital breakdown.

[59] At the time of his arrest Mr. White had initially been placed on a Form 1 due to his emotional state and concern for his own safety but he was ultimately discharged and noted to be depressed, tearful, showing remorse and feeling ashamed for his actions. A psychiatric consultation was requested on the date of the event and the diagnosis offered at that time was Adjustment Disorder with depressed mood and anxiety and suicidal and homicidal attempt.

[60] In Dr. Dickey's assessment Mr. White presented as cognitively very aware with his memory appearing to be good. He was able to answer the questions, although the self-report pertaining to the event varied somewhat. He presented as having an average level of intelligence and did not impress in any way a psychopathic or criminal orientation. Dr. Dickey determined there was no evidence of Mr. White suffering from any major mental illness or mood disturbance.

[61] Dr. Dickey found Mr. White fit to stand trial. He found him suffering from no major mental illness, appearing to be cognitively relatively intact and attributes the charges before the court to be primarily related to situational factors and to a more limited extent personality variables as well as some possible degree of disinhibitation with alcohol.

[62] Based on all the information provided and obtained the doctor was unable to conclude that Mr. White would have from a psychiatric perspective a defence of not criminally responsible.

[63] The report has been filed on consent. The court has considered its contents not only with respect to the detail provided as to the background of Mr. White, but also to the circumstances of the event and to assist the court in understanding why Mr. White, whose antecedents appear to be admirable save and except for some short time prior to the event, would engage in the conduct that has led to the charge he has pled guilty to.

POSITION OF THE PARTIES

[64] Books of authorities have been provided by both counsel and have been reviewed by the court.

[65] Defence counsel submits that the range of sentence with respect to a matter such as that before the court would reasonably be between eight to 12 years imprisonment. Defence counsel, however, although acknowledging fully the aggravating factors which are obviously present in this matter indicates there are mitigating factors in place including a plea and most importantly the advanced age of Mr. White and the associated medical concerns arising from his age.

[66] Defence counsel points out there is no evidence of planning and premeditation with respect to the events which occurred at the residence on October 28. The event was situational and should be looked at in the context of a deteriorating marriage and the depression in place with respect to Mr. White who was facing a life in his late 70's without his wife and was clearly not equipped to deal with that. There is no history of violence other than recent allegations in this long-term marriage and for all intents and purposes it appears to have been a very successful relationship with stressors arising at or shortly before the events relating to the son and financial issues. Counsel submits Mr. White's actions would seem very much to be out of character as he has by and large presented as pro-social, a loving and caring father and provider for his family as well as a respected employee.

[67] Defence counsel acknowledges the challenging nature of this particular sentencing and asks the court notwithstanding the aggravating features present to consider the mitigating factors and temper the response by a fit sentence in the range of four to six years with credit then to be given for pre-trial custody on a 1.5-to-1 basis.

[68] Crown counsel stresses the aggravating factors, the egregious breach of trust and equates this to a planned and deliberate attempt to commit murder. There is an issue taken with that by defence counsel and, although certainly some element of planning appears to be present, the court does not find nor does defence counsel agree, and in fact specifically disagrees, the facts set out before the court indicate planning and deliberation to the extent suggested by Crown counsel.

[69] The Crown emphasizes the impact on the victim as well as the endangerment in place to the first responders as a result of the conduct of Mr. White in setting the fires and detaching the propane hookup. The Crown states the range of sentence in this matter is eight years to life imprisonment and suggests the appropriate disposition here given all of the aggravating features is 14 years imprisonment. Crown counsel suggests that if there are any medical issues they can be attended to within the context of a correctional setting.

[70] Crown counsel also submits there are no circumstances in place that would make it appropriate for the court to consider time served on anything greater than a 1-to-1 basis.

PRINCIPLES TO BE APPLIED

[71] In Regina v. Hamilton, [2004] O.J. No. 3252, a decision of the Ontario Court of Appeal Mr. Justice Doherty noted at paragraph 87 as follows:

"Sentencing is a very human process. Most attempts to describe the proper judicial approach to sentencing are as close to the actual process as a paint by numbers landscape is to the real thing. The fixing of a fit sentence is the product of the combined effects of the circumstances of the specific offence and unique attributes of the specific offender."

[72] Sentencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases. Each case must be conducted as an individual exercise. (See Regina v. Wright, [2006] O.J. No. 4870, para. 16; Regina v. D.(D.), 163 C.C.C. (3d) 471, para. 33, both decisions of the Ontario Court of Appeal).

[73] The principles of sentencing set out in the Code are set out in s. 718 to s. 718.2. Section 718 reads as follows:

"718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community."

[74] Section 718.1 states a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[75] The issue of proportionality is a principle rooted in notions of fairness and justice. The sentence must reflect the seriousness of the offence and the degree of culpability of the offender and the harm occasioned by the offence. The court must consider both aggravating and mitigating factors, look at the gravity of the offence and the blameworthiness of Mr. White and the sentence ultimately imposed must properly reflect in terms of gravity that which the offence generally bears to other offences.

[76] Section 718.2 sets out:

"718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender and without limiting the generality of the foregoing,

(ii.) evidence that the offender, in committing the offence, abused the offender's spouse or common law partner,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders."

[77] The primary factors to be considered in this matter are of course the principles of general deterrence and denunciation. Still the court must recognize the other principles of sentencing and also must consider the circumstances of Mr. White.

[78] In dealing with the issue of denunciation the objective of denunciation mandates that such a sentence must communication society's condemnation of the offender's conduct.

[79] As noted by Chief Justice Lamer in Regina v. M.(C.A.), 105 C.C.C. (3d) 327 at page 369:

"In short a sentence with a denunciatory element represents a symbolic collective statement that the offender's conduct should be punished for encroaching on our Society's basic code of values as enshrined within our substantive criminal law. As Lord Chief Justice Laughton stated in Regina v. Sargeant (1974) 60 Cr. App. R. 74 at page 77:

'Society through the courts must show its abhorrence of particular types of crimes and the only way in which the courts can show this is by the sentences they pass.'"

[80] Further:

"The relevance of both retribution and denunciation as goals of sentencing underscores that our criminal justice system is not simply a vast system of negative penalties designed to prevent objectively harmful conduct by increasing the cost the offender must bear in committing an enumerated offence. Our criminal law is also a system of values. A sentence which expresses denunciation is simply the means by which these values are communicated. In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instils the basic set of communal values shared by all Canadians as expressed by the Criminal Code."

CASE LAW

[81] In Regina v. Wust, 2000 SCC 18, 2000 S.C.C. 18, the Supreme Court indicated at para. 23 as follows:

"In deciding on the appropriate sentence, the court is directed by Part XXIII of the Code to consider various purposes and principles of sentencing, such as denunciation, general and specific deterrence, public safety, rehabilitation, restoration, proportionality, disparity, totality and restraint, and to take into account both aggravating and mitigating factors. The case law provides additional guidelines, often in illustrating what an appropriate range of sentence might be in the circumstances of a particular case."

[82] Both counsel have provided various case law and I have set out in Schedule A the citations and the names of the cases provided. That case law is helpful in determining the appropriate sentence in this matter. The cases provided set out the primary principles of sentencing to be addressed and a range of sentence that is to be considered. However, I keep in mind that sentencing is in fact an individual exercise and not an exact science.

[83] The case law provided, including cases by the defence, call for a range of sentence generally for attempted murder committed in the context of a domestic relationship commencing at, it would appear, the lower end of both counsel's range, i.e. eight years, and extending to double digit periods of imprisonment.

[84] The case law makes it perfectly clear the principles of general deterrence and denunciation are of paramount importance in determining the appropriate range of sentence for attempted murders in the context of a domestic relationship. Where attempted murder takes place in the context of a domestic relationship the case law indicates that the likelihood of lasting psychological trauma to the victim arising from the irrational and obsessive nature of the misconduct is significant and where present justifies the imposition of a substantial penalty separate and apart from the issue of protection. (See para. 24 Regina v. Boucher, [2004] O.J. No. 2689, Ontario Court of Appeal.) Here, the victim impact statement of Ms. Robinson-White speaks exactly to that issue.

[85] In Regina v. Denkers, [1994] O.J. No. 660, the Ontario Court of Appeal dealt with an appeal of a sentence of 15 years for attempted murder where in the context of a domestic relationship the accused had stabbed the victim, slit her throat, performed an act of sexual intimacy on her and when the victim pleaded for her life stabbed her a further time. The injuries there to the victim were significant and were major internal injuries. The impact of the attack had effects which the court determined were long and lasting.

[86] In the context of that sentence appeal, which was dismissed, the court stated as follows:

"The determination of what is a fit sentence in this case must be made in the context of the circumstances outlined above. This 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."

[87] There, and in other cases, the Ontario Court of Appeal has indicated 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.

AGGRAVATING FACTORS

[88] The aggravating factors in this case are as follows:

1. It is acknowledged by virtue of the plea that Mr. White on the night in question had the specific intent to kill Ms. Robinson-White when she came to bed. His actions, the presence of the knife and the words he uttered clearly indicate that. The defendant specifically rejects, and the court does not find on the facts before it, that the degree of planning and premeditation is as suggested by the Crown. Notwithstanding that, the defence acknowledges that there obviously was some planning in place here in the sense that Mr. White made the decision to bring the knife to the bed and when again rejected use it. However, although there is some element of planning and some forethought up to the point of the stabbing, the statement of agreed facts do not support the Crown's submission of planning and premeditation otherwise.

2. This was a brutal and terrorizing act on the part of Mr. White in the context of a domestic relationship. He stabbed Ms. Robinson-White while she was in the bed with him, he then pursued her and struck her. It was only her actions in self-defence that deterred him from proceeding with his attack on her. She locked herself in the bedroom and then in the bathroom and while bleeding profusely to the point where the floor was slippery with blood was able somehow to crawl out of the bathroom window awaiting help. In the meantime, after the initial attack Mr. White set fires in the residence and manually disconnected the propane valve from the furnace. One of the fires was ignited outside of the master bedroom where Ms. White had gone as a place of safety. Mr. White's actions were persistent and determined. It was only as a result of quick thinking on the part of the victim and the prompt response by the police and fire departments that Mr. White is not facing an even more serious charge than that before the court. Statutorily aggravating principles to be addressed in this context include the abuse of his partner and spouse as well as an egregious breach of trust.

3. The impact of the event has been obvious on Ms. Robinson-White. She speaks to that in her victim impact statement. She suffered injuries which, although not life threatening, were serious nevertheless. That is simply a matter of good luck and not good planning on the part of Mr. White when he inflicted the stab wounds that he did. She missed a good deal of work and her ability to do some of her work has been compromised by the injuries to her hands. The physical injuries are addressed in her victim impact statement but, more importantly, she speaks of the fear and the concerns that she has on an ongoing basis as a result of the violent act on the part of her husband.

4. Mr. White, although certainly of a significant age, has accumulated a criminal record in 1986, but more importantly, in 2009 for assaultive behaviour. Just a few days before this event he had been charged with assault and released on a promise to appear with an officer-in-charge undertaking which contained a number of conditions, one of which required that he not have contact with Ms. Robinson-White. Clearly there was some contact and it appears to have been largely consensual, although the facts speak to that contact that was played out with some hesitation and perhaps desperation on the part of Ms. Robinson-White. The contact otherwise appears to have been unwanted and persistent and in clear violation of the court order.

MITIGATING FACTORS

[89] The mitigating factors in this matter are as follows:

1. Mr. White has entered a plea of guilty and accepted responsibility for his actions. By doing so he has eliminated the necessity of a preliminary hearing and/or a trial and taken steps to no longer victimize his wife by putting her through those procedures. The Crown indicates the evidence is overwhelming but even if that was the case, and it is certainly not acknowledged to be so by the court at this point, the plea has obviated the need for Ms. Robinson-White who was unable to attend the sentencing hearing because of the emotional stress involved to no longer be emotionally distraught over at least the court proceeding.

2. I accept that Mr. White is remorseful and I accept that remorse is genuine and sincere. His remorse is demonstrated not only by his plea but, more importantly, by the words that he spoke on sentencing and as noted in the material that is filed before the court. He is ashamed of his conduct and accepts full responsibility.

3. Although issues seem to have arisen during the latter part of the marriage, particularly with respect to the behavioural issues surrounding his son which resulted in him being brought before the court in 2009 and then being charged with assault of his wife on October 10, 2012, Mr. White has otherwise presented for almost 80 years as a loving and caring individual and a good father. His first marriage ended in a tragic set of circumstances and he was, as I understand it, the primary caregiver of his three children who are now all adults and who remain supportive of their father. He was employed for an extended period of time and only left that employment because of physical ailments. Upon leaving that employment he appears to have been the primary caregiver for his son while his wife worked. He has the support of his three children and the support of his second wife who indicates there never was any indication of an abusive side of Mr. White. Indeed, neither does the marriage to the victim seem to have been fraught with any difficulty until the latter period of time. Clearly here the actions of Mr. White on the evening of October 28, 2012 appear to be very much out of character.

4. Mr. White is to be 80 years of age this year and was 78 years of age at the time of the offence. Although his age certainly does not reflect on the brutal nature of the attack, his age without a great deal of difficulty speaks to his good character otherwise. Also, his age is of importance as imprisonment will be extremely difficult for him. He has medical issues which can likely be addressed by the correctional authorities but they will cause him together with his advanced age to be exposed to some hardship. Indeed, he has now been in custody for an extended period of time and I am told by his counsel and accept that since he has been in custody he has been in medical isolation and has lost a third of his body weight, now weighing approximately 130 lbs. Imprisonment will be a very difficult period of time for Mr. White.

CREDIT FOR PRE-TRIAL CUSTODY

[90] Mr. White was arrested on October 28, 2012, the date of the event, and has been in custody since that time. It appears from the record that a bail hearing commenced on December 7, 2012 and continued thereafter on December 20 and December 21, 2012. On December 21, 2012 a detention order was made. In addition, on the charge that was outstanding at the time of the offence, i.e. the charge of assault from October 10, 2012, there was also a detention order made. There was a s. 524 arrest on that charge, the promise to appear was vacated and Mr. White has been in custody on that matter as well. It is important to note that the s. 524 arrest related to that charge and the Crown has not proceeded on that particular count.

[91] There is nothing on the information or the detention order to indicate Mr. White was detained because of previous convictions and there is no s. 524 issue with respect to the charge before the court. As a result, the court finds and is of the view that the Crown ultimately agrees, although advocating strongly no enhanced credit should be given in any event, that that consideration is open to the court pursuant to s. 719 of the Criminal Code.

[92] Mr. White has been in custody a total of 444 days by my calculation, a period approximating 15 months as of the date of sentencing. Defence counsel advocates for enhanced credit for a day and a half for each of those days, i.e. an enhancement of approximately seven and a half months, making the total credit for time served to be in the range of 22 months. As noted, Crown counsel submits there are no circumstances that would justify any enhancement as contemplated by s. 719(3.1) of the Criminal Code.

[93] In Regina v. Summer, 2013 ONCA 147, the Court of Appeal discussed the evidence that would be required to support a claim for enhanced credit at paras. 123-125.

"[123] Thus, the provision of information relevant to a claim for enhanced credit need not be an onerous task. While formal evidence of an accused's likely prospects for remission or parole eligibility may be lead at a sentencing hearing, information bearing on these issues (e.g. information regarding an accused's conduct during detention; an accused's co-operation with authorities and adherence to prison rules; or an accused's efforts to advance to trial) may also be furnished to a sentencing judge through counsels' sentencing submissions, by agreement between the prosecutor and the defence, or otherwise as contemplated under ss. 720-727 of the Code.

"[124] In this case, minimal evidence and information was before the sentencing judge bearing on the respondent's prospects for remission or parole eligibility. The sentencing judge, of course, was aware that the respondent had pleaded guilty at a relatively early stage, thus saving Kaitlyn Ingram and her family the anguish of a potentially prolonged and emotionally difficult trial. The evidence also established that the respondent had accepted full responsibility for his actions, both in his communications with Kaitlyn and with the police, from the outset. Further, the respondent conveyed his remorse to the Ingram family at the sentencing hearing.

"[125] More importantly, Crown counsel at trial (not counsel on appeal) acknowledged in her sentencing submissions that the respondent deserved credit on a 1.5:1 basis for much of his pre-trial detention. By her reference to the likelihood of early parole for the respondent, she also conceded, in effect, the respondent's good behaviour while in remand custody. Certainly, she did not suggest that the respondent's conduct would in any way disentitle him to earned remission or negatively affect his statutory release and parole eligibility. Before this court, the Crown acknowledges that it is appropriate that some credit be accorded to the respondent for his pre-sentence custody, at the rate of 1:1."

[94] In Regina v. Summer, supra, the court also noted that s. 719(3.1) of the Criminal Code permits a judge to credit pre-sentence custody up to a maximum of 1.5:1 for each day in pre-sentence custody where in considering all relevant circumstances "enhanced credit" is necessary to achieve a fair and just sanction. Lack of remission and parole eligibility in remand custody may be relevant in justifying enhanced credit. In reaching this conclusion the Court of Appeal noted that the legislation does not require "exceptional circumstances" to justify enhanced credit. Rather, the sentencing judge is to consider all relevant circumstances and where there is some basis in the evidence or in the information before the court to support the conclusion that enhanced credit is warranted the judge may give the enhanced credit.

[95] Mr. White presents as an older offender with a minimal prior record who has been in custody in a medical unit of a detention centre for almost 15 months. There is nothing before the court to suggest his conduct while in detention would disentitle him to earned remission or negatively affect his statutory release and parole eligibility.

[96] He has pled guilty, accepted responsibility, shown remorse and eliminated the need for a "potentially prolonged and difficult trial". He suffers health issues which impact him on a daily basis. He has suffered a significant loss of weight while in custody and has been, I am told by his counsel, treated for depression.

[97] I am satisfied fully here that the circumstances I have before me justify enhanced credit for the time already spent in custody and is necessary to achieve a fair and just sanction.

[98] Mr. White, on my calculations, has been in custody 444 days and I enhance that by one and a half days for each of those days, making a total pre-trial custody credit of 666 days, being approximately 22 months. Mr. White will receive credit for that enhanced period towards the sentence imposed.

SENTENCE IMPOSED

[99] Counsel indicated during the course of submissions that the matter before the court is a difficult and challenging sentencing. The facts are egregious and the aggravating factors many. Still, there are mitigating circumstances in place.

[100] Mr. White presents as an elderly accused who has committed a violent and significant criminal act. The events of the evening of October 28, 2012 are tragic in many ways.

[101] Despite all the good things and accomplishments Mr. White may have experienced in his life, his actions on the evening of October 28, 2012 are likely, as his own counsel suggests, to be his legacy and how he will be remembered. He will be 80 years of age this year and given his deterioration while in custody since October 28, 2012 any period of imprisonment, even that suggested by defence counsel, might be a life sentence for Mr. White.

[102] In dealing with the age of an offender, in Regina v. M.(C.A.), supra, at pages 364 and 365 Mr. Justice Lamer indicated as follows when dealing with older offenders:

"However, in the process of determining a just and appropriate fixed-term sentence of imprisonment, the sentencing judge should be mindful of the age of the offender in applying the relevant principles of sentencing. After a certain point, the utilitarian and normative goals of sentencing will eventually begin to exhaust themselves once a contemplated sentence starts to surpass any reasonable estimation of the offender's remaining natural life span."

[103] As I indicated earlier, sentencing is an individual exercise and involves the exercise of discretion. It requires this court to consider the circumstances of Mr. White, the circumstances of the offence and the need for the sentence imposed to meet the sentencing principles set out in the Criminal Code. After considering the principles to be applied, the aggravating and mitigating factors and the other matters I have set out I am satisfied that a just and fit sentence in this particular case is a sentence of imprisonment of nine years.

[104] Mr. White is entitled to pre-trial custody credit in the amount of 22 months and the sentence still to be served then is one of imprisonment of seven years, two months.

[105] There will be an order for a DNA sample to be taken in accordance with the provisions of the Criminal Code. There will be an order under s. 109(2)(a) for ten years and under s. 109(2)(b) for life. There will also be an order prohibiting Mr. White from having contact or communication with Lorna Robinson-White except through legal counsel while serving his sentence. The victim fine surcharge on this matter will be waived. All other charges involving Mr. White before the court are to be marked withdrawn at the request of the Crown.

[106] In summary then, after crediting pre-trial custody of 22 months there remains to be served a sentence of imprisonment of seven years, two months.

[107] I would like to thank counsel for their very thorough and thoughtful submissions together with the case law that has been provided, all of which assisted the court.

Released: January 16, 2014

Signed: "Justice G. F. Hearn"

SCHEDULE A

Case Law Cited:

• R. v. Boucher —, [2004] O.J. No. 2689
• R. v. Melanson — [2001] O.J. No. 869
• R. v. Edwards —, [2001] O.J. No. 2582
• R. v. Quance —, [2000] O.J. No. 2243
• R. v. Stubbs — 2013 ONCA 514, [2013] O.J. No. 3657 (Ont. C.A.)
• R. v. Huff — 2012 ONCA 86, [2012] O.J. No. 494 (Ont. C.A.)
• R. v. K.G. — 2010 ONCA 177, [2010] O.J. No. 910 (Ont. C.A.)
• R. v. Bryan — 2008 NSCA 119, [2008] N.S.J. No. 569 (N.S.C.A.)
• R. v. Neely — [2003] O.J. No. 1977 (S.C.J.)
• R. v. Campbell —, [2003] O.J. No. 1352 (Ont. C.A.)
• R. v. Edwards —, [2001] O.J. No. 2582 (Ont. C.A.)
• R. v. Corpus —, [2000] O.J. No. 549 (Ont. C.A.)
• R. v. Edwards —, [1996] O.J. No. 464 (Ont. C.A.)
• R. v. Levo — [1996] S.C.C.A. No. 201 (S.C.C.)
• R. v. Denkers —, [1994] O.J. No. 660 (Ont. C.A.)