Court File and Parties

COURT FILE NO’S. 13705A/14, 12-250167

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

J.L.

R E A S O N S F O R S E N T E N C E

BEFORE THE HONOURABLE JUSTICE M. FUERST

on OCTOBER 13, 2015, at OSHAWA, Ontario

APPEARANCES:

K. Saliwonchyk Counsel for the Crown

D. Brodsky Counsel for Mr. J.L.

REASONS FOR SENTENCE

FUERST, J. (Orally):

J.L. engaged in a course of criminal conduct in respect of his girlfriend, J.M.. It spanned a period of years, and can legitimately be described as a reign of terror.

The conduct included physically assaulting Ms. J.M. on multiple occasions, for example striking her on the head, and pushing her down a set of stairs. After Ms. J.M. reported being assaulted to the police and Mr. J.L. was arrested, he instructed her that she had to “make the charges go away”.

In September 2010, Mr. J.L. kicked in the door of Ms. J.M.’s home, chased her upstairs, and had forcible sexual intercourse with her. He hit her in the ribs and on the leg when she tried to summon help. In October 2011, he pushed her onto a couch, chocked her and then had sexual intercourse with her. In April 2012, he kicked in the door of her residence and physically assaulted her. He was arrested and released on a recognizance with a condition that he have no contact with her. He ignored the release condition, and spoke to and saw her on multiple occasions.

On December 27, 2012, Mr. J.L. again broke into Ms. J.M.’s home. She contacted 911, but before the police arrived, Mr. J.L. put a pillow over her face and began to have sexual intercourse with her. He was arrested and held in custody. Nonetheless, he persevered in his efforts to control her, writing her letters, including one in which he told her to speak to his family and friends as he wanted to get things resolved before trial and it would only get more serious at trial.

In her Victim Impact Statement, Ms. J.M. describes struggling with depression and anxiety, as well as concern about the impact of events on her son. She wants Mr. J.L. out of her life forever, but she fears what will happen when he is released from jail.

Mr. J.L. is 31 years old. He completed high school, and then a machinist’s program. Although he was raised by parents who were law-abiding members of the community and supportive of him, he repeatedly engaged in criminal activity. His criminal record spans the past decade. It includes prior crimes of drug possession, assault, and failure to abide by court orders. Despite receiving a suspended sentence and probation on more than one occasion, he appears to have derived little benefit from those opportunities for self-improvement. He has both substance abuse and anger issues, which remain untreated. At least some of his offences against Ms. J.M. were committed while he was under the influence of drugs and/or alcohol.

Mr. J.L. has been in custody since December 27, 2012, a total of 1021 days. Both Crown and defence counsel agree that he should receive credit on a one and a half to one basis for this time, which is the equivalent of 1531 days. I treat this as 51 months.

While in custody, Mr. J.L. has met with an addictions counsellor, and attended AA meetings. He has worked as a cleaner in the detention centre, and has shown himself to be responsible and trustworthy in that setting. His mother passed away while he was in custody, but his father remains supportive of him, and describes him as having matured and embraced treatment for his addiction issues.

In court, Mr. J.L. expressed that he understands the seriousness of his offences and on a daily basis regrets his actions. He is focused on addressing his drug addiction, and looks forward to attending programming while he serves his sentence.

Crown and defence counsel jointly submit that Mr. J.L. should receive a global sentence of seven years in jail, less credit for pre-sentencing custody. They agree that there should be a DNA order, and a S.743.21 non-communication order in respect of Ms. J.M. and her immediate family. On behalf of the Crown, Mr. Saliwonchyk seeks a SOIRA order for life and a S.109 weapons prohibition order for life. Mr. Brodsky on behalf of Mr. J.L. suggests that those orders should be of lesser duration.

Mr. J.L.’ offences involve a troubling plethora of aggravating aspects. These include the fact that he engaged in multiple acts of physical and sexual assault against a woman with whom he was in an intimate relationship; that he broke into her home, the one place where she was entitled to be and to feel safe, on multiple occasions; that he has a prior criminal record, including for offences of assault; that he attempted to interfere with the administration of justice by pressuring Ms. J.M. to recant her allegations against him, which was also a means of asserting control over her; that he showed complete disregard for court orders that were intended, among other things, to ensure Ms. J.M.’s safety; and that his offences against Ms. J.M. have had a lasting impact on her with which she continues to struggle.

In mitigation, Mr. J.L. pleaded guilty, which is a sign of remorse and acceptance of responsibility for his crimes. He expressed remorse in court. He has acknowledged that he has a substance abuse problem. While he has yet to receive treatment, he is willing to pursue treatment once he is sentenced. He continues to have family support, which is important if he is to reintegrate into society on his release from jail.

The principles of sentencing which must govern in this case are denunciation, and deterrence both general and specific. The message must be clear, both to Mr. J.L. and to others who might be inclined to engage in this kind of criminality, that it is deserving of and will result in a lengthy jail sentence. Mr. J.L. also must understand that he has run out of second chances, should he fail to live up to his expressed desire to change his life path. If, on his release from jail, he returns to criminal behaviour, it is quite likely that he will find himself the subject of a dangerous offender application and face a sentence of indeterminate detention in the penitentiary.

Mr. J.L., please stand. While the nature of your offences could well attract a penitentiary term in the double digits, I am persuaded by the submissions of your lawyer and Crown counsel that a global sentence of seven years is appropriate in all the circumstances.

One Count 7, I sentence you to seven years in jail, less credit for pre-trial custody of 51 months, leaving a sentence to be served of 33 months in the penitentiary. On Count 1, I sentence you to 33 months in jail concurrent; on Count 2, to two years in jail concurrent; on Count 6 to 33 months in jail concurrent; on Count 11 to 33 months in jail concurrent; on Count 14 to two years in jail concurrent; on Count 16 to 33 months in jail concurrent; on Count 17 to two years in jail concurrent; and on Count 22 to two years in jail concurrent.

There is a DNA Order on Counts 1, 2, 6, 7, 11 and 16.

A SOIRA order for life is mandatory on Counts 6, 7, 11, and 16.

There is a S.109(2)(a) weapons prohibition order for 10 years and a S.109(2)(b) order for life on Counts 6, 7, 11, and 16.

There is an order under S.743.21 prohibiting Mr. J.L. from having any contact with J.M. or any member of her immediate family, direct or indirect, while he is in custody.

You can be seated.

Now, is there anything that needs to be clarified either in terms of the mathematics or the application of the ancillary orders to various counts?

MR. BRODSKY: I don’t believe so, Your Honour.

MR. SALIWONCHYK: Not from my perspective, thank you.

THE COURT: All right. I do not know if counsel want to check that, just because I do not think we ever got to the point of identifying specific Counts and specific ancillary orders, if counsel want to take a few minutes before I endorse the indictment to check that I’ve got the DNA order applying to the right Counts and the SOIRA order and the weapons prohibition order. It is up to you.

MR. SALIWONCHYK: I jotted things down as quickly as I could, nothing leapt out at me at this stage, Your Honour, and I’m not asking for any further time.

MR. BRODSKY: I agree with the Crown.

THE COURT: All right. So, there is some paperwork we have to do up, I would just like to endorse the indictment if I could while everyone is here. MR. BRODSKY: This may be automatic, Your Honour, but just in case, the materials that my client filed....

THE COURT: Yes.

MR. BRODSKY: ....I want them to go in....

THE COURT: Yes.

MR. BRODSKY: ....aid of his classification.

THE COURT: All of that will go automatically. There is a form that Madam Registrar will provide for my signature and we will do that today to make sure they go.

MR. BRODSKY: Thank you.

MR. SALIWONCHYK: And, I spoke to Mr. Brodsky just before Your Honour came in, it would appear that all of these offences took place before the most mandatory Victim Fine Surcharge sections were proclaimed....

THE COURT: Yes.

MR. SALIWONCHYK: ....and in the circumstances given that they’re less mandatory, due to the timing, the Crown is content if Your Honour would find an exception in this case.

THE COURT: All right. So, that the Victim Fine Surcharge can be waived because of what I take it to be the financial difficulties that would result if I made such an order given the length of time of the jail term, Mr. Brodsky?

MR. BRODSKY: Yes, Your Honour.

MR. SALIWONCHYK: All right. Thank you.

THE COURT: Sorry, it is just going to take me a few minutes to endorse all of this so, bear with me. I am not sure, Mr. Saliwonchyk, if the other Counts were addressed. We addressed Count 15, I struck the guilty plea but I am not sure that we went beyond that.

MR. SALIWONCHYK: I think we assumed it was included in the batch that I withdrew on the last day.

THE COURT: Yes, they were all withdrawn on the last date as per your request, thank you.

E N D O R S E M E N T

THE COURT: I have endorsed the indictment as follows:

Mr. J.L. is sentenced as follows:

Count 7: Seven years jail less 51 months pretrial custody, leaving a sentence to be served of 33 months in jail.

Count 1: 33 months in jail concurrent.

Count 2: Two years in jail concurrent.

Count 6: 33 months in jail concurrent.

Count 11: 33 months in jail concurrent.

Count 14: Two years in jail concurrent.

Count 16: 33 months in jail concurrent.

Count 17: Two years in jail concurrent.

Count 22: Two years in jail concurrent.

There is a DNA order on Counts 1, 2, 6, 7, 11 and 16.

There is a SOIRA order for life on Counts 6, 7, 11 and 16.

There is a S.109(2)(a) order for ten years and a S.109(2)(b) order for life on Counts 6, 7, 11 and 16.

There is a S.743.21 order in respect of J.M. and any member of her immediate family.

The Victim Fine Surcharge is waived.

MR. BRODSKY: Thank you, Your Honour.

THE COURT: Does that take care of everything?

MR. BRODSKY: Yes, it does.

MR. SALIWONCHYK: Yes, thank you.

THE COURT: All right. Thank you. Thank you both so much for the work you did to bring this matter to a close, thank you. * * * *

Form 2 Certificate of Transcript Evidence Act, Subsection 5(2)

I, Amber Lihou, certify that this document is a true and accurate transcript of the recording of October 13, 2015 in the Superior Court of Justice, held at 150 Bond St. E., Oshawa, ON, taken from Recording #2812_204_20151013_084436__10_FUERSTM which has been certified in Form 1. ___________________ ___________________________________

(Date) Signature of Authorized Person(s)