Court File and Parties

Court File No.: CR-17-0152 Date: 2018-12-06 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Kristopher Damien Joseph Rothery, Defendant

Counsel: Monica Heine, for the Crown Brian Callender, for the defendant

Heard at Napanee: 30 October 2018

Before: Mew J. (Orally)

Sentencing Decision

[1] Kristopher Rothery, on 19 July 2018, following a judge-alone trial, you were found guilty on charges of criminal negligence and of the aggravated assault of your seven week old son, Jackson Rothery. These offences occurred on 10 December 2016 when Jackson was left in your sole care.

[2] A specialist in child maltreatment paediatrics subsequently concluded that rib factures, subdural hemorrhages, a subarachnoid hemorrhage, brain injury and retinal hemorrhages - all symptoms presented by Jackson - were caused by the actions of another person.

[3] That person was you.

[4] The nature and extent of any lasting effects on Jackson of what happened to him when he was in your care cannot yet be assessed. He has made progress. But while there is some optimism for his future, his prognosis remains guarded.

[5] A victim impact statement, read on behalf of the family by Helen McGinn, speaks to the impact that your actions have had, not only on your infant son, but on his whole family. As Ms. McGinn noted, all you had to do that day to summon help was knock on the wall that separated your home from the home of Jackson’s grandfather.

[6] Aggravated assault is punishable by a jail sentence of up to fourteen years; criminal negligence causing bodily harm to another person is punishable by a jail term of up to ten years.

[7] The Crown asks that you be sentenced to a term of imprisonment of between three to five years.

[8] Your counsel acknowledges on your behalf that a period of incarceration is appropriate if not inevitable, and concedes that you are likely to obtain more benefit from serving your time in a federal institution, an outcome which would only result from a sentence of two years or more.

[9] Your counsel suggests that I consider a two year sentence plus probation for up to a further three years.

[10] Both counsel agree that a review of other cases involving comparable circumstances reveal a wide range of sentences given.

[11] You have no criminal record. But you also have no history of having applied yourself to education or training or of having held down any sort of meaningful job.

[12] You were eighteen years old at the time of Jackson’s birth and of the offence. You were, at the time, living with Jackson’s mother, Angel Stone. Her pregnancy had been a planned one. A public health nurse who gave evidence at trial, Anja Cahill, felt that both you and Ms. Stone seemed to be appropriately engaged in Jackson’s care and well-being. Ms. Stone was less complimentary about your parenting abilities. But, at least from the perspective of the public health nurse, there were no red flags.

[13] The pre-sentence report reveals that you were verbally and emotionally abused by your step-father and that you are now completely alienated from your natural father. You do, however, have what you describe as an open and caring mother, with whom you speak on a daily basis. And you also derive support from your grandmother who you have been living with in recent months. In a letter to the court she says that your family will not give up on you and recognises that you need more help and guidance.

[14] There is reference in the pre-sentence report to the fact that you have had mental health challenges for many years. It is reported that you have been diagnosed with anxiety, depression and bi-polar disorder, although no medical evidence to that effect has been presented to the court.

[15] Your relationship with Angel Stone was on and off and, to use your words, “very complicated”. Your relationship with her ended when these offences were committed.

[16] Beyond acknowledging that “obviously something had happened to Jackson while I was watching him”, you do not appear to accept responsibility for what happened. In making that observation, I appreciate that you have the right to appeal your conviction. But you have not expressed remorse for what happened, and while that is not an aggravating factor for the purposes of sentencing, it seems consistent with the picture of a person who has been described as “uninvested”, who lacks motivation and who demonstrates little, if any, insight into why he has been brought before the court and, ultimately, convicted.

[17] I have already mentioned your minimal employment history and your lack of educational achievement. You depend on others for financial support. You wile away the hours watching movies or playing video games. There is no structure to your life.

[18] Due to what are perceived to be your lack of motivation and your current mental health state, the author of the pre-sentence report does not regard you as a suitable candidate for community supervision.

Sentencing Principles

[19] The general principles of sentencing are set out in section 718 of the Criminal Code. Judges passing sentence are required by law to impose a just sanction that has one or more of the following six objectives:

a. To denounce unlawful conduct; b. To deter the offender and others from committing offences; c. To separate offenders from society when necessary; d. To assist in the rehabilitation of offenders; e. To provide reparation for harm done to victims or to the community; f. To promote a sense of responsibility in offenders and acknowledge harm done to victims and to the community.

[20] Offences against children and offences where the offender has abused a position of trust or authority in relation to the victim are statutorily prescribed aggravating factors: s. 718.2(ii.1) and (iii) of the Criminal Code.

[21] Ultimately, the sentence should be proportionate to the gravity to the offence and the degree of responsibility of the offender. An offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances. And the sentence should be similar to those imposed on similar offenders, for similar offences, committed in similar circumstances.

Discussion

[22] In R. v. Ewen, [2000] S.J. No. 155 (C.A.), the Saskatchewan Court of Appeal upheld a sentence of two years less a day for the aggravated assault of a four month old child who received serious and unexplained head injuries while in the defendant’s care. A Crown appeal on the basis that the sentence was manifestly unfit was rejected.

[23] In R. v. McCauley, [2007] O.J. No. 1593 (S.C.J.), a mother, who was 20 years old at the time, was convicted for the aggravated assault her infant son who was determined by physicians to have received a series of life threatening brain injuries consistent with vigorous shaking. The long term prognosis for the child was optimistic and a psychologist confirmed that the defendant was hyperactive and suffered from poor impulse control and depression that had caused her to be overwhelmed by caring for her child. She received a sentence of twelve months’ imprisonment plus three years of probation. Mitigating factors included her guilty plea, the defendant’s background, her part-time employment and her age.

[24] In R. v. Rochon-Frosk, 2017 MBPC 14, a decision of the Manitoba Provincial Court, a five year prison sentence was handed to the parent of a ten-week old baby who pleaded guilty to assault causing bodily harm and failing to provide the necessaries of life. The victim had rib fractures, a brain injury, an eye injury and a leg fracture. The medical evidence was that the child’s injuries were consistent with applied trauma, both direct blunt force and acceleration/deceleration injuries, as well as changes associated with hypoxia. The sentencing decision disclosed a pattern of child abuse over a number of weeks. The defendant, who was a 41 year old university educated man with no criminal record and with long-term stable employment, accepted responsibility for the injuries, with the exception of the broken leg.

[25] The sentencing judge in R. v. Rochon-Frosk imposed sentences of four years for the offence of assault causing bodily harm and two years for the offence of failing to provide necessaries. Having determined that the counts for failing to provide necessaries constituted a separate and distinct offence from the assault causing bodily harm, the sentencing judge determined that the sentences should be served consecutively and, accordingly, applying the totality principle, adjusted the total sentence to be served to five years’ incarceration.

[26] The Crown argues that in your case, there were also two delicts, or distinct acts, of wrongdoing: the aggravated assault which caused the injury, and the subsequent failure to conduct yourself as a reasonably prudent parent in the face of the obvious and serious risk to Jackson’s life.

[27] While any case involving a young child being significantly injured by a parent is a serious matter which requires the court to give paramount weight to the sentencing factors of denunciation and deterrence, I agree with Mr. Callender that the Rochon-Frosk case sits at the upper end of the scale of appropriate sentences.

[28] I also accept that you have had challenges in your life and that you have mental health issues which need to be addressed.

[29] But the fact is that your actions caused grievous and possibility permanent damage to your baby son. Your responsibility was to care for, protect and nurture that small vulnerable child. A child who, while in your care, was completely dependent on you.

[30] You violated that trust when you injured Jackson.

[31] While there is no evidence as to what extent, if any, matters have been made worse by your failure to seek immediate assistance, it is obvious that you should have sought assistance immediately and that your failure to do so should be reflected in the overall sentence that you receive.

[32] That having been said, I do not consider you to be an evil or malicious person. I do not think that what you did to Jackson reflects the type of person you are generally. I also consider that the likelihood of you committing acts of violence in the future is low.

[33] Your age, personal history, including mental health challenges, and the absence of any criminal record are all mitigating factors.

[34] But, as I have already said, deterrence and denunciation are the predominant sentencing factors that I must consider when dealing with crimes committed against a very young child.

[35] Both your own counsel and the Crown agree that, at a minimum, you should receive a penitentiary sentence. Apart from anything else, it is likely that you will have access to programming in a penitentiary that will help you to gain some insight into what you have done and to develop skills and capabilities that will enable you to become a contributing member of society when your sentence is over – something which you are not, and have not been to date.

[36] Furthermore, because, in my view, what occurred on the 10th of December 2016, was, to all intents and purposes, a continuous course of criminal conduct that occurred over a period of a few short hours rather than days or weeks, I do not accept the Crown submission that you should receive consecutive sentences for the two offences that you have been found guilty of. Nevertheless, the overall sentence needs to reflect the magnitude of your crime and society’s condemnation for what you have done.

Decision

[37] Mr. Rothery, please stand up.

[38] On the charge of the aggravated assault of Jackson Rothery, I sentence you to a term of imprisonment of three years. On the charge of criminal negligence, I sentence you to a term of imprisonment of eighteen months. These sentences are to be served concurrently, meaning that the total term of imprisonment to be served by you will be three years.

[39] In addition, I impose the following ancillary orders:

a) A primary designated DNA order; and b) A ten year weapons prohibition order pursuant to s. 109 of the Criminal Code. c) An order pursuant to s. 743.21(1) of the Criminal Code prohibiting you from communicating with Angel Stone, directly or indirectly, during the term of your sentence, save as is reasonably necessary or required by virtue of any other court/order relating to matters of custody of or access to your son, Jackson.

Graeme Mew J.

Handed down orally: 6 December 2018