Court File and Parties
Court File No.: 13-4487 Newmarket Date: 28 March, 2014 Ontario Court of Justice
Between: Her Majesty the Queen — and — Derek John Budarick
Counsel:
- Jon Fuller for the Crown
- Krystal Manitius for the accused
Before: Kenkel J.
Reasons for Sentence
Introduction
[1] Mr. Budarick was charged with 23 counts in relation to prohibited contact with his former spouse. At the conclusion of the Crown's case he changed his plea to guilty on 3 counts of Failing to Comply with probation and one count of Criminal Harassment.
[2] The Crown submits that a sentence of two years less one day should be imposed. The defence submits that time served of 315 days credited on a 1.5 to 1 ratio should result in a sentence of time served.
Facts of the Offences
[3] Mr. Budarick was subject to two probation orders not to have any contact with his former girlfriend. On the day he was released from jail in relation to prior offences of violence against the same victim, Mr. Budarick attended at a neighbourhood bar she attends on occasion. He went inside, found the victim there and went directly over to her table to confront her.
[4] Mr. Budarick later hid in the bushes and confronted her at her mother's apartment building. On another date he went to her new boyfriend's house and attempted to contact her in the backyard. He started yelling at the victim but left when he was told that the police had been called.
[5] While there was no further violence the unwanted contact in defiance of court orders reasonably caused the complainant to fear for her safety and her ongoing fears are set out in her Victim Impact Statement.
The Accused's Personal Circumstances
[6] Mr. Budarick has a lengthy criminal record dating back 28 years. He has 16 convictions for offences in which violence was used or threatened. He's been convicted of breaching court orders 17 times.
[7] Mr. Budarick has served 315 days in pre-trial custody. Counsel has provided the court with jail records indicating that at times the accused was triple bunked and at times there were lockdowns within the institution.
Sentencing Principles
[8] The protection of the complainant and deterrence of the accused are the central goals of sentence in this case. Denunciation of the accused's conduct is also important in cases involving ongoing domestic intimidation with a history of violence. See: R. v. Boucher.
[9] The sentence imposed in this case must promote a sense of responsibility in the offender and an acknowledgement of the harm done to the victim and also to the community at large. See: R. v. Rahaman, 2008 ONCA 1 at para. 46.
[10] The accused will be released into the community at the end of his custodial term so this sentence must also provide for his rehabilitation with conditions post release that will protect the victim but also steer him away from committing further offences.
Aggravating Factors
[11] The fact that these offences occurred in the context of a domestic relationship is an aggravating factor on sentence.
[12] The accused's serious prior record of violence in relation to this victim is an important factor on sentence.
[13] Mr. Budarick has no regard for court orders. The fact that he breached the central term of his two probations within hours of release from jail is a strong indication that he continues to pose a serious threat to the safety of the complainant and those around her and that court orders may do little to reduce that threat.
[14] The repeated unwanted contact over a short period of time is also a factor that aggravates sentence.
[15] The impact of the offences on the complainant as explained in her victim impact statement is a factor that aggravates sentence. The accused's conduct was meant to harass and instill fear in the complainant and it did have that effect.
Mitigating Factors
[16] Mr. Budarick has been in custody since the date of arrest May 18, 2013 to March 28, 2014, or 315 days. Credit for time served must be given towards any sentence imposed.
[17] In this case I find I can place no weight on the guilty plea mid-trial as an indication of remorse as the Crown had completed their case and the accused otherwise gained a benefit in reducing the counts he was convicted upon. Of course the fact of a trial is not an aggravating factor on sentence.
[18] I take into account the pre-sentence report as filed. Among other things the defence notes successful completion of many forms of prior counselling. In this case I find that does little to mitigate sentence or offer hope for the future when none of the past counselling completed has had any impact on the accused's behaviour.
[19] Mr. Budarick does continue to have the support of his parents and has potential for employment when released.
Conclusion and Sentence
[20] The Crown proceeded by Indictment on all charges. The maximum sentence for Criminal Harassment is 10 years. The maximum sentence for each breach of probation is 2 years.
[21] This case has all the warning signs courts have been told to look out for in domestic cases – a history of serious violence, repetitive harassment and stalking, and a complete disregard for court orders. This sentence must specifically protect the victim in this case and protect others like her by sending a strong message generally that intimidation and harassment of victims of domestic violence will not be tolerated. Unfortunately, the only way left to send that message is through a substantial custodial sentence.
[22] The accused has not yet been sentenced to the penitentiary and I agree with the Crown's submission that one last reformatory sentence should be tried. I find a global sentence of 2 years less 1 day is the minimum sentence that could meet the purpose and principles of sentencing in the circumstances of this case.
[23] The defence submits that the accused should be granted credit on a 1.5 to 1 basis for time served to date. I agree with the defence that there is some basis for that submission, but I must reject that request for the following reasons:
The accused consented to his detention thus avoiding the automatic limit on pre-trial credit in s.719(3.1) and 515(9.1) but in circumstances where his record would be certain to have resulted in his detention on that basis
Credit for pre-trial custody on an enhanced basis would render this sentence unfit given the accused's record and the circumstances of the offences
[24] I note the 315 days time served and subtract that from 2 years less 1 day (729-315) and I order that the accused serve a further 414 days to be apportioned as follows: 138 days on each count of failing to comply for each separate incident consecutive to each other totalling 414 days. There will be 414 days concurrent to each count imposed for the Criminal Harassment for a total remaining sentence of 414 days.
[25] Upon the expiration of his custodial sentence Mr. Budarick will be subject to a period of probation for 3 years on the following terms:
Keep the peace and be of good behaviour
Report to probation as required
Reside at an address approved of by probation and not change that address without the approval of probation 48 hours in advance
Not have any contact directly or indirectly with Deborah McLeod or any member of her immediate family
Not have any contact directly or indirectly with Gregory Schell or any member of his immediate family
Not to attend within the area bounded by Steeles Avenue to the South, the York-Durham Line to the East, Major Mackenzie Drive to the North, and Warden Avenue to the West
Not possess any weapons as defined by the Criminal Code
Not possess any firearms or permits to acquire firearms
[26] There will be an order under s.109 prohibiting the accused from possessing any firearms or related items set out in that section for life. There will also be a further DNA order.
[27] The victim was not notified in this case prior to the accused's release. I ask that the Crown ensure that the victim and others named in the probation order be notified at least 7 days in advance of the accused's release so that they may take any necessary steps to ensure their safety.
Released 28 March, 2014
Justice Joseph F. Kenkel