Court Information
Ontario Court of Justice Scarborough – Toronto Date: December 19, 2017
Parties
Between: Her Majesty the Queen
And: Peter Hatch
For the Crown: K. Motyl For the Defendant: C. O'Connor
Heard: December 6, 2017
Reasons for Sentence
RUSSELL SILVERSTEIN, J.:
A. Introduction
[1] On December 6, 2017, Mr. Hatch appeared before me and pleaded guilty to the following offences: Assault causing bodily harm (x2), Assault (x2), Mischief to property, and Failure to comply with a recognizance (x4). These are my reasons for sentence.
B. The Circumstances of the Offence
[2] Mr. Hatch and Tanya D'Costa had been dating for eight months when, on August 14, 2016, she accompanied him to a work event. Ms. D'Costa became tired and went to Mr. Hatch's car to rest. This upset Mr. Hatch who left the event and got in his car. He began driving home while verbally abusing Ms. D'Costa, calling her a "slut" and a "whore".
[3] He then assaulted her and threw her laptop computer and phone out of the moving car. He removed her seatbelt and told her to get out while the car was still in motion. He then slammed on the brakes causing her to hit her head on the dashboard. The assault continued.
[4] Mr. Hatch then poured coffee and soda over Ms. D'Costa's head and clothing, following which he removed her dress and threw it out the window leaving her in her bra and underwear.
[5] Mr. Hatch then stopped the car and ordered her to get out, which she did, despite her state of undress. Mr. Hatch then dragged her back into the car and refused to let her leave when she asked to be let out.
[6] Mr. Hatch then drove her to his home where Ms. D'Costa put on another dress, which Mr. Hatch proceeded to rip off her body.
[7] The next day he drove Ms. D'Costa to a location unknown to her and told her to take a taxi home.
[8] As a result of these events Ms. D'Costa suffered a severe concussion, and serious bruising. She reported these events to the police and Mr. Hatch was arrested.
[9] On August 24, 2016 he was released on a recognizance which required him to stay away from Ms. D'Costa and to remain in his residence with some stringent exceptions.
[10] In contravention of this recognizance Mr. Hatch did indeed contact and spend time with Ms. D'Costa, some of it peaceful but some of it extremely violent.
[11] On February 5, 2017 he again assaulted her about the head and on May 27, 2017, when again out for a drive, he grabbed and punched her, bruising her arms and chest. He also struck her in the mouth, dislodging one of her teeth.
[12] He then drove her to the area of Markham Road and Ellesmere Road where he dropped her off, struck her again and threw her phone across the parking lot. Ms. D'Costa again required medical attention for serious bruising to her face and body, and a loose tooth.
C. The Circumstances of the Offender
[13] Mr. Hatch is now 30 years old and has no prior criminal record. He has the support of his parents, Christopher and Karen Hatch, and a new girlfriend. He is a successful and well-liked film editor and director by profession. Letters were filed that attest to his history of charitable work. A former girlfriend and professional colleague, Karla Plimmer, wrote that in the six years she has known him he has always been a dedicated professional and a peaceful individual. Several supporters describe his criminal behavior as "out of character".
[14] In August, 2017 Mr. Hatch relinquished his bail, stepped into custody, and began serving time towards his sentence, in contemplation of the guilty plea that took place on December 6, 2017. In September, 2017 he attained a "Certificate of Achievement" for 10 hours of anger management counselling.
[15] Mr. Hatch addressed me personally on the issue of sentencing. He expressed significant remorse to Ms. D'Costa. He also acknowledged the shameful and disgusting nature of his behavior towards her. According to him, he is not by nature a violent person and it is the peculiar relationship with Ms. D'Costa that drove him to behave as he did. He says that they are now well and truly done with each other and says that "this won't happen again".
D. Ms. D'Costa's Input
[16] A victim input statement was filed by the Crown. In it, Ms. D'Costa explains the extent of the significant medical treatment she has required. As a result of her injuries she could no longer work for several months. She suffered from insomnia and depression as well as some loss of short-term memory.
E. The Position of the Parties
[17] Ms. Motyl urges me to impose a sentence of two years less a day, less credit for Mr. Hatch's pre-sentence custody. Mr. O'Connor submits that Mr. Hatch has already spent enough time in custody and urges that I impose a non-custodial disposition with either probation or a conditional sentence then probation.
F. The Principles of Sentencing and Their Application
[18] According to s. 718 of the Criminal Code, the "fundamental purpose" of sentencing is to contribute 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, namely: (a) to denounce unlawful conduct; (b) to deter the offender and others 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 the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and the community.
[19] Further, according to s. 718.1 of the Code, the "fundamental principle" of sentencing is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender."
[20] Section 718.2 of the Code also dictates that, in imposing sentence, the court must also take into account a number of principles including the following:
A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;
A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and,
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.
[21] Moreover, general deterrence, specific deterrence and denunciation take precedence over rehabilitation in cases such as these. Even though the relationship between Mr. Hatch and Ms. D'Costa was not spousal or common-law, I feel the comments of Campbell J. in R. v. Getachew, [2013] O.J. No. 2511 at para. 27 are applicable:
The appellate court authorities have consistently confirmed that in serious cases of domestic violence, the principles of general and individual deterrence must be the paramount sentencing considerations in order to adequately protect the public. Spouses are entitled to be protected against violence within the sanctuary of their own home. In cases where significant bodily harm has been inflicted, such violence must be repudiated and denounced by the sentence imposed.
(a) Aggravating Factors
[22] The most aggravating factor in the circumstances of this case is the degrading and violent brutality of Mr. Hatch's conduct. His assaults were accompanied by humiliation, a death threat, confinement and abuse to Ms. D'Costa's property. The assaults caused fairly serious injuries.
[23] The behaviour was not isolated, but rather continued on and off over a period of several months.
[24] The failures to comply are not mere technical breaches of a recognizance, but rather, as Ms. Motyl points out, go to the heart of the purpose behind the terms of the recognizance, that is, the protection of Ms. D'Costa.
[25] Ms. Motyl argues that the nature of the relationship between the complainant and the accused is a statutory aggravating circumstance in this case. Section 718.2(a)(ii) of the Criminal Code expressly provides that where an offender, in committing an offence, "abused the offender's spouse or common-law partner," this shall be deemed to be an aggravating circumstance of the offence.
[26] I find that the agreed statement of facts does not establish that the parties were in a spousal or common-law relationship. Yet, Mr. Hatch was nonetheless in a position of trust with respect to Ms. D'Costa, which is an aggravating factor in any event. See R. v. Orwin, 2017 ONCA 841, [2017] O.J. No. 5663 (C.A.) at para. 57.
(b) Mitigating Factors
[27] Mr. Hatch is a first offender. This would be more mitigating of sentence if the incident were an isolated one.
[28] The evidence before me suggests that Mr. Hatch has never demonstrated this type of behavior towards anyone else. This too is somewhat mitigating of sentence. Mr. O'Connor further submits that this demonstrates that there was something peculiar about his relationship with Ms. D'Costa that brought this behavior to the fore and that once he is kept away from her, society, or more particularly other women, have nothing to fear. I cannot safely make that conclusion. It is impossible to know just what it is about his relationship with Ms. D'Costa that brought out Mr. Hatch's violent abusive behavior, and thus it is impossible to know what future relationship might have the same effect on him.
[29] Mr. Hatch's history of charitable work gives me some confidence that he is not purely narcissistic.
[30] Thanks to Mr. Hatch's relatively privileged upbringing he has the support of his family and friends which bodes well for his future rehabilitation, although it is worth noting that these supports were also in place when he committed the offences before the Court.
[31] The most significant mitigating factor is Mr. Hatch's remorse, which I find is genuine.
G. Conclusion
[32] As Epstein J.A. said in R. v. Smith, 2011 ONCA 564, [2011] O.J. No. 3832 at para. 86:
The jurisprudence of this court suggests that a sentence of one to two years will generally be appropriate for a conviction for common assault based on facts such as those comprising count ten, committed against a spouse or domestic partner in the context of a lengthy pattern of domestic abuse: see R. v. Petrovic (1984), 47 O.R. (2d) 97, R. v. Inwood (1989), 32 O.A.C. 287, R. v. R.(B.S.) (2006), 81 O.R. (3d) 641, R. v. Sidhu, 2011 ONCA 139, R. v. States (2006), 214 O.A.C. 106.
[33] As pointed out above, in arriving at a fit sentence I must take guidance from recent sentencing judgments involving similar offences and similar offenders. The decision of Campbell J. in Getachew, supra, is instructive. The headnote faithfully summarizes the case:
Sentencing of the accused for assault causing bodily harm, assault with a weapon, and causing someone to take a noxious thing. The complainant was the accused's former girlfriend. At the time of the offences, the accused and the complainant were living together. The offences were committed when the accused was intoxicated and believed the complainant had been unfaithful to him. The accused broke a wooden cutting board in half over the complainant's head, kicked her numerous times in her legs and continued to verbally and physically abuse the complainant for several hours. The accused then forced the complainant to drink bleach, but helped her when she passed out. The complainant suffered some serious physical injuries as a result of this violence. This was not the first occasion that she had been assaulted by the accused. The accused, 38, had no prior record. He had spent 391 days in custody.
[34] Unlike Mr. Hatch, Mr. Getachew did not plead guilty and demonstrated no remorse. In other respects, the case is quite similar – an accused with no record humiliating and brutally assaulting his romantic partner on more than one occasion, giving rise to fairly significant injuries.
[35] Taking account of the principles of sentencing as applied to the particular circumstances of Mr. Hatch and his criminal behaviour I sentence him to a total of 17 months' incarceration, less 1.5 credit for his 141 days of pre-sentence custody (212 days = 7 months), i.e. a further 10 months. This total sentence is to be apportioned as follows:
On the two counts of assault causing bodily harm: 10 months on each concurrent.
On the two counts of assault: 6 months concurrent on each, concurrent to all other sentences.
On the single count of Mischief: 6 months concurrent.
On the four counts of Fail to comply: 8 months on each concurrent and concurrent to all other sentences.
[36] I will also impose a three year probation order with the statutory terms, no contact with Ms. D'Costa, a 100 meter radius restriction re where she lives and works and counselling as directed by the probation officer.
[37] An order pursuant to s. 743.21, a DNA order, and a s. 109(1)(a) order for 10 years will also issue.
Released on December 19, 2017
Justice Russell Silverstein