COURT FILE NO: CR-14-30000680-0000 DATE: 20160713 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Maureen Pecknold for the Crown

• and -

DAVID KREINDL Richard Elbirt for David Kreindl

HEARD: June 24, 2016

REASONS FOR SENTENCE

CORRICK J.

Introduction

[1] In the early morning hours of April 1, 2014, David Kreindl shot J.R. in the face with a flare gun while she lay in bed. Following a trial, I found Mr. Kreindl guilty of seven offences, including aggravated assault, arising from this event. I also found him guilty of two counts of failing to appear in court. He appears before me today for sentencing.

The Facts

[2] The facts surrounding the offences committed against Ms. R. are as follows. Mr. Kreindl and Ms. R. had been dating for a few months when these events occurred. The night before the shooting, they argued. Mr. Kreindl was angry with Ms. R. for being disrespectful to him and for using him. Despite the argument, they stayed together that night in a hotel room. The next morning, Mr. Kreindl left. Ms. R. stayed in the room because she was not feeling well. Mr. Kreindl returned to the room that evening. He was still angry. He threw a glass of juice on Ms. R., grabbed her by the hair, and told her not to fuck with him.

[3] When Ms. R. lay down in bed to rest, Mr. Kreindl went in the bathroom with his knapsack. When he came out of the bathroom, he walked toward Ms. R. with one hand behind his back and fired a flare gun at Ms. R., striking her in the face.

[4] The flare ignited the skin on her arm and legs. She was unable to open her right eye. She was bleeding profusely. She had difficulty getting off the bed. Mr. Kreindl did not assist her. He refused to tell her what had caused her injuries.

[5] Before Mr. Kreindl left the room, he told Ms. R. that if she called the police it would be the last thing she ever did.

[6] The facts underlying the convictions on the other three counts are as follows. Firstly, on October 15, 2012, Mr. Kreindl was arrested for possession of heroin and carrying a concealed weapon. He was released on an undertaking with a condition that he not possess any weapons as described in the Criminal Code. This undertaking was in effect when Mr. Kreindl shot Ms. R. with a flare gun.

[7] Secondly, on January 5, 2013, Mr. Kreindl was charged with theft under and released on an appearance notice. He failed to appear in court as required on February 27, 2013 and a bench warrant was issued. He was arrested on March 12, 2013 and released on his own recognizance on March 14. He failed to appear in court as required on April 10, 2013 and a bench warrant was issued. The warrant came to light when Mr. Kreindl was arrested on April 1, 2014.

[8] Lastly, on January 7, 2013, Mr. Kreindl was released on charges of break and enter, possession of property obtained by crime, failing to comply with an undertaking, and failing to appear for fingerprints. He did not attend court on April 5, 2013 as required, and a bench warrant was issued for his arrest. The bench warrant was executed when Mr. Kreindl was arrested on April 1, 2014.

Legal Parameters

[9] I found Mr. Kreindl guilty of the following offences:

1. aggravated assault,
2. assault with a weapon,
3. uttering a death threat,
4. discharging an air or compressed gas pistol with intent to endanger life,
5. discharging an air or compressed gas pistol with intent to wound, maim or disfigure,
6. discharging a firearm with intent to wound, maim or disfigure,
7. failure to comply with a condition of a recognizance not to possess weapons,
8. failure to appear in court on April 10, 2013, and
9. failure to appear in court on April 5, 2013.

[10] The maximum penalty to which Mr. Kreindl is subject is 14 years. This is the prescribed maximum for the offence of aggravated assault, the most serious offence Mr. Kreindl committed against Ms. R.

[11] The maximum sentence for the fail to comply and fail to appear charges is two years in prison, when prosecuted by indictment.

Positions of the Parties

[12] Ms. Pecknold, on behalf of the Crown, submits that a total sentence of 15 years is the fit disposition in this case. She seeks the maximum sentence of 14 years for the aggravated assault charge. She submits that consecutive sentences are required for the two fail to appear charges and submits that six months on each charge consecutive to the 14 years and consecutive to each other is the fit sentence.

[13] She submits that the circumstances of this offence, together with the circumstances of Mr. Kreindl make this a case with the worst offender and the worst offence, meriting the imposition of the maximum punishment.

[14] Mr. Elbirt submits that a penitentiary sentence of between ten and twelve years less credit for the time Mr. Kreindl has spent in pre-sentence custody is the appropriate disposition. He argues that this is not an offence of stark horror, deserving of the maximum penalty.

Principles of Sentencing

[15] In determining a fit sentence for Mr. Kreindl, I am guided by the sentencing principles set out in the Criminal Code.

[16] The fundamental purpose of sentencing, as set out in s. 718 of the Criminal Code, is to "contribute, along with crime prevention measures, to respect for the law and the maintenance of a just, peaceful and safe society" by imposing sentences that have one of the following six objectives:

1. denouncing unlawful conduct,
2. deterring the offender and others from committing crimes,
3. separating offenders from society where necessary,
4. assisting in the rehabilitation of the offender,
5. providing reparations for harm done to the victim or to the community,
6. promoting a sense of responsibility in the offender, and
7. acknowledging the harm done to victims and the community.

[17] Any sentence I impose must be proportionate to the gravity of the offence and the responsibility of the offender: s. 718.1 of the Criminal Code.

[18] Keeping in mind the purposes of sentencing, I am also required by section 718.2 to bear the following principles in mind when imposing sentence:

• the sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;
• where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
• the sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
• offenders should not be deprived of liberty if less restrictive sanctions may be appropriate; and
• all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.

Principles Relevant to the Imposition of the Maximum Sentence

[19] Ms. Pecknold asks the court to impose the maximum sentence of 14 years on Mr. Kreindl for the aggravated assault charge. The historical notion that the maximum sentence must be reserved for cases involving the worst offender and the worst offence was rejected by the Supreme Court of Canada in its 2004 decision of R. v. Cheddesingh. [1] Chief Justice McLachlin, writing for a unanimous court, indicated that terms such as “worst offence”, “worst offender” and “stark horror” add nothing to the analysis of determining the appropriate sentence in any case, and should be avoided. Rather, maximum penalties are appropriate if the offence is sufficiently grave and the offender is sufficiently blameworthy. The Chief Justice acknowledged that maximum sentences are exceptional, and would be imposed only rarely.

[20] Four years later, Justice LeBel in R. v. L. M. [2] wrote at para. 22, “Thus, the maximum sentence cannot be reserved for the abstract case of the worst crime committed in the worst circumstances.”

[21] Proportionality remains key. If, after considering all of the relevant principles and factors, it is determined that the maximum penalty is warranted, it must be imposed.

Circumstances of the Offender

[22] The details of Mr. Kreindl’s background are set out in a pre-sentence report. He is 50 years old. He was born in Toronto, but was raised from the age of two by his mother in London, England. He has had virtually no relationship with his father. His mother remarried when he was 7 years old, and Mr. Kreindl considered his step-father as a father figure. That marriage ended when Mr. Kreindl was 16. Mr. Kreindl described his upbringing as positive.

[23] Mr. Kreindl left school at the age of 16. He has worked in the welding field, but has not been gainfully employed since 1991.

[24] Mr. Kreindl has a criminal record, both in Canada and the United Kingdom. In the UK, he was convicted in February 1992 of attempted deception and sentenced to 15 months. In January 1993, he was convicted of murder and given a life sentence. After serving 20 years in prison, he was deported to Canada in June 2012. In August 2014, he was convicted in Toronto of theft under, break and enter, fail to appear and fail to comply with an undertaking. After being credited for 100 days of pre-sentence custody, Mr. Kreindl was sentenced to one day in jail.

[25] The circumstances surrounding Mr. Kreindl’s murder conviction bear some discussion. On consent, a report prepared by the police agency that investigated the murder was filed as an exhibit. It sets out the details of the murder. The victim was the 32-year-old mother of Mr. Kreindl’s two-year-old daughter. On May 3, 1992, Mr. Kreindl bludgeoned the victim to death by striking her several times on the head with a hammer. The victim, at the time, was sitting on the floor in a bean bag chair with her legs spread out under a low coffee table. There was no evidence that the victim had defended herself. The forensic biologist who observed the murder scene opined that Mr. Kreindl stood over the victim, faced her and struck her several times in the head from that position. Mr. Kreindl closed the door to the room where the victim was and left the apartment, leaving his two-year-old daughter unattended. Sometime later that day, he called the emergency telephone number and reported that there had been an accident at the apartment and an unattended baby was there.

[26] The similarities between the circumstances of that case and this case are chilling. Both victims were Mr. Kreindl’s intimate partners. Both victims were in vulnerable positions when attacked. Both victims were attacked in the head area. Neither victim defended herself. Mr. Kreindl fled from the scene of both crimes, abandoning the victim and a two-year-old child in one case, and a severely injured Ms. R. in this case.

[27] Mr. Kreindl’s daughter, who is now 26 years old, lives in Ireland. Mr. Kreindl reported that he has a good relationship with her and corresponds with her by letter.

[28] Mr. Kreindl arrived in Toronto in 2012, after being deported from England. He had no money and knew no one. He stayed at a shelter and eventually found a room. He supported himself on social benefits.

[29] Since 2013, he has attended a methadone clinic. He had a previous heroin addiction in 1990, which he overcame with methadone. In 2013, he became addicted to oxycodone following an injury to his shoulder. When his doctor would no longer prescribe oxycodone, he began buying opiate street drugs.

[30] Mr. Kreindl told the author of the pre-sentence report that he was diagnosed as bipolar when he was in custody in the UK. He indicated that he had been seeing a psychiatrist before his arrest on this charge, and was prescribed Clonazepam and Seroquel. He continues to see a psychiatrist while in custody and continues to receive medication. He stated that any further time in custody would not be good for his emotional and mental state of mind.

The Impact on Ms. R.

[31] Ms. R. suffered very serious physical injuries as a result of this crime. They are outlined in my Reasons for Judgment, but bear repeating here. They are as follows:

• She suffered multiple fractures to her face and skull and leakage of her cerebral spinal fluid, which required surgery to repair. This surgery required the removal of part of her skull and the exposure of her brain.
• She required facial reconstructive surgery to repair fractures to her orbital bone.
• She required a bone graft from her leg, and a titanium mesh plate and screw for reconstruction of her skull.
• She suffered “full thickness” burns over 3% of her body, including her shoulder, back, chest and upper arm, which required surgery and skin grafts from her thigh.
• Some of the blood vessels beneath her skin were burnt and are no longer viable.
• She has lost the vision in her right eye, where her orbital bone was fractured and her eyelid was lacerated. She is now required to wear glasses.
• She has no sense of smell in her right nostril.
• She has scars from the burns to the right side of her arm, which extend to her lower back, the left side of her leg and around her right eye.
• She continues to require follow-up care from plastic surgery, neurosurgery and ophthalmology.

[32] Understandably, this attack has also had a devastating psychological effect on Ms. R. A victim impact statement prepared by Ms. R. describes the harm she has suffered as a result of Mr. Kreindl’s attack. Ms. Pecknold read the statement to the court. It is also marked as an exhibit.

[33] Ms. R. has been diagnosed with post-traumatic stress disorder, and requires medication to cope each day and to sleep. She attends weekly therapy sessions to help her cope with what happened to her and the scars she bears as a result. She is fearful of men, and can no longer trust people. She is emotionally unstable, in constant pain, and lives in fear of Mr. Kreindl’s eventual release.

[34] The scars she carries from the burns prevent her from exposing parts of her skin to the sun, requiring her to cover up or stay out of the sun.

[35] Her family has suffered as well. Her father and siblings feared for her life. They do not know how to help her emotional pain. They too fear Mr. Kreindl.

[36] Ms. R. wrote that her life is miserable, and that she and her family are broken and in pain.

[37] Mr. Kreindl’s attack has caused enormous pain and grief not just to Ms. R. but to her family as well. The scars on her body will be a lifelong reminder to her of this vicious crime.

Aggravating and Mitigating Factors

[38] I turn now to the aggravating and mitigating factors of this case. There are very few mitigating factors in this case. I will consider the fact that Mr. Kreindl arrived in Canada, a foreign country to him, with no money, no family, no prospects and no supports. These circumstances would have made integration difficult for anyone, let alone a person who had been in prison for 20 years.

[39] The aggravating factors in this case are many.

1. Mr. Kreindl’s criminal record, which includes a conviction for the murder of an intimate partner. I have already set out what I described as the chilling similarities between this crime and that one.
2. The profound and lasting impact this crime has had on Ms. R. Her sense of smell is permanently impaired. She has lost her vision in one eye. She suffers from post-traumatic stress disorder. She is forced to bear disfiguring physical scars and debilitating psychological scars for the rest of her life.
3. This was not a crime committed in the heat of the moment. It required some planning and forethought. Mr. Kreindl left the hotel room to obtain the flare gun. When he returned to the room, he secreted himself in the bathroom to load the weapon.
4. The circumstances of these offences demonstrate Mr. Kreindl’s lack of empathy. He refused to assist Ms. R. after he set her skin on fire with the flare gun, even to help her off the bed and into the shower. He then fled the room leaving a seriously-injured Ms. R. to seek her own emergency medical assistance.
5. There is little reason to believe that Mr. Kreindl has any prospect of rehabilitation. He is 50 years of age, and has spent most of his adult life in prison. He has no family or community support in Toronto. He has not been gainfully employed for 25 years. He told the author of the pre-sentence report that he completed extensive programming while in prison in the UK. Despite that, within three months of his release from prison, he was charged with possession of heroin and carrying a concealed weapon. Less than two years after being released from prison after serving a life sentence for murdering his common-law partner, he caused another woman grievous bodily harm.
6. Mr. Kreindl’s attitude toward his criminality and its impact on others shows a lack of insight, a failure to accept responsibility for his actions, and a degree of callousness. The pre-sentence report indicates that he described the offences he committed after coming to Canada as “a few silly thefts.” When describing the circumstances of the murder he committed, he said that he snapped and she died. He stated that he had already served a significant amount of time in custody waiting for his trial, and expressed concerns that any further incarceration will have a negative effect on his emotional and mental state of mind. His level of insight and inability to accept responsibility are demonstrated by his statement that he needs to avoid “negative people that put him in risky situations” to avoid future entanglements with the criminal justice system.
7. At the time of these offences, Mr. Kreindl was on two different judicial interim release orders. His possession of the flare gun was in direct violation of a condition of one of the orders.
8. His failure to comply with his recognizance and his failure to appear in court on two separate sets of charges demonstrate the little regard he has for court orders.

Sentences Imposed in Other Cases

[40] I am also required to consider sentences imposed on similar offenders for similar offences committed in similar circumstances. I turn to that now.

[41] I have reviewed the decisions to which Ms. Pecknold has referred. Although the cases assist me in determining the governing principles that must guide my decision, a careful review of them demonstrates that sentencing is not an exact science. It is instead a profoundly individualized process driven by the unique facts of every offence and the unique characteristics of every offender. The circumstances of any case, including this one, can be readily distinguished from any other case. I note that some of the decisions rely on the now rejected principle that maximum sentences are to be reserved for the worst offender and the worst offence, and offences of stark horror.

[42] One thing is consistent throughout the decisions. The two most important principles of sentencing to be considered in fashioning a sentence in cases of serious violence between intimate partners are general deterrence and denunciation. The sentence must act as a specific deterrent to Mr. Kreindl, a general deterrent to others, and it must clearly express the community’s revulsion and repudiation of Mr. Kreindl’s conduct.

[43] Furthermore, given Mr. Kreindl’s criminal antecedents, he must be separated from society to protect the public and any future intimate partners of Mr. Kreindl.

What is the Fit Sentence?

[44] I earlier indicated that proportionality is a key principle of sentencing. Sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The offences Mr. Kreindl committed against Ms. R. are clearly grave. He alone is responsible.

[45] Mr. Kreindl committed a cowardly, calculated, and callous assault on Ms. R., an assault from which she will bear the scars for the rest of her life. He shot her, and left her to burn with a farewell threat that if she called the police it would be the last thing she ever did. Chief Justice McLachlin said maximum penalties are only appropriate if the offence is sufficiently grave and the offender displays sufficient blameworthiness. This is such a case.

[46] Mr. Kreindl will be sentenced to a total of 15 years, less credit for the time he has spent in pre-trial custody. I agree with Ms. Pecknold’s apportionment of the sentence. It will be as follows:

• Count 1, aggravated assault – 14 years
• Count 2, assault with a weapon – 10 years concurrent
• Count 3, utter a death threat – 2 years concurrent
• Count 6, discharge a firearm with intent to wound – 7 years concurrent
• Count 7, fail to comply with an undertaking – 1 year concurrent
• Count 9, fail to appear in court – 6 months consecutive
• Count 11, fail to appear in court – 6 months consecutive to all other counts

[47] Counts 4 and 5 will be conditionally stayed in accordance with the principle in R. v. Kienapple. [3]

Credit for Pre-Trial Custody

[48] Mr. Kreindl has been in custody since his arrest on April 1, 2014. On August 8, 2014, he was sentenced for a number of offences, and was credited for the time he had spent in custody from April 1, 2014. He is therefore entitled to credit for the time he has spent in custody between August 9, 2014 and July 13, 2016 or 705 days at the rate of 1.5 days for each day served. I will credit Mr. Kreindl for 1,057 days of pre-trial custody or 2 years and 11 months, leaving a total sentence of 12 years and 1 month to be served.

Ancillary Orders

[49] In addition, there will be a mandatory weapons prohibition order pursuant to s. 109 of the Criminal Code for life, a DNA order pursuant to s. 487.051(1) authorizing the taking of a DNA sample, and an order pursuant to s. 491 that the firearm and ammunition used in these offences and seized by the police be forfeited. Finally, Mr. Kreindl is prohibited pursuant to s. 743.21 from communicating, directly or indirectly, with Ms. R. or any member of her family, except through counsel, while in prison serving his sentence.

Corrick J.

Released: July 13, 2016

COURT FILE NO: CR-14-30000680-0000 DATE: 20160713 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – DAVID KREINDL REASONS FOR SENTENCE Corrick J. Released: July 13, 2016

[1] 2004 SCC 16 , [2004]1 S.C.R. 433 [2] 2008 SCC 31 , [2008] 2 S.C.R. 163 [3] (1974) , 15 C.C.C. (2d) 524 (S.C.C.)