SUPERIOR COURT OF JUSTICE
Information No. 13-0137
HER MAJESTY THE QUEEN
v.
CHRISTOPHER MARTIN
R E A S O N S F O R S E N T E N C E
BEFORE THE HONOURABLE JUSTICE S.C. HILL
On January 6, 2014 at BRAMPTON, Ontario
APPEARANCES:
M. Morris Counsel for the Crown
E. Brown Counsel for C. Martin
MONDAY, JANUARY 6, 2014
...MARTIN MATTER BEGINS.
...SUBMISSIONS BY COUNSEL.
R E A S O N S F O R S E N T E N C E
HILL, J. (Orally):
After a trial Christopher Martin was found guilty of sexual assault and of assault of his girlfriend, A(H). As the particulars of the offences are extensively reviewed in the reasons for judgment of the court, 2013 OSC 7210, only summary reference is warranted at this point.
By October 17/18, 2012, the offender and A(H) had been in an intimate relationship for only a few weeks. On October 17/18 at the offender’s residence, he raped the 21-year-old complainant. Following the assault, during an argument, the offender assaulted the victim, including punching her in the face causing minor injuries not requiring medical attention.
Christopher Martin is currently 28 years of age. In the decade of 2003 to 2013 Mr. Martin acquired a criminal record of 28 convictions or findings of guilt. There are no significant gaps in the record. The longest prior sentence was 33-months imposed in September 2009.
In terms of crimes of violence the criminal record includes the following:
August 2013, assault.
April 2009, assault peace officer.
August 2007, assault.
February 2006, aggravated assault and assault with a weapon.
January 2006, assault.
February 2005, assault.
January 2003, assault causing bodily harm.
Two of the prior assault convictions had a domestic context as described by Crown counsel in his submissions.
During certain years of the offender’s childhood he lived in a home environment where two of his mother’s domestic partners physically abused her. Mr. Martin informed the presentence report author that a step-father physically abused him as well.
The offender left school after grade 8. He reportedly had learning disabilities, including ADHD and dyslexia.
Mr. Martin is single. He has had various relationships over the years, including one resulting in the birth of a daughter who is currently about seven years of age. He also acted as a father figure to a step-daughter in that relationship.
The offender has been employed in the construction field since leaving school. For the past 12 years he reports that he has worked as a seasonal roofer, also doing home renovations in the off-season.
The presentence report author states in part; “The subjects’ escalation in violence is of great concern to this writer, as well as his potential for future violence. It is this writer’s opinion that the subject could greatly benefit from Partner Abuse Response Services (PARS) program, as well as a Healthy Sexual Relationship program. The subject has, as previously mentioned, attended a PARS problem to successful completion. However, this writer believes further education could be of benefit. It is also this writer’s opinion the subject should continue to address his issues with alcohol and elicit substance use despite his period of forced sobriety during the past 15-months while awaiting sentencing. This is not a typical life environment and would not provide the usual stressors the subject would experience while living in the community.
The subject has expressed an interest in attending the Ontario Correctional Institute for his addiction issues as well as his sexual offence behaviour can be addressed through formal intervention. It should be noted that eligibility into OCI is dependent on an individual’s willingness to accept and take ownership of their offence behaviour and addiction concerns, as well as receiving a minimum sentence imposed by the court of no less than 12-months jail to allow a full course of treatment to be completed. However, based on the subject’s extensive criminal record, including multiple assaults, aggravated assault and failure to comply with probation convictions, this writer is quite guarded in her opinion that a provincial sentence or a recommendation or further community supervision would be appropriate. This writer is in support of Constable Cawshall’s (ph) recommendation that a dangerous offender application should be explored by the court.”
For the record, this court has entirely ignored the recommended or opinion material of the investigating officer and the presentence report author respecting a dangerous offender application.
On behalf of the Crown, Mr. Morris submitted that without factoring in credit for presentence custody a fit sentence would be in range of five-and-a-half-years - five years for the sexual assault and six months consecutive for the common assault.
Counsel submitted that in all the circumstances this would be a fit sentence, placing particular reliance upon general and specific deterrence and protection of the public noting the pattern of violence reflected in the criminal record, the recidivism respecting domestic violence, a relatively negative PSR, and the general absence of mitigating factors.
Crown counsel argued in favour of one-for-one credit only for presentence custody on account of the blunting of the no-parole or remission factor, given the prior record and breach of court orders.
On behalf of the offender Mr. Brown argued leaving presentence custody credit aside, in favour of a sentence of about two-and-a-half years, including a consecutive sentence for the assault of four to six months.
Counsel stressed the focused nature of the trial conducted on the offenders’ behalf, a contribution of alcohol consumption to the crimes, the prospect of rehabilitation and the lack of any record for sexual violence, and the broken home circumstances of Mr. Martin’s upbringing.
Mr. Brown advocated enhanced credit for presentence custody at the one-point-five to one level, recognizing the court entertains a wide discretion respecting this subject.
The aggravating factors of this case are manifestly apparent, including the following:
In sexually assaulting an intimate partner the offender breached a trust relationship.
The sexual assault was grave in nature, a rape involving as it did, unprotected sexual intercourse physically forced upon a non-consenting woman on her menstrual period.
The sexual assault was followed by an assault upon the victim, and
This was not the first occasion where the offender had employed violence in a domestic context.
In the balance and mitigation these factors are to be considered:
The trial by judge alone was conducted in an organized and focused fashion by the defence.
There is no history of sexual violence in the offender’s criminal record, and
Despite his lengthy criminal record, at the age of 28 it cannot be said that Mr. Martin is entirely beyond rehabilitative reclaim.
Mr. Martin has been in custody without interruption since about October 19th, 2012. Thirty days of this time period engaged a sentence imposed on August 5, 2013. Accordingly, referable to the charges now before this court, the offender has been in custody approximately thirteen-and-a-half months.
Since his arrest, Mr. Martin has declined to apply for bail. Presumptively, also seen as a general rule, a sentencing court shall consider presentence custody in determining a fit sentence and award a maximum of one day for each day spent in custody; see Section 719(3) of the Criminal Code.
As said on behalf of the offender, Mr. Brown seeks to have the court order enhanced credit, while Mr. Morris takes a different position submitting that the one-to-one credit standard ought to be applied.
Conventionally, credit for presentence custody is dependent on the totality of case-relevant circumstances, including the absence of remission and parole while in remand custody, the quality of incarceral conditions in a remand facility, and the general lack of opportunities for training, counselling and education in such institutions.
Sentencing courts have a case specific discretion to credit less than one-for-one credit, or capped by the limit described in Section 719(3.1) of the Code may credit beyond one-for-one.
As observed in a number of authorities, including R. v. Cazner, [2013] ONCA 138 at paragraph 14, a factor justifying departure from the maxim allowable credit for presentence custody may arise where “the accused would be unlikely to get early release on parole.”
In the present case, the offender’s extensive prior criminal record, including breach of probation convictions in 2011, three in 2009, again in 2008, 2006 and 2005, make it unlikely that he would seen as a suitable candidate for early release. Accordingly, the proper credit for presentence custody in this case is one-for-one credit, amounting to thirteen-and-a-half months.
Mr. Martin is a mature individual. While not aggravating factors, the offender is nevertheless disentitled to the leniency which would otherwise flow from the entry of a guilty plea by a first offender, and from the leniency which might otherwise be extended to an offender who has demonstrated remorse for his crimes.
Of a special concern is the offender’s failure to respond to prior dispositions of criminal courts. Resort to assaultive behaviour is a pattern throughout the offender’s criminal history, including in a domestic context. This circumstance, together with other views expressed in the presentence report, raise genuine concerns as to the offender’s potential for future violence. It is far from evident that Mr. Martin has real insight into the consequential seriousness of his criminal behaviour.
The offender, a recidivist in the use of violence, employed physical force to violate the complainant’s sexual integrity. A trust relationship was abused. In these circumstances, general deterrence must dominate as the sentencing principle. As well, the offender’s criminal history very much demands consideration of specific deterrence and protection of the public.
In R. v. Smith, [2011] ONCA 564 at paragraph 87 (eighty-seven), the court expressed the general observation that, “In cases of sexual assault involving forced sexual intercourse with a spouse or former spouse, sentences generally range from 21-months to four years.”
Having regard to the totality of circumstances discussed, including the need for general deterrence, specific deterrence and the need to protect the public, a globally fit sentence in this case is four-and-a-half years - four years for the sexual assault and six months consecutive for the assault. However, crediting thirteen-and-a-half months of presentence custody against the four years attributed to the sexual assault, his sentence for that crime is reduced to thirty-four-and-a-half months. Accordingly, the total sentence is forty and a half months - thirty-four-and-a-half months for the sexual assault, with the credit for thirteen-and-a-half months of presentence custody, followed by six months consecutive for the assault.
In addition, the following corollary orders are imposed:
A lifetime weapons prohibition order, pursuant to Section 109(3) of the Criminal Code.
An order pursuant to Section 490.013(2) (b) of the Criminal Code for twenty years, requiring compliance with the Sex Offender Information Registration Act.
An order pursuant to Section 487.051 of the Code authorizing the taking of bodily samples for the purpose of forensic DNA analysis, and finally
A non-communication order pursuant to Section 743.21 of the Code prohibiting communication by the offender directly or indirectly with Ashley Nelo Murdy (ph) during the currency of the sentences imposed.
Any questions, counsel?
MR. MORRIS: No. Thank you, Your Honour.
MR. BROWN: No, Your Honour.
THE COURT: Thank you very much. Mr. Brown, I want to say that both on the conviction phase of this case and on the sentencing phase I’m indebted to you; I think you said everything that could be said on behalf of your client. Thank you very much.
MR. BROWN: Thank you, Your Honour.
MR. MORRIS: Your Honour, I have the SOIRA....
THE COURT: If you submit the revised DNA order and any other orders that require a signature to my registrar when court recesses, she’ll get them to me.
MR. MORRIS: Thank you.
THE COURT: Thank you.
M A T T E R A D J O U R N E D
FORM 2
Certificate of Transcript
Evidence Act, subsection 5 (2)
I, Brenda Wakelin, certify that this document is a true and accurate transcript of the record R. v. Christopher Martin in the Superior Court of Justice, 7755 Hurontario Street, Brampton, Ontario taken from Recording No. 3199 406 20140106 094853 30 HILLCAS which has been certified in the Form 1 by R. Pereira.
(Date)
(Signature of authorized person(s))
Brenda Wakelin, B.Sc., B.Ed., OCT, CCR, ICDR
Hill Transcription Inc. Certified Court Reporter, CRAO
Internationally Certified Digital Reporter, IAPRT
Brampton Courthouse staff court reporter
PLEASE NOTE:
Any copies of this transcript are unauthorized and are in direct violation of Ontario Regulation 587/91, Courts of Justice Act, January 1, 1990. If additional copies are required, please contact the Records Management Clerk.
This transcript is a true certified copy bearing the original signature in blue ink.
Transcript Ordered: January 8, 2014
Received by Reporter: January 21, 2014
Transcript Completed: January 28, 2014
Edits returned from Justice: February 4, 2014
Notified Ordering Party: February 4, 2014
Legend
[sic] – Indicates preceding word has been reproduced verbatim and is not a transcription error.
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