CITATION: R. v. Getachew, 2013 ONSC 3219

COURT FILE NO.: 3-618/12

DATE: 20130603

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

SAMMY ABIY GETACHEW

Soula Olver, for the Crown

Daniel Dagago, for the accused

HEARD: May 24, 2013

K.L. Campbell J.:

Reasons for Sentence

A. Introduction

1At the conclusion of his recent trial, the accused, Sammy Getachew, was found guilty of three criminal offences, namely, assault causing bodily harm, assault with a weapon, and causing someone to take a noxious thing. All three of these offences were committed by the accused in Scarborough on March 18, 2012 against the complainant, Mekedlowete Sheferaw, the accused’s former girlfriend. The accused engaged in this alcohol-fueled episode of violent conduct against the complainant as a result of his mistaken belief that the complainant had been unfaithful to him, and had recently engaged in sexual activities with another man. See: R. v. Getachew, 2013 ONSC 2107. The accused now appears for sentencing in relation to those crimes.

B. The Nature of the Offences

2The complainant and the accused are both originally from Ethiopia. They met when the accused was trying to find work in Canada, and the complainant tried to help him in that job search. Shortly thereafter, they began to live together in the complainant’s small bachelor apartment in Scarborough. They had been living together for approximately four months at the time of the alleged offences.

3On the evening of March 18, 2012, the accused was drinking beer, and he angrily accused the complainant of sleeping with a younger man. Initially, she denied this allegation and they argued. During this ensuing quarrel, started pushing the complainant.

4At one point the accused went to the kitchen, retrieved a wooden cutting board, and broke it in half over the complainant’s head. The complainant did not lose consciousness, but the force of the blow caused the complainant’s head to swell up and start bleeding.

5The accused then kicked her numerous times in her legs while still wearing his shoes. This was not the first time that the accused had violently assaulted the complainant.

6After more allegations and denials, the accused took the complainant to her “prayer room” in the apartment and made her take an oath about her relationship with the younger man.

7The accused continued to verbally and physically abuse the complainant, and eventually the complainant falsely admitted that she had engaged in sexual activities with the other man. She thought that by telling the accused what he wanted to hear, he might stop hitting her. Unfortunately, this admission did not diffuse the situation, but served only to increase the accused’s level of anger, and he continued to hit and kick the complainant.

8After becoming increasingly despondent, the complainant threatened to poison herself by drinking some bleach. She said this would be a “problem.” However, instead of stopping her from ingesting this noxious cleaning fluid, the accused followed her into the bathroom and, after she took one sip, he forced her to drink more of it. Ultimately, when the complainant passed out, the accused panicked and then took steps to revive and help her.

9Later, the accused moved out of her apartment, but only after cleaning up much of the evidence of his night of violence against the complainant.

C. The Physical Injuries Suffered by the Complainant

10The complainant suffered some serious physical injuries as a result of this violence at the hands of the accused.

11As a result of the blow to her head from the wooden cutting board, the complainant suffered a subdural hematoma extending over the tentorium and over the left parietal and temporal regions of the brain. There was also an associated contusion in the left parieto-occipital region. The complainant had a slow recovery from his injury, suffered significant problems with ongoing pain, and remained in the hospital for some 10 days. She continues to periodically see a specialist in connection with this brain injury, and still sporadically experiences migraine headaches.

12In addition, as revealed in the photographs that were taken when the complainant was in the hospital, she also suffered significant injuries to other parts of her body. Some of these injuries were fresh, while others appeared to be older. Both of the complainant’s legs, from her shins up past her knees, displayed many serious bruises, abrasions and wounds of varying sizes. Many of them, identified by the complainant, were from assaults by the accused on March 18, 2012. She also had bruises to her upper arms, although she was not sure when she suffered those injuries. She also had injuries to her neck, chin and the inside of lips. She also had blood in her left eye, and her right cheek was swollen. According to the complainant, all of these injuries were suffered at the hands of the accused, either on March 18, 2012, or on earlier occasions.

D. The Other Victim Impact Evidence

13In addition to her physical injuries, the complainant prepared a Victim Impact Statement that provided some insight into her psychological reaction to the offences. More particularly, the complainant described the “brutal attack” by the accused as a “nightmare,” which has left her with a “broken heart.”

E. The Personal Circumstances of the Accused

14The accused is nearly 38 years old. He has no criminal record. He has the equivalent of a high school diploma. He was born and raised in Ethiopia. The accused had the benefit of a good upbringing and a stable home environment. His father, now deceased, was a famous soccer player on the country’s national team. His mother, who is still alive, works as a treasurer at an elementary school. His parents are devout Christians, and the accused and his two brothers were raised in a strict disciplinary environment. In Ethiopia, the accused worked as a truck driver in his family’s business.

15The accused entered Canada on June 2, 2011, claiming refugee status. In his letter provided on sentencing, the accused explained that he was “forced to flee [his] country or become part of an army fighting an unholy war.” He also wanted to escape from hardship and poverty. His refugee claim remains unresolved. The accused has not worked while in Canada but, if his outstanding refugee claim is ultimately resolved in his favour, he plans to settle in Canada. The accused has a 13 year old daughter in Ethiopia.

16The accused has been in custody since his arrest on May 9, 2012. Accordingly, he has already been incarcerated in relation to these offences in the Metro East Detention Center for some 391 days, or nearly 13 months. According to defence counsel, there have been no problems with the accused while he has been in custodial detention.

F. The Governing Sentencing Principles

17According 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.

18Further, 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.”

19Section 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.

G. The Positions of the Parties

1. The Crown’s Argument – The Aggravating Circumstances

20The Crown argues that the nature of the violent, assaultive conduct by the accused and its physical and emotional consequences for the complainant are such that the accused ought to receive a penitentiary term in the range of 2½ years imprisonment.

21In support of this position the Crown argues that this case involves the following aggravating circumstances: (1) the assault on the complainant took place in a domestic context as the complainant and the accused had been living together for approximately four months at the time; (2) the absence of any remorse on the part of the accused, who continues to assert his innocence of the charges; and (3) the accused humiliated the complainant during the course of the attack by forcing her into her prayer room and making her take on oath about her relationship with the other man.

22As a matter of fact, the Crown is correct in observing that the accused has shown no remorse for his violent acts against the complainant. Indeed, he steadfastly maintains his innocence, blaming his current legal difficulties on the complainant. However, as a matter of law the absence of any remorse on the part of the accused cannot properly be viewed as an aggravating circumstance on the issue of sentence. The accused was entitled to plead not guilty and force the Crown to prove its case. Even after conviction, the accused is not obliged to accept responsibility for the offences found to have been committed, or thereby risk the imposition of an increased sentence. Ordinarily, when an accused shows a lack of remorse in relation to the commission of an offence, this can only properly be viewed as the absence of a potential mitigating factor, not the presence of an aggravating factor. See: R. v. Kozy (1990), 1990 CanLII 2625 (ON CA), 58 C.C.C. (3d) 500 (Ont.C.A.) at pp. 505-506; R. v. Anderson (1992), 1992 CanLII 6002 (BC CA), 74 C.C.C. (3d) 523 (B.C.C.A.) at pp. 535-536; R. v. Brown, [1993] O.J. No. 624 (C.A.); R. v. Valentini (1999), 1999 CanLII 1885 (ON CA), 132 C.C.C. (3d) 262 (Ont.C.A.) at para. 80-85; R. v. L.(C.), 2013 ONSC 277, at paras. 80-81. That is how I view the absence of remorse on the part of the accused – it reveals the absence of a potential mitigating factor, not the existence of an aggravating circumstance.

2. The Defence Argument – The Mitigating Circumstances

23The accused contends, on the other hand that, once the accused is properly credited with the time he has already served in pre-sentence custody, he should be given a suspended sentence and probation. No further term of imprisonment is required or appropriate. Indeed, according to the accused, the time he has already served in custody is out of proportion to the gravity of the offences he has been found to have committed.

24In mitigation, defence counsel relies upon the following considerations: (1) the absence of any previous criminal record for the accused; (2) the accused has never previously been known to be assaultive or aggressive toward anyone, and his violence against the complainant on the night of March 18, 2012 was an isolated event; (3) the assault by the accused was not planned and deliberate, but rather was motivated only by his feelings of jealousy flowing from his belief that the complainant had been unfaithful to him; (4) the accused did not flee the scene and leave the complainant when she was in physical distress, but rather he stayed to resuscitate her; and (5) the accused voluntarily attended at the police station upon learning about the arrest warrant outstanding against him.

25In contrast to the position advanced on behalf of the accused, the Crown argued that the violent conduct by the accused on March 18, 2012, was not an isolated incident, but rather was part of a pattern of abusive conduct by the accused toward the complainant. While the complainant had never summoned the police on any earlier occasion, I am satisfied beyond a reasonable doubt that the previous relationship between the accused and the complainant was, indeed, marred by prior acts of violence by the accused. In this regard I accept the testimony of the complainant, as supported by the photographic evidence of some of her earlier physical injuries. Moreover, this history of abuse must be viewed as one of the aggravating circumstances of this case.

H. The Sentence Merited by the Offences and the Offender

26Before considering whether the accused is entitled to any enhanced credit for his pre-sentence custody, it will be useful to first determine the sentence that ought to otherwise be imposed having regard to all of the circumstances of the offences and the offender.

27The 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. Moreover, the existence of the spousal relationship serves only to aggravate the circumstances of the offence as the violence of the accused is a flagrant breach of the trust inherent in such intimate relationships. The application of these principles is especially important in cases where the victims have had to endure persistent or prolonged assaultive behavior over a period of time. See: R. v. Inwood (1989), 1989 CanLII 263 (ON CA), 48 C.C.C. (3d) 173 (Ont.C.A.); R. v. Brown (1992), 1992 ABCA 132, 73 C.C.C. (3d) 242 (Alta.C.A.); R. v. M.(C.V.), 2003 NSCA 36, 173 C.C.C. (3d) 235. These principles all have clear application in the circumstances of the present case.

28Indeed, the nature of the spousal 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.

29At the time of the offences, the accused and the complainant were living together in the complainant’s apartment. The complainant had invited the accused into her home. Moreover, in the commission of these criminal offences, the accused significantly “abused” the complainant. Provoked by baseless jealousy and fed by his alcohol consumption, the accused employed significant violence against the complainant, over a period of hours, which resulted in numerous physical injuries to the complainant. Most significant amongst these physical injuries was the subdural hematoma suffered by the complainant when the accused broke a wooden cutting board over her head. However, the complainant also suffered various bruises, abrasions and other injuries from the other physical abuse inflicted on the complainant by the accused over the course of the evening. As I have indicated, I am also satisfied beyond a reasonable doubt that this was not the first time the accused has physically abused the complainant. This violent event finally came to an end when the complainant fell unconscious, succumbing to a combination of her physical injuries and her ingestion of bleach (some of which ingested at the direct behest of the accused).

30While the accused then took steps to care for the complainant, it is difficult to give him much credit for these efforts as: (1) he was the one whose violence caused her medical predicament in the first place; and (2) his efforts were as self-serving as they were compassionate, as he was undoubtedly concerned about what might happen to him if the complainant was unable to recover from his acts of aggression.

31In my view, considering all of the facts of this case, a maximum reformatory sentence of two years less a day would properly reflect the gravity of the violent crimes committed by the accused, and would adequately deter and denounce such crimes. At the same time, such a reformatory disposition would recognize that the accused is a mature, first-time offender with excellent prospects for rehabilitation. Such a sentence would, of course, also permit the imposition of a period of probation during which the accused could be supervised and supported in the community.

32A maximum reformatory term of imprisonment appears to be within the range of sentence that has been recognized as appropriate by the Court of Appeal for Ontario. In R. v. Smith, 2011 ONCA 564, the court dealt with a situation of domestic violence where, over the course of years, the accused was “physically, emotionally and sexually abusive” toward his spouse. According to the complainant, the accused pinched her 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. In varying the global sentence imposed upon the accused, and imposing a 10 month sentence of imprisonment in relation to the domestic assault count, Epstein J.A., delivering the judgment of the court, summarized the jurisprudence of the court, at para. 86, as suggesting that “a sentence of one to two years will generally be appropriate for a conviction for common assault” based upon facts such as those before the court, when “committed against a spouse or domestic partner in the context of a lengthy pattern of domestic abuse.” In support of that proposition, Epstein J.A. cited the following authorities: R. v. Petrovic (1984), 1984 CanLII 2003 (ON CA), 47 O.R. (2d) 97 (C.A.); R. v. Inwood (1989), 1989 CanLII 263 (ON CA), 48 C.C.C. (3d) 173 (Ont.C.A.); R. v. R.(B.S.) (2006), 2006 CanLII 29082 (ON CA), 81 O.R. (3d) 641 (C.A.); R. v. Sidhu, 2011 ONCA 139; R. v. States (2006), 2006 CanLII 25973 (ON CA), 214 O.A.C. 106 (C.A.).

33In my opinion, a sentence at the upper end of that range is more appropriate in the circumstances of the present case. First, the accused has not been convicted of “common assault,” but of the more serious crimes of assault causing bodily harm, assault with a weapon, and causing the complainant to ingest a noxious substance with the intention of endangering her life. Second, by comparison to R. v. Smith, the violence inflicted by the accused on the complainant in the present case was significantly more serious and caused greater physical injuries to the complainant.

34It is noteworthy in this regard that, very recently, in R. v. Ashkani, 2013 ONCA 351, the court upheld as fit an effective global sentence of two years less one day, plus a three year term of probation, on charges of assault with a weapon and aggravated assault in a domestic assault context. The complainant was attacked by his spouse. The blows to his stomach were delivered with such force that it caused a ruptured spleen. The complainant lost a large quantity of blood in the result. After serving 264 days in pre-sentence custody, which were credited as the equivalent of 396 days (on a 1.5 to 1 basis), the accused was sentenced to a custodial sentence of 11 months imprisonment. The court concluded that even if the accused could only properly have been convicted of assault causing bodily harm, the sentence “would still have been fit.”

I. Credit for Pre-Sentence Custody

35As I have indicated, the accused has now been in custody for some 391 days, or nearly 13 months. While s. 719(3) of the Criminal Code suggests that the credit for such pre-sentence custody should generally be limited to “one day for each day spent in custody,” s. 719(3.1) of the Code states that, where “the circumstances justify it,” this credit may be increased to a maximum of “one and one-half days for each day spent in custody.”

36Moreover, in R. v. Summers, 2013 ONCA 147, at paras. 8, 119, the Court of Appeal interpreted the practical application of these provisions, holding that a sentencing judge possesses the discretion under s. 719(3.1) of the Code to give enhanced credit to an accused for pre-sentence custody in order to properly account for an offender’s loss of remission and parole eligibility while in pre-sentence remand custody, where it is necessary to achieve a fair and just sanction. See also: R. v. Carvery, 2012 NSCA 107; R. v. Stonefish, 2012 MBCA 116, at paras. 81-85; R. v. Peterkin, at paras. 27-35; R. v. Ellis, 2013 ONSC 3092, at paras. 33-37.

37The accused argues that he should be given the maximum credit of 1.5 days for each day of his 391 days in custody. The Crown argues, however, that the accused should not receive any enhanced credit, and that the accused should only be given one day of credit for each day of his pre-sentence custody.

38I agree with the position advanced on behalf of the accused. In my view, the accused is entitled to the enhanced credit of 1.5 days for each day spent in pre-sentence custody. According to the submissions of defence counsel, which were not contradicted by the Crown, the accused has not caused or experienced any difficulties while in pre-sentence custody and, accordingly, would likely have earned remission or had positive prospects for parole, especially given his age and the absence of any prior criminal record.

39Giving the accused the maximum enhanced credit possible under s. 719(3.1) of the Code means that the accused receives a total credit of 586.5 days or over 19½ months of imprisonment.

J. The Sentence Imposed Upon the Accused

40I have concluded that, having regard to all of the circumstances of this present case, a fit sentence in this case would be in the vicinity of a maximum reformatory sentence of two years less a day. I have also concluded that in light of the pre-sentence custody already served by the accused he should receive a credit of 19½ months imprisonment toward that sentence. According to my calculations, once the accused is given that credit, the sentence that he should now receive is approximately 4½ months imprisonment. That is the sentence that I now impose upon the accused – 4½ months imprisonment – in relation to each count of the indictment. These sentences shall all be served concurrently.

K. The Terms of the Probation Order

41Upon his release, the accused will serve a two year term of probation. This probation order will include the statutory terms outlined in s. 732.1(2) of the Criminal Code, together with the following additional terms:

• The accused shall report to a probation officer within two working days of his release from custody, and thereafter as directed by the probation officer;

• The accused shall abstain absolutely from the consumption of any alcohol or other intoxicating substances;

• The accused shall abstain from owning, possessing or carrying any weapon;

• The accused shall refrain from any contact or communication, direct or indirect, with the complainant;

• The accused shall perform 120 hours of community service, as directed by the probation officer.

L. Ancillary Sentencing Orders

42In addition, in my view the following two ancillary sentencing orders are appropriate in the circumstances of this case.

43First, pursuant to ss. 109(1)(a) and 109(2) of the Criminal Code, I order that the accused shall be prohibited from possessing: (1) any firearm, other than a prohibited or restricted firearm, and any cross-bow, restricted weapon, ammunition, and explosive substance for a period of ten years after the accused is released from imprisonment for these offences; and (2) any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. This prohibition order is required because the accused has been convicted of criminal offences in which he used, threatened or attempted violence against the person of the complainant, and for which the accused was liable to be sentenced to imprisonment for 10 years or more.

44Second, pursuant to s. 487.051(1) of the Criminal Code, I make an order in Form 5.03, requiring that samples of bodily substances be taken from the accused for purposes of forensic DNA analysis. The offences committed by the accused are all “primary designated offences” as defined in s. 487.04(a) of the Criminal Code and, accordingly, such an order is statutorily mandated in the circumstances.

M. Conclusion

45In the result, the accused is sentenced to 4½ months imprisonment, to be followed by a two year term of probation, on the terms already outlined. The accused is also subject to the ancillary sentencing orders that I have issued. I will endorse the indictment and the warrant of committal accordingly.

Kenneth L. Campbell J.