ONTARIO COURT OF JUSTICE

CITATION: R. v. Chenje, 2019 ONCJ 140

DATE: 2019·02·27

COURT FILE No.: Toronto 4817 998 17-75003776

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

NICHOLAS TINASHE CHENJE

Before Justice Howard Borenstein

Trial heard on October 15 and 16, 2018

Finding of Guilty made October 16, 2018

Submissions on Sentence heard on February 6, 2019

Reasons for Sentence released on February 27, 2019

Ms. Kaely Hebert .................................................................................. counsel for the Crown

Mr. Gary Tomlinson ................ S. 486.3 counsel for cross-examination of the complainant

The defendant Nicholas Tinashe Chenje .................................................. on his own behalf

BORENSTEIN, J.:

[1] Nicholas Chenje was convicted after trial of aggravated assault upon his domestic partner Ms. K. They were living together and have a daughter who was eight months old at the time.

[2] This is his sentencing.

[3] There are many mitigating factors in this case. The main aggravating factor is that this was an aggravated assault upon a domestic partner. The injuries are also aggravating.

[4] Mr. Chenje has no criminal record and no prior involvement with the police. There is no history of abuse in this relationship.

[5] The Crown submits that a 90-day sentence followed by two years probation is a fit sentence.

[6] Mr. Chenje, who has been self-represented throughout though had the assistance of s. 486 counsel, did not know what sentence to submit.

[7] For the reasons that follow, it is my view that despite the aggravating features, a sentence of imprisonment is not required. I will suspend Mr. Chenje’s sentence and place him on probation.

The Circumstances of the Offence

[8] The circumstances of the case are highly unusual.

[9] Mr. Chenje and Ms. K. knew each other from high school in Kenya. They re-connected in Toronto and began dating. A year and a half later, they had a child together. They lived together. There is no history of any violence or abuse in their relationship.

[10] It was Canada Day and they had about ten people at their apartment to celebrate. Mr. Chenje was preparing food.

[11] Ms. K. suspected Chenje was “cheating”. During the party, she took his cell phone and looked through it. She asked Chenje to come into the washroom, and confronted him. She was pushing him repeatedly. She was angry. He kept asking her to stop pushing him but she continued. When he tried to leave the washroom, she would not let him.

[12] Eventually, someone from the party wanted to use the washroom so they exited. They did not let on to their guests what was going on, but they avoided each other for the rest of the night.

[13] Just after midnight, everyone left. Ms K. confronted the defendant again; first in the living room and then in the bedroom.

[14] She admits she was very angry. She pushed him repeatedly, and kept punching him with all her force. She punched him in the body. She could not recall if she ever punched him in the face. I found that she did punch him in the face.

[15] He did not respond physically. At one point, he held out his arms and held her back by her neck so she could not hit him. She scratched his arm and he let go.

[16] She asked him to leave the bedroom, which he did. He then heard their bedroom window open, which never happens. He looked in the bedroom and saw Ms. K. throwing his watch, his jewelry and wallet out the window, off the balcony. He asked her what she was doing. They were now staring at each other. Their daughter, who was in the room, was crying. Ms. K. walked toward Chenje with a strange look in her eyes. I found she was going to hit him, and he believed that to be the case. As she got close to him, he punched her once in the face. That punch broke her nose and orbital bone.

[17] She fell to the ground, and Chenje immediately went to get her a paper towel. He wanted to take her to the hospital. She said no, and took a cab to the hospital with her daughter. She required four stitches.

[18] Their common law relationship ended that night.

[19] He sent her several texts, in anger, over the following couple of days, saying: “you did that to yourself, nobody started this fight but u. I warned you already about trying to test me, I knew this would happen.” And, “you wanted to see the angry me, and that’s what u got. I hope u got everything u wanted out of me.”

[20] He testified that he wrote those texts in anger.

[21] They now co-parent, and she said he was a great father. I accept he wrote those texts in anger and that he is very upset by what he has done.

Mr. Chenje’s Personal Circumstances

[22] Mr. Chenje was born in Zimbabwe, in 1991. His mother died when he was five years old. He never met his father, and his father died a few years after his mother. His grandmother raised him until he was adopted at the age of ten into his uncle’s family. They moved from Zimbabwe to Kenya to South Africa and, eventually, when Chenje was 17, to New York. He felt like an outsider in his uncle’s family. His adoptive mother told the author of the P.S.R. that Chenje always felt unloved.

[23] In New York, Chenje graduated high school where he was an athlete. He then went to college and obtained a diploma in culinary arts. He was talented and was profiled in the school newspaper. He did one semester in Italy and has worked in restaurants and lounges since that time.

[24] He came to Canada at 24. At times, he has held three jobs at once. He has always been hard working and wants to open his own restaurant. He is currently the executive chef of a private club where he leads a team of five.

[25] While still in school in New York, Mr. Chenje began volunteering by teaching disadvantaged youth culinary skills. Since his return to Canada four years ago, he initiated a program at Covenant House where he volunteers and teaches the children living or staying there culinary skills. He also acts as their mentor and tries to help them find work. He has been doing that for years.

[26] It is clear from the P.S.R., as well as from the comments of others in that report that Mr. Chenje has a low self-esteem. This, despite the fact that he has accomplished so much in his life, both professionally and for others through his volunteer work. And all this despite his very tough start in life. He is a remarkably talented person. As I said, his adoptive mother believes he always felt unloved. The victim more or less echoes those comments. The defendant works and does not socialize much. He depressed. This evening was completely out of character.

[27] Both he and the victim were honest in their evidence. As I said in my judgment, they seem like rather extraordinary people. Even in sentencing submissions, Mr. Chenje’s comments that he does not know what to suggest as a sentence is an example of his honesty and humility.

[28] The author of the P.S.R. and the victim believes Chenje needs counselling to deal with the issues he faces caused by his feelings of abandonment. He also shows signs of depression. He throws himself into work. When he is not working, he does not seem to socialize much.

Victim Impact

[29] The victim impact statement also speaks to the character of the victim. She is honest and caring. She writes that her reaction to everything that upset her that night could have been different, and that she takes full responsibility for her actions. The Crown submits this is an example of stereotypical victim self-blame. I don’t agree. She was assaultive that night and she recognizes it. Yet that in no way justifies the injuries she suffered.

[30] She has no safety concerns and wants Chenje to be more involved in their daughter’s life.

Principles

[31] Domestic violence needs to be denounced. Sentences in domestic assault cases generally require an emphasis on the principles of denunciation and deterrence. People have a right to be safe in their homes. But sentencing is a highly individualistic exercise, guided by the principles of sentencing and how best to express those principles in any particular case.

[32] A fit sentence must be proportionate to the gravity of the offence and responsibility of the offender. It should also be as minimally restrictive as possible, consistent with the purposes and principles of sentencing. A fit sentence must have one or more of the following objectives:

a) To denounce 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 reparation for harm done to victims or to the community; and

f) To promote a sense of responsibility in offenders, an acknowledgement of the harm done to victims and to the community.

The weight to be given to those factors will vary depending on all the circumstances of the case.

[33] The chief aggravating features in this case are that this was an aggravated assault upon a domestic partner, as well as the injuries. Ms. K., like all women, have the right to not be assaulted anywhere, especially their home. However, I do not ignore the fact that Ms. K. was repeatedly attacking and assaulting Mr. Chenje, , including punching him with full force in the body and the face, and that his act began as an act of self-defence, but the one punch was excessive.

[34] There is plenty by way of mitigation. Mr. Chenje is 27 years old. He has no criminal record and has never been in trouble with the law. He had a rougher start to his life than most, yet he has achieved a large measure of success and has steadfastly contributed to others through his volunteer work. He suffers some depression from his feelings of abandonment, yet has carved out a very positive gentle, caring life.

[35] Mr. Chenje now has a conviction for the serious offence of aggravated assault. That will be on his record. That is a penalty in and of itself. I do not think he needs to be deterred. I believe this was completely out of character.

[36] He does not need to be specifically deterred. The circumstances were so unusual and his character has been so impressive.

[37] In this case, it is my view that the principles of rehabilitation and restraint are important and need emphasis in this case. A non-custodial sentence with a significant community service component, coupled with a conviction for aggravated assault would achieve the right balance in this case.

[38] In my view, a suspended sentence and probation is appropriate.

[39] He will be placed on probation on the mandatory terms.

[40] In addition, he will perform 100 hours of community service to the satisfaction of his probation officer. He will have no contact or communication nor be within 100 metres of the complainant unless he has her prior written or orally revocable consent. If there is no consent, access to his daughter through a mutually agreeable third party or through a Court Order.

[41] Counselling, including PARS anger management, parenting course. He will possess no weapons as defined by the Criminal Code. DNA order and a section 110 for 10 years.

Released: February 27, 2019

Signed: “Justice Borenstein”