CITATION: R. v. Oshell, 2016 ONSC 1529
Court File No. 13-9430-00
DATE: 2016-03-02
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
DAVID OSHELL
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 February 1, 2016 at NEWMARKET, Ontario
APPEARANCES:
G. Kim
Counsel for the Crown
J. Goldlist
Counsel for David Oshell
MONDAY, FEBRUARY 1, 2016
R E A S O N S F O R S E N T E N C E
FUERST, J. (Orally):
David Oshell pleaded guilty to aggravated assault, threatening death, unlawful confinement and mischief over $5,000.
The offences represent a horrific sequence of events that unfolded over a period of hours in the complainant's Aurora home.
Mr. Oshell and the complainant had been involved in an intimate relationship of some duration. The relationship came to an end, but Mr. Oshell continued to live in the complainant's basement temporarily, while he finished his probationary term at work.
On the evening of December 30th, 2013, the complainant went down to her basement. She removed Mr. Oshell's clothing from the washing machine and put in her own laundry. She spoke to Mr. Oshell and told him that he needed to leave her home by the end of the week.
Mr. Oshell grabbed her head by her hair and threw her into the hard plastic laundry tub, breaking the tub. He continued to assault her, punching her in both eyes and smashing her head onto the concrete floor more than once. He told her that they were both going to die that evening. He brought her a notebook and told her to write her goodbye letters to her children.
Over the next several hours, Mr. Oshell blocked the complainant's escape from the basement, and threatened her with a kitchen knife. He spoke about the two of them dying while looking into one anothers' eyes. Eventually, the complainant told him that she would give their relationship another chance and showed him physical affection. She promised to stay in the house until her injured face healed.
The complainant was able to retrieve her purse and to send a text message to her ex-husband. He saw the text when he awoke. He went to her home, arriving at the same time as the police. They had been contacted by a friend of Mr. Oshell's who had read a disturbing Facebook message he posted.
Mr. Oshell was arrested without incident. He wrote a letter of apology to the complainant.
The complainant suffered significant physical injuries, including a fractured left orbital bone, wounds to the eye and forehead that required stitches and a fracture to the tip of a finger. In her Victim Impact Statement, she describes suffering from nightmares, anxiety and stress. She feels betrayed and vulnerable.
Mr. Oshell is now 54 years old. He has no prior criminal record. Previously, he worked on a ferry-boat for about a decade until 2012 when he was dismissed. In 2013, he began working for the large renovation store where he was on probation when the offences occurred.
Mr. Oshell told the pre-sentence reporter that he used cocaine in the past to the point of addiction. He completed an inpatient program at Homewood in 2008. The pre-sentence report also indicates a history of using alcohol to excess.
Mr. Oshell has been in custody since December 31st, 2013. While at the Central East Correctional Centre, he completed an anger management and a form of life skills program. He meets regularly at the jail with a Salvation Army Chaplin who describes him as having made improvement in his self-esteem.
Crown and defence counsel jointly submit that Mr. Oshell should receive a global sentence of two years in jail in addition to pre-sentence custody, calculated on a one and a half to one basis, probation for three years, a DNA order, and a weapons prohibition order.
The aggravating factors in this case include:
Mr. Oshell committed the offences against a woman with whom he had been in an intimate relationship.
He terrorized her over a period of hours.
He did so by holding her captive in her own home.
He threatened her with a weapon.
The assault was brutal in nature and resulted in significant injuries to the complainant, both physical and emotional.
In mitigation, Mr. Oshell pleaded guilty, which is a sign of remorse and acceptance of responsibility for his actions. He has expressed remorse to me in open court. His guilty pleas have brought a measure of relief to the complainant.
The principles of denunciation and deterrence, both general and specific, must govern the determination of the appropriate sentence in this case. Mr. Oshell's offences reflect a gross abuse of a position of trust. Notwithstanding that he is a first offender, a penitentiary sentence is required.
In all of the circumstances, I accept the joint submission put to me by Crown and defence counsel.
Mr. Oshell, please stand. On count 6 I sentence you to two years in the penitentiary, which is in addition to the equivalent of three years and 64 days of pre-sentence custody. That will be followed by three years of probation. In addition to the statutory conditions, the conditions are the following.
Report to a probation officer immediately upon release and thereafter as required.
Have no contact, direct or indirect with Leslie Mason or any member of her immediate family.
Not be within 500 metres of the known place of residence, education or employment of Leslie Mason.
Take such counselling as the probation officer recommends and not stop it without the prior written permission of the probation officer.
Sign releases of information between your counsellor and the probation officer so that your progress can be monitored.
Not possess any weapons as defined by the Criminal Code.
I impose a sentence of two years in the penitentiary and three years' probation concurrent on each of counts 3 and 4. The sentence on count 5 is one month in jail concurrent.
There is a DNA order on counts 3, 4 and 6. There is a section 109(2)(a) order for 10 years and a section 109(2)(b) order for life on counts 4 and 6.
You may be seated. Is there anything, Ms. Kim, Ms. Goldlist, that needs to be clarified?
MS. GOLDLIST: I'm not sure if the other counts on the indictment have already been withdrawn, my friend....
THE COURT: Counts 1 and 2, yes, were withdrawn on September 29th at the request of the Crown.
MS. GOLDLIST: Okay, thank you. Nothing further for the defence.
MS. KIM: Nothing further, thank you.
FORM 2
Certificate of Transcript
Evidence Act, Subsection 5(2)
I, Sheree Chantler, certify that this document is a true and accurate transcription of the recording of R. v. D. O'Shell in the Superior Court of Justice held at 50 Eagle Street West, Newmarket, Ontario taken from Recording(s) No. 4911_403_ 20160201_091626_10_FUERSTM which has been certified in Form 1 by T. Marshall.
March 9, 2016 ________________________________
(Date) (Signature of authorized person)
ACT #2701137114