Her Majesty the Queen v. Sukhwinder Singh

COURT FILE NO.: CR-11-1184-00 DATE: 2014-04-11 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN E. Norman for the Crown

• and -

Sukhwinder SINGH, Defendant S. Baidwan for the Defendant

HEARD: April 4, 2014

REASONS FOR SENTENCE Ricchetti, J.

OVERVIEW

[1] Mr. Singh was convicted, after a trial by jury, of uttering a threat to and committing an assault on Sarbjeet Banga on August 14, 2010.

THE FACTS

[2] For this sentencing, I am mindful of the following provisions of s. 724 of the Criminal Code:

(1) In determining a sentence, a court may accept as proved any information disclosed at the trial or at the sentencing proceedings and any facts agreed on by the prosecutor and the offender.

(2) Where the court is composed of a judge and jury, the court

(a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty; and

(b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact.

(3) Where there is a dispute with respect to any fact that is relevant to the determination of a sentence,

(a) the court shall request that evidence be adduced as to the existence of the fact unless the court is satisfied that sufficient evidence was adduced at the trial;

(b) the party wishing to rely on a relevant fact, including a fact contained in a presentence report, has the burden of proving it;

(c) either party may cross-examine any witness called by the other party;

(d) subject to paragraph (e), the court must be satisfied on a balance of probabilities of the existence of the disputed fact before relying on it in determining the sentence; and

(e) the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous conviction by the offender.

[3] The appropriate approach to the determination of facts for the purpose of sentencing was described by the Supreme Court in R. v. Ferguson [2008], S.C.C. 6 at paras. 21 and 22:

[21] ..... It was open to him under s. 724(2)(b) of the Criminal Code to supplement the jury’s findings insofar as this was necessary for sentencing purposes. However, it was not open to him to go beyond what was required to deal with the sentencing issues before him, or to attempt to reconstruct the logical process of the jury: Brown; Fiqia. Nor was it open to him to find facts inconsistent with the jury’s verdict or the evidence; a trial judge must never do this. The trial judge in the case at bar committed both these errors.

[22] First, the trial judge erred in attempting to reconstruct the logical reasoning of the jury. The law holds that the trial judge must not do this, and for good reason. Jurors may arrive at a unanimous verdict for different reasons and on different theories of the case: R. v. Thatcher, 1987 53 (SCC), [1987] 1 S.C.R. 652. It is speculative and artificial to attribute a single set of factual findings to the jury, unless it is clear that the jury must unanimously have found those facts. Where any ambiguity on this exists, the trial judge should consider the evidence and make his or her own findings of fact consistent with the evidence and the jury’s findings.

Findings of Facts surrounding the offence

[4] Sukwinder Singh and his wife, Sarbjeet Banga, were married in February 2008. As a result of the marriage, Mr. Singh was able to obtain residency status in Canada. They had one child of the marriage.

[5] By the summer of August 2010, their marriage had become a difficult one. Mr. Singh believed his wife was having an extra marital affair.

[6] Mr. Singh had been out drinking on the evening of August 13, 2010. Mr. Singh came home late and found her on her laptop in their bedroom. Ms. Banga immediately closed the laptop and would not let her husband look at who she was communicating with. Ms. Banga responded that he could not stop her from continuing (apparently with whomever she was communicating with).

[7] Mr. Singh became angry. An argument ensued.

[8] During the course of the argument, Mr. Singh slapped Ms. Banga in the face and threatened to kill her. The slap did not break the skin or result in any visible bruising or swelling.

[9] Ms. Banga called 911.

[10] Mr. Singh left the bedroom and waited for the police in another room.

Circumstances of the offender

[11] Mr. Singh is 40 years old.

[12] He has a high school education. There is little else known about his past.

[13] He came to Canada in 2007.

[14] He is and has been employed full-time (or substantially full-time) in the construction business since coming to Canada.

[15] Since separation, Mr. Singh has fully complied with this court's order for child support despite the fact that he was unable to see his son for the first year and thereafter, and only had supervised access for another year before regular access was established.

[16] Mr. Singh has no criminal record.

Impact on the Victim and/or Community

[17] Ms. Banga provided a Victim Impact Statement regarding the very significant emotional impact the events of the evening had on her. I had serious reservations regarding Ms. Banga' credibility and reliability during the trial. It is unclear to me whether the impact she talks about arises from the alleged sexual assaults, on which the jury did not convict Mr. Singh, or the threat and the slap to the face. It is difficult to put much weight on Ms. Banga’s Victim Impact Statement.

[18] Domestic violence is a serious problem. Too often, when relationships come to their final days, many emotions and reactions are understandable. Physical and verbal abuse is not understandable, acceptable or tolerated by society. A party who wishes to end a relationship should not have to fear such a possible reaction from the other party.

LEGAL PARAMETERS

[19] The punishment under s. 264.1 of the Criminal Code (uttering a threat) and s. 266 of the Criminal Code (assault) have no minimum sentence and a maximum sentence of 5 year imprisonment.

POSITIONS’ OF CROWN AND DEFENCE

[20] There is no dispute that any sentence for the two counts should be concurrent.

[21] The Crown submitted that a fit sentence would be:

a) 3-4 months incarceration on each count;

b) probation for 2 years on the usual terms and a term that Mr. Singh have no contact with Ms. Banga; access to their child strictly in accordance with any access order of this court; Mr. Singh take the Partner Response Program; and any other counselling required by his probation officer, including alcohol counselling;

c) s. 110 prohibition order for 5 years; and

d) DNA order.

[22] It is important to note that the Crown's position was based on the urging that this court to find Mr. Singh slapped, choked, hit Ms. Banga's head on the headboard and kicked her when she was on the floor.

[23] I am not satisfied beyond a reasonable doubt that all the assaults alleged by Ms. Banga occurred but am satisfied that the slap of Ms. Banga's face by Mr. Singh did occur. It is clear that the jury found that the Crown had established beyond a reasonable doubt that one of the assaults had occurred. The evidence at the trial was that the police were called by Ms. Banga to investigate a slap to her face. That is what the police investigated that night. No other assault was alleged to the police that night. It was only later that Ms. Banga came forward with the other allegations of assault. As a result, I conclude that the assault which was established beyond a reasonable doubt was the slap to Ms. Banga’s face.

[24] The Defence seeks a discharge. The Defence makes no submissions on the ancillary relief sought except that no DNA order should be ordered.

CASE LAW

[25] It is clear from the authorities that I have reviewed that the range for convictions of these offences varies significantly depending on the facts of each case.

MITIGATING AND AGGRAVATING FACTORS

[26] The aggravating factors are:

a) The fact this was domestic violence (s. 718.2(a)(ii));

b) The domestic violence occurred in Ms. Banga’s apartment. However, the fact this occurred in their own apartment adds very little since domestic violence most often occurs in the home; and

c) Mr. Singh had consumed alcohol and, according to Ms. Banga, was drunk that night.

[27] I am also not persuaded that these offences had any impact on the child as he was very young and there was no physical risk to the child.

[28] The mitigating factors are:

a) Mr. Singh has no criminal record;

b) this was an isolated act;

c) there was no lasting physical harm;

d) Mr. Singh completed the Sahara Men's Group program, which is a program for South Asian men who have problems with Anger Management and Substance Abuse. It is important to note that this 16 week program was completed prior to the trial commencing in this matter; and

e) Mr. Singh also completed a parenting program which dealt with issues such as how to control aggression/temperament, anger management and so on. Again, the course was completed prior to the commencement of the trial.

[29] The Defence submits that Mr. Singh has already suffered for his actions given the impact it has had on his limited access to his son. I agree that this is a factor to be considered, however, this has arisen because of Mr. Singh's assault and death threat - the logical and inevitable consequences of his own actions.

[30] Similarly, the Defence submission that Mr. Singh has paid his child support means very little as that is his obligation at law to support a child of his. The fact that he has complied with the law is not a significant mitigating factor.

[31] There were 4 days of pre-sentence custody.

PRINCIPLES OF SENTENCING

[32] The applicable principles of sentencing set out in the Criminal Code are:

718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, 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:

(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 reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(i) Evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner,

(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,

shall be deemed to be aggravating circumstances;

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

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances.

730. (1) Where an accused, … is found guilty of an offence, … the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).

REASONS

[33] Sentencing as a result of domestic violence results in a difficult task for a sentencing judge. The Ontario Court of Appeal has provided instruction to sentencing judges with respect to determining a fit and proper sentence in cases of domestic violence in R. v. Inwood, 1989 263 (Ont. C.A.).

[34] There is a societal interest in seeking to deter domestic violence and to protect the victims of domestic violence. As a result, deterrence and denunciation are of paramount importance in all domestic violence cases. See: R. v. Campbell, [2003] O.J. No. 1352, 170 O.A.C. 282 (C.A.).

[35] In this case, there was not a high degree or significant duration of the physical violence. The threat was yelled in the heat of an argument between the two, which does not excuse the threat, but gives it some context.

[36] However, this is Mr. Singh's first conviction and rehabilitation is a significant objective. Given Mr. Singh's actions to date, I am satisfied that rehabilitation has a high prospect of success in these circumstances. Mr. Singh has demonstrated his rehabilitative potential by having successfully completed the two courses described above prior to trial.

[37] Mr. Singh has already suffered considerable consequences as a result of his actions. I doubt that specific deterrence is necessary in these circumstances.

[38] I am not persuaded that society's interests require a period of incarceration. The cases I have reviewed, where incarceration was imposed, had more or more significant aggravating factors (such as a high degree of violence or length of violence, lengthy criminal records or other equally aggravating factors) than found in this case.

[39] Mr. Singh has already served 4 days in jail. Where there is pre-sentence custody, it is important to recognize that days spent in jail are properly “deemed part of the punishment following” a finding of guilt on the part of the offender: R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455, at para. 41.

[40] Section 718.2(d) of the Code requires this court to consider less restrictive sanctions where the objectives of sentencing can still be met in the circumstances.

[41] In R. v. Sanchez-Pino, [1973] O.J. 1903 (C.A.) the Court set out the factors that ought to be considered by a sentencing judge considering whether a discharge is appropriate in the circumstances. At paras. 17 and 18 the Court sets out the following:

The trial Judge in this case was right in saying that the guide-lines are meagre. The section does not apply to corporations, nor to offences for which a minimum sentence is prescribed, nor to offences punishable, in the very proceedings, by imprisonment for 14 years or for life or by death. The granting of some form of discharge must be "in the best interests of the accused". I take this to mean that deterrence of the offender himself is not a relevant consideration, in the circumstances, except to the extent required by conditions in a probation order. Nor is his rehabilitation through correctional or treatment centres, except to the same extent. Normally he will be a person of good character, or at least of such character that the entry of a conviction against him may have significant repercussions. It must not be "contrary to the public interest" to grant some form of discharge. One element thereby brought in will be the necessity or otherwise of a sentence which will be a deterrent to others who may be minded to commit a like offence -- a standard part of the criteria for sentencing.

[42] There is a two branch test, the “best interests of the accused” and “not contrary to the public interest”. Both are met in this case.

[43] In my view, sentencing objectives can be achieved and accomplished with a conditional sentence, community supervision through probation which includes a community service order and counselling. Protection of the Ms. Banga can be achieved through a modified no-contact clause.

[44] There will be a conditional discharge on the two counts.

ANCILLARY ORDERS

[45] A s. 110 prohibition order shall issue for a period of 5 years.

[46] I agree with the Crown that a 2 year probation order is appropriate in this case. The terms of the probation order shall include:

a) the compulsory conditions set out in s. 732.1(2);

b) report to a probation officer within 30 days and thereafter as required by the probation officer and manner directed by the probations officer;

c) take any counselling or prescribed programs as may be prescribed by the probations officer including relating to the consumption of alcohol;

d) 50 hours of community service as directed by the probations officer within the first year of probation;

e) refrain from communicating, directly or indirectly with Sarbjeet Banga, except in writing (including electronically by e-mail or text) and solely as it may relate to the custody and access of their child; and

f) continue to provide support for his child in accordance with any order issued in the family law proceedings.

[47] As for the DNA order sought, the relevant provision of the Criminal Code is:

487.051 (3) The court may, on application by the prosecutor and if it is satisfied that it is in the best interests of the administration of justice to do so, make such an order in Form 5.04 in relation to

...; or

(b) a person who is convicted, discharged under section 730 ..... if that offence is a secondary designated offence when the person is sentenced or discharged.

In deciding whether to make the order, the court shall consider the person’s criminal record, whether they were previously found not criminally responsible on account of mental disorder for a designated offence, the nature of the offence, the circumstances surrounding its commission and the impact such an order would have on the person’s privacy and security of the person and shall give reasons for its decision.

[48] Given the lack of a criminal record, the nature, circumstances and consequences of the offences on one hand and the impact on Mr. Singh's privacy on the other hand, I am not persuaded that it is in the best interest of the administration of justice to make such an order and decline to do so.

FINAL DECISION

[49] The information will reflect the 4 days pre-sentence custody and the following sentence is imposed:

a) a conditional discharge on both counts;

b) 2 years probation in accordance with the terms set out above; and

c) 5 year prohibition order under s. 110 of the Code;

L. Ricchetti J.

Released: April 11, 2014

COURT FILE NO.: CR-11-1184-00 DATE: 20140411 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and –

Sukhwinder, SINGH

Defendant

REASONS FOR SENTENCE

L. Ricchetti J.

Released: April 11, 2014