CITATION: R. v. H.B., 2016 ONSC 2145
COURT FILE NO.: CR-15-741-00
DATE: 20160329
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Erin Norman, for the Crown
- and -
H.B.
Bo Arfai, for the Accused
Accused
HEARD: March 29, 2016
REASONS FOR SENTENCE
Conlan J.
I. Introduction
[1] The victim, Ms. J.H., and the offender, Mr. H.B., had a sexual relationship that lasted several months until late October 2013. This was an extra-marital affair on the part of H.B. The two had met initially with a view to the offender doing some handyman work at the victim’s home.
[2] In the early morning hours of October 26, 2013, they had sexual intercourse in the accused’s truck. J.H. alleged that the sex, or at least part of it, was not consensual.
[3] On October 27, 2013, the offender repeatedly communicated with J.H. That communication was unwanted and made the victim fear for her safety.
[4] In January 2016, H.B. was tried before me, without a jury, in the Superior Court of Justice at Brampton. He had been charged with two offences: sexual assault and criminal harassment.
[5] In Reasons for Judgment dated January 25, 2016, reported at 2016 ONSC 594, I acquitted H.B. of the sexual assault offence but found him guilty of the criminal harassment charge.
[6] A presentence report was ordered, and the sentencing was adjourned to today in Brampton, March 29, 2016.
II. The Basic Facts Underlying the Criminal Harassment
[7] On October 27, 2013, J.H. communicated with the offender to make it clear that the relationship was over. H.B. did not accept that. Instead, he sent to the victim a series of unwanted text messages (those messages were marked Exhibit 3 at trial). J.H. did not respond to any of those messages. The harassing communications from H.B. included a threatening remark that he may go “Rambo” on J.H. The repeated communications from the offender culminated in H.B. declaring that he was on his way over to the victim’s home. The offender then telephoned J.H. and left a disturbing message on her home voicemail.
[8] All of that caused J.H. to be fearful, reasonably so.
III. The Offender
[9] H.B. is currently fifty years old, married and without any prior criminal record.
[10] He was born in Montego Bay, Jamaica. His parents separated when he was a child. His mother died in 1982. In the past, the offender had very little contact with his father but currently sees and speaks to him on a regular basis.
[11] The offender met his wife in high school and married her in 1996. They have two adult children. According to the presentence report, the couple has a fairly good relationship.
[12] H.B. did not complete high school. He is self-employed as a carpenter doing home renovations and interior decorating.
[13] There are no known substance abuse issues.
[14] H.B. presented to the author of the presentence report as open and forthcoming. He expressed remorse for those affected by his behaviour, mainly his wife, but did not fully accept responsibility for having harassed J.H. (remember, however, that he pleaded not guilty to the charge).
[15] During the interview for purposes of the presentence report, the offender indicated a willingness to accept the consequences of his criminal conduct including community service work, however, he does not appear to be amenable to receiving counselling. He stated that his prime objective is to mend the relationship with his wife. H.B.’s wife is very supportive of him and describes him generally as a “good husband”, a “good father” and a “good person”.
[16] After his arrest, H.B. experienced some suicidal thoughts and attended counselling through his employee assistance program.
[17] In the opinion of the author of the presentence report, the offender would benefit from some form of ongoing counselling to address marital/relationship issues, respecting boundaries and maintaining self-control.
[18] Overall, I would describe the presentence report as a generally positive one.
IV. The Positions of the Crown and the Defence
[19] The Crown recommends the following sentence: 30-45 days in custody, which could be served intermittently, to be followed by 18 months of probation.
[20] The Defence submits that the appropriate sentence is a conditional discharge.
V. Analysis
[21] The following are all unopposed and will issue accordingly: (i) the victim fine surcharge, with thirty days to pay; (ii) a secondary DNA Order; and (iii) a section 109 Criminal Code firearms and weapons prohibition Order for ten years and life, respectively, as per paragraphs (a) and (b) of subsection 109(2).
[22] I commend J.H. for having the strength to outline the consequences to her and her family of H.B.’s criminal harassment. Her victim impact statement is a testament to how being harassed can make one skittish, distrusting, paranoid and fearful.
[23] Sentencing is a highly discretionary and individualized process. Any sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. I must take in to consideration the purpose and principles of sentencing outlined in section 718 and the following sections of the Criminal Code.
[24] In my view, the principles of sentencing most applicable to these facts and this offender are denunciation, general and specific deterrence and rehabilitation.
[25] There is a need for this Court to denounce the unlawful conduct of H.B. Relationship partners like J.H. deserve to be listened to when they say that it is over. Persistent harassment of a partner is simply inexcusable. Hence, the need for general deterrence.
[26] The overall flavour of the presentence report gives me some concern about whether H.B. fully appreciates the gravity of his criminal behaviour, and thus, he needs to be specifically deterred from engaging in this type of harassing conduct in the future.
[27] On the other hand, balancing against those principles is the fact that this offender is a decent candidate for rehabilitation, albeit a somewhat reluctant one. He has no prior criminal record. In the circumstances, I ought to exercise some restraint in sentencing H.B. as a first-offender.
[28] The chief aggravating factors are (i) that the victim was the offender’s relationship partner and (ii) that the harassing communications included the said threatening remark about “Rambo”.
[29] In mitigation, H.B. not only has no prior criminal record but is employed, has a family and appears to be a generally productive member of society.
[30] In the end, I do not see this as a case where jail is necessary. A probationary disposition will satisfy the purpose and principles of sentencing.
[31] I decline to impose a conditional discharge as requested by the Defence. Although I accept that such a sentence would be in the offender’s interests, I find that, on these facts, it would be contrary to the public interest. If the harassing conduct was more benign and did not include the “Rambo” threat and the comment about coming over to the house, I might see more merit to the Defence submission.
VI. Conclusion
[32] In addition to the unopposed matters outlined above, for all of these reasons, I impose on H.B. a suspended sentence and probation for 18 months. All of the statutory terms apply in accordance with subsection 732.1(2) of the Criminal Code.
[33] In addition, having considered the recommendations of the author of the presentence report and the submissions of counsel, pursuant to subsection 732.1(3), the following optional conditions apply: (i) H.B. shall not associate, communicate or have any contact by any means directly or indirectly with J.H., (ii) H.B. shall not attend within 100 metres of any place of residence, employment or education known to him to be that of J.H., (iii) H.B. shall report to his probation officer within two working days of today and thereafter in the manner and on such schedule as directed by the probation officer, (iv) H.B. shall attend for any counselling or treatment as recommended by his probation officer, not leave that program without the prior written permission of the probation officer and sign any releases of information requested by the probation officer to monitor his progress.
Conlan J.
Released: March 29, 2016
CITATION: R. v. H.B., 2016 ONSC 2145
COURT FILE NO.: CR-15-741-00
DATE: 20160329
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
- and -
H.B.
Accused
REASONS FOR SENTENCE
Conlan J.
Released: March 29, 2016