Ontario Court of Justice

Date: February 24, 2017

Between:

Her Majesty the Queen

— and —

Aaron Larmond

Before: Justice E. B. Murray

Reasons for sentence released on: February 24, 2017

Counsel:

• Jennifer Lofft, for the Crown
• Richard Federowicz, for the accused

MURRAY, E. B. J.:

Introduction

[1] After a plea, I found Aaron Larmond guilty of the offences of assault, assault with a weapon, and being unlawfully in a dwelling house in an incident which took place on June 25, 2015. The victims were Mr. Larmond's former partner, Kitisha Moore, and her boyfriend Gilroy St. Clair.

[2] The Crown seeks a sentence of 90 days custody, followed by a two-year term of probation. The defence asks for a suspended sentence, with two years' probation.

[3] This matter was heard in the Integrated Domestic Violence Court in Toronto. Besides hearing from counsel and Mr. Larmond, I received letters of support from Mr. Larmond's therapist in the PARS program, his employer, his school, family friends, and from Ms. Moore's mother, Ms. Bascombe. I was also advised by the Crown of Ms. Moore's views on sentence.

The Offence

[4] The Crown accurately describes what occurred on June 25, 2015 as "everyone's nightmare".

[5] Mr. Larmond and Ms. Moore had enjoyed a 10 year relationship, which ended about two years before the date of these offences. Ms. Moore had begun a family court action in January 2015 seeking an order for custody and child support. In the application she said that Mr. Larmond "maintains a warm and loving relationship with the children….and plays an active role in their lives".

[6] Mr. Larmond called Ms. Moore on the evening of June 24th to insure that she was at home. In the early hours of the morning of June 25th he broke in to her apartment, crawling through an unlocked window, and surprised her and Mr. St. Clair in bed. Mr. Larmond punched Ms. Moore in the face, and pushed both her and Mr. St. Clair up against a wall. Mr. Larmond then grabbed a knife from the kitchen and pursued Mr. St. Clair as he ran outside. Ms. Moore followed. Mr. Larmond, still with the knife in his hand, grabbed Ms. Moore and punched her in the face again.

[7] Two passers-by intervened, followed quickly by police. Mr. Larmond fled, and was arrested later that day.

[8] The children were not in Ms. Moore's apartment during this incident.

[9] No physical injuries were reported to either victim.

The Offender

[10] Aaron Larmond is 30 years old. He was born in Jamaica. His mother came to Canada in 1993, working first as a nanny, then as a practical nurse and a security guard before obtaining a social work degree. She now works at an organization in Toronto assisting individuals with cognitive and mental health challenges. She sponsored Aaron to come to Canada in 1999 when he was 14 years old. She says that Aaron had a conservative upbringing and that church is very important in the family's life.

[11] Mr. Larmond and Ms. Moore started dating while still in high school and their first child was born when they were teenagers. They have three children, aged 12, 8 and 4, who live primarily with Ms. Moore. Mr. Larmond lives with his mother.

[12] Mr. Larmond is a first-time offender. He spent one day in pre-sentence custody after his arrest. He was released on conditions that provided that he have no contact with Ms. Moore. Later those conditions were changed to permit contact pursuant to a family court order or through a third party to facilitate access to the children. Since June 25, 2015 they have not had contact, except indirect contact through family or friends (from both sides of the family) who assist in transferring the children between them on weekends.

[13] Both Mr. Larmond and Ms. Moore report that access has been going well. They agreed in September 2015 to a final order providing that she have custody of the children, that the children see him on alternate weekends, and that he pay child support. Mr. Larmond has kept support payments up-to-date.

[14] Mr. Larmond successfully completed the 12-week Partner Assault Response Services (PARS) program in March 2016. The program features a combination of mindfulness-based cognitive therapy, solution-focused therapy and narrative therapy. Mr. Larmond's therapist, Ms. Narain, said that his level of participation was "very satisfactory", and noted that he completed assignments over and above what is required in the program. She states that in her opinion "it is likely that (Mr. Larmond) will maintain the progress he made in counseling and will apply learned skills, such as effective communication and de-escalation strategies, in the face of stressful situations".

[15] Ms. Moore advised the Crown in March 2016 that their relationship had not been characterized by abuse, and that she did not want Mr. Larmond to serve a custodial sentence. She was unavailable to give a victim impact statement for use in the sentence hearing on November 25, 2016. However, Theresa Bascombe, the maternal grandmother, provided a strong letter of support, saying that she "couldn't believe" what had happened, that she had never seen Mr. Larmond act like this, and that he is remorseful. She asked that the court take into account "who he is and not just this one mistake" because he is "a good man and a good father". Mrs. Bascombe is one of the network who transfers the children between their parents for visits.

[16] Mr. Larmond is just finishing his first level in a carpenter apprenticeship program with the College of Carpenters. His employer gives him a glowing reference, saying that he is "careful, considerate, efficient and proactive" and well-regarded by his co-workers. Family members describe him as quiet and respectful, and as a hands-on father who is affectionate and patient. They all speak of the sincere and extreme remorse Mr. Larmond has for his actions on June 25, 2015.

[17] Mr. Larmond addressed the court briefly. He expressed remorse that he treated the mother of his children in this way. He described himself as acting out of jealousy that evening.

Analysis

General Principles

[18] The Crown acknowledges that Mr. Larmond is unlikely to re-offend, but argues that the objectives of general deterrence and denunciation require a custodial sentence because of the objective gravity of the crime. The defence observes that sentencing is always an individual exercise, and submits that a custodial sentence should not be imposed on a first time offender such as Mr. Larmond if it is not required to aid in his rehabilitation.

[19] The purpose of sentencing is set out in s. 718 of the Criminal Code:

718. The fundamental purpose of sentencing is to protect society and 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 acknowledgment of the harm done to victims or to the community.

Certain fundamental sentencing principles are set out in s. 718.2:

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,
  • (i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor,
  • (ii) evidence that the offender, in committing the offence, abused the offender's spouse or common-law partner,
  • (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,
  • (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,
  • (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,
  • (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization,
  • (v) evidence that the offence was a terrorism offence,
  • (vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act
  • shall be deemed to be aggravating circumstances;
• (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 and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[20] S. 718.2(a)(ii) is the product of over 25 years of jurisprudence which recognized the seriousness of domestic violence in our society. As Justice Trotter observed in 2007 in R. v. Chirimar, 2007 ONCJ 385:

"Domestic violence is a grave social problem in Canadian society. As Justice Wilson for the majority of the Supreme Court of Canada said in Regina v. Lavallee (1990), 55 C.C.C. (3d) 97 (S.C.C.), at p. 112:

The gravity, indeed, the tragedy of domestic violence can hardly be overstated. Greater media attention to this phenomenon in recent years has revealed both its prevalence and its horrific impact on women from all walks of life.

There is little to suggest that much has changed since Justice Wilson wrote more than 17 years ago."

[21] Justice Trotter went on to say that the Ontario Court of Appeal has for many years "recognized that, while all of the objectives of sentencing now found in ss. 718 to 718.2 of the Criminal Code are important in fashioning an appropriate sentence, when sentencing offenders for crimes of domestic violence, judges must emphasize the sentencing objectives of general deterrence, specific deterrence and denunciation: see Regina v. Pitkeathly (1994), 29 C.R. (4th) 182 (Ont. C.A.), Regina v. Boucher (2004), 186 C.C.C. (3d) 479 (Ont. C.A.), Regina v. Edwards and Levo (1996), 105 C.C.C. (3d) 21 (Ont. C.A.), Regina v. Campbell (2003), 170 O.A.C. 282 (C.A.), Regina v. Denkers (1994), 69 O.A.C. 391 (C.A.), and Regina v. MacDonald (2003), 2003 NSCA 36, 173 C.C.C. (3d) 235 (N.S.C.A.)."

[22] Courts have recognized that even for first offenders who show remorse, who have not engaged in a pattern of abusive behavior, and who have successfully completed counselling, to address the cause of their criminal conduct a custodial sentence may be required because of the principles of general deterrence and denunciation, depending on the seriousness of the offending conduct. If a custodial sentence is required for a first offender, it should be of the shortest duration that complies with the sentencing objectives of the Code.

Aggravating Circumstances

[23] As set out above, s. 718.2(a)(ii) provides that an assault on a former partner is an aggravating factor.

[24] As the Crown says, the circumstances of these offences are everyone's nightmare. Ms. Moore and Mr. St. Clair were awoken in the middle of the night in bed in Ms. Moore's home by an angry former partner, and attacked. Mr. Larmond increased their terror by producing a knife and pursuing Mr. St. Clair. When Ms. Moore pursued him in an effort to defend Mr. St. Clair, she was attacked again.

[25] It is only luck that no serious physical injury resulted from Mr. Larmond's actions.

[26] The fact that the incident was not the result of a moment of anger, but was planned by Mr. Larmond is a further aggravating factor.

Mitigating Circumstances

[27] There are many mitigating circumstances:

• Mr. Larmond is a young man without a previous criminal record. This in itself has little significance; courts have recognized that the lack of a record may carry little weight in cases of domestic violence, as this is not unusual in "cases of domestic abuse". I do note, however, that this was a one-time occurrence, and not part of a pattern of domestic abuse.

• Mr. Larmond's plea of guilt spared the victims the trauma of reliving this incident during a trial.

• Mr. Larmond's "very satisfactory participation" in the PARS program and his therapist's view that he will likely "maintain the progress he made in counselling" is mitigating. His progress in therapy supports counsel's submission that he is unlikely to reoffend, a proposition accepted by the Crown.

• Mr. Larmond has continued to regularly visit with his children without incident pursuant to the order of September 2015. He also has maintained financial support for the children.

• Mr. Larmond has maintained employment, and is valued by his employer.

• Although domestic assault is not a private matter and the wishes of a victim are not determinative of the appropriate sentence, it is significant that Ms. Moore indicated to the Crown that she did not want Mr. Larmond to have a custodial sentence.

Conclusion

[28] Mr. Larmond's counsel says that he has done everything that a court might expect him to rehabilitate himself, and asks what more could be expected of him. I agree that Mr. Larmond has since the offence shown remorse and taken steps that persuade me that he is unlikely to reoffend. However, a proper sentence is not focused only on the offender and his rehabilitation. A sentence is also a message to the community acknowledging the relative seriousness of an offence and a message to potential offenders about how such an offence is dealt with by the courts.

[29] Taking into account all the circumstances of this case, I conclude that Mr. Larmond's offending must result in a custodial sentence. Considering all the mitigating factors above and the impact which a custodial sentence might have on his ability to maintain employment and continue visitation with his children, the sentence which I impose is 30 days, which may be served intermittently.

[30] Mr. Larmond's custodial sentence will be followed by a 2 year term of probation with the following provisions:

1. Keep the peace and be of good behavior;

2. Appear before the court when required to do so by the court;

3. Notify the court or the probation officer in advance of any change of address or change of employment;

4. Report to probation within 48 hours and thereafter as required;

5. Reside at an address approved by your probation officer;

6. Do not have contact or communicate with Kitisha Moore except with her written revocable consent;

7. Do not attend within 100 meters of Kitisha Moore's place of residence, employment or education except with her written revocable consent;

8. Do not have contact, direct or indirect, with Gilroy St. Clair;

9. Do not attend within 100 meters of Gilroy St. Clair's place of residence, employment or education;

10. Attend, participate, and complete the Mindful Fathering program offered by Yorktown Family Services within 12 months of the date of this decision, and sign a release for your probation officer to monitor your progress in this program;

11. Do not possess any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance; and

12. Do not possess any weapon as defined by the Criminal Code.

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

[32] There will be an order pursuant to s. 487.051(3) for the taking of samples of bodily substances that are reasonably required for the purpose of forensic DNA analysis.

Released: February 24, 2017

Signed: Justice E. B. Murray