Court File and Parties

Court File No.: 12-06303: Central East Region-Newmarket Date: 2014-02-20 Ontario Court of Justice

Between: Her Majesty the Queen — And — Setha Yon

Before: Justice Peter C. West

Oral Submissions heard: February 13, 2014 Reasons for Sentence Released: February 20, 2014

Counsel:

• Ms. J. Gleitman, for the Crown
• Mr. R.W. Koch, for the accused

WEST J.:

Introduction

[1] On July 24, 2013, Mr. Yon entered a plea of guilty to a charge of aggravated assault involving his ex-wife, Sophea Keut.

[2] Sentencing was adjourned to await the preparation of a Pre-Sentence Report, dated September 3, 2013, by Ms. Daniella O'Connor, Probation and Parole Officer and a psychiatric report, dated November 12, 2014, by Dr. Ian G. Swayze from the Centre for Addiction and Mental Health. Counsel also provided a further psychotherapy report from Mr. Gordon Dalziel of Dr. Lisa Berger & Associates, dated April 2, 2013, as well as a letter, dated May 14, 2013, from Ms. Sarah Bernhard of Addictions Services of York Region. Although a Victim Impact Statement was requested from the complainant by the Crown, the complainant refused to provide one.

[3] This matter was the subject of three Judicial Pre-trials with counsel for the purpose of a resolution of the charges before the court.

Factual Background

[4] The facts of the aggravated assault are relatively simple. On July 12, 2012, Mr. Yon and his wife were residing together in a basement apartment at 309 Eagle Street in the Town of Newmarket. They had gone to bed in the evening of July 11 with no incident. In fact, I was advised by counsel that, prior to the incident on July 12, Mr. Yon and Ms. Keut enjoyed a good marriage and there had never been a previous incident of domestic violence.

[5] At the time of the incident the couple's 20 month old child was sleeping in their bed. At 2 a.m., Mr. Yon woke up his wife and told her he wanted to have sex with her. She said she was sick and did not consent to having sex with him. Mr. Yon attempted to pull her pajama pants off and Ms. Keut kicked out at him and connected with his genitals.

[6] Mr. Yon became enraged by this and started beating his wife in the head, face and chest. He struck her with his fists, with a Vaseline bottle and a bottle of baby powder. Mr. Yon told his wife during the beating that he would beat her until she was dead. He knelt on her chest while he choked her and covered her mouth, which caused her to have difficulty breathing. Mr. Yon stopped abruptly because his daughter, age five, had been awakened by the commotion and had started to cry and call out for her parents.

[7] The police arrived at the house very shortly after Mr. Yon stopped assaulting his wife as a result of the upstairs neighbour hearing the commotion and calling 911.

[8] The Crown advised that Ms. Keut bears no ill-will towards her husband and has forgiven him for his conduct. If it was her decision she would not want Mr. Yon to go to jail. She does not wish to have contact with him in the future except for the purpose of access to their children, which I was advised is subject to orders in the family court. According to Ms. Gleitman, Ms. Keut is not seeking revenge for the brutal assault Mr. Yon perpetrated on her.

[9] I was informed during submissions that Ms. Keut advised the police in her statement and in the forms she filled out dealing with her relationship with Mr. Yon, that this was the first incident of any type of domestic violence. Ms. Keut told the police that her husband seemed to be a different person when he attacked her. In her KGB statement she stated that she kicked her husband and the fighting started and it was "as if something strange to his mind, he never act like this before."

[10] The Crown obtained the medical records for Ms. Keut, which it did not seek to tender. During the judicial pre-trials I was shown photographs of Ms. Keut's injuries just after the assault and prior to the blood being cleaned up by hospital staff. To say her face was a bloodied mess would be an understatement. Ms. Keut's face was severely bruised as a result of the beating. She was hospitalized from July 12 until the morning of July 16 due to pain management issues. She has experienced, by her estimate, a 50% hearing loss in her left ear. A report, which the Crown reviewed from an otolaryngology clinic, indicates this damage was likely caused by the assault. There is no need for surgery as the damage cannot be repaired. Her hearing could be improved by the use of hearing aids.

Position of the Parties

[11] The Crown argues that a sentence in the upper reformatory of 18 to 24 months, to be followed by three years of probation, is necessary to reflect both specific and general deterrence as well as denunciation.

[12] Mr. Koch argues that four to six months is the appropriate sentence for the conduct engaged in by Mr. Yon having regard to the mitigating and aggravating circumstances. He further submits that some period of pre-trial custody should be credited to Mr. Yon given the very restrictive bail conditions he has been under for the past 18 months, without breach.

Facts Relating to the Offender

[13] Mr. Yon is 52 years of age. He was born in Cambodia, the middle of three children. After the Khmer Rouge came to power in the mid-1970s his family became separated. His father was imprisoned and eventually escaped and fled the country. When he was thirteen, Mr. Yon, his mother and siblings were imprisoned in an attempt to get information as to the whereabouts of his father. After six months they were released but kept under surveillance. In 1977, his family escaped to Vietnam. He became involved as a mercenary at the age of 16/17 and fought against the Khmer Rouge forces for two years before escaping to Thailand.

[14] He lived in this refugee camp for two years and this is where he met his first wife, Tina. They entered into a common law relationship and were married in 1997. They have three boys; the oldest was born in the refugee camp and the other two were born in Canada. In 1984, at the age of twenty-two, Mr. Yon and Tina and their son were sponsored to come to Canada by the Christian Alliance Church in Red Deer, Alberta. Mr. Yon and his family moved to Newmarket in 1992. His parents, now divorced, went their separate ways; his father to Canada and his mother and siblings to California. Mr. Yon keeps in regular contact with his mother and siblings.

[15] Mr. Yon's three sons are now 32, 30 and 27. He also has four grandchildren.

[16] Ms. Tina Hok Hoy Hart, 50, a self-employed hair stylist, reports a good relationship with her ex-husband, Mr. Yon. There were never any incidents of domestic violence in their 20-year marriage. Ms. Hart advised the probation officer the separation occurred because of conflict in their marriage concerning Mr. Yon's father's over-involvement in their marriage. She left the relationship in 2001 but left their three boys in the family home with Mr. Yon. After separation she maintained regular contact with her family by cooking and cleaning after finishing work. She has since remarried but maintains a good relationship with Mr. Yon. She was in court with her husband and provided a letter, Exhibit 5, which attests to Mr. Yon's prior good character and describes her shock at the charges and his conduct.

[17] Mr. Yon met Sophea Keut in 2002 during a visit to Cambodia. They married in 2003 but she remained in Cambodia until Mr. Yon was able to sponsor her to come to Canada. He visited Ms. Keut in Cambodia until 2006 when he was successful in sponsoring her and his daughter, who was born in Cambodia, to Canada. They now have two children, their daughter, age 7 and a son, age 2, who was born in Canada.

[18] Mr. Yon developed a gambling addiction after his separation from Ms. Hart. It began as a leisure activity but quickly advanced to where he was gambling for significant sums of money. He hid his gambling from his second wife, Ms. Keut. His gambling debts became quite large and resulted in the loss of their family home. He recognized he had a gambling addiction in 2010 and sought counselling but relapsed and resumed gambling prior to the incident before the court. Since his arrest and release on the charges before the court he has ceased all gambling and has been seeing Ms. Sarah Bernhard, an addictions counsellor, at Addiction Services of York Region. He attended this agency in August 2012 and completed 11 sessions for individual counselling ending in May 2013. He subsequently requested additional counselling and continues to meet with Ms. Bernard. She describes Mr. Yon as an active participant in the therapeutic process and reports he is successfully abstaining from gambling and working on strategies to prevent relapse.

[19] Mr. Yon has always expressed, through his counsel, a desire to plead guilty in respect of his conduct towards Ms. Keut. Ms. Gleitman confirms that Mr. Koch has, from the beginning, expressed Mr. Yon's desire to accept responsibility for his actions. In my view, a significant event reflecting Mr. Yon's willingness to cooperate with the police was when, two days after being released on a recognizance of bail on a charge of assault causing bodily harm, he surrendered himself and spent a further two days in custody on new, more serious charges laid by the police, including the aggravated assault charged he had plead guilty to. Mr. Yon was released once again on a recognizance. He has spent a total of four days in pre-trial custody.

[20] Mr. Yon's plea of guilty meant that Ms. Keut was spared the necessity of having to testify in court about the events of July 12, 2012 and has saved the administration of justice both time and cost in adjudicating this matter. His plea also demonstrates his remorse for his actions and I find, based on Mr. Yon's guilty plea and the independent reports I have been provided, that he fully accepts responsibility for his criminal acts.

[21] Mr. Yon has no prior criminal record and no prior contact with the police.

[22] Mr. Yon was on a restrictive bail. It included house arrest, except to attend work. However, because the Crown did not want Mr. Yon to drive to where his wife was residing, a further restrictive term of bail was that he was not permitted to drive and had to be driven to work by one of his sureties. An attempt was made by the defence to vary the bail to allow him to drive because it was placing a hardship on his elderly father and stepmother; however, the variation was not agreed to by the Crown. A variation allowing Mr. Yon's ex-wife and her husband to drive him to work was allowed. I was advised that Mr. Yon works full-time at the Honda plant paint shop in Alliston since 1995. He works rotating shifts, requiring Ms. Hart or her husband to drive Mr. Yon late in the evening and early in the morning. In my view, this is also a reflection of the high regard Mr. Yon is held in by those who know him.

[23] Certainly the PSR, Exhibit 1, reflects the behaviour engaged in by Mr. Yon on July 12 was completely out of character. Mr. Yon is described as a good provider and a wonderful father who is devoted to his family and children. He attends church regularly and is a member of the Canadian Alliance Church, first in Alberta in 1984 and now in Ontario. He joined the Newmarket Alliance Church in 1992 and then the Bradford Alliance Church in 1997. He told the probation officer that after his separation from his first wife he stopped attending services but has reconnected with the Bradford Alliance Church since his arrest. Mr. Keith Hart, an elder of the church and Tina's husband, and Pastor Kent Nielson both describe Mr. Yon as attending church regularly and being actively involved in the church's social and support groups, including a men's breakfast group. I was advised that Mr. Yon has confessed publically before his church his criminal conduct. Mr. and Mrs. Hart and Pastor Neilson were present in court, as were numerous other family members. Mr. Yon has tremendous support in the community with his family and friends. He has an excellent employment history; 18 years at the Honda Plant in Alliston and prior to that three years at Magna International.

[24] Mr. Yon was referred to Dr. Lisa Berger & Associates for Anger Management counselling by his lawyer in December 2012. Mr. Yon attended five psychotherapy sessions with Mr. Gordon Dalziel. Mr. Yon acknowledged responsibility for the domestic assault and expressed remorse for his behaviour. Mr. Yon was described by Mr. Dalziel, in his letter, Exhibit 3, and to the probation officer, as a 'model client of physiotherapy', a gentle, sensitive, thoughtful man. Mr. Dalziel believes it is highly unlikely an episode such as this will be repeated by Mr. Yon. It was his opinion that Mr. Yon does not have an anger management problem but rather the offence before the court is an 'unusual and isolated' incident. This view is certainly corroborated by Mr. Yon's family, Ms. Hart, Ms. Keut and his friends, all who have indicated this incident is one which is isolated and out of character.

[25] The York Region Children's Aid Society became involved with the family after Mr. Yon was charged. Initially Mr. Yon did not cooperate with the Society based on the advice of his counsel; however, after disclosure had been provided by the Crown and Mr. Yon had expressed his desire to plead guilty he began to cooperate fully with the CAS. Mr. Yon now has regular access with his children and all of his Family Court issues were resolved in the early fall of 2013. Mr. Yon provides $1700 per month for support for his wife and two children. I was advised that Ms. Keut does not speak English and is currently not working outside of her home and Mr. Yon readily accepts his responsibility to continue to provide for his family.

[26] Mr. Yon was referred to the Centre for Addiction and Mental Health for an assessment to determine the issue of criminal responsibility respecting the offence of aggravated assault. A 17-page forensic psychiatric report, dated November 12, 2013 and authored by Dr. Ian Swayze, was filed as Exhibit 2. In this report Mr. Yon reported a history of significant trauma, as set out above, and reported infrequent periods of flashbacks and nightmares. He acknowledged on occasion, avoidance behaviours and candidly recognized his ability to enter a "fury" when physically assaulted or threatened with assault. Dr. Swayze was of the opinion that Mr. Yon does not suffer from a major mental illness but there is a possibility of a Post-Traumatic Stress Disorder (PTSD) and/or Pathological Gambling. It was Dr. Swayze's recommendation that Mr. Yon receive further assessment and, if necessary, psychotherapy for post-traumatic stress disorder and pathological gambling.

[27] I was advised by counsel that Mr. Yon is most anxious to cooperate with an assessment and counselling to determine whether he does in fact suffer from PTSD as he views his actions on July 12 as completely out of character and is concerned such an incident might recur if he does nothing. Mr. Yon understands and accepts his marriage is over and Ms. Keut does not wish to resume their relationship.

Analysis

[28] The determination of a proper sentence in this case calls for a consideration and balancing of the principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code, as well as the aggravating and mitigating factors which exist in this case. I have set out above the various mitigating factors which I must consider in determining an appropriate sentence.

[29] The aggravated assault charge in this case was committed in a domestic context – a statutorily recognized aggravating factor under s. 718.2(a)(ii). Further, in my view it is an aggravating factor that the assaultive behaviour took place in the family home where the complainant should have been free from harm or violence. As well, Mr. Yon's 20 month old son was in the same bed with he and his wife and his five year-old overheard the altercation from her bedroom and was frightened her father was going to hit her too. This would have been a terrifying event for his daughter and I understand from the PSR that initially she was fearful of seeing her father, although I understand this is no longer the case.

[30] It is important to note that this was an isolated incident that did not take place over an extended period of time. I was not advised how long the assaultive behaviour occurred but from the facts provided during the judicial pre-trials it took place over a matter of minutes. The assaultive behaviour, however, did have serious consequences in terms of significant bruising to Ms. Keut's eyes and face and resulted in permanent hearing loss to her left ear. Further, Mr. Yon has pled guilty to endangering Ms. Keut's life by his attempting to choke her and cover her mouth. Finally, Mr. Yon, while he was assaulting his wife, threatened to beat her to death. In my view, it would be impossible to fully appreciate the fear and horror experienced by Ms. Keut while her husband was assaulting her. The nature and brutality of the assault are certainly aggravating factors to be considered on sentence. It is only fortuitous that Ms. Keut's injuries were not more serious.

[31] There is no doubt that domestic violence is a serious recurring social problem in Canadian society. A five member panel of the Ontario Court of Appeal addressed the prevalence of domestic violence in the case of R. v. Inwood, 48 C.C.C. (3d) 173 (Ont. C.A.). The Court considered the fitness of a suspended sentence, which was imposed by the trial judge, for an assault causing bodily harm by a husband on his wife. The assault occurred during a single incident, where the victim received tenderness to her head, bruising to her arm, a bump and swelling to her nose and a swollen and cut lip. The Court held that the trial judge erred in not imposing a custodial sentence and that a three month custodial sentence was warranted. However, because of the passage of time the Court declined to incarcerate Mr. Inwood. Chief Justice Howland made these comments concerning domestic violence, which are equally applicable today (at p. 181):

This court has acted on the principle that where there is a serious offence involving violence to the person, then general and individual deterrence must be the paramount considerations in sentencing in order to protect the public. In my opinion, this principle is applicable not only to violence between strangers but also to domestic violence. Domestic assaults are not private matters, and spouses are entitled to protection from violence just as strangers are. This does not mean in every instance of domestic violence a custodial sentence should be imposed, but that it should be normal where significant bodily harm has been inflicted, in order to repudiate and denounce such conduct. I am pointing out later that battered wives, where there are persistent or prolonged assaults, may require special consideration in determining the appropriate punishment. [Emphasis added]

When sentencing an offender for a crime of domestic violence a judge must emphasize the principles of denunciation and general and specific deterrence: see Regina v. Pitkeathly, 29 C.R. (4th) 182 (Ont. C.A.), Regina v. Boucher, 186 C.C.C. (3d) 479 (Ont. C.A.), Regina v. Edwards and Levo, 105 C.C.C. (3d) 21 (Ont. C.A.), Regina v. Campbell, 170 O.A.C. 282 (C.A.), Regina v. Denkers, 69 O.A.C. 391 (C.A.), R. v. Bates, 146 C.C.C. (3d) 321 (Ont. C.A.).

[32] Although denunciation and deterrence are of paramount importance in domestic violence cases, rehabilitation of an offender, who has shown insight into the causes underlying his assaultive behaviour and who is motivated to seek professional assistance, is not an irrelevant sentencing consideration. It is my view that Mr. Yon's prospects for being successfully rehabilitated are significantly increased because of his recognition that he needs professional assistance and the fact that he has already begun to avail himself of the programs available in the community.

[33] I was provided a number of cases by Crown and defence dealing with serious domestic violence occasioned by one spouse against another. No two cases involving domestic violence will be identical in terms of the underlying circumstances or the background of the offender. I have reviewed a number of other sentencing decisions which delineate the sentencing principles to be applied: R. v. Rooplall, [2008] O.J. No. 3514 (Ont. C.J.); R. v. Harding, [2009] O.J. No. 682 (Ont. S.C.J.); R. v. Markotic, [2007] O.J. No. 860 (Ont. C.J.); R. v. Shunmuganathan, [2008] O.J. No. 991 (Ont. C.J.) and R. v. Chirimar, 2007 ONCJ 385, [2007] O.J. No. 3323 (Ont. C.J., Trotter, J., as he then was). What becomes clear is that the determination of an appropriate sentence must be based upon the unique circumstances surrounding the offence and the offender.

[34] The Crown's submission that the sentence should be eighteen months to two years less a day is, in my view, well outside the appropriate range of sentence on the facts before me. The Crown provided me with a number of cases from the Ontario Court of Appeal and the Ontario Superior Court which clearly establish the paramount sentencing principles for offences involving domestic violence as being general and specific deterrence and denunciation. The facts of those cases, particularly R. v. Maslakovic, [2000] O.J. No. 4247 (Ont. Sup. Ct.) and R. v. J.B., [2012] O.J. No. 2670 (Ont. Sup. Ct.) are far more serious, involving kicking that caused broken ribs, a lacerated spleen (Maslakovic) and fractured jaw and a lengthy criminal record for similar offences (J.B.), than the facts of Mr. Yon's case.

[35] The case of R. v. Chirimar, supra, which involved somewhat more serious injuries to the complainant, is helpful in determining an appropriate sentence for the circumstances involving Mr. Yon's case. In Chirimar, the accused, a first offender, pled guilty to two counts of assault causing bodily harm in respect of his wife. The facts revealed that over an extended period of time Mr. Chirimar engaged in assaultive behaviour towards his wife, which resulted in bruises and injuries to most parts of her body as demonstrated by the photos filed as exhibits. The neighbour who called the police had previously heard numerous altercations coming from the Chirimar apartment, with the victim screaming and a young child crying over a period of five months. Justice Trotter described the injuries he observed from the photographs as follows: (para. 6)

• Pinkish bruising to her left eye;
• Pinkish bruising and abrasions to her right cheek bone area;
• Large black and yellowish bruises to her right bicep;
• Bruising that resembles a bite mark on her right forearm;
• Bright purple and yellow bruising to her right shoulder;
• Yellowish bruises to her upper chest and both breasts;
• Red bruises to her right shoulder blade area;
• A three to four inch bruise in the centre of her lower back;
• Scratch/abrasion marks on her left shoulder blade area;
• Large pinkish bruises to the side of her left upper leg and buttock area;
• Pinkish bruises to the back part of her upper right leg;
• A pink and yellow bruise above her right knee;
• Significant purple/yellow bruising to her inner right thigh;
• Bright pink and yellowish bruising to the outer part of her left leg above the knee;
• A scratch or puncture mark on her lower right calf;
• Numerous small brown bruises to both shins and calves; and
• Pinkish bruising to her right hand, wrists, and shoulder.

[36] The assaults had occurred in front of Mr. Chirimar's infant son, which Justice Trotter found to be aggravating. Justice Trotter also found as aggravating the fact that Mr. Chirimar terrorized his wife over an extended period of time causing significant injuries and that Mr. Chirimar supervised the masking of his wife's injuries before she was permitted to leave their home. Some of the injuries, namely, bruising of the victims breasts and inner thighs, were found by Justice Trotter to be particularly disturbing.

[37] Mr. Chirimar had undergone counselling, both with his wife and individually for his behaviour. Initially the couples' counselling investigated whether there was any hope for reconciliation between the parties. Ultimately, when it was determined that reconciliation was not an option, the counselling was to ensure that Mr. Chirimar and his wife were able to deal appropriately with each other concerning their son's upbringing. Considering the mitigating and aggravating circumstances, it was Justice Trotter's view that an appropriate sentence was six months in jail to be followed by three years' probation with terms.

[38] Mr. Yon lived his life for close to 50 years without any difficulties with the law, as a loving and caring father and husband and as a hard working individual. He turned to gambling as an outlet to help him deal with his separation from his first wife. His gambling addiction became extremely serious during his second marriage, causing significant financial difficulties and heated arguments. I have no doubt that Mr. Yon's violent outburst of anger on July 12, 2012 was directly related to his unresolved childhood and teenage traumatic experiences at the hands of the Khmer Rouge in Cambodia and later when he became a child soldier for the Vietnamese Khmer Rouge and fought against Cambodian Khmer Rouge for two years. It is my view that the underlying issues which led to this conduct must be addressed by Mr. Yon as part of any sentence I impose to ensure the future protection of the public. It is significant, in my view, that Mr. Yon appreciates this as well.

[39] Further, I must also be mindful of the mitigating circumstances I outlined when I discussed the facts relating to Mr. Yon's background. He is a first offender. I am clearly mandated by the Ontario Court of Appeal together with the provisions of ss. 718 and 718.2 of the Criminal Code that before a sentence of imprisonment is imposed, all other methods available to the court of punishing the accused for what he has done must be carefully considered (see R. v. Bates, [1976] O.J. No. 1181 (Ont. C.A.) at paras. 4-5).

[40] In R. v. Stein, 15 C.C.C. (2d) 376 (Ont. C.A.) at page 377, Martin J.A. made it clear that in the case of a first offender, the court should explore all other dispositions before imposing a custodial sentence:

It is the view of the Court that the sentence imposed upon the appellant does reflect an error in principle. In our view, before imposing a custodial sentence upon a first offender the sentencing Court should explore the other dispositions which are open to him and only impose a custodial sentence where the circumstances are such, or the offence is of such gravity that no other sentence is appropriate. In our view, this offence does not fall within the category of offences where a custodial sentence is the only appropriate sentence to be imposed upon a first offender, nor are there other circumstances which require the imposition of a custodial sentence. [Emphasis added]

[41] Further, in R. v. Priest, 110 C.C.C. (3d) 289 (Ont. C.A.), (at paras. 18-20), Rosenberg, J.A. made the following comments concerning R. v. Stein, supra.

As the Stein case shows, it has been an important principle of sentencing in this province that the sentence should constitute the minimum necessary intervention that is adequate in the particular circumstances. This principle implies that trial judges consider community-based dispositions first and impose more serious forms of punishment only when necessary. These principles have now been codified in the recently proclaimed sections 718 and 718.2 of the Criminal Code. Section 718 (c) instructs that separation of offenders from society is an appropriate objective of sentencing "where necessary". Section 718.2 (d) directs that an offender should not be deprived of liberty "if less restrictive sanctions may be appropriate in the circumstances".

The principle embodied in now s. 718.2(e) was of particular significance in this case. It provides that "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".

The duty to explore other dispositions for a first offender before imposing a custodial sentence is not an empty formalism which can be avoided merely by invoking the objective of general deterrence. It should be clear from the record of the proceedings, preferably in the trial judge's reasons, why the circumstances of this particular case require that this first offender must receive a sentence of imprisonment.

[42] In my view, given the paramount sentencing principles are deterrence, both specific and general, and denunciation in a case of serious domestic violence, a custodial sentence, even for a first offender, is required. There are significant aggravating circumstances in this case, which I outlined above, and consequently this is one of those cases where the circumstances are such and the offence is of such gravity that only a custodial sentence will meet those sentencing principles.

[43] In my opinion, it is significant that Mr. Yon's behaviour was an isolated incident and there is no history of prior domestic violence with his first wife or with Ms. Keut. There was no planning or deliberation; rather, his assault on his wife was a spontaneous reaction to her kicking him in the genitals. This is no way justifies or exonerates or lessens the seriousness of Mr. Yon's conduct; however, the aggravating feature in many domestic violence cases of assaultive behaviour which occurs over an extended period of time, as in the Chirimar case, is missing.

[44] Mr. Yon has demonstrated he recognized he needed to seek professional assistance and he has done so prior to his plea of guilty and he continues to the present time. He recognized he has a serious gambling addiction, which created difficulties in his marriage and caused him considerable anxiety and stress because of the mounting debts. He commenced counselling for this addiction in August 2012 with Addiction Services of York Region and has continued his counselling to the present time. He also recognized he becomes extremely angry and cannot control how he will react when he is assaulted or someone threatens to assault him. In December 2012, on the recommendation of his lawyer, he commenced anger management counselling as described above. As a result of the forensic psychiatric assessment respecting NCR ordered by the court, he has advised his counsel he wants to continue with a psychiatric assessment and psychotherapy to better understand the past traumatic events of his childhood and teen years to prevent a similar incident from occurring in the future. I am of the view that the need for specific deterrence for Mr. Yon is very low.

[45] What is unique in the particular circumstances of this case is that Mr. Yon has been subject to a very restrictive recognizance of bail, which involved strict house arrest with only a limited number of exceptions, as well as an absolute prohibition from his operating a motor vehicle. In my view, the recognizance of bail that Mr. Yon was on for 18 months was more onerous than most conditional sentences, pursuant to s. 742.1 of the Criminal Code, which are imposed after a guilty plea and sentencing. Mr. Yon has not violated any of the terms of his bail for the 18 months he was on conditions. It is also important to note that while Mr. Yon was living with his father and step-mother and her children, his bedroom, because of space limitations, was set up in an unfinished basement, with stone walls, no windows and only a sheet separating where his bed was set up from the rest of the basement that was used for storage. I was advised of this by Mr. Koch, not to complain on behalf of Mr. Yon, but to make me aware the living arrangements were less than optimal and in some ways similar to a jail cell.

[46] In R. v. Downes, 205 C.C.C. (3d) 488 (Ont. C.A.), Rosenberg, J.A. held that "time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance." (See para. 33)

Stringent bail conditions, especially house arrest, represent an infringement on liberty and are, to that extent, inconsistent with the fundamental principle of the presumption of innocence. House arrest is a form of punishment, albeit of a different character than actual incarceration. Pre-sentence house arrest varies little in character from the house arrest that is often imposed as a term of a conditional sentence under s. 742.1 of the Criminal Code. (See para. 29)

Thus, a trial judge faced with an offender who has spent time on bail under house arrest should adopt a flexible approach. In the end, the amount of credit and the manner in which it is taken into account as a mitigating factor is a matter for the trial judge. That factor must be considered along with the myriad of other mitigating and aggravating circumstances that may impact on the sentence in a given case. (See para. 36)

[47] The Court of Appeal in Inwood, supra, held that a sentence of three months' imprisonment would have been a fit sentence for a single incident of short duration that resulted in bodily harm to the victim. The sentence I intend to impose is denunciatory and given the prevalence of this type of offence in the community, that denunciation must be in the clearest of terms. In addition, the sentence must be one designed to deter not only Mr. Yon from re-offending, but also to deter others from engaging in abusive and threatening behaviour towards their spouses and partners.

[48] In my opinion, an appropriate sentence for the conduct engaged in by Mr. Yon against his wife warrants a sentence of six months in jail. I have considered the restrictive recognizance of bail Mr. Yon served for more than 18 months and I am of the opinion, pursuant to R. v. Downes, supra, that he should be credited six months for the 18 months of strict bail conditions, including house arrest. I should indicate it is my view I could have credited Mr. Yon with nine months credit, given he was a first offender and he utilized the time he was on the strict recognizance of bail to provide for his family by working and taking steps to receive professional counselling to address the underlying reasons of his criminal conduct. In Downes, Justice Rosenberg gave five months credit for 18 months house arrest bail where the defendant had a significant criminal record, did not work and did not seek counselling to address the underlying reasons behind his serious domestic violence conduct, which included forcible confinement, criminal harassment, threatening and assault (two counts).

[49] Consequently, the information will reflect the six months pre-trial credit I have assessed pursuant to R. v. Downes and I am suspending the passing of sentence and placing Mr. Yon on probation for three years with conditions. During your period of probation, you will abide by the statutory terms set out in s. 732.1(2) of the Criminal Code, namely,

(i) Keep the peace and be of good behaviour;

(ii) Appear before the court when required to do so by the court;

(iii) Notify the court or the probation officer in advance of any change of name or address; and

(iv) Promptly notify the court or probation officer of any change of employment or occupation.

You will also abide by the following additional conditions:

(i) You will report to probation and thereafter as required;

(ii) You will reside at an address approved by your probation officer;

(iii) You will not associate or communicate, directly or indirectly, with Sophea Keut, except through counsel or through Family Court proceedings or pursuant to a Family Court order or a separation agreement;

(iv) You will not attend within 100 meters of any known place of residence, employment or education of Sophea Keut, except pursuant to a Family Court order or separation agreement for the purpose of exercising access to your children;

(v) You will attend for such assessment and/or continue such counselling for anger management, psychiatric issues or any other reason as your probation officer may direct and not stop that counselling without the permission of your probation officer;

(vi) You will sign any release of medical, psychiatric or other confidential information to your doctor/counsellor in favour of your probation officer so that they can discuss your progress;

(vii) You will not possess any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, according to law; and

(viii) You are not to possess any weapons as defined by the Criminal Code.

[50] There will be a mandatory weapons prohibition order, pursuant to section 109(1)(a) of the Criminal Code, prohibiting you from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for life.

[51] Further, I am ordering the taking of samples of bodily substances from you that are reasonably required for the purpose of forensic DNA analysis pursuant to section 487.051(3).

Released: February 20, 2014

Signed: "Justice Peter C. West"