ONTARIO COURT OF JUSTICE DATE: 2021 01 21 COURT FILE No.: 19-0690

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

CHARLSTON LEWIS

Before: Justice Angela L. McLeod

Guilty plea and sentencing submissions heard on: December 4, 2020 Reasons for decision released on: January 21, 2021

Counsel: KRISTINE STAATS............................................................................. counsel for the Crown DAVID LOCKE................................................................................................. Charlston Lewis

McLeod J.:

INTRODUCTION

[1] This matter was judicially pretried (February 2020) prior to the plea and sentencing submissions of December 4, 2020.

[2] The Crown proceeded by way of Indictment; the choking count is straight indictable.

[3] This is a matter of intimate partner violence.

ADMITTED FACTS

[4] Mr. Lewis and Ms. Marshall have been intimate partners for approximately 11 years. She has two children, aged 13 and 15 years, from a previous relationship, both of whom live with the couple. Mr. Lewis has a step-father relationship with these children. The couple also have a 7-year-old child together.

[5] Ms. Marshall reported to the police that the relationship was abusive from the beginning, however there are no prior police occurrences or involvement. The older children are reported to struggle with depression and anxiety attributable to their home life. The abuse in the home was so pervasive that a secret code word for help was established between Ms. Marshall and her children.

[6] Ms. Marshall has a brain disorder, Chiari malformation (swelling on the brain), which requires medication. It is a contributing cause to Ms. Marshall’s depression. She was on medical leave at the time of the incident before the court. Mr. Lewis is aware of Ms. Marshall’s medical issues and that any injury to her head could lead to a seizure.

[7] On the night in question, close to midnight, the 13-year-old daughter heard her mother use the secret code word and called 911. The child was located on the second floor and could hear her parents arguing and fighting on the floor below. Some of the melee could be heard on the 911 call that was played in support of the Crown’s allegations. The daughter asked the 911 operator not to have the police sirens engaged when approaching the house, and not knock on the front door (instead to break down the door). This, I find, is a clear expression of the child’s fear of what Mr. Lewis might do if he was aware that the police were approaching to help.

[8] The assault was recorded on an in-house security camera installed by Mr. Lewis. There was no audio captured. The video captured over 50 minutes of abusive interaction between the couple.

AGGRAVATING AND MITIGATING FACTS

Aggravating:

[9] I find that Ms. Marshall is a vulnerable victim, by the nature of her known brain disorder.

[10] Ms. Marshall is the intimate partner of Mr. Lewis.

[11] The children of the couple were in the residence at the time, and aware of the assault as it was taking place.

[12] One of the children had to call 911 for assistance.

[13] There is a long history of abuse, sufficient that the mother and children needed a secret code word for help. I find that the installation of the cameras, inside the house, was a method of control and abuse.

[14] Both the mother and the children struggle with depression and or anxiety in part due to the long history of abuse.

[15] The incident itself was prolonged and multi-faceted. Mr. Lewis insisted that Ms. Marshall sit in a chair facing him, he threw chairs around, he pushed, pulled, shoved, struck, covered the mouth of, choked, threw to the ground, bent the arm and fingers of, and sat upon the body of Ms. Marshall. Interspersed between physical abuse was what appeared to be shouting and verbal direction to Ms. Marshall. At some point, Ms. Marshall went upstairs, and Mr. Lewis sent her a text message that read, “you enjoyed that huh, can’t talk now eh?”. The assault continued thereafter. I find that his actions were not only physically assaultive, but again an exemplification of his controlling behaviour (ie, forcing her to sit in a chair immediately in front of him while he argued with her). His text message shows the degree of his callousness.

[16] Some of the interaction was not seen on the camera, but is admitted nonetheless. Mr. Lewis struck Ms. Marshall in the mouth and ‘banged her face off the stove’.

[17] Ms. Marshall has a brain disorder and was struck about the face and head.

[18] Mr. Lewis kept 3 machetes in the home, one of which was underneath the couple’s bed, located on his side. This was known to the 13-year-old daughter and reported to the 911 operator. I find this, and specifically the knowledge of, and need to report to the 911 operator, yet another example of Mr. Lewis’ controlling behaviour.

[19] The extent of the potential injury to Ms. Marshall was known to the daughter such that she told the 911 operator, “she is going to need an ambulance”. Her fears were further explained when she begged, “please don’t take me away from my mom”. The inference that may be gleamed is that there had been threats made if she had told anyone what had been going on inside the home.

[20] Mr. Lewis was angry and assaultive because he was concerned that his partner was texting another man. At one point in the video, after significant assaultive actions, Mr. Lewis can be seen to be sitting upon the body of Ms. Marshall. She is face down and limp. It is not alleged that she was unconscious. Mr. Lewis takes a hold of Ms. Marshall’s arm and attempts to gain access to her phone by using her fingerprint to satisfy the security check. Her arm is bent backward and upward, over and over. The impetus for Mr. Lewis’ assault on Ms. Marshall was his belief that she was involved with another male, and I find it to be a further example of his attempted control over his wife.

[21] There were physical injuries to Ms. Marshall which consisted of scrapes, marks, swelling of the lips and bruises on her face and neck. Photographs of her injuries were filled as an exhibit. She did not lose consciousness.

[22] There has been a significant impact upon Ms. Marshall and her children.

Mitigating:

[23] Mr. Lewis undertook significant counselling prior to the plea. He appears to have garnered insight into his behaviour and has a good understanding of the impact of his actions. While not mitigating, on the anniversary of the event, Mr. Lewis made a $250 donation to a local women’s shelter. I find this to be evidence of Mr. Lewis’ understanding and remorse.

[24] Mr. Lewis has plead guilty. This factor is somewhat diminished as the assault was clearly recorded on video, and as such, I find that there would have been no triable issues. Nonetheless, Ms. Marshall, and her children, have been saved from testifying at trial.

[25] Mr. Lewis paid for counselling for the 7-year-old child. It is unknown to this court whether the older children requested counselling and/or requested that Mr. Lewis pay for same.

COLLATERAL CONSEQUENCES OF SENTENCING

[26] The defence submits that should Mr. Lewis be sentenced to a ‘real jail’ sentence, that is not served on an intermittent basis, he will lose his employment. The result will be an inability to pay the over $1000 per month child support that he is currently paying to Ms. Marshall, and their child would lose health, medical and life insurance benefits.

[27] Additionally, Mr. Lewis would no longer be able to participate in counselling, as these services are not available in a provincial institution.

[28] COVID-19 can affect the determination of a fit sentence. If incarcerated, Mr. Lewis has a heightened risk of being infected. Justice Pomerance noted that the fitness of a sentence requires the consideration of both the length of the sentence and the harshness of the conditions under which it will be served. In R. v. Hearns, 2020 ONSC 2365 at para 16, she wrote the following:

As a result of the current health crisis, jails have become harsher environments, either because of the risk of infection, or because of restrictive lock down conditions aimed at preventing infection. Punishment is increased, not only by the physical risk of contracting the virus, but by the psychological effects of being in a high-risk environment with little ability to control exposure.

CIRCUMSTANCES OF THE DEFENDANT

[29] Mr. Lewis is 34 years of age. He is a Canadian citizen who came from the Dominican Republic in 2007. He works as a heavy equipment operator, earning some $105,000 per year. He is well regarded in his employment and letters filed by the defence attest to his honesty and reliability in the workplace.

[30] Mr. Lewis took an initial 6 sessions of counselling and then returned for a further 26 sessions (March to November 2020). The counselling was provided by Dr. McDowell, lasted one hour each time, and was focused on anger management. Dr. McDowell wrote a letter dated November 29, 2020, in which she summarized the sessions as positive, “Mr. Lewis’s progress towards his treatment goals were excellent, and arguably unparalleled in this therapist’s experience.”

[31] Mr. Lewis paid for some counselling for his 7-year-old child. He worked with Children’s Aid as requested. He has been ordered by the family court to pay $946.00 child support per month in addition to $94.00 per week for counselling for the child. Mr. Lewis provides medical and health benefits, as well as life insurance, for the child through his employment.

[32] Mr. Lewis both wrote a letter to the court and spoke during the sentencing hearing. I find that his guilty plea is a genuine expression of his remorse. He broke down and spoke through tears when addressing the court. His letter showed true insight into his issues and the impact of his behaviour upon Ms. Marshall and the children.

[33] Mr. Lewis is now in a new intimate relationship and his partner wrote a letter to the court. Ms. Small-Ehiorobo works full time as a nurse and wrote that Mr. Lewis is a great support to both she and her mother.

[34] Mr. Lewis has been on a strict judicial interim release order for almost 2 years, with a surety and a curfew condition. There have been no allegations of breach.

CRIMINAL RECORD

[35] Mr. Lewis has no criminal record.

PRESENTENCE REPORT

[36] A presentence report was neither requested nor garnered. In the alternative, materials were filled by the defence.

VICTIM IMPACT STATEMENT(S)

[37] The children did not file victim impact statements.

[38] Ms. Marshall provided two impact statements; one, written in October 2019, and one by way of an update on the day of the sentencing hearing.

[39] Ms. Marshall’s statement is one of the most moving and sobering that this court has read. She incapsulates the true impact of intimate partner violence, beyond the physical injuries. She wrote (in part):

My whole world fell apart in one night. I loved a man who hit me, and I made it ok. Until it wasn’t anymore. I have been going through so many emotions over the last several months. I told myself it had to be my fault; why he hit me the way he did. I must have gotten him upset. I have spent weeks and months trying to figure out what it was that I did to anger him to the point he would hit me how he did.

I have been walking around numb and in a shell, not knowing how or even where to start to begin, to start to live my life over again with my children. I have let them down in the biggest way possible. I have allowed myself to let them witness this abuse because I loved a man unconditionally, but that love from that man didn’t love me back.

I have not been able to go to work because I have not been able to focus on anything, it’s like I have been in a dark place and I wanted to stay hidden. From people, from questions. I just didn’t want to deal with the answers. What do I tell people? How do I tell people the man I chose to love beat me? I have been ashamed of myself and embarrassed. It has been safe for us all to be hidden. I cry about it alone. I refuse to allow my children to see me breakdown anymore. It’s too much on them.

I wasn’t able to look at my children for along time, because I know they have suffered because of me. I watch them have nightmares night after night. I wake up in sweats screaming and body frozen; from relieving that night. I freeze when I walk and think I see a car that looks like his or a man that looks like him. Mr heart races when my door knocks. I feel like cars are following me home. I wish it had never happened. I have become angry because I should have known better. I should have done something to save myself from him. But I didn’t. I loved him too much and my mind was too weak.

I now don’t trust anyone. I have kept my identity hidden as much as I can, I look over my shoulder all the time. I am scared of everything. I monitor my children at all times, they can’t be normal teens or children because I am afraid that he will hurt them again like he has hurt me. We don’t go out unless it’s planned out carefully. Hospital and Dr. trips are carefully planned. I am constantly aware of my surroundings. I have people that I call to give time checks, if I don’t respond by a certain time they are to call the police. I get anxiety leaving my children at school or alone. I am afraid of being killed all the time. My home is guarded with booby traps. I only call people through voice apps, so nothing shows my new number. I have changed my appearance drastically. I am on the run. He has turned me into a ghost.

[40] In addition to the emotional and psychological impacts, Ms. Marshall added that she has blurred vision and vomiting, has lost weight, has no appetite, doesn’t sleep, severe pain in her thumb from being bent back, cannot carry much weight in her left hand, her right shoulder cannot carry the weight of her arm from being bent back. She cannot hold her arm out unsupported, cannot lift bags or boxes, has abdomen and lower back pain and cannot sit for too long.

[41] Ms. Marshall has been diagnosed with PTSD and prescribed Escitalopram for depression and Lorazepam for the PTSD and night terrors.

[42] As a result of the incident, charges and separation of the parties, Ms. Marshall had to move out of the family home and into a shelter. Mother and four children then moved into a one-bedroom apartment. They needed the assistance of the food bank. Ms. Marshall had to give up her vehicle, and lives in a rural community without public transit.

[43] Over the year since the first impact statement was written, and the day of the sentencing hearing, Ms. Marshall advised that her financial situation has improved.

[44] The final lines of her second victim impact statement show the slow progress of therapy. She wrote, “We don’t speak ill of Brian [Mr. Lewis], we don’t hate him anymore, we are still afraid, but I don’t think that will ever go away. But we are still dealing with the lasting effects of what happened living with him”.

POSITION OF THE PARTIES

[45] The Crown submits that the appropriate range of sentence is 12 – 24 months in jail – ‘real jail’. The Crown is opposed to a conditional sentence outright and notes that it is not available on the choking conviction in any event. The Crown seeks the maximum period of probation, and ancillary orders of a s.109 order for 10 years, a DNA order, a forfeiture order relating to the machetes, and a s. 743.21 order if Mr. Lewis is incarcerated.

[46] The Crown submits that denunciation and deterrence are the main sentencing principles to be considered and highlights the aggravating factor of Ms. Marshall’s brain disorder and refers the court to the case of R. v. Inwood, [1989] O.J. No. 428, wherein the court held that not every instance of domestic violence should result in a custodial term, but that it should be the norm where significant bodily harm has been inflicted in order to repudiate and denounce such conduct.

[47] The defence submits that an appropriate sentence is a 90-day custodial sentence, served on an intermittent basis (although not specified, broken down between the two offences). In the alternative, if 90 days is insufficient in totality, then 90 days intermittent on the choking conviction, and a consecutive conditional sentence in respect of the assault conviction. The ancillary orders are jointly submitted for consideration.

[48] Mr. Locke provided a casebook consisting of four cases. None are factually on point and were submitted to show that in intimate partner violence cases of more serious facts and charges, lesser sentences were imposed than that which the Crown seeks herein.

[49] Mr. Locke submits that the cases are of assistance to the court in addressing the sentencing principle of parity, that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances; and, that 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 Aboriginal offenders.

[50] Mr. Locke submits that the evidence of 2 years on release is proffered not in support of any Downes credit, but rather to establish that Mr. Lewis can comply with court orders.

ANALYSIS

GOVERNING SENTENCING PRINCIPLES

[51] The fundamental purpose of sentencing set out in s. 718 of the Criminal Code is to protect society and to contribute, along with crime prevention measures, to respect for the law and the maintenance of a just, peaceful and safe society by imposing sanctions that have one or more of the following objectives:

(a) denouncing unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) deterring the offender and others from committing crimes;

(c) separating offenders from society where necessary;

(d) assisting in the rehabilitation of the offender;

(e) providing reparations for harm done to the victim or to the community;

(f) promoting a sense of responsibility in the offender, and acknowledging the harm done to victims and the community.

[52] The fundamental principle in sentencing, as set out in s. 718.1, is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[53] Applicable to the facts in this case, as I find that Ms. Marshall was a vulnerable person because of her known brain condition, is s. 718.04:

[w]hen a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances – including because the person is Aboriginal and female – the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.

[54] I am also required by s. 718.2 to take the following principles (applicable in this case) into consideration when imposing sentence in this case:

(a) the sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;

(ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or member of the victim or the offender’s family;

(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;

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(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.

[55] I must consider the issue of increased vulnerability, beyond that noted above, pursuant to s. 718.201:

A court that imposes a sentence in respect of an offence that involved the abuse of an intimate partner shall consider the increased vulnerability of female persons who are victims, giving particular attention to the circumstances of Aboriginal female victims.

[56] I must consider the principle of totality. In R. v Jewell (1995), 100 C.C.C. (3d) 270 (ONCA), the Court of Appeal held that:

The trial judge should first identify the gravamen of the conduct giving rise to all of the criminal offences, and next determine the total sentence to be imposed. “Having determined the appropriate total sentence, the trial judge should impose sentences with respect to each offence which result in the total sentence, and which appropriately reflect the gravamen of the overall criminal conduct”: p.279. See also R. v. R.B., 2013 ONCA 36, 114 O.R. (3d) 465, at para. 30, where this approach to totality was followed, and R. v. Smith, 2011 ONCA 564, 274 C.C.C. (3d) 34, at fn. 2, where this court, referring to the differing approaches in the appellate courts (citing Jewell, Adams and R. v. Wozny, 2010 MBCA 115, [2011] 2 W.W.R. 630 (C.A.)), noted that the “proper approach to sentencing an offender for multiple offences is unsettled.”

[57] Finally, I must consider the principle of restraint. The Court of Appeal, in R. v. Reesor, 2019 ONCA 901, at para. 8 provides guidance:

The principle of restraint, like all principles of sentencing, operates in conjunction with other principles that often pull in different direction. For offences like this, particularly committed in the context of domestic violence, the restraint principle must, as the trial judge notes, yield, to a large degree, to concerns associate with deterrence, denunciation and protection of the victim.

CRIMINAL CODE

[58] Section 742.1 of the Criminal Code outlines the considerations to be made by a court in determining whether or not a conditional sentence is appropriate:

[if] a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under section 742.3, if:

(a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2;

(b) the offence is not an offence punishable by a minimum term of imprisonment;

(c) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 14 years or life;

(d) the offence is not a terrorism offence, or a criminal organization offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years or more;

(e) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years, that

(i) resulted in bodily harm,

(ii) involved the import, export, trafficking or production of drugs, or

(iii) involved the use of a weapon; and

(f) (not applicable in this case)

[59] In R. v. M-S, 2018 ONCA 706, the Court of Appeal held:

[19] The scope of s. 718.2(e) restricts the adoption of alternatives to incarceration to those sanctions that are “reasonable in the circumstances”. See Wells, at para. 39. In keeping with this principle, there are circumstances in which the need for denunciation and deterrence is such that incarceration is the only suitable way to express society’s condemnation of the offender’s conduct: Proulx, at paras. 16-107. As Doherty J.A. noted in R. v. Killam (1999), 126 O.A.C. 281 (Ont. C.A.), para.13, “a conditional sentence, does not, generally speaking, have the same denunciatory effect as a period of imprisonment. Incarceration remains the most formidable denunciatory weapon in the sentencing arsenal.”

[60] In R. v. Ganesan, 2017 NUCA 7 (Nun. C.A.), it was indicated at para. 24, that “violence against intimate partners is anathema to Canadian values, and that denunciation and deterrence are paramount sentencing objectives in case such as this.”

[61] In R. v. Squires, 2012 NCLA 20 (N.L. C.A.), it was held, at para. 31, that the “rationale underlying section 718.2(a)(ii) is directed to the vulnerability and dependency, particularly from an emotional, financial and psychological perspective, presumed to arise from the domestic relationship between married or commonly-law spouses. The relevance of this factor is heightened where physical or psychological abuse results in a sense of powerlessness making escape or leaving the relationship difficult…”

[62] In R. v. Young, 2019 CarswellNfld 32, the court highlighted the unseen realities of domestic violence:

[35] On February 22, 2018, the Sentencing Council for England and Wales released a definitive guideline on sentencing in offences involving “domestic abuse” (Overarching Principles: Domestic Abuse Definitive Guideline, Sentencing Council for England and Wales, 2018). The Sentencing Counsel suggested that in assessing the seriousness of offences involving domestic abuse, courts should recognize that the “domestic context of the offending behaviour makes the offending more serious because it represents a violation of the trust and security that normally exists between people in an intimate or family relationship. Additionally, there may be a continuing threat to the victim’s safety, and in the worst cases a threat to their life or the lives of others around them.”

[36] The Sentencing Council pointed out that the domestic abuse “is likely to become increasingly frequent and more serious the longer it continues and may result in death. Domestic abuse can inflict lasting trauma on victims and their extended families, especially children and young people who either witness the abuse or are aware of it having occurred. Domestic abuse is rarely a one-off incident and it is the cumulative and interlinked physical, psychological, sexual, emotional or financial abuse that has a particularly damaging effect on the victims and those around them.”

SENTENCING PRECEDENTS

[63] Sadly, there are many, many precedents for intimate partner violence, of every shape, size, detail and variety.

[64] In Young (supra), the court referred to a variety of cases, with a variety of mitigating and aggravating facts:

44 In R. v. C. (F.J.), [1999] N.J. No. 89 (Nfld. T.D.), a period of four months of imprisonment was imposed upon an offender who assaulted his partner by shoving her and throwing her across the floor in the presence of children.

45 In R. v. Hillier, [2010] N.J. No. 203 (N.L. Prov. Ct.), the accused pleaded guilty to a number of offences (theft, mischief, assault and four breaches of undertaking). The accused assaulted his girlfriend by striking her in the face. Judge Porter imposed a period of nine months and six days of incarceration, which included a period of three months of incarceration for the assault offence.

46 In R. v. Best, 2014 NLTD(G) 108 (N.L. T.D.), the accused was convicted of the offences of assault, assault causing bodily harm and breach of probation. The assaults were committed against his former girlfriend. The accused assaulted her by "pulling" her "off the couch where she was sitting, and roughly dragging her across the floor." He then spat into her face. Justice Goodridge imposed a period of three months of imprisonment for the assault offence.

47 In R. v. Manning, [2014] N.J. No. 40 (N.L. Prov. Ct.), Judge Porter imposed a period of six months of imprisonment for an assault in which the offender struck the victim once in the face.

48 In R. v. Stacey, [2015] N.J. No. 234 (N.L. Prov. Ct.), the accused was convicted of two counts of assault (involving his partner), damage to property (two counts), and beach of undertaking (two counts). The assaults involved the accused pushing the victim. Judge Porter imposed a period of 150 days incarceration, which included periods of 30 and 90 days incarceration for the two assault offences.

49 In R. v. F.P., [2017] N.J. No. 22 (N.L. Prov. Ct.), I imposed a period of four months of incarceration upon an offender who had assaulted his spouse. In that case the offender had pushed the victim causing her to fall back on to a chesterfield she was sitting on. She started to get up and the offender pushed her down again. She got up a third time and the offender pushed her once again, this time causing her to fall on to the floor. While she was on the floor, the offender got on top of her and pushed her head and shoulders, with his hands, against the floor several times.

50 In R. v. Pike, [2018] N.J. No. 31 (N.L. Prov. Ct.), the accused pleaded guilty to the offences of assault and breach of undertaking (three counts). Judge Porter described the circumstances involved in the following manner:

The agreed statement of facts described the accused as having assaulted his wife, in the presence of the police, by 'grabbing' her by the shoulder, and pushing her up against a wall. Despite this, in his submissions, counsel for the accused referred to the assault as the accused having "touched" his wife. To be clear, the agreed statement of fact included the fact that Wallace Pike yelled, "Let me tell you something!" and grabbed the complainant on the shoulder with his right hand and pushed her against the wall. This was in the presence of Constable Stewart." The accused "was arrested, taken to the police station, and released on bail conditions in the form of an undertaking given to an officer. The same day that he had been arrested, he breached the non-contact bail condition by telephoning the complainant. He did the same thing the next day, and again the day after that. The three calls were not answered by the complainant, but were recorded as voice-mail messages."

51 Judge Porter imposed a period of 60 days of incarceration followed by 12 months of probation.

52 In R. v. Saunders, 2018 NLSC 227 (N.L. S.C.), the accused committed the offence of assault. He assaulted the victim by "pulling her hair, pushing her and hitting her with a metal hanger". The sentencing judge imposed an absolute discharge. The Crown's appeal from sentence was dismissed.

53 In R. v. Brown, [2018] N.J. No. 389 (N.L. Prov. Ct.), the offender pleaded guilty to the offence of assault. I noted that on "October 6, 2018, Mr. Brown was at Ms. K.W.'s residence in Deer Lake. They had spent one night together on an earlier occasion. Ms. W told Mr. Brown that he could sleep on her sofa. Mr. Brown became upset. He went to Ms. W's bedroom. He was yelling. He grabbed Ms. W by her throat and placed her in a "choke-hold". He then threw her to the floor. She was on her back. He got on top of her. Ms. W was able to extract herself and told Mr. Brown to leave".

54 Mr. Brown had no prior convictions. I imposed a period of four months of incarceration, followed by twelve months of probation.

[65] I highlight these cases, simply to show the wide range of potential sentences. This range is duplicated across the country.

[66] In Ontario, Justice Oleskiw, in R. v. Rose, 2020 ONCJ 381, highlighted some of the guiding caselaw:

42 In R. v. Smith, 2011 ONCA 564 (Ont. C.A.), the Court of Appeal concluded that a sentence of one to two years will generally be appropriate for a conviction for common assault when committed against a spouse or domestic partner in the context of a lengthy pattern of domestic abuse (¶. 86). The common assault for which Mr. Smith was sentenced was domestic violence over a period of six years wherein he pinched the victim's legs, elbowed her in the stomach, threw forks at her, whipped the back of her legs with a wire, grabbed her hair, hit her on the back of the head and kicked her (¶. 27). For this, the Court of Appeal endorsed a sentence of 10 months jail consecutive to a 2 month sentence on a count of uttering threats and a 2 year sentence on a count of sexual assault (¶. 91).

43 In R. v. Deacon, [2018] O.J. No. 241 (Ont. C.J.), Justice Henschel helpfully analyzed the sentencing decisions in Getachew and Morgan and concluded that a sentence of two years' custody for the offence of assault bodily harm was a fit sentence, to run concurrently with two year sentences for separate incidents of assault with a weapon and another simple assault. In Deacon the facts of the assault bodily harm were similar to the case before me, but in that case there were further aggravating factors of Mr. Deacon having a more serious prior criminal record that included a long history of violence (although not domestic violence), and the fact that the offences occurred in the presence of the victim's children.

44 In R. v. Shepherd, [2020] O.J. No. 676 (Ont. C.A.), the Ontario Court of Appeal upheld a sentence of two years less one day on one count of assault bodily harm in a domestic context. Although the facts are not flushed out in the appellate decision, the Court notes that the "assault was significant and the bodily harm substantial" but that the mitigating factors included the fact that the offender had family support, was intelligent with employable skills and was working on his mental health concerns.

45 In R. v. Jamieson, [1999] O.J. No. 3437 (Ont. C.J.) Justice Fraser sentenced the offender to 16 months' jail on one count of assault bodily harm where the victim was "punched and kicked senseless" but, by luck, suffered relatively minor injuries. This case is relevant to my consideration because Mr. Rose's assault upon D.C. on August 23, 2018 was repeated punching of D.C.'s head, then stomping on her body and then, when she looked up, stomping on her head. It is, frankly, fortuitous that the bruising, abrasions and black eye seen in Exhibits 3 and 4 are the only physical injuries D.C. suffered from this last assault.

46 Mr. Morabito has also provided me with the case of R. v. Mercer, 2018 ONSC 881 (Ont. S.C.J.), wherein Justice Doyle, sitting as a summary conviction appeal court, afforded the sentencing judge "great deference" and refused to interfere with an eight month custodial sentence for one count of assault bodily harm the facts of which are somewhat similar to the case before me, and one count of assault involving shaking and a knee to the victim's stomach.

CONCLUSION

[67] I find that in all of the circumstances, and pursuant to section 742.1(a), the imposition of a conditional sentence would not be consistent with the sentencing principles identified in s. 718 - 718.2 of the Criminal Code. The assaultive behaviour inflicted by Mr. Lewis was grave, multifaceted, prolonged. It exemplified his controlling and long-standing abusive behaviour toward his wife. The impact upon Ms. Marshall and her children is devastating and will undoubtedly be long lasting. Mr. Lewis was well aware of his wife’s brain disorder, of her physical vulnerability, and yet, he choose to strike her about the face and head. At one point he banged her face off of the kitchen counter.

[68] While I am mindful of the potential for job loss, this cannot carry the day; otherwise, the principle of parity would be hollow, as persons before the court with jobs and money would be treated differently than those without. Money cannot buy your way out of a custodial sentence.

[69] The appropriate sentence for the assault count is 270 days custody. The appropriate sentence for the choking count is a concurrent 90 days custody. However:

(1) Adopting the reasoning and judicial notice expressed in Hearns, supra, I reduce the 270 days to 180 days custody.

[70] The resultant sentence will be 180 days custody for the assault count and 90 days concurrent for the choking count.

[71] A 24-month term of probation will issue on each count, concurrent to one another. The terms are:

(1) Statutory conditions;

(2) Report to a probation officer upon release, and thereafter, as directed;

(3) Cooperate with the probation officer;

(4) Do not contact or communicate in any way, directly or indirectly, by any physical, electronic or other means with Ms. Marshall or her children, except:

(a) Pursuant to a family court order;

(b) For the purpose of conducting family court proceedings;

(c) In the presence of or through legal counsel;

(d) For the purposes of family mediation with an accredited family mediator;

(5) Not to be within 250 metres of Ms. Marshall or her children, with the same exceptions;

(6) Not to possess any weapons;

(7) Attend for counselling or treatment, as directed;

(8) Sign releases re counselling, and provide proof of counselling;

[72] Ancillary orders are a s.109 order for 10 years and a DNA order for the choking count, and a DNA order for the assault count. There will also be a s. 743.21 order prohibiting communication with Ms. Marshall while Mr. Lewis is in custody. An order for forfeiture of the machetes is issued.

[73] While the steps taken by Mr. Lewis are laudable, they do not begin to address the harm done.

[74] Sentences for violence against an intimate partner must address not only the physical injuries but the emotional, psychological and spiritual trauma that are often unseen, but which last indefinitely.

[75] Intimate partner violence is a scourge on our communities and our country. The harm done reaches well beyond the walls of a home, beyond the moment of the action, beyond the visible.

Released: January 21, 2021 Signed: Justice Angela L. McLeod