ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR 12-2252
DATE: 20131203

B E T W E E N:

HER MAJESTY THE QUEEN

D. Allison, for the Crown

• and -

Sylvia POSTMA

M. Moon, for the Defendant

Defendant

HEARD: November 4, 2013

REASONS FOR SENTENCE

Ricchetti, J.

OVERVIEW

[1] On May 17, 2013 Ms. POSTMA pleaded guilty to the attempted murder of her daughter, Kayla.

[2] What is unknown is why Ms. POSTMA attempted to murder her daughter. There is no evidence regarding whether Ms. POSTMA suffers any mental condition which may or may not have some bearing on what occurred on September 8, 2012.

THE FACTS

[3] Ms. POSTMA was married for 27 years prior to separating in May 2011. Ms. POSTMA had four daughters, the youngest was Kayla. Ms. POSTMA's oldest three daughters had been married at the time of separation. Upon separation, Ms. POSTMA left the matrimonial home leaving her estranged husband and Kayla to continue to reside there.

[4] Ms. POSTMA was distraught after the separation. Her daughters were upset Ms. POSTMA had left the marriage.

[5] On September 7, 2012 Ms. POSTMA tried to persuade Kayla to go up north with her to the family trailer property. Kayla refused. Later that same night (in the early hours of September 8, 2012), Ms. POSTMA texted Kayla seeking to visit Kayla at her home. Kayla said no - she had gone to bed. Nevertheless, Ms. POSTMA went to Kayla's home and knocked on the door. Kayla let her mother in. Ms. POSTMA suggested they go upstairs to Kayla's bedroom. They did. Ms. POSTMA started to rub Kayla's back but was at the same time looking through her purse for a knife which Ms. POSTMA thought she had brought with her. Ms. POSTMA intended to kill Kayla in her bedroom as they were on Kayla's bed. However, Ms. POSTMA had forgotten to bring the knife with her. At some point, seeing her mother distracted, Kayla asked her mother to leave. Ms. POSTMA left. Ms. POSTMA went outside to her car to look for the knife. She found it. Now she needed to see Kayla again to carry out her plan to murder Kayla.

[6] Ms. POSTMA texted Kayla, telling Kayla that she had forgotten to give Kayla something. Ms. POSTMA returned to the front door with a shirt. When Kayla opened the door, Ms. POSTMA gave Kayla the shirt. With the other hand, Ms. POSTMA used an Exacto knife and slit Kayla's throat causing a 5-6 inch laceration across her throat. This laceration cut Kayla's throat muscles and partially cut the carotid artery.

[7] Kayla screamed and ran. Ms. POSTMA chased her.

[8] Eventually, Ms. POSTMA caught up to Kayla and using a kitchen knife, stabbed Kayla in the arm saying "I have to do this, I have to do this". This stabbing caused a one inch cut into Kayla's arm.

[9] Kayla, although wounded, continued to run from her mother. The chase continued outside.

[10] Fortunately, Kayla's boyfriend, who had been upstairs, came down and saw Ms. POSTMA chasing Kayla down the street with the kitchen knife trying to attack Kayla again. Fortunately, Kayla's boyfriend was able to intervene and Kayla was able to go back into the house and call 911.

[11] Ms. POSTMA ran down the street but Kayla's boyfriend followed her. Kayla's boyfriend saw Ms. POSTMA cut her leg, but it is not known if this was accidental or deliberate.

[12] When Ms. POSTMA crossed a bridge, she threw the knife away.

[13] The police arrived shortly thereafter. Ms. POSTMA surrendered to the police. She described to the police where she had thrown the knife.

[14] Kayla, receiving immediate medical assistance, survived the attack.

[15] The police observed some 10-15 small, superficial lacerations on Ms. POSTMA. Again, there is no evidence on how or what caused these lacerations.

[16] The police retrieved both the Exacto knife and the kitchen knife.

[17] Ms. POSTMA pled guilty to attempted murder.

[18] The above facts were acknowledged as true and accurate by Ms. POSTMA in writing. During the course of the plea inquiry, Ms. POSTMA appeared to understand the nature and consequences of admitting these facts and the consequences of pleading guilty. There was no suggestion by counsel that there was any potential mental disorder to be considered. There was no evidence of any mental disorder at play with Ms. POSTMA during the plea hearing. The plea was accepted.

[19] A Pre-Sentence Report (PSR) was ordered by the court. It was hoped that, among other things, the PSR might explain why Ms. POSTMA would attempt to murder her daughter. Unfortunately, the PSR did not answer this question and there was no further evidence at the sentencing hearing regarding this question.

[20] The question as to why Ms. POSTMA would try to kill her daughter remains unanswered. There is no medical evidence that Ms. POSTMA was suffering any mental disorder or that a mental disorder caused or contributed to the attack on Kayla.

Circumstances of the offender

[21] Ms. POSTMA was 48 years old at the time of the offence.

[22] Ms. POSTMA has no criminal record.

[23] Her father died when Ms. POSTMA was 4 years old. She was raised by her mother along with her 6 other siblings.

[24] Ms. POSTMA had been sexually assaulted by a male family member when she was young. She received counselling over the years for this abuse.

[25] Ms. POSTMA had a religious upbringing and continued to be involved with her Christian faith including volunteering to help with church sponsored functions.

[26] By all accounts, Ms. POSTMA, during the marriage, was a good wife and mother to her children. She was a hard worker helping to support her family.

[27] The separation arose as a result of her own infidelity, which made Ms. POSTMA distraught and feeling guilty about causing the separation and the impact on her relationship with her daughters.

[28] There are no alcohol or drug issues at play.

[29] The PSR contains reports from Ms. POSTMA's sister that Ms. POSTMA "heard a voice" and would cut her legs. Ms. POSTMA's sisters believe that, after the separation, she became mentally ill. There was some a suggestion by one or more sister that Ms. POSTMA was delusional. However, during the PSR interview, Ms. POSTMA denied hearing voices.

[30] Ms. POSTMA told the probation officer at the PSR interview that she committed the offence because she "was being punished by God" for her sins - "… God told me to hurt Kayla".

[31] It is unclear how the events leading to her separation and the subsequent impact on her life, including her feelings of guilt, caused or contributed to the attack on Kayla.

[32] Ms. POSTMA now feels guilty and remorseful for what she did on September 8, 2012.

[33] At the sentencing hearing, this court requested Ms. POSTMA's consent to an assessment under the Mental Health Act, R.S.O. 1990, c M.7. Ms. POSTMA refused to consent. While the facts suggest there may be issues regarding Ms. POSTMA's mental health, there is no evidence on this issue which this court can rely on for sentencing. There is no evidence which would assist this court to properly assess the ongoing risk to the public at this time or in the future. Does Ms. POSTMA need medical help, will she accept it and will it make any difference? Has Ms. POSTMA simply become a violent and dangerous person as a result of her anger and guilt? There are many unanswered questions which might have assisted this court in sentencing Ms. POSTMA.

Impact on the Victim and/or Community

Kayla

[34] The physical, emotional and psychological impact on Kayla can only be described as devastating to all aspects of her life.

[35] Kayla has a scar across her neck and is reminded of the attack every time she looks in the mirror. She suffers from weakness and numbness in her neck. She has pain in her arm where she was stabbed. Kayla couldn't return to full time work for 6 months due to the physical and emotional impact of the attack.

[36] Equally, if not worse, Kayla, despite extensive counselling, continues to suffer from severe psychological issues from the attack such as, constant and extreme fear, trust issues and anxiety.

[37] The emotional impact on Kayla is also extreme. She continues to be afraid to be alone but at the same time is fearful of others including those who love her. For example, her father had to sleep outside her bedroom door for 5 months after the attack to help Kayla with her fears while at the same time Kayla was afraid her father or boyfriend might attack her just like her mother had done. The attack has negatively impacted her personal relationship with her boyfriend, father and others.

[38] As a result of the attack, Kayla lost the comfort of a mother's love, confidence and trust. She also lost her mother that night not just for the future but the attack also wiped out any good memories Kayla had of her mother.

The Community

[39] Kayla's boyfriend's life has been impacted by the attack predominantly in the manner which the attack impacted Kayla and their relationship.

[40] Kayla's father has been affected profoundly. As a result of the attack, Kayla moved out from his home. He is distraught that his daughter lives in constant fear and no longer with him.

[41] Kayla's sisters have had a major upheaval to their family. They now suffer from anxiety and fear as a result of the unexplained attack by their mother on their sister. They too feel they have lost their mother and their children have lost their grandmother.

[42] The Defence filed Character Letters from:

• Liefke De Vries (Ms. POSTMA's mother);
• Theresa den Engelman (Ms. POSTMA's sister);
• Theo deVries (Ms. POSTMA's brother);
• Anita Hiemstra (Ms. POSTMA's sister);
• Sandra Haan (friend);
• Veronica Bashuym (friend);
• Eric Schuringa (Pastor seeing Ms. POSTMA while incarcerated);
• Karen Veldhoen (friend); and
• Margaret Kooy (Ms. POSTMA's sister).

All the letters confirm that Ms. POSTMA had been a kind, caring, hard working member of society and a family oriented person. She volunteered her time extensively and willingly. She has religious values. The attack was completely out of character for Ms. POSTMA.

[43] While incarcerated pending sentencing, Ms. POSTA has completed several courses on Changing Habits, Understanding Feelings and Self Care.

LEGAL PARAMETERS

[44] Section 239 of the Criminal Code provides that the punishment for attempted murder is up to life imprisonment.

POSITIONS OF CROWN AND DEFENCE

[45] The Crown seeks a period of incarceration for 12-15 years, a DNA order and a s. 109 order for 10 years.

[46] The Defence submits a fit sentence would be a period of incarceration of 6-9 years. The Defence takes no position with respect to the ancillary orders sought by the Crown.

CASE LAW

[47] The sentencing range for attempted murder is very broad, from 6 years to life imprisonment. See R. v. Tan, 2008 ONCA 574 at paras. 35 - 38.

[48] The Crown submits the authorities generally provide for a range for attempted murder of 8 1/2 years to 15 years, except in rare cases where life imprisonment had been imposed on the most brutal or horrific murder attempts, which is not suggested is applicable here.

[49] One of the significant factors in the range of sentences for attempted murder is whether the accused had planned and deliberated to commit the murder as opposed to an offence committed on the spur of the moment, done in angry reaction, done as a result of intoxication or provocation or the result of a physical altercation.

[50] Another significant factor in the range of sentences for attempted murder is where the attempted murder arose from a domestic or "domestic like" relationship.

[51] When both of these factors are present, the offences tend to be considered at the higher end of the spectrum of seriousness resulting in higher sentences.

[52] I am not persuaded, as the Defence submits, that this is not a domestic or domestic like relationship. The Defence suggests that many of the authorities cited by the Crown are domestic violence cases which result in the higher sentences imposes. The Defence submits that domestic violence is not applicable in the circumstances of this case. I disagree. The Defence submits that the "domestic context" in the authorities is limited to acts involving spouses or partners. In my view, it would make little sense to restrict a "domestic" violence in the manner suggested but instead, there should be an overall consideration of the circumstances of the offence, the background and relationship between the accused, the victim and others involved in the offence to determine whether the offence is a domestic or domestic like context. Here, the attack was by one family member on another family member. Why is not known. However, the same trust and relationship issues are engaged whether the attack had been on Ms. POSTMA's estranged husband or her daughter. Ms. POSTMA used her familial relationship to get access to Kayla tice that evening in the early hours of the morning. I am satisfied there was a "domestic" context to what occurred on September 8, 2012.

[53] In Tan, the Court upheld a 15 year sentence for attempted murder where there was a specific intent to kill in the "domestic like" context despite a first time offender, a plea and expressed remorse.

[54] In R. v. Denkers, 1994 2660 (ON CA), [1994] 69 O.A.C. 391 the accused went to his former girlfriend's home and stabbed her several times and sexually assaulted her. He had the specific intent to kill the victim. The Court of Appeal upheld a 15 year sentence for the attempted murder.

[55] In R. v. Adamson, 2013 ONSC 2365 (SCJ), the court sentenced the accused to 13 years for the attempted murder of his girlfriend despite the fact the accused was a youthful offender, had been consistently employed and had strong family support. The accused's specific intent to kill and breach of the victim's home were significant factors in the sentence imposed.

[56] In R. v. McDonald, [2007] O.J. No. 3859 (SCJ) the court imposed an 11 year sentence where the accused deliberately attempted to murder his common law spouse and daughter with a hammer. The offence was out of character for the accused, he had no criminal record, had previously been gainfully employed, was active in church work, was remorseful and had pleaded guilty - many of the same factors as in this case.

[57] In R. v. K.G. 2010 ONCA 177 the Court of Appeal upheld a 14 year sentence when the accused attempted to murder his estranged wife by deliberately driving over her. This case included mitigating factors of a guilty plea and an expression of remorse.

[58] In R. v. Ljeskovica 2008 63569 (ON SC), [2008] O.J. No. 4935 (SCJ), after the victim slapped the accused's girlfriend, the accused had gotten into a fight with the victim and later returned to kill him. The court imposed an 8 year sentence. Many of the same mitigating factors present in this case were also present in Ljeskovica.

MITIGATING AND AGGRAVATING FACTORS

[59] The mitigating factors include:

a) Ms. POSTMA has no criminal record;
b) Ms. POSTMA pled guilty to the charge eliminating the need for Kayla and others to have to go through the painful events as to what occurred during the attack that night;
c) Ms. POSTMA was, until the attack, a productive member of society, being employed and volunteering of her time. She was a good mother to her children;
d) Ms. POSTMA has the support of her sisters; and
e) Ms. POSTMA is remorseful for what she did to Kayla.

[60] The aggravating factors include:

a) There was a specific intent to kill Kayla;
b) This was a planned and deliberate attack by Ms. POSTMA. If Ms. POSTMA had gotten Kayla to go away with her up north, had not forgotten to bring the knife to the bedroom, the lack of timely intervention by Kayla's boyfriend and immediate medical attention Kayla received, the result would likely have been much more tragic;
c) Ms. POSTMA attempted and used her position of trust with Kayla to perpetrate this attack by gaining access to Kayla's home twice in the early hours of the morning to commit the offence;
d) This was a brutal, terrorizing and horrific act which persisted after several failed attempts to murder Kayla. When the slash of Kayla's throat did not immediately kill Kayla, Ms. POSTMA chased Kayla and stabbed her again with a kitchen knife. When that did not kill Kayla, Ms. POSTMA continued to chase Kayla with the kitchen knife to stab her again;
e) Two weapons were used