Court File and Parties
Court File No.: CR-16-30000018-0000 Date: 20160720 Superior Court of Justice - Ontario
Re: Regina v CH
Before: E.M. Morgan J.
Counsel: A. Penny, for the Crown J. Dicecca, for the Defendant
Heard: Sentencing hearing July 20, 2016
Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4 of the Criminal Code of Canada.
Sentencing Judgment
[1] On July 14, 2016, CH was found guilty of assault and breach of a probation order in relation to an incident that occurred on May 16, 2015. The victim of the assault and Complainant in the case was his domestic partner, with whom he had been residing for roughly 6 years.
[2] This is not CH’s first offense, and is not his first assault of the Complainant. At the sentencing hearing he requested the opportunity to address the court, and indicated that, in his view, “there was no physical evidence” of the assaults against the Complainant on any of the previous occasion. In other words, he has not come to grips with his convictions and has not taken responsibility for his actions.
[3] CH testified at trial that he suffers from schizophrenia and is on medication for that mental health disorder. He has been in custody for the duration of the trial and for a number of months preceding the trial, with most or all of that time spent in a mental health institution as a result of his psychiatric problems.
[4] The Crown seeks a custodial sentence of 12 months for the assault conviction and a consecutive 6 months for the breach of probation, plus 3 years’ probation. The defense seeks a custodial period of 90 days for the assault conviction and a concurrent 30 days for the breach of probation.
[5] The Complainant suffered no visible injuries from the assault, but it took place in the aftermath of her having suffered a severe psychological episode. CH was very much aware of the Complainant’s state of psychological frailty, as he had taken her to the hospital the previous day when she endured a serious anxiety attack.
[6] The Complainant speaks to the severity of the episode in her victim impact statement, where she says that, “CH damaged me to the point that I will never be the same woman again. Even to this day, I have not been able to heal from the emotional trauma.” On the day of the assault, the Complainant called 911 from the bathroom, where she had locked herself in and braced herself against the door with her feet pressed against the bathtub. This posture speaks to the terrifying impact that CH had on her.
[7] Moreover, the violence of CH’s assault on her was also extensive. It entailed dragging her by the hair, tossing her onto a bed, and kneeing her in the ribs. He also said some remarkably degrading and insulting things to her during the course of beating her. In addition, Crown counsel underscores that this is not CH’s first assault of the Complainant. This is his third conviction for assault on her in a domestic context, the first one having been in February 2011 and the second in February 2015. In R v Menary, 2012 ONCA 706, the Court of Appeal indicated that this the repeated nature of the assaults in a domestic context is an aggravating factor to take into account in sentencing. As the Court put it, at para 7, “Denunciation and deterrence are the controlling principles.”
[8] With CH, there is a pattern of escalation from the previous assaults until now – from grabbing, to grabbing and shaking by the neck, to grabbing, throwing and kneeing. The first conviction earned CH a suspended sentence and 12 months’ probation, and the second one carried a penalty of 32 days in custody and 8 months’ probation.
[9] In R v Smith, 2011 ONCA 568, the Court considered an assault conviction that followed on the heels of previous similar assaults. At para 86, the Court observed that, “The jurisprudence of this court suggests that a sentence of one to two years will generally be appropriate for a conviction for common assault based on facts such as those comprising count ten committed against a spouse or domestic partner in the context of a lengthy pattern of domestic abuse”. While the violence of the assault in Smith was somewhat greater than that in the present case, the point was made that sequential domestic abuse must attract a substantial penalty.
[10] For that reason, the Court of Appeal in R v Pelley, 2015 ONCA 267, at para 2, stated that, “…the domestic context of these offences and the fact that the appellant was on probation for offences in relation to his domestic partner… are factors that required a stiff sentence.” Thus, in Menary, supra, the sentence for conduct similar to that here was 1 year in custody for the assault and 3 months, consecutive, for the breach of a probation order. In R v Hughes, 2015 ONSC 2626, the penalty was 1 year for the assault and 2 months, concurrent, for the breach of probation, where the accused pled guilty mid-trial and thereby somewhat mitigated his offense.
[11] CH did not plead guilty, and so the Complainant was required to testify. That was clearly a difficult task for her. She was visibly distraught on the witness stand.
[12] On the other hand, CH suffers from mental health problems. His own testimony was rambling and at times almost incoherent. He has spent many months in custody waiting for trial, for the most part in a medical facility. CH’s diagnosed schizophrenia is certainly a mitigating factor to consider in fashioning his sentence.
[13] In R v M (C), [1996] 1 SCR 500, at 566, Lamer CJC articulated the objectives of sentencing in an instructive way:
The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of the community.
[14] Taking all of the factors into account – the nature of the assault, CH’s history of domestic violence, the societal need for deterrence and denunciation of domestic violence, the impact of the assault on the Complainant, and CH’s own mental health problems, I hereby sentence CH to 12 months in custody, followed by 2 years’ probation.
[15] The terms of probation to be adhered to by CH are as follows:
- that he will keep the peace and be of good behaviour;
- that upon completion of the custodial sentence, he will report to a probation officer as required;
- that he maintain a course of treatment with a physician;
- that he attend an anger management or domestic abuse counselling program as recommended by his supervisor;
[16] CH has been in pre-trial custody since May 16, 2015 – that is, for 14 months, 4 days. At a rate of 1.5:1, that comes to 21 months, 6 days in custody for which he has credit. Accordingly, he has already served the custodial portion of his sentence and will start the 2 year probationary period immediately.
[17] In addition, for the next 3 years (i.e. for the 2 year probationary period plus 1 year), CH shall:
- have no communication or contact, direct or indirect, with the Complainant in this case, including in person, by telephone, digitally, or via any social media;
- not be within 500 metres of any place where he knows the Complainant to be present;
[18] In addition, the two ancillary Orders sought by the Crown are both granted. There will be a DNA Order and a section 109 firearms prohibition Order for 10 years.
[19] Finally, counsel for CH has requested that he be given time in which to pay the victim fine surcharges payable under section 737(2) of the Criminal Code. Since CH is not currently employed and has been in full time medical care, that request is a reasonable one. CH shall have 1 year to make the relevant payment.
Morgan J.