R. v. Kormendy, 2017 ONSC 6426

CITATION: R. v. Kormendy, 2017 ONSC 6426

COURT FILE NO.: CR-16-3627-0000

DELIVERED ORALLY: November 6, 2017

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty The Queen

– and –

Kenneth James Kormendy

Offender

Walter Costa, for the Crown

Helen Burgess, for the Offender

SUBMISSIONS HEARD: October 16, 2017

Corrected decision: The neutral citation year was corrected from 2016 to 2017 on November 22, 2017 and this judgment reflects that correction.

REASONS FOR SENTENCE

C. M. BONDY J.:

A. THE CONVICTION

[1] Kenneth James Kormendy (“Mr. Kormendy”) stands convicted on 5 counts:

a) Count One – Attempted murder of Ms. Sheri Rueda by arson, contrary to section 239(1) of the Criminal Code, R.S.C. 1985, c. C-46.

b) Count Two – Attempted murder of Isabel Rueda by arson, contrary to section 239(1) of the Criminal Code.

c) Count Three – Attempted murder of Felicia Bioh by arson, contrary to section 239(1) of the Criminal Code.

d) Count Seven – arson causing damage to property, namely 1680 Balfour Boulevard, Windsor Ontario, contrary to section 434 of the Criminal Code

e) Count Eight – Possession of incendiary materials for the purpose of committing an offence under section 433 of the Criminal Code, contrary to section 436.1 of the Criminal Code.

[2] Counts 4, 5, and 6 were stayed on consent based upon the principle enunciated in R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.

B. BACKGROUND

[3] Mr. Kormendy had at the time been in a romantic relationship with the complainant, Sheri Rueda (“Ms. Rueda”) since shortly after they met online about 2½ months earlier. He was approximately 43 years of age at the time. The two were residing at 1680 Balfour Boulevard, Windsor Ontario (“the house”). Ms. Rueda’s then 7-year-old daughter is one victim, Isabel Rueda (“Isabel”), and Ms. Rueda’s then 1-year-old daughter is another victim, Felicia Bioh (“Felicia”). Ms. Rueda’s then 9-year-old daughter, Sarah Rueda (“Sarah”), also resided with them at the time, but was not home during the relevant time frame.

[4] At trial I found that Mr. Kormendy had reacted to Ms. Rueda’s request that he move out of the house by pouring gasoline both around the room and on the outside of the door of Isabel’s bedroom where Ms. Rueda and Isabel had gone to bed for the night. I also found that Mr. Kormendy had poured gasoline on Ms. Rueda and on the bed on which Isabel was sleeping. Mr. Kormendy then lit the gasoline on fire. Because gasoline had been poured on the door, Ms. Rueda and her daughter Isabel had been effectively trapped in that room by the fire.

[5] Not only did Mr. Kormendy block the primary means of egress from Isabel’s bedroom by setting the bedroom door on fire, he acknowledged never having called in to warn Ms. Rueda and/or Isabel of the fire through the bedroom door. Mr. Kormendy also acknowledged that he had passed by the window of that bedroom on two separate occasions, while on his way to the back of the house. Mr. Kormendy acknowledged that he had not stopped to help Ms. Rueda or Isabel, nor had he called out to warn them of the fire on either of those occasions.

[6] Further, Mr. Kormendy made no effort to seek help from neighbours. Mr. Kormendy also acknowledged in cross-examination that he had a cell phone in his pocket, and that he had made no attempt to call the fire department, an ambulance, or the police.

[7] Given the relatively small size of the house and Mr. Kormendy’s proximity to the room which was engulfed in flame, I have no doubt that Mr. Kormendy could hear the screams of pain from inside that bedroom. Notwithstanding, he did nothing to help. I found that he was steadfast in his intent to kill both Ms. Rueda and Isabel.

[8] Felicia was, at the time, only 1-year-old. At her tender age, Felicia could not possibly have been able to conceptualize the life-threatening conditions that she was in, nor plan or execute her own escape. As a result, Felicia would certainly have died in that fire but for the intervening facts.

[9] Mr. Kormendy did ultimately rescue Felicia. I, however, found that rescue had not occurred until help had arrived and it was clear that someone would be going into the house, where they would find Felicia. I concluded that Mr. Kormendy had only returned to the house to rescue Felicia once he realized Ms. Rueda had escaped the fire. I concluded that his re-entry was an effort to distance himself from having caused the fire.

[10] Although Ms. Rueda, Isabel, and Felicia managed to escape, both Ms. Rueda and Isabel suffered serious injuries.

C. THE POSITIONS AS TO SENTENCE

1) The Criminal Code provisions as to sentence

[11] Section 239(1)(b) of the Criminal Code provides that every person who attempts to commit murder is liable to imprisonment for life. Section 434 of the Criminal Code provides that every person who commits arson causing damage to property is liable to imprisonment for a term not exceeding 14 years. Section 436.1 of the Criminal Code provides that every person who possesses incendiary materials or an incendiary device is liable to imprisonment for a term not exceeding five years.

2) The position of the Crown

[12] The Crown seeks an all-inclusive sanction of life imprisonment with no eligibility for parole for a period of 10 years.

3) The position of the defence

[13] The defence seeks an all-inclusive sanction of 10 years imprisonment and asks that eligibility for parole be left to the Parole Board.

D. THE STATEMENTS

1) The victim impact statement of Sheri Rueda

[14] Ms. Rueda’s statement explains that she is a survivor of domestic violence. It goes on to state that she and her daughters lost their home and all of their memories.

[15] Ms. Rueda also makes reference to the injuries to her daughter Isabel. Ms. Rueda’s statement makes it clear that her daughter Isabel was not only injured by “burns all over her body” but that she has also suffered psychological effects including, without limitation, anger and confusion.

2) The victim impact statement of José D. Rueda

[16] José Rueda (“Mr. Rueda”) is Isabel’s biological father.

[17] While the primary emphasis of Mr. Rueda’s statement is Isabel, his statement also provides an overview of the impact of the events of that evening on the entire family.

[18] As to Isabel, Mr. Rueda described the impact of “horrific scarring to 15% of her body.” She underwent multiple surgeries and will unfortunately have to undergo many more.

[19] Mr. Rueda described those surgeries as follows:

Isabel’s surgery required daily painful baths and physical therapy to prevent the skin grafts from contracting, and limiting her hand functions. I had to watch her be physically restrained as she screamed for me to make the people at the hospital stop hurting her. She was unable to understand that the medical team was trying to help her, because all she was experiencing at the time was pain.

[20] Isabel is now expected to wear compression garments on her hands, feet, thighs, and arms. She is also expected to wear a full mask every day, including days when she goes to school. Those garments are intended to prevent her scars from thickening, in order to improve the look of her scars.

[21] Mr. Rueda goes on to explain:

There is also limited use of her right hand, necessitating an individualized learning plan at school, as she cannot write properly for tests or assignments. Isabel experiences difficulty opening doors, working zippers, and closing lids.

[22] As a result, Isabel is no longer a happy, worry-free, playful, and highly social little girl. Instead her days and weeks are filled with therapy and medical appointments, which often take her away from the school setting. She has a persistent sense of dread and anxiety, and constant worry about her physical appearance, which has made her apprehensive to be out in public places or with strangers.

[23] Isabel also spends recess in the classroom alone, afraid of judging stares from other children and the hurtful words they may utter to her.

[24] Mr. Rueda also explained the impact of Isabel’s injuries on other members of the family. The relationship between Isabel and her older sister Sarah has been drastically negatively impacted as a result of Isabel’s injuries. Sarah underwent a 15-week trauma program at Regional Children’s Centre and has since started seeing a clinical psychologist.

[25] Mr. Rueda and his current wife had a baby boy four days before this incident. The photographs, entered as exhibits at the sentencing hearing, depict an obviously proud and happy Isabel holding her newborn brother a few days prior to this horrific incident. The time that most families would spend with a newborn was taken from them by these events due to the intervening needs of Isabel, including the constant travel to London where Isabel was hospitalized.

3) Mr. Kormendy’s statement

[26] Mr. Kormendy’s family has been very supportive of him throughout this process. He took the opportunity to publicly thank them for their support.

[27] Mr. Kormendy said that sleep does not come easily to him, as he thinks about the impact of that evening upon Isabel and the rest of the Rueda family. He expressed hope that both his family and the Rueda family will heal with time.

[28] Mr. Kormendy also maintained his innocence, as is his right.

4) The letters as to Mr. Kormendy’s character

[29] Defence counsel submitted a total of 14 letters from Mr. Kormendy’s friends and relatives. There are several common themes which run throughout these letters. I have no reason to disbelieve the letters given the commonality of those themes.

[30] According to these letters, Mr. Kormendy is generally a considerate, non-violent, helpful individual. He is close with family members and good to children.

E. THE PRE-SENTENCE REPORT

[31] Defence counsel agreed with much of the pre-sentence report, subject to my comments below related to Mr. Kormendy’s use of alcohol.

[32] According to the pre-sentence report, Mr. Kormendy had an unremarkable childhood. He is the youngest of six children and had what he described as a positive upbringing, though he also described it as having been strict. Mr. Kormendy maintains close relationships with his siblings and mother to this day and, accordingly, has family support available to him.

[33] Mr. Kormendy has been involved in several short-term relationships with women. The longest was for two years. He has no history of domestic violence in previous relationships.

[34] The author of the pre-sentence report opines that Mr. Kormendy has some difficulty with alcohol and that alcohol may have been a factor in the present offence. Mr. Kormendy, through his lawyer, disagreed with that conclusion. According to defence counsel, Mr. Kormendy did complete some substance abuse programs and as a result believes he has his alcohol consumption “under control.”

[35] On the other hand, the pre-sentence report states that, according to Mr. Kormendy, his alcohol consumption consists of 4–6 beers at home after work and 8–12 beers on the weekend. Defence counsel did not take issue with that information. Consistent with that information, Mr. Kormendy’s brother reported to the probation officer that Mr. Kormendy’s alcohol consumption is of concern to members of the family. Mr. Kormendy would, from time-to-time, call them during the early morning hours while intoxicated. Further, Mr. Kormendy has three past convictions for alcohol-related driving offences. Again, there was no suggestion from defence counsel that this information was incorrect.

[36] Notwithstanding the evidence as to an alcohol problem and notwithstanding Mr. Kormendy’s acknowledgement that his consumption of alcohol has created problems in his life in the past, he also told the author of the pre-sentence report “his consumption of alcohol is controlled” and that he does not believe he would benefit from counselling.

[37] Also according to the pre-sentence report, Mr. Kormendy “demonstrated limited insight into his behaviour.” For example, he denied the details contained in the police report. He also minimized his actions related to the offences for which he was convicted and blames Ms. Rueda for what happened. He did, however, express some remorse for the injuries sustained by the victims.

F. THE PRINCIPLES OF SENTENCING

1) Proportionality

[38] Section 718.1 of the Criminal Code provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the accused. Proportionality in sentencing was considered by the Supreme Court in its decision in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089. At para. 12 the Court states,

The more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime’s consequences, but also on the moral blameworthiness of the offender.

[39] The court also observed that “[both] sentences that are too lenient and sentences that are too harsh can undermine public confidence in the administration of justice.”

2) The Objectives of Sentencing

[40] Section 718 provides that the fundamental purposes of sentencing are served by imposing just sanctions that have one or more of a number of the enumerated objectives. I have made these objectives headings in this section and will discuss the relevant factors and evidence that apply to each in turn.

a) To denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

[41] I find that denunciation is important in this case. There are many reasons.

[42] The most obvious is the horrific nature of the crime. The victims will no doubt live the rest of their lives with the physical, psychological and emotional scars that resulted from the offender’s conduct.

[43] A second reason is that the conduct was domestic violence. Everyone living in a family setting should feel safe in that environment.

[44] The third reason is the fact that the violence was, in part, directed at two children. The children had nothing to do with the conflict between the adults. They were innocent victims. To be clear, I am not suggesting that violence against anyone is ever excusable, obviously it is not, but to indiscriminately commit an act intended to kill other people who are not engaged, aware, or able to defend themselves in a conflict increases an offender’s blameworthiness vis-à-vis a violent crime.

[45] The fourth reason is that, as defence counsel acknowledged, three families were severely impacted by the events of October 24, 2015. They include Sheri Rueda’s family, José Rueda’s family, and Kenneth Kormendy’s family. Defence counsel also acknowledges that the conduct for which Mr. Kormendy has been convicted involved a breach of trust.

b) To deter the offender and other persons from committing offences

[46] For the reasons above, I find that specific and general deterrence are also important considerations. There is no place in our society for domestic violence. Mr. Kormendy's conduct in this case was particularly egregious, given the horrific nature of the degree of violence in the crime.

[47] Section 718.2 of the Criminal Code provides that a sentence may be increased or reduced to account for aggravating or mitigating circumstances, including evidence that the accused abused his/her spouse or common-law partner. Where an attempted murder is committed in the context of a domestic relationship, the likelihood of lasting psychological trauma to the victim arising from the irrational and obsessive nature of the misconduct is significant and, where present, justifies the imposition of a substantial penalty separate and apart from the issue of protection: see R. v. Boucher, 2004 CanLII 17719, 187 O.A.C. 378, at para. 24. It follows that the principles of denunciation and deterrence are of paramount importance in such cases: see Boucher, at para. 27; and R. v. Campbell, 2003 CanLII 48403, 170 O.A.C. 282; and R. v. Edwards (1996), 1996 CanLII 1522 (ON CA), 28 O.R. (3d) 54 (C.A.). Individuals must be free to leave a romantic relationship without harassment or fear from their former partners: see Boucher, para. 27.

c) To separate the offender from society where necessary

[48] I have no doubt as to the necessity to separate Mr. Kormendy from society.

[49] Mr. Kormendy entered Ms. Rueda and Isabel’s room on three separate occasions prior to setting the fire. In other words, Mr. Kormendy had time to think about what he was doing.

[50] Further, I reiterate that he acknowledged having been on the outside of the bedroom, and having passed by the bedroom window on two occasions without making any attempt whatsoever to assist. Mr. Kormendy was in possession of a cell phone, yet he made no attempt to call an ambulance, the fire department, the police, or anyone else. He did not make any effort to assist either Ms. Rueda or Isabel. Further, I found that he only attempted to assist Felicia when he perceived it to be in his interest to do so.

d) To assist in rehabilitating the accused

[51] Sentencing requires a balancing of the competing principles of denunciation and rehabilitation.

[52] There was nothing before me to suggest that Mr. Kormendy would be any better of a candidate for rehabilitation outside of the prison system than within.

[53] To the contrary, I find that Mr. Kormendy will likely have much better chance of success at rehabilitation in prison than outside of prison.

[54] I say that because I conclude that given the alcohol consumed by Mr. Kormendy that day, alcohol consumption was a factor in this crime. I find that Mr. Kormendy clearly lacks insight into the impact alcohol is having on his life. Mr. Kormendy denied any impact to the probation officer, and similarly to me through his counsel during sentencing submissions. I conclude he would not likely seek counselling or treatment for his addiction given the belief expressed to the author of the pre-sentence report that he “does not believe he could benefit from counselling.”

[55] To the contrary, thus far during his incarceration Mr. Kormendy has received nine certificates of completion for courses offered by the jail. I make two observations regarding those certificates. The first is that they all relate to skills such as “supportive relationships”, “anger management”, and “recognizing healthy relationships” that will no doubt assist Mr. Kormendy’s rehabilitation. The second is that Mr. Kormendy’s willingness to take those courses demonstrates some insight into some of the factors which no doubt contributed to the events of October 24, 2015.

[56] Perhaps as Mr. Kormendy’s incarceration continues he will gain similar insight into the effect that alcohol is having on his life.

[57] Prior to leaving the issue of Mr. Kormendy’s insight into his behaviour, I would like to make it perfectly clear that I am not treating that lack of insight as an aggravating factor. I have only considered it from the standpoint of Mr. Kormendy being rehabilitated either inside or outside of the penal system. In the end, I conclude that Mr. Kormendy is likely to continue taking courses during incarceration, thereby increasing his insight and his chances at rehabilitation.

[58] To that end, I would add that Mr. Kormendy’s friends and relatives see something in him that is clearly worth salvaging. I reiterate that, according to the support letters Mr. Kormendy’s typical behaviour is considerate, non-violent, and helpful.

[59] I am hopeful that through appropriate counselling during incarceration Mr. Kormendy will develop the sense of responsibility necessary so that he will not be a danger to others when he re-enters society. As is more fully considered below, his conduct in that regard will no doubt be considered by the Parole Board at the appropriate point, or points, in time.

e) To provide reparations for harm done to victims and or to the community

[60] It seems to me that in the circumstances of this case there is little that can be done by way of sentencing which would provide compensation for harm done to the victims and/or the community.

f) To promote a sense of responsibility in the accused and acknowledge the harm done to victims and to the community

[61] The horrors visited upon Sheri, Isabel, and Felicia should never be experienced by anyone. Their family members, friends, and caregivers have all no doubt suffered as they shared the pain of the direct victims of these crimes. I can think of no sanction other than imprisonment that would do anything to promote a sense of responsibility, and acknowledgement of the harm done to the victims and community by Mr. Kormendy’s conduct.

3) Other Sentencing Principles

[62] Section 718.2 provides further sentencing principles. They include:

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances related to the offence or the accused

Mitigating Factors:

[63] Mr. Kormendy has been waiting in jail since October 24, 2015.

[64] Mr. Kormendy has for much of his life been gainfully employed, mostly in the manufacturing industry.

[65] Mr. Kormendy is perceived by his friends and family as a person who is normally considerate, non-violent, and helpful, who is close with family members and good to children. As a result, I have good reason to believe Mr. Kormendy can, with time, be rehabilitated.

[66] Mr. Kormendy has significant support from both his family and friends who will no doubt assist with continued rehabilitation once Mr. Kormendy is released from prison.

[67] Although the accused has three prior convictions for alcohol-related offences, the last conviction occurred in June 2002. In other words, there is a significant gap since his last conviction. These offences are considered below in the context of being an aggravating factor because they were alcohol-related, as was this offence.

Aggravating Factors:

[68] I reiterate that these crimes were committed in a domestic context and a breach of trust was involved. Both Isabel and Felicia were under 18 years of age. These are deemed aggravating factors: see s. 718.2 of the Criminal Code.

[69] Mr. Kormendy has a criminal record. I reiterate that it includes three alcohol-related driving offences. While the impact of this factor is somewhat ameliorated by a gap of approximately 15 years since his most recent conviction, those offences, like these convictions, were partly a function of alcohol. It seems to me that Mr. Kormendy ought to have already learned of the dangerous impact alcohol has on his behaviour. Mr. Kormendy maintains that he went through a treatment program related to his use of alcohol and believes that his alcohol use is now under control. I find that to be a dangerous conclusion on Mr. Kormendy’s part given my conclusion that alcohol was a factor in his commission of these crimes.

[70] The facts of the offences are a significant aggravating factor. As said, he intentionally doused Ms. Rueda with gasoline, and poured gasoline onto the bed and the door to the room in which Isabel was sleeping. He set the house on fire while a then 1-year-old slept in her crib with no possible means of escape.

[71] Prior to setting the fire, Mr. Kormendy entered the bedroom to talk to Ms. Rueda. In other words, starting the fire was not a spur of the moment action but rather only occurred after he had some time to think about what he was doing. In other words, I find that there was some element of planning.

[72] Similarly, after having set the fire, Mr. Kormendy twice passed the flaming window of the bedroom in which Ms. Rueda and Isabel were trapped in without so much as looking in or calling in to assist. I reiterate that Mr. Kormendy had a cell phone with him yet failed to call the police, fire department, ambulance or anyone else for help.

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

Introduction

[73] I begin with the observation that while previous judicial determinations of sentences are helpful in the sentencing process, they must be approached with caution. They should be considered more as a guide than a tariff. That is because the facts, circumstances, and other factors to be considered vary significantly from case to case. Sentencing is a subjective, case-centric and individualized process: see R. v. Summers, 2013 ONCA 147, 114 O.R. (3d) 641 at para. 35, aff’d in 2014 SCC 26, [2014] 1 S.C.R. 575; R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227, at para. 46; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 82; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 43. The determination of a “fit” sentence is, subject to some specific statutory rules, an individualized process that requires the judge to weigh the objectives of sentencing in a manner that best reflects the circumstances of the case: see Nasogaluak, at para. 43; see also R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309; R. v. Hamilton (2004), 2004 CanLII 5549 (ON CA), 72 O.R. (3d) 1 (C.A.).

[74] I reiterate that the cases regarding sentencing range are guidelines rather than hard and fast rules. A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred: see Nasogaluak, at para. 44.

[75] In my analysis I agree with the submission by defence counsel that the appropriate sentencing range for an attempted murder that takes place in the context of a domestic relationship is between 8½ years and life imprisonment, depending upon the circumstances: see Boucher, at para. 21; R. v. Bryan, 2008 NSCA 119, 272 NSR (2d) 246, at para 60; R. v. Mann, 2016 ONSC 2675, at para. 58; R. v. Botelho, 2010 ONCA 497, at para. 7.

[76] Prior to reviewing specific cases, I observe that this fact situation differed from many of the cases referred to by counsel and from many other domestic violence situations. I say that because this situation was, for Mr. Kormendy, an isolated incident. There was no evidence that Mr. Kormendy had been violent with Ms. Rueda, or any other domestic partner or child, in the past. Simply put, there was no evidence of a pattern of abuse as against Ms. Rueda or any of her children, or anyone else in a romantic or domestic context. Similarly, Mr. Kormendy does not have a criminal record related to crimes of violence as against anyone. In other words, the sequence of events which led to the tragedy which occurred on October 24, 2015 shares nothing in common with what either Ms. Rueda or Mr. Kormendy’s friends, or Mr. Kormendy’s family, or anyone else has said about him.

Sentences for the maximum penalty of life imprisonment

[77] The Crown has asked for the maximum penalty of life imprisonment and so I will begin with a consideration of the case law in that regard.

[78] I will review some of the cases involving sentences of life imprisonment as against those principles.

[79] The Court of Appeal decision in R. v. Klair, 2004 CanLII 8965 provides some useful insight into the factors to be considered in imposing a life sentence.

[80] In that case, the Ontario Court of Appeal overturned a sentence of life imprisonment and imposed a sentence of 12 years incarceration. A 70-year-old accused started three fires in a house using gasoline as an accelerant. He was babysitting his four-year-old grandson who suffered horrendous and devastating injuries as a result of the fire. There were second and third-degree burns to about 60% of the child’s body. He lost his left ear and all the digits on his left hand, two of the fingers on his right hand and two toes. The Court of Appeal found that the trial judge had overemphasized the horrific consequences to the victim and gave insufficient attention to the circumstances of the offence and the blameworthiness of the offender.

[81] The observations of Sharpe J.A. at para. 30 of the decision in Klair also apply to this case:

[T]he offence at issue here does not exhibit the important common features of the cases in which the maximum penalty of life imprisonment has been imposed under the now-defunct “stark horror” category: there was no terrorizing or torturing over a period of time; there was no prolonged or repeated violence against the victim; there were no needlessly repeated acts suggesting sadistic intent; and there was no indication that the arson was for the purpose of gratification or any other perverse purpose. (See also: R. v. Brown, 2001 NFCA 48, 2001 NFCA, at para. 48.)

[82] At para. 15 of the same decision the court delineates a non-exhaustive list of factors that have been found to justify the imposition of the maximum sentence of life imprisonment. They are:

• cruelty, brutality, unusual violence

• terrorizing and torturing victim over a period of time

• intentional, prolonged, repeated violence against victim

• acts needlessly repeated or lack of feeling suggesting sadistic intent to cause terror or even torture

• intentional infliction of pain, fright, panic that is tantamount to torture solely for gratification or other perverse reason

• cruelty and callousness not frequently encountered

• deliberate infliction of brutal, disfiguring, life threatening injuries

(See also R. v. Anderson, 2011 ONSC 5551, at para. 53.)

[83] I reiterate that while there were brutal, disfiguring, and life-threatening injuries that were deliberately inflicted, this conduct did not represent part of a repetitious pattern of abuse that had taken place over a period of time. Nor did I conclude that Mr. Kormendy had tortured his victims solely for gratification or other perverse reasons.

[84] The decision of the Ontario Court of Appeal in R. v. Horvath (1982), 1982 CanLII 3838 (ON CA), 2 C.C.C. (3d) 196 offers insight into the history of sentencing in attempted murder cases. In that case, the offender had subjected a woman to a prolonged and sadistic attack. The offender found his way into her apartment under the ruse that he wanting to rent it. Once in he bound, gagged, choked, and stabbed her. He finally slit her throat. As cited at para. 17 of Klair, Martin J.A. observed in Horvath “that there were two broad categories in which the maximum life sentence was available: first, offences of stark horror, and second, pattern-of-violent-behaviour cases.” (I reiterate the “stark horror” category is now defunct.)

[85] However, as was further observed at para. 17 of the decision in Klair, that conclusion must now be considered in the context of the principle that “‘sentencing is an inherently individualized process’ that cannot be achieved on the basis of solely fixed or pre-determined categories” (citations omitted.) In other words, while the consequences of an offender’s conduct are to be considered, they are not in isolation determinative of the appropriate sentence in all cases.

[86] In R. v. Mesgun, 1997 CanLII 623, 36 O.R. (3d) 739, the Ontario Court of Appeal upheld a sentence of life imprisonment for an attempted murder in a domestic violence context. There, the offender was attempting to convince a former fiancée to return to their relationship. When she refused, the victim was stabbed, punched and the offender attempted to strangle her.

[87] I, however, find that fact situation somewhat distinguishable in that the Court of Appeal observed that the trial judge had concluded on the basis of the pattern of threats preceding the attack that the attack was not out of character for that particular offender. I reiterate, there was no such pattern on the part of Mr. Kormendy with these victims or with anyone else in a romantic or domestic context. Further, there was no evidence of a history of violence on Mr. Kormendy’s part whatsoever.

[88] A sentence of life imprisonment was also upheld by the Ontario Court of Appeal in R. v. Lieug, 1995 CanLII 1393 (ON CA). Again, I find the facts of that case somewhat distinguishable in that there was a history of violence as against the victim, which included a prior serious assault and a later conviction for watching and besetting the victim. As a result, the trial judge concluded that the victim would still be in danger if the accused were ever released.

[89] In Mann, Healy J. imposed a sentence of life imprisonment. I find that case distinguishable in that Healy J. found that the victim and offender were neither spouses nor common-law partners. Rather he found that the offender felt entitled to exclusive rights to control the victim due to his ongoing payments to her as a sex trade worker.

[90] Prior to leaving the issue of the maximum sentence, I am compelled to address the Crown’s invitation for me to infer that Mr. Kormendy suffers from a mental disorder in order to support the request for a sentence of life imprisonment.

[91] I begin by agreeing that it is open to a sentencing judge to do so. I also agree that in circumstances where an accused has not participated in a psychiatric assessment it would be problematic if I were precluded from drawing inferences in that regard from the circumstances of the case: see Klair, at para. 53, Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.

[92] That said, in the case before me there is no indication of any pattern from which an inference of mental disorder could be drawn. I reiterate that this was an isolated incident in the life of a man who has been described by many people as being otherwise non-violent. There was no pattern of violence in this particular relationship, nor was there any evidence of any other violence in Mr. Kormendy’s life. As a result, I conclude that it would be inappropriate for me to make an inference of mental disorder on the frail evidence before me. Such a finding, without specific evidence, would inappropriately suggest that unexpected violence is common of mentally ill people. I made no such finding.

[93] In conclusion, I find this case clearly distinguishable from those where the maximum sentence of life in prison was imposed. That is primarily because of the clearly isolated nature of the conduct underlying the convictions.

Sentences for less than life imprisonment

[94] I will now consider the case law regarding sentences for less than the maximum sentence of life in prison. The following cases are illustrative of circumstances where a life sentence was not imposed.

[95] The first is R. v. Borel, an unreported decision of Walters J. It is also a case where the offender dosed the victim in gasoline, lit her on fire, and caused serious injuries. There the Crown also asked for a life sentence, but Walters J. found it inappropriate.

[96] In doing so she placed a great deal of reliance on what she described as Mr. Borel’s prior unblemished record and no historic pattern of violent behaviour. She imposed a sentence of 15 years in prison in addition to three years already served in pre-trial custody.

[97] In R. v. Vienneau, 2015 ONCA 898 Ontario Court of Appeal upheld a sentence of 11 years for attempted murder of an ex-girlfriend. The accused swung a knife at his ex-girlfriend causing a serious laceration and extensive injuries to her trachea and voice box. He then attempted suicide by cutting his own throat.

[98] In Botelho, the Ontario Court of Appeal increased the sentence of 7 years to 8½ years for an attempted murder in a domestic context. In that case, the offender had two prior convictions for domestic assault, the last of which involved the same victim.

[99] In R. v. Champagne, 2002 CanLII 22947, 166 O.A.C. 194, the Ontario Court of Appeal upheld a 12 year sentence for attempted murder in a domestic context. While that case also involved three separate victims, it involved two discrete attacks.

[100] In R. v. McDonald, [2007] O.J. No. 3859, 2007 CarswellOnt 6241, McMahon J. imposed a sentence of 11 years concurrent on two counts of attempted murder as against a former domestic partner and her daughter. The offender struck both victims several times in the head with a hammer while they were asleep and then fled. Both suffered serious head injuries and disfigurement. The trial judge noted the degree of brutality, planning and deliberation, but also noted that the offences were, as in this case, totally out of character for the offender.

[101] The Ontario Court of Appeal upheld a 14 year sentence for two counts of attempted murder in R. v. Quance, 2000 CanLII 5741 133 O.A.C. 276. In that case the offender attended the home of his estranged wife and her boyfriend, spread gasoline through the house, and then during an altercation the gasoline ignited. While the facts are strikingly similar to this case, the case is somewhat distinguishable because the offender had made prior threats, including threats to burn down the home with them in it.

[102] The British Columbia Court of Appeal upheld a 10-year sentence for attempted murder in R. v. Jiany-Yaghooby, 1998 CanLII 5030, 113 BCAC 168. In that case the offender intended to destroy his business by fire and murder his wife. The offender’s daughter was severely brain damaged as a result of the fire.

[103] In R. v. Ramsay, 2016 BCSC 1207, the offender was sentenced to 20 years for second-degree murder and 18 years imprisonment concurrent on two counts of attempted murder. The offender and deceased victim had had a romantic relationship which broke off but then continued as an on-again-off-again sexual relationship. The offender first killed the mother by striking her in the head with a mallet. He then set fire to the bed and left. The two children escaped, but one suffered second-degree burns to 12% of her body.

[104] The trial judge concluded that the offender was not a good candidate for rehabilitation. He observed that Mr. Ramsay had abused a former partner and two children, which he said exhibited an extended pattern of antisocial behaviour that reflected badly on his character and his prospects for rehabilitation without a fundamental change at the core of his being, personality, and character. Again, that history of violence in a domestic context, together with a finding of poor prospects for rehabilitation, set that case apart from this one.

Conclusions as to the case law

[105] From the cases reviewed I have drawn some conclusions.

[106] The first is that this case is distinguishable from those where life sentences were found appropriate. A primary distinction is that Mr. Kormendy did not previously exhibit violence in a domestic situation as against this woman and her children, or in any other romantic or domestic relationships. To the contrary, his former girlfriend JoAnn Kormendy (no relation) unequivocally states that these acts “are completely out of character” with the man that she knows. Ms. Kormendy also states that she never felt threatened in his presence. Further, Mr. Kormendy has never been convicted of a crime of violence as against anyone. Finally, Mr. Kormendy was described by a significant number of people as being a non-violent individual.

[107] The second is that the Ontario cases involving serious injury that did not attract a life sentence tend to generally fall within a range of approximately 10 to 14 years.

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh

[108] This factor does not apply, in that I find concurrent sentences appropriate in that all of the crimes arise from the same fact situation.

d) an accused should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances

[109] For all of the reasons above and below, I find that this is not a case where any less restrictive sanctions than deprivation of liberty would be appropriate.

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[110] I reiterate that for all of the reasons above and below, I find that this is not a case where any less restrictive sanctions than deprivation of liberty would be appropriate.

4) Conclusions as to the appropriate sentence

[111] In situations such as this where the Crown seeks to delay parole, the trial judge must first determine what would be the appropriate punishment for the crime: see R. v. Zinck, 2003 SCC 6, [2003] 1 S.C.R. 41, at para. 29.

[112] Having considered all the foregoing, I find the appropriate sentence for each of the three attempted murder convictions to be 11 years imprisonment. I find the appropriate sentence for arson causing damage to property to be one year imprisonment, and for possession of incendiary materials to be six months imprisonment. Given that all of the charges arise from the same transaction, I find it appropriate that those sentences be served concurrently.

5) The courts power to delay parole pursuant to s. 743.6 of the Criminal Code

[113] The Crown seeks an order to delay parole pursuant to s. 743.6 of the Criminal Code.

[114] That section provides for a sentencing judge to order an offender to serve, before he or she may be released on full parole, a minimum of the lesser of 10 years, or one-half of the sentence imposed for offences designated in Schedules I & II of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (“CCRA”).

[115] Generally, pursuant to s. 120(1) of the CCRA, and subject to certain statutory exceptions set out therein, a person sentenced to a term of imprisonment in a federal penitentiary will be eligible for full parole upon serving the lesser of seven years, or one-third of the sentence imposed.

[116] I reiterate that the offender has been convicted on five counts which include, without limitation, three counts of attempted murder contrary to s. 239 of the Criminal Code. Each of those three counts are included in Schedule I of the CCRA and, accordingly, are potentially subject to an order under s. 743.6(1).

[117] Resort to s. 743.6 is appropriate if, having regard to the circumstances of the commission of the offence, the character and circumstances of the offender; the expression of society’s denunciation of the offence; and/or the objectives of specific or general deterrence so require it. The sanction provided for in this section represents an additional punishment of an exceptional nature. As such, the prosecution has the burden of demonstrating that this additional punishment is required: see Zinck, at para. 31. Notwithstanding, the exceptional nature of the additional punishment, it does not require a special or distinctive hearing, but rather a two-stage analytical process: see Zinck, at para. 34; R. v. Dankyi, 1993 CanLII 4283 (QC CA), 86 C.C.C. (3d) 368, at p. 376.

[118] At the first stage, the sentencing judge exercises their first duty, which is to determine the appropriate punishment for the crime having regard to the factors set out in s. 718 of the Criminal Code: see Zinck, at paras. 29 and 33. At this stage the judge determines the appropriate duration of sentence and if imprisonment is required by law or appears necessary: see Zinck, at para. 29. If a jail sentence is not required or necessary, or if the appropriate sentence is less than the two-year minimum specified in s. 743.6, that is the end of the analysis.

[119] In the event that a jail term in excess of two years is required or necessary then the analysis moves to the second stage, which is the exercise of the powers provided under s. 743.6. I reiterate that I found a term of imprisonment of 11 years for each of the attempted murder charges for which Mr. Kormendy was convicted fitting and, accordingly, I find it appropriate to proceed to the second stage.

[120] At the second stage, the judge must once again consider the factors set out in s. 718. However, at this stage priority is given to the factors of general and specific deterrence and denunciation. To be clear, the other factors remain relevant, but in the event of conflict they are subordinate to the principles specifically delineated in the section: see Zinck, at para. 30.

[121] If the court is satisfied that the sentence imposed at the first stage, with parole eligibility determined in the usual way under s. 120(1) of the CCRA, would adequately address the objectives of denunciation and deterrence, an order under s. 743.6(1) is unnecessary: see R. v. Moore, 2014 ONSC 1788, at para. 71; R. v. Gray, 2013 ABCA 237, 556 A.R. 107, at para. 22.

[122] The power provided under s. 743.6 should not be exercised in an automatic or mechanical way, and it should not be invoked for every jail term imposed for an offence covered by the section: see Zinck, at para. 30. A delayed parole order should only be invoked on the basis of demonstrated need: see Zinck, at para. 31.

[123] The factor which weighs most heavily in favour of exercise of that power in this fact situation is the level of violence and brutality involved in these crimes.

[124] That said, I find the evidence falls short of supporting a conclusion that a sentence of 11 years is inadequate for denunciation and deterrence in this case.

[125] There was no evidence to suggest that Mr. Kormendy would not be adequately deterred or rehabilitated within the otherwise applicable period of parole ineligibility. To the contrary, Mr. Kormendy appears to be a model prisoner who has used his period of incarceration thus far to take courses which will enable him to better himself and prevent this type of conduct in the future. I have no reason to believe Mr. Kormendy will not continue with those efforts.

[126] Further, I say again that there was no history of domestic violence with these victims or any other people in Mr. Kormendy’s life. To the contrary, there was consensus from all of those who sent letters on his behalf that Mr. Kormendy is generally a non-violent person. That evidence finds support in Mr. Kormendy’s criminal record which, as said above, is limited to alcohol related offences. In other words, this was clearly an isolated incident in Mr. Kormendy’s life.

[127] Further, there has been a significant gap since Mr. Kormendy last conviction.

[128] To that I would add that the strong support that Mr. Kormendy had received from friends and family throughout this process greatly enhances his prospects for rehabilitation, as does his willingness to take self-improvement courses.

[129] For all of these reasons, I find that the Crown has not satisfied me that an order delaying his parole eligibility is needed to reflect the objectives of sentencing, with awareness of the special weight to be given to denunciation and deterrence: see Zinck, at para. 31. It follows that in the circumstances of this case, I find this special additional punishment inappropriate.

[130] Finally, I agree with defence counsel that the issue of Mr. Kormendy’s eligibility for parole should be left to the Parole Board to be based upon his progress or lack of progress at the relevant time. In that way, Mr. Kormendy’s efforts at self-help can be appropriately considered on the basis of fact rather than speculation.

G. THE SENTENCE

a) Sentence

[131] For all of the reasons above, I reiterate that in the totality of the circumstances that a fit and proper sentence in these circumstances is:

1. As to Count 1: 11 years

2. As to Count 2: 11 years, concurrent

3. As to Count 3: 11 years, concurrent

4. As to Count 7: 1 year, concurrent

5. As to Count 8: 6 months, concurrent

b) Credit for Pre-Trial Custody

[132] Mr. Kormendy has been in custody awaiting trial for 743 days. In the circumstances 1.5:1 (1½ to 1) credit or 1115 days is appropriate for that pre-trial custody: see: Summers. In conclusion, I find the sentence of a further 7 years and 345 days of incarceration appropriate.

c) Other Ancillary Orders

[133] I make the following ancillary orders:

1. A weapons prohibition order for 10 years pursuant to section 109 of the Criminal Code;

2. Order for counts 1, 2, and 3 pursuant to section 487.051 of the Criminal Code authorizing the taking of the number of samples of blood that is reasonably required for the purposes of forensic DNA analysis;

3. An order for a victim fine surcharge of $1,000. Mr. Kormendy to have one year to pay.

Original signed “Bondy J.”

Christopher M. Bondy

Justice

Released orally: November 6, 2017

CITATION: R. v. Kormendy, 2017 ONSC 6426

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Kenneth James Kormendy

Offender

REASONS FOR SENTENCE

C. M. Bondy J.

Released orally: November 6, 2017