Court Information

Ontario Court of Justice

Date: October 14, 2016

Court File No.: Toronto 4817-998-16-75000123-00

Parties

Between:

Her Majesty the Queen

— and —

Lee Gallagher

Before: Justice Richard Blouin

Guilty Pleas taken on: August 15, 2016

Submissions on Sentence Made: September 28, 2016

Judgment on Sentence Delivered: October 14, 2016

Counsel

Sarah Gray — counsel for the Crown

Nicholas Charitsis — counsel for Lee Gallagher

Decision

BLOUIN, J.:

[1] On August 5, 2016, the defendant entered guilty pleas on three counts arising from a disturbing domestic incident that occurred on January 10, 2016. On consent, facts were read in on other counts, but only on the following offences was the defendant arraigned:

• Count 2 - Possession of a Prohibited Weapon (a butterfly knife)
• Count 4 - Utter Death Threats
• Count 6 – Assault

Findings

[2] The facts (submitted to the Court by way of a written agreement), are as follows:

The victim in this matter is Brietta KERR who currently resides at 176 The Esplanade Unit #501. The accused in this matter is Lee GALLAGHER. The couple have been in an intimate relationship for approximately 2 ½ years and have been residing together at 176 The Esplanade Unit #501 for approximately 2 years. Brietta is the only registered tenant on the lease as Lee only stays there. The couple do not have any children together or with anyone else from previous relationships. For the past year, Brietta has been considering breaking up with Lee due to his violent and aggressive behaviour.

On Sunday January 10th 2016 at approximately 12:00 PM, Brietta and the accused were in their residence located at 176 The Esplanade Unit #501 in the City of Toronto. At that time, the couple began consuming multiple drinks of Vodka. At approximately 5:00 PM the couple engaged in a conversation regarding Brietta wanting to break up with the accused. The conversation became very heated as they were both located in the kitchen. The accused used one hand and began to choke Brietta in the attempt to keep her from raising her voice (Charge #1). The accused choked her for approximately 1 minute before letting go as Brietta lowered her voice to avoid further choking.

The argument then carried over into the bedroom. While in the bedroom, the accused reached into his bedside drawer where he accessed a "butterfly" knife. The accused proceeded to flip the knife open and waving it in front of Brietta (Charge #2). Brietta became fearful and went into the living room to avoid the accused. While sitting on the couch, the accused approached Brietta from behind and placed her in another choke hold using his entire right arm (Charge #3). While choking Brietta, the accused advised her "Tonight's the night! I'm going to fucking kill you tonight!" (Charge #4). Brietta attempted to use both her hands in an attempt to release the accused grip from around her neck. The accused then advised her "You're not going anywhere. You're not going anywhere" (Charge #5). The accused began punching Brietta in the left ribs area. The accused then attempted to punch her in the head, however, Brietta was able to block those punches using her left arm (Charge #6).

The accused then threw Brietta to the floor causing her to bump her head on a table. While on the floor, Brietta believed she was going to die and decided to fight for her life. Brietta attempted to get up and the accused grabbed her shirt to pull her back down. This caused her shirt to be torn. Brietta eventually was able to push her away to her feet and run for the front door. The accused took chase and caught up to Brietta at the top of the stairs leading down to the front door. Both of them stumbled on the stairs, however, Brietta was able to make it to the front door and exited the apartment. Fearing for her life, Brietta ran down the stairwell to the 3rd floor and continued to another stairwell. Brietta then managed to run down another stairwell making it outside. Brietta continued to run all the way to 51 Division police station located at 51 Parliament Street without wearing any shoes.

While at the police station, Brietta was checked by paramedics and provided investigators with a video statement. Officers re-attended 176 The Esplanade Unit #501 where they located the accused. Subsequently, the accused was placed under arrest and transported to 51 division where he was held for a show cause hearing.

Injuries to the complainant include:

• Multiple bruises on the neck, left arm, left rib area
• Scratches on upper body
• Bloody nose

[3] After hearing the facts, and making findings of guilt, I ordered a Pre-Sentence Report. The Crown filed a Victim Impact Statement (Exhibit 2), a Criminal Record (Exhibit 1), 6 photographs depicting injuries (collectively, Exhibit 3). The defendant filed letters outlining counselling undertaken, employment, character, and therapeutic intervention (collectively, Exhibit 4).

Position of the Parties

[4] The Crown submits that a jail sentence is necessary. The predominant sentencing principles of denunciation and deterrence, and the significant impact upon the victim, underline the need to impose a sentence in range of three to four months incarceration. Although dated, the defendant's criminal record involves both alcohol and violence.

[5] The defendant submits that he is remorseful in many ways. He pleaded guilty, waiving not only his right to have a trial, but to have a judicial pre-trial before this Court. He sought assistance for mental health and alcohol problems very soon after the offences, (in fact, upon release on bail). He has employment and contends his prospects for rehabilitation are good. He requests a non-custodial sentence.

Criminal Record

[6] Exhibit 1 reads as follows:

• 2001-12-18:

  • Driving with more than 80 MGS of alcohol in blood. S. 253(B) CC - $600 & (12 days pre-sentence custody) & Probation 18 months & prohibition driving 1 year
  • Assault s. 266 CC – 15 days intermittent & probation 18 months

• 2005-10-27:

  • Fail or refuse to provide sample. S. 254 (5) – 15 days intermittent & probation 18 months.

Victim Impact Statement

[7] Ms. Kerr received what she described as severe bruising on her neck, arm and ribs. Her nose bled for days afterwards. Although she did not seek medical attention the night of the attack, she did attend a doctor at some later point to ensure her nose had not been broken. She took several unpaid days away from work to recover from the injuries. Even though the attack happened in her apartment, she finds it difficult to leave it because her attacker, who once lived with her, is "in the outside world now". She has been unable to work consistently. She remains emotionally scarred from the attack, and is still frightened that he might attack again.

Pre-Sentence Report (PSR)

[8] Mr. Gallagher's childhood witnessed his parents' marriage dissolve early because of alcohol and anger. His drinking escalated in his early twenties which led to the convictions on his criminal record. In the year before these offences relationship problems and his father's death exacerbated his alcohol issues. He reported that alcohol triggers his anger. Shortly after the offences he entered into treatment to address the anger and alcohol issues. The report indicated the defendant was motivated to change. He "attended sessions and participated well", and that only financial constraints ended the sessions abruptly. His mother, his present girlfriend, and the defendant confirmed that he is attending Alcoholics Anonymous, and is abstaining from alcohol.

[9] The writer believes that the defendant is remorseful. He has family and partner support which will support gains made. He accepts responsibility for these offences, and is motivated to receive further counselling. She feels, given the above and the positive responses to community supervision in the past, Mr. Gallagher is suitable for any future community supervision.

Counselling and Treatment

[10] The defendant supplied confirmation of completion of an 8 session Anger Management Program. The psychotherapist that worked with the defendant described him as committed to the process of controlling his anger. She was satisfied that he understood and accepted that his behaviour impacted others and that he had a willingness to receive any necessary additional counselling.

[11] Confirmation was also provided by TR Addiction Centres. Mr. Gallagher completed three sessions of a structured Relapse Prevention program, and then individual counselling sessions with a therapist, Nathaniel James. He was described as motivated to change his prior patterns of alcohol abuse and behavioral dysregulation. Unfortunately, as outlined in the PSR, the sessions with Mr. James ended abruptly for financial reasons.

[12] Mr. Gallagher has also been under the care of Dr. Khan since March 23rd, 2016. The defendant has been receiving treatment for mental health issues. Dr. Khan describes him as compliant with treatment which involves multiple psychotropic medications.

Other Letters of Support

[13] Mr. Gallagher has been a member in good standing with International Alliance of Theatrical Staff Employees (IATSE), Local 58, for 6 years. He accepts stagehand work from their central location. His mother, girlfriend, brothers, and long-time friends all wrote character letters which generally characterize him as a caring, intelligent, hardworking man with addiction and mental health issues.

Purpose and Principles of Sentencing

[14] Section 718 of the Criminal Code reads as follows:

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 and the harm done to victims or to the community that is caused by 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 acknowledgement of the harm done to victims or to the community.

Fundamental Principal:

Section 718.1 of the Criminal Code reads as follows:

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[15] Most specific to this case, s. 718.2 (a) (ii) requires a judge to consider spousal or common law partner abuse as an aggravating factor. S. 718.2 (a) (iii.1) indicates that significant impact on the victim is considered to be an aggravating circumstance.

Conclusion

[16] Mr. Gallagher has excellent prospects for rehabilitation. In fact, rehabilitation for him involves maintaining the progress he has already made regarding alcohol abuse and mental health problems. He is clearly motivated to do so. He has significant family and peer support. He has stable employment. He is genuinely remorseful. These factors are supportive of a non-conditional sentence.

[17] However, this was an ugly attack. Ms. Kerr thought she was going to die and had every reason to feel that way. The defendant threatened her life, not just verbally, but with the means to do so displayed directly before her. The photographs tendered provide visual confirmation of brutality. She was sufficiently terrified that she ran shoeless to a police station in the middle of January. She suffered significant physical injuries, and lasting psychological and emotional damage.

[18] Balancing the aggravating and mitigating factors, I arrive at the following sentence:

• Assault – 15 days incarceration
• Threaten Death – 4 months conditional sentence (house arrest with strict exceptions). The conditional sentence will commence upon release from the institutional jail sentence
• Possession Prohibited Weapon – 2 years' probation

[19] In my view, the defendant's guilty plea saves him from a sentence closer to the one requested by the Crown. It should be recognised that he accepted full responsibility soon after the offences, and did not require the victim to testify. I will also credit him for 2 days of pre-trial detention served before his release on bail.

Released: October 14, 2016

Signed: "Justice Blouin"