R. v. Gludd, 2015 ONSC 392

COURT FILE NO.: CR14300001730000

DATE: 20150120

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

KEITH GLUDD

Defendant

Maureen Pecknold, for the Crown

Genevieve McInnis, for the Defendant

(with respect to sentence only)

HEARD: January 15, 2015

N. J. SPIES J. (Orally)

REASONS FOR SENTENCE

[1] On January 15, 2015, following Mr. Gludd’s decision to plead guilty to certain offences, I convicted him of aggravated assault by endangering life contrary to s. 268(1) of the Criminal Code, unlawful confinement contrary to s. 279(2) of the Code, and threatening to cause bodily harm contrary to s. 264.1(1)(a) of the Code as alleged in Counts # 1 (as an included offence), 2, and 3. These convictions stemmed from Mr. Gludd’s admitted serious assault on his wife, K.O., on August 14, 2013. I also convicted Mr. Gludd of committing an assault on K.O. sometime between February 1, 2012 and February 1, 2013 as alleged in Count # 4. In light of Mr. Gludd’s guilty plea, Ms. Pecknold advised that she was prepared to accept his plea to the included offence of aggravated assault and withdraw the charge of attempt murder of K.O. as alleged in Count # 1 and the other assault charge in Count # 5.

[2] When Mr. Gludd was brought to Practice Court to set a trial date on January 15th, his counsel, Ms. McInnis advised that he wished to plead guilty to certain charges. She stated that although she had reviewed the alleged facts with Mr. Gludd she could not act for him on the plea. However, she could act for Mr. Gludd on sentencing and I was informed that if I convicted Mr. Gludd a joint submission had been worked out between counsel. I was also advised that this was the second time Mr. Gludd had appeared in court seeking to plead guilty.

[3] A transcript was in the file of the proceedings before Justice B. O’Marra on December 23, 2014 at which time Justice O’Marra was advised that Mr. Gludd wished to enter a plea and that the Crown was not seeking any additional time in custody. Defence counsel, then Ms. Shanmuganthanan, advised that Mr. Gludd was subject to an immigration hold and that he understood that by entering into a plea of guilt there would be immigration consequences. She also advised O’Marra J. that she had conducted a plea inquiry with Mr. Gludd. When asked, Ms. Shanmuganthanan advised Justice O’Marra that she was not in a position to advise why she could only act for Mr. Gludd with respect to his sentencing. She stated, however, that Mr. Gludd was aware of the charges, that she had reviewed with Mr. Gludd the Crown synopsis and the essential elements of the offences that he was admitting to and that he was willing to plead guilty to those essential elements. She stated that Mr. Gludd knew what he was pleading to and that he was aware of the fact that he was not being assisted by counsel with his plea of guilt. Ms. Pecknold advised Justice O’Marra that the matter had been extensively pre-tried by Justice McWatt including a pre-trial in open court and that Mr. Gludd was aware of the Crown’s position and the facts that the Crown was seeking an admission to.

[4] Justice O’Marra then addressed Mr. Gludd and reviewed the charges with him and he began a plea inquiry. Before that was completed, Mr. Gludd advised that he had evidence to prove his innocence and that the complainant had destroyed it all. At that point it was agreed that it would not be appropriate to accept a plea of guilt. This was explained to Mr. Gludd and he was informed that the court could not accept a plea to something that he said he did not do. An early trial date of February 2, 2015 was set and the attendance before me on January 15th was to be the trial readiness date.

[5] Given the history of this matter, I proceeded cautiously. I advised Mr. Gludd of the nature of the offences including the specific incidents and the central facts that the Crown relied upon in support of each offence. I then conducted a plea inquiry which included advising Mr. Gludd that I was not bound by the joint submission as to sentence that had been agreed upon. Mr. Gludd provided satisfactory answers to the plea inquiry and advised he had no questions. I then asked Ms. Pecknold to read out the facts that the Crown was relying upon in support of the charges for the purpose of a plea before formally arraigning Mr. Gludd. He was advised that the Crown was prepared to accept a not guilty plea to Count # 1, the attempt murder charge, and a guilty plea to aggravated assault, which I explained was an included offence. Mr. Gludd was also advised that provided he pled guilty to the other offences, the Crown would withdraw Count # 5, the second alleged assault. This time Mr. Gludd agreed that the facts as read out by Ms. Pecknold were substantially correct.

[6] Given Mr. Gludd now accepted the facts as stated by the Crown, I proceeded as proposed. Mr. Gludd formally re-elected trial before me and he pleaded not guilty to attempt murder but guilty to the included offence of aggravated assault, Count # 1, and guilty to Counts # 2, and 3 and 4.

[7] Ms. Pecknold re-read the facts relied upon by the Crown into the record and I directed Mr. Gludd to listen carefully. In summary, after meeting online, and a long distance relationship and brief visits, Mr. Gludd and K.O. married in February 2011. They had an apartment in the City of Toronto although Mr. Gludd was still working in New York City. K.O.’s four year old child from a previous relationship lived there as well. Unfortunately after K.O. miscarried in April 2013, Mr. Gludd became obsessed with the idea that she had not been faithful to him which K.O. denied. His accusations were relentless and he even accused her of killing their unborn child.

[8] In the period February 2012 to December 2012 Mr. Gludd’s accusations led to two serious fights. The incident forming the basis of Count # 4 was a heated argument that included an enraged Mr. Gludd head-butting his wife, causing her nose to bleed, straddling her on the bed and grabbing her mouth and twisting her jaw and finally pushing her into a closet and throwing a pen at her face. Police were not called. The other fight was also fueled by Mr. Gludd’s accusations that his wife was unfaithful and on that occasion when Mr. Gludd grabbed her mouth she scratched him so he let her go. This would have been the subject matter of Count # 5 which was withdrawn.

[9] With respect to Counts # 1, 2 and 3, it was alleged that on August 14, 2013, Mr. Gludd called and again accused K.O. of being unfaithful. He told her that he was not coming home because if he did he would hurt her. In fact Mr. Gludd was on his way home and when he arrived K.O. did not let him in at first. She eventually relented and once inside the apartment Mr. Gludd forced K.O. into the bathroom and he locked the bathroom door. He then told her that he was going to drown her. He pulled her into the bathtub and pushed her head under running water. The shower curtain blocked the drain and so the bathtub started to fill with water. Mr. Gludd pushed K.O.’s head underwater a number of times while demanding that she admit that she had been unfaithful. He was also punching and biting her. Eventually, in the hope that it would cause Mr. Gludd to stop, K.O. admitted that she was having an affair which was a lie. Mr. Gludd then squeezed her throat to the point that she lost consciousness. He then pulled a metal latch from the door and threatened to rip out her genitals. When his wife pleaded that they could try to fix things he said it couldn’t be fixed and that one of them had to die.

[10] At this point K.O.’s child began to scream outside the bathroom door that she was hungry. Mr. Gludd agreed to let his wife out of the bathroom so that she could feed her child. K.O. used this opportunity to try to escape through the apartment door but Mr. Gludd blocked the door and prevented her from leaving. K.O. then ran to the balcony and jumped from the third floor, fortunately landing without injury. Police arrived and arrested Mr. Gludd. Police observed that Mr. Gludd’s pants were wet and there was water on the bathroom floor. Threatening messages to K.O. were found on Mr. Gludd’s cell phone.

[11] Photographs were taken and Mr. Gludd’s wife suffered a large lump to her forehead and she had bite marks, bruises and areas of redness over her body.

[12] As Mr. Gludd admitted that these facts were substantially correct I had no difficulty in finding that he was guilty of aggravated assault by attempting to endanger the life of his wife, an included offence to the charge of attempt murder alleged in Count # 1; unlawful confinement as alleged in Count # 2; uttering a threat to cause bodily harm as alleged in Count # 3 and committing an assault on K.O. during the fight that occurred sometime between February and December 2012 as alleged in Count # 4.

[13] After finding Mr. Gludd guilty of these offences I received the joint submission from counsel. It is proposed that Mr. Gludd be sentenced to time served plus one day to be followed by a three year period of probation which would include a condition prohibiting possession of weapons and contact with K.O. and her child. In addition, a weapons prohibition order for ten years and a DNA order are sought.

[14] Ms. Pecknold advised that Mr. Gludd had been represented previously by other counsel and that the matter had been delayed significantly through no fault of his. He had wanted to resolve the matter much earlier and so she suggested that his guilty plea be treated as an early plea. Although she had not had a chance to obtain a victim impact statement, the complainant was aware of the proceedings and when Mr. Gludd tried to plead previously she advised that she did not require that a victim impact statement be read to the court. In fact she wanted the matter to be dealt with as quickly as possible and never see Mr. Gludd again. Given what K.O. experienced I can certainly understand her wishes.

[15] Ms. McInnis advised me that Mr. Gludd is 43 years old. Mr. Gludd has no criminal record and Ms. McInnis advised this was very much out of character for him.

[16] He is a Grenadian citizen, a permanent resident of the United States and has no status in Canada. He is on an immigration hold here. Mr. Gludd lived in New York City and had been working in the United States as a tradesman as he has various skills. He has two children from another relationship that he supports financially. One of those children, a 15 year old, is disabled and there have been significant medical costs. His mother lives in Toronto and she is blind and Mr. Gludd supports her as well.

[17] Ms. McInnis advised that it was anticipated that Mr. Gludd would face deportation to Grenada which would be devastating for him as his children remain in the United States and his mother is here. She advised that he was aware of this before he decided to plead guilty to the offences.

[18] Ms. Pecknold advised that the Crown’s position had been that with an early plea the Crown would be prepared to enter into a joint submission for a reformatory sentence of two years less a day plus probation. Mr. Gludd has in fact been in custody since his arrest on August 14, 2013; 520 days. It is proposed that this time be credited on a 1.5:1 basis which means that the credit for pre-sentence custody is approximately two years and three months. As such Mr. Gludd’s credit for time served exceeds what the Crown’s position would have been as to an appropriate sentence.

[19] Ms. McInnis confirmed the joint submission as set out by Ms. Pecknold, but advised that she took no position on the request for a probation order as she assumed that a period of probation would be moot given Mr. Gludd’s immigration problems.

[20] My only concern in accepting the joint submission was that notwithstanding the experience of counsel, I needed to assure myself that the sentence proposed was reasonable and within the appropriate range for sentence of a case of this nature. Counsel would ordinarily have had supporting case law but did not as Mr. Gludd’s further request to plead guilty was unexpected. As such the matter was adjourned to today so that counsel could provide me with some case law.

[21] Ms. Pecknold provided me with the decision of Justice K.L. Campbell; R. v. Getachew, [2013] O.J. No. 2511. There are some similarities in that that case also arose from an assault on the accused’s former girlfriend whom he was living with at the time and the cause appears to have been that he believed the complainant had been unfaithful to him. The accused broke a wooden cutting board in half over the complainant’s head, kicked her numerous times in her legs and verbally and physically abused her for several hours. He ultimately forced her to drink bleach but helped her when she passed out. She suffered serious physical injuries including a subdural hematoma as a result of this violence. The accused was 38, had no prior record and had spent 391 days in custody.

[22] Justice Campbell reviewed the sentencing principles that apply in a case such as this where a defendant has been convicted of a serious domestic assault. That is a statutory aggravating circumstance as set out in s. 718.2(a)(ii) of the Criminal Code. The case is distinguishable in that the accused pleaded not guilty and the abuse occurred over a period of hours and the physical injuries to the complainant appear to have been more serious that the injuries suffered by K.O.

[23] After reviewing a number of authorities, Justice Campbell concluded that 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. He also found that such a sentence would recognize that the accused was a mature first-time offender with excellent prospects for rehabilitation.

[24] In light of this decision and the authorities reviewed by Justice Campbell, I am satisfied that the sentence proposed for the case at bar is reasonable, particularly as unlike the offender in Getachew, Mr. Gludd has pleaded guilty and wanted to do so much earlier in the proceedings which does demonstrate remorse. He has spared K.O. the ordeal of having to testify again.

[25] Accordingly I am prepared to accept the joint submission as outlined by Ms. Pecknold.

[26] Before I formally sentence Mr. Gludd, I turn to the question of whether Mr. Gludd would benefit from counselling which was raised by counsel. Mr. Gludd agreed that he would like someone to talk to and in my view the facts of these offences cry out for this. I have addressed this in the probation order but that may be largely moot given the immigration hold. Although because of that hold Mr. Gludd will remain in custody for some period of time, the difficulty is that we do not know where Mr. Gludd will be held pending the determination of his immigration issues. If it is in a remand centre accessing counselling may be difficult. Mr. Gludd has a strong preference to stay at the Toronto East Detention Centre where he has been in custody for the most part.

[27] In my view it is essential to Mr. Gludd’s rehabilitation that he receive appropriate counselling and the sooner the better. It has already been one and a half years since the culminating events that brings him before this Court. Although his precise needs should be determined by someone skilled in this area, in my view Mr. Gludd needs to participate in a program for spousal abuse and possibly anger management.

[28] I realize I do not have authority to make an order for treatment. However, a copy of this decision will be attached to Mr. Gludd’s remand papers and I ask that Ms. McInnis ensure that the Superintendent at Toronto East is informed of Mr. Gludd’s need for counselling. If he is to stay there or is transferred to another facility I expect that whatever can be done to accommodate this need will be done. Our institutions have to address not only the physical health of the inmates they are responsible for but also their mental and emotional health. If appropriate counselling is not available in the institution then I expect that a Temporary Absence could be authorized by the Superintendent where Mr. Gludd is being held so that he could see a counsellor in the community periodically to facilitate his rehabilitation.

[29] Mr. Gludd would you please stand.

[30] With respect to your conviction on the included offence in Count # 1 of aggravated assault, I sentence you to a term of imprisonment of two years less a day.

[31] With respect to your conviction on Count # 2 of unlawful confinement, I sentence you to a term of imprisonment of nine months to be served concurrently to your other sentences.

[32] With respect to your conviction on Count # 3, uttering a threat, I sentence you to a term of imprisonment of nine months to be served concurrently to your other sentences.

[33] With respect to your conviction for assault on Count # 4, I sentence you to a term of imprisonment of nine months to be served concurrently to your other sentences.

[34] Mr. Gludd, given the credit for pre-trial custody I have given to you, your effective sentence is time served plus one day. You will, however, be subject to a period of probation for three years upon your release. In addition to the compulsory conditions of this probation order, provided for by section 732.1(2) of the Criminal Code, the additional conditions of the order are as follows:

a) Report within two working days of your release, in person, to a probation officer and thereafter when required by the probation officer;

b) Remain within the Province of Ontario unless written permission to go outside the Province is obtained from the court or the probation officer;

c) Abstain from owning, possessing or carrying any weapon as defined in the Criminal Code;

d) Reside at an address approved of by the probation officer;

e) Do not change your address without the prior approval of the probation officer;

f) Attend, actively participate, and complete a rehabilitative program for spousal abuse and any other treatment as directed by the probation officer. Provide proof to the probation officer of attendance at said program or, if requested, sign consents to release such information as may be required to monitor your compliance with this condition when requested by the probation officer;

g) Do not associate or have any communication, directly or indirectly, with K.O. or her child, M.U., except through a lawyer for the purpose of Family Court or Divorce Act proceedings; and

h) Do not be within 500 meters of any place where you know or ought to know K.O., or her child to be.

[35] There will be a mandatory weapons prohibition order pursuant to section 109(1)(a) of the Criminal Code. As these are your first convictions, that order will be for ten years.

[36] I also make a DNA order pursuant to s. 487.05(1) of the Criminal Code as you have been convicted of aggravated assault, a “primary designated offence” as defined in the Criminal Code.

[37] Finally, the attempt murder charge; Count # 1 and the assault charge; Count # 5 shall be marked withdrawn at the request of the Crown.

SPIES J.

Released: January 20, 2015

CITATION: R. v. Gludd, 2015 ONSC 392

COURT FILE NO.: CR14300001730000

DATE: 20150120

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

KEITH GLUDD

REASONS FOR SENTENCE

SPIES J.

Released: January 20, 2015