ONTARIO COURT OF JUSTICE DATE: 2022ꞏ05ꞏ12 NEWMARKET
B E T W E E N :
HER MAJESTY THE QUEEN
— AND —
P.V.T.
SENTENCING
Delivered: May 12, 2022.
NOTE: In this trial an order was made under s 486.4 of the Criminal Code prohibiting publication of any information that could identify the victim in this matter.
Ms. Phyllis Castiglione ........................................................................ counsel for the Crown Ms. Rita Levin .................................................................................. counsel for the defendant
KENKEL J.:
Introduction
[1] Mr. PVT was convicted at trial of sexual assault on his wife and uttering threats to cause her death. The case involved numerous incidents of forced sexual intercourse including dragging her to the bed. At times her body was scraped using coins and that “really hurt”. The forced sex was painful and sometimes caused bleeding. The complainant stayed in the marriage for the sake of her children, but as the children grew older she told the accused she wanted a divorce. He then threatened to kill her and kill the children if she left. Even after she left the family home, the accused followed her movements through his access to her phone. It was a further death threat that caused her to go to the police.
[2] The Crown submits that the accused should be sentenced to 6-7 years in prison for the sexual assault and 6-12 months consecutive for the death threats. The defence submits that a combined sentence of 26 to 30 months would be sufficient for both offences.
Aggravating Factors
[3] The aggravating factors:
- The offences were inflicted on the accused’s wife within the family home
- PVT abused his position of authority within this family to commit the offences
- This victim was particularly isolated and vulnerable
- The sexual assaults involved repeated incidents of abuse
- The offences have had a significant impact on the victim
[4] The victim lived with PVT for 25 years. Over time she felt like she was imprisoned. She was treated like, “a slave, a money maker, prostitute, housekeeper and nanny”. As an immigrant from Vietnam, she was isolated and had several barriers to obtaining help. She was forced to comply with her husband’s wishes including forced sex. She endured the abuse primarily because of her children. As she explained, if it weren’t for the intervention of a nurse and a social worker at Southlake Hospital, she would still be living in agony.
[5] The sexual assaults over time left her feeling despairing and humiliated. Given those assaults and the death threats, she is still fearful. She suffered urinary tract infections as a result of the abuse and that brought her to hospital where she received the advice that led her to leave home. While she now is able to do banking and make life decisions on her own, she has paid a high price for those basic freedoms.
[6] Even after she left the home, she would return despite the risk to her safety in order to cook for the family despite the fact that the children were old enough to look after themselves. Unfortunately, despite her devotion and sacrifice, the result of her complaint is that she’s lost all contact with her children. Her daughter is financially dependent upon her father and obeys him. Her son supports his father and has no sympathy for his mother. She’s obtained her freedom, but she is no longer part of the business she helped build and more importantly she’s lost the relationships with her children that were the most important thing in her life.
Mitigating Factors
[7] The factors mitigating sentence:
- PVT has no criminal record
- He owns a business and has otherwise been a stable, productive member of the community.
- He has had some health issues
[8] I agree with the defence that the absence of remorse is not an aggravating factor. It is simply the absence of a mitigating factor present in some other cases that may be among the factors that distinguish those sentences from the result in this case.
[9] The defence also noted that it’s not alleged that the accused has breached the conditions of his release or committed further offences. That’s the absence of further aggravating factors but I agree with the defence that it’s relevant.
[10] Mr. PVT has no prior criminal record and his good conduct while subject to judicial interim release shows that there is a potential for rehabilitation. It’s essential though that he receive counselling regarding domestic abuse.
[11] PVT has had some health issues that have delayed sentence including eye surgery and a heart issue that required monitoring for a time. There is also a new concern regarding sleep apnea. I have taken those circumstances into account in delaying the imposition of sentence several times and in determining the overall sentence knowing the accused’s age, his condition and the circumstances that will likely apply to his incarceration during the late phases of the COVID pandemic.
An Appropriate Sentence
[12] The purpose of this sentence is to protect society and to protect women like the victim in this case who are abused sexually by their husband or spouse. A marriage is meant to provide a safe and supportive relationship for both partners. The fact that PVT assumed a controlling role in the relationship and used that control to sexually abuse his wife is a significant aggravating factor.
[13] In cases involving forced intercourse with a spouse, sentences range from high reformatory sentences to 4 years. Cases at the lower end of the range typically involve single events – R v HE, 2015 ONCA 531 at para 44, R v Smith, 2011 ONCA 564. In R v NH, 2020 ONCA 694 a younger offender with no prior record was sentenced to 4 years for three incidents of forced intercourse and oral sex combined with threats. “Such offences demand a significant penitentiary sentence to properly reflect proportionality as well as the principles of denunciation and both general and specific deterrence” – NH at para 56.
[14] General deterrence and denunciation are the most important factors. Courts must continue to send the message that victims of sexual assault that occur within a domestic relationship are not less worthy of protection.
[15] The defence submits that there is no need for specific deterrence given that PVT’s relationship with his wife has ended. While general deterrence is the focus, I find that specific deterrence is also necessary. The Crown proved that the sexual assault in this case resulted not from a particular animus against his wife, but from a generalized attitude toward women and a wife as property to be used as he sees fit. Notwithstanding the fact that this relationship ended, I find that there remains a need for specific deterrence.
[16] Mr. PVT attempted to intimidate his wife by threatening to kill her and the family if she left him. These threats continued even after she left the family home showing the need for a deterrent sentence to protect the complainant and others like her in the community.
[17] The effect of the offences on the complainant is a serious aggravating factor in this case. The victim suffered physical and psychological abuse over many years in part to try and keep her family together and to protect her children. Even now she has no contact with her children which she attributes to her husband’s ongoing control of the family.
[18] I disagree with the Crown that the prospects for rehabilitation in this case are non-existent. Mr. PVT has no criminal record and has not committed any further offences since being charged. While he may continue to hold views regarding the abuse of women that are repugnant, by this sentence he and others like him are informed of the protections provided domestic partners under the Criminal Code and the requirement that domestic relationships be places of safety and respect for both parties.
[19] The defence did not note any particularly restrictive conditions of the accused’s release, but I find the fact that Mr. PVT was on judicial interim release for an extended period due in part to the COVID pandemic and other factors unique to this case is a relevant factor.
[20] Considering the aggravating and mitigating circumstances of the offences and the accused’s personal circumstances, and considering the combined effect of both sentences (totality), I find the least restrictive sentence that is proportionate to the gravity of the acts and the degree of responsibility of this offender is a global sentence of 4 years and 6 months apportioned as follows:
Conclusion
[21] Mr. PVT is sentenced to imprisonment for a total of 4 years 6 months.
[22] Sexual Assault s 271 is a primary, compulsory offence requiring DNA registration under s 487.04(a). Uttering threats is a secondary offence – s 487.04(c). The context of the threats in this case shows plainly why the public interest requires registration on both counts.
[23] Section 109 applies to the Sexual Assault count. Mr. PVT will be prohibited from possessing firearms and related items set out in that section for 10 years.
[24] I find it necessary to order pursuant to s 743.21 that Mr. PVT have no communication, directly or indirectly with the victim during the custodial period of this sentence, except through legal counsel.
[25] Finally, Sexual Assault is a designated offence under s 490.011. An order to comply with the Sex Offender Information Registration Act (SOIRA) is mandatory on application of the Crown and in this case a 20 year term applies – s 490.013(1).
Delivered: May 12, 2022. Justice Joseph F. Kenkel