Court File and Parties

Ontario Court of Justice

Date: 2017-09-11

Court File No.: Newmarket 17-05838

Between:

Her Majesty the Queen

— and —

Jonathan Gunn

Sentencing

September 11, 2017

Counsel:

• Mr. B. Juriansz, counsel for the Crown
• Mr. J. Gunn, speaking on his own behalf

KENKEL J.:

Introduction

[1] Mr. Gunn pleaded guilty to Assault, Threatening to Cause Death and Failing to comply with Probation all arising out of a domestic altercation. The altercation included Mr. Gunn squeezing his girlfriend's neck with a contemporaneous threat to break her neck. He also pleaded guilty to Possession Under in relation to the theft of a Blu-Ray player from Shopper's Drug Market. Given the extensive criminal record and two serious and recent convictions for domestic violence in relation to the same complainant, the Crown submitted a global sentence of 6 months followed by probation is necessary. Mr. Gunn submitted that he was not able to complete the PARS counselling previously ordered given these events and he requested that the court consider time served, suspend the passing of sentence, and order a period of strict probation that will direct him again towards domestic violence counselling and drug use counselling.

Aggravating Circumstances

[2] Beyond the circumstances of the offences, there are further circumstances that aggravate sentence:

• The domestic context of the assault and death threat
• Mr. Gunn's criminal record that dates back to 1999 with prior youth entries. The record includes 13 theft-related convictions and 14 prior breaches of court orders
• Mr. Gunn's conviction in September 2016 for Forcible Confinement, Assault x 2, Uttering Threats in relation to the same complainant. Mr. Gunn's subsequent conviction in March 2017 of Assault, Assault with a Weapon, Forcible Confinement and Fail to Comply with Probation all in relation to the same complainant
• The fact that in committing this offence Mr. Gunn breached court orders put in place to protect the victim

Mitigating Factors

[3] The mitigating factors include:

• The accused's guilty plea which is an expression of remorse
• His pre-trial custody – March 19-23 2017 in relation to the possession count (5 days). July 18 to September 11 in relation to the domestic assault counts (56 days). Applying the Court of Appeal's direction in R v. Summers 2013 ONCA 147, affirmed 2014 SCC 26, that results in 7.5 days in relation to the possession and 84 days in relation to the assault counts.

Analysis

[4] Court decisions, studies and inquests into domestic violence in this province have identified a number of risk factors that signal to the courts a substantial risk of further serious domestic violence or death including:

• The fact of prior domestic violence or prior serious domestic violence
• Repeated domestic violence within a narrow time frame
• The refusal to obey court orders, particularly terms put in place to protect a victim of domestic violence

[5] All of those risk factors are present here. The primary purpose of sentence in this case is to protect the complainant, even if she herself does not fully appreciate the need for protection. Society also needs to be protected from Mr. Gunn who has been before the courts for the past 19 years with a record of constant offences despite all interventions and sentences imposed.

[6] Domestic violence must be denounced in strong terms. Mr. Gunn must be deterred from committing further offences, particularly in relation to this complainant. Any others like-minded must be shown that domestic violence is taken seriously by the courts and results in meaningful punishment. I agree with Mr. Gunn that the sentence should include provision for PAR (Partner Abuse Response) counselling and drug treatment as it's not time yet to give up hope of rehabilitation. I disagree with Mr. Gunn that repeating the failed sentences of the past would meet the purpose and principles of sentence in this case.

[7] I agree with the Crown that a 30 day sentence less time served takes into account the accused's extensive related record and is modest given prior sentences for the same offence. Allowing that sentence to be served concurrently to the other unrelated offences is again generous, but I find does not give undue weight to the mitigating effect of the plea.

[8] I agree with the Crown that a 6 month custodial sentence less time served is the minimum sentence that would meet sentencing objectives in this case and gives full effect to the mitigating circumstances set out above.

[9] On the Assault information Mr. Gunn will be sentenced to 6 months on each count concurrent. Six months is 182.5 days = 183 days. 183 days – 92 days (84+7.5 = 91.5 = 92) = 91 days. Mr. Gunn will be sentenced to serve 91 days on each of the Assault information counts concurrently and 30 days concurrently on the possession counts for a total global sentence of 6 months and a total remaining sentence of 91 days.

[10] I will hear from both the Crown and Mr. Gunn as to the terms of probation and ancillary orders that will follow.

Delivered: September 11, 2017

Justice Joseph F. Kenkel