Ontario Court of Justice

Date: 2018-01-16

Between:

Her Majesty the Queen

— and —

Carlos Alfredo Silveira

Sentencing

KENKEL J.:

[1] In March of 2015 Mr. Silveira was convicted of Assault, two counts of Failing to Comply with Bail and Criminal Harassment all in relation to his spouse. He was sentenced to 75 days in custody in addition to 17 days pre-trial custody. He was also placed on probation for two years with directions to reside at a particular address and conditions restricting contact and attendance near his former spouse.

[2] In contravention of his probation, Mr. Silveira failed to reside at an approved address and resumed living with his spouse. In a recent incident he assaulted her and threatened to kill her. He's pled guilty to two counts of Failing to Comply with Probation, one count of Assault and one count of Threatening Death.

[3] Mr. Silveira's record dates back to 2006 when he was convicted of four counts of Failing to Comply with court orders and one count of Criminal Harassment. He was sentenced to a 12 month conditional sentence. Later in 2006 he was convicted of two further counts of Criminal Harassment and sentenced to 2 months custody after 20 days pre-trial custody. In 2010 he was convicted of Assault and given a short custodial sentence. In 2017 Mr. Silveira was convicted of the offences listed above in relation to this same complainant.

[4] The Crown submits that a 6 month custodial sentence is required. Mr. Silveira requests a custodial sentence within the intermittent range to allow him to keep his job and help support his children.

[5] Mr. Silveira's guilty plea mitigates sentence as does his 3 days in pre-trial custody which I credit as 5 days per R v Summers 2014 SCC 26. I take into account his expression of remorse and the letter provided to the court by the complainant who says he's good to his children despite the way he's treated her. His employment is also a positive factor.

[6] This case has a number of aggravating features that have been identified by inquests in this province as indicating a potential for serious domestic violence:

• A consistent disregard for court orders dating back to 2006
• An absence of perspective as shown in the number of phone calls sent to the complainant viewed by the police in the phone's log
• A record for violence with further offences of violence
• An escalation in violence where the offences this time are accompanied by a death threat

[7] The complainant's complicity in the breaches does not afford Mr. Silveira a defence nor does it mitigate sentence in this case. The probation order contained terms that were meant to address the toxic nature of their relationship and prevent further incidents of violence. The complainant and her children are at a high risk of serious violence and it's essential that they be protected whether or not she appreciates the need for that protection.

[8] General deterrence is the primary consideration. Prior jail sentences to the maximum intermittent range have failed. Non-custodial sentences and counselling including the PARS (Partner Abuse Response) program have been tried and failed. To protect the complainant and her family I find that the range of custody submitted by the Crown is the least restrictive sentence that would address the purpose and principles of sentencing and take into account the aggravating and mitigating circumstances discussed above.

[9] Deducting credit for time served and for the mitigating factors discussed, Mr. Silveira will be sentenced to a global custodial sentence of 5 months 15 days to be apportioned as follows:

• COUNT 3 – 5 Months and 15 Days
• COUNT 1 – 45 Days Concurrent
• COUNT 2 – 45 Days Concurrent
• COUNT 4 – 5 Months and 15 Days Concurrent

[10] Mr. Silveira will be subject to a probation order for 3 years. There will be an order under s. 110 for 10 years. While Mr. Silveira is in custody there is an order under s. 743.21 prohibiting contact with the complainant directly or indirectly. For reasons given the accused is also ordered to provide a sample of his DNA for registration on the national databank. There is a victim fine surcharge and given his incarceration and financial circumstances he will have 12 months to pay.

Delivered: January 16, 2018.

Justice Joseph F. Kenkel