COURT FILE NO.: CR-18-002620 DATE: 20190730 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – RICHARD JONATHAN TURNER Defendant
Counsel: Mr. Robert Scott, for the Crown Mr. Donald Carter, for the Defendant
HEARD: April 1-3, 2019
Reasons for Sentence
EDWARDS J. :
Overview
[1] Unfortunately, as so often happens where someone has a troubled childhood, drugs, alcohol and violence, become a fact of life in that person’s adulthood.
[2] Mr. Turner was charged with attempt murder, unlawful confinement, assault with a threat to use a weapon, uttering a death threat, assault and breach of probation, all of which arose out of a violent domestic altercation with his lady friend, Andrea Bennett. Mr. Turner was acquitted of attempt murder and convicted on all other charges.
[3] The Crown seeks a sentence of five years less pre-trial custody. Mr. Carter, on behalf of Mr. Turner, suggests that a sentence of 2.5 years would be an appropriate disposition less pre-trial custody, while Mr. Turner in his own oral submissions pleaded for a sentence that would result in him being released from custody, having already served his sentence awaiting trial.
The Facts
[4] I had set out in some detail in my Reasons of April 8, 2019, the circumstances as they relate to what took place between Mr. Turner and Ms. Bennett on March 27, 2018. At the time of this incident, Mr. Turner and Ms. Bennett had both been consuming alcohol and drugs at the residence of a nearby friend. Mr. Turner left that residence prior to Ms. Bennett and returned to Ms. Bennett’s home. At approximately 4:30 a.m., Ms. Bennett returned to her home with a friend, knowing full well that Mr. Turner had been in a bad mood when he left.
[5] Upon arriving Ms. Bennett found that her residence was locked, and only after some knocking did Mr. Turner open the door and grab Ms. Bennett, pulling her into the home. What then ensued, as I indicated in my earlier Reasons, was an unprovoked, violent altercation between Ms. Bennett and Mr. Turner, part of which involved Mr. Turner slashing away with a knife in the area of Ms. Bennett’s head while she lay on a couch. Significantly, Ms. Bennett testified at trial that she did not believe that Mr. Turner was intentionally trying to stab her.
[6] After the altercation on the couch Mr. Turner began hitting Ms. Bennett, choking and strangling her. He punched Ms. Bennett with his right hand, and told her that he was going to kill her and burn her house down with oil.
[7] By the time Mr. Turner began choking Ms. Bennett, the emergency lights of police vehicles were visible outside as well as the sound of sirens. At this point, Mr. Turner had Ms. Bennett pinned in the hallway with his hand around her throat. Thankfully, around this time with the arrival of the police, Ms. Bennett was able to extricate herself and run out of the house. Mr. Turner ultimately surrendered to the police and was arrested.
[8] As a result of the altercation between Mr. Turner and Ms. Bennett, the evidence at trial established that Ms. Bennett suffered a significant bruise to her right shoulder, bruising and swelling to her forehead, bruising on her neck and ear, a cut on her left leg, and some cuts and scrapes on her right leg.
[9] While Mr. Turner was acquitted of the more serious charge of attempt murder, the charges for which he now stands convicted – particularly those of unlawful confinement, assault with a weapon and uttering a death threat, are serious charges.
Mr. Turner’s Background
[10] Mr. Turner is presently 37 years of age. He comes from a broken home, where his mother and father separated when he was relatively young. Initially he lived with his mother, and ultimately ended up living with his father. In Mr. Turner’s oral submissions to me, he indicated that he was sexually assaulted when he was six or seven years of age. He also advised that both of his parents were heavy drinkers, and that his father was abusive to his mother. He maintains that the sexual abuse continued to age 12, and that he did not tell anyone about this until quite recently.
[11] Mr. Turner has the equivalent to what would appear to be a grade 10 education. He has worked as a drywaller, and for some considerable period of time worked with his brother in a drywall business known as Turner Drywall.
[12] Mr. Turner appears to have met someone in jail while awaiting trial, who has offered him employment in a contracting business in the Kawartha Lakes area should he be released from jail.
[13] Mr. Turner has had issues with alcohol beginning from his mid-teens. He also has experimented with various drugs including marijuana, cocaine, mushrooms and acid. In the Pre-Sentence Report, Mr. Turner acknowledged that marijuana was the only drug that he would use on a regular basis.
[14] Mr. Turner has a very unenviable criminal record which dates back to late 1999, when he was convicted of various offences including uttering threats, pointing a firearm, assault causing bodily harm, assault with a weapon and mischief. These convictions were then followed up by numerous other convictions, for offences arising out of what can be described as domestic violence and failing to comply with various probation orders. The longest period of incarceration, apart from the 15 months that Mr. Turner has spent in jail awaiting the disposition of the charges before this court, would appear to have been one year, a sentence recently imposed in connection with convictions for failing to comply with a probation order times three and assault.
[15] Over the last ten years, Mr. Turner has been involved with six separate sets of charges relating to domestic violence involving different partners. All of these individuals were former girlfriends. The charges for which Mr. Turner now stands convicted arise out of a third set of charges involving Ms. Bennett. At the time of the incident, Mr. Turner was under a no contact order with Ms. Bennett. On all of the occasions where Mr. Turner has been before the courts for various charges arising out of domestic violence, alcohol was involved. His criminal record more than establishes that the imposition of probation orders means absolutely nothing to him, as he has been convicted of failing to comply with a probation order on at least eight separate occasions.
[16] The Pre-Sentence Report that I received is lengthy, and both counsel agree that it portrays Mr. Turner in less than glowing terms. What stands out for me from a review of the Pre-Sentence Report, is the failure on the part of Mr. Turner to acknowledge that he has a real problem with alcohol, which always seems to be an issue in the various relationships that he has had with women over the years. Perhaps even more significant, is the fact that Mr. Turner appears to place the blame for his incarceration and his various contacts with the criminal justice system on women, instead of reflecting on the flaws in his own character and seeking help to address those flaws.
[17] Mr. Turner was given every opportunity during the course of his discussions with the author of the Pre-Sentence Report to reflect on his past. Mr. Turner, in his oral submissions, certainly gave me the impression that he wants to turn his life around. The Pre-Sentence Report does not lend credibility, however, to the oral submissions that Mr. Turner made to me prior to sentencing.
Mitigating and Aggravating Factors
[18] There are few, if any mitigating factors that this court can take into account in determining an appropriate sentence. I do acknowledge that the only charge that was contested by Mr. Turner was the attempt murder charge, and that none of the other charges for which he now stands convicted were contested.
[19] What is a particularly aggravating factor which I am required to take into account under s. 718.2(a)(ii), is the fact that at the time of the incident Mr. Turner was abusing Ms. Bennett, who it is safe to describe was at the very least his girlfriend, if not his common-law partner. Even if I am wrong in describing Ms. Bennett as Mr. Turner’s common-law partner and thus s. 718.2(a)(ii) does not apply, the fact still remains that the court should take into account that the altercation with Ms. Bennett was a violent altercation that was unprovoked, and at the very least arose in the context of a boyfriend/girlfriend relationship. This, in my view, is a significant aggravating factor.
[20] Other aggravating factors that are appropriate for this court to take into account are his long history of domestic violence and breach of many court orders, as reflected in Mr. Turner’s criminal record. The fact that the convictions for which Mr. Turner now stands before this court arose out of a third altercation with Ms. Bennett is equally an aggravating factor.
[21] As well, the fact that the altercation occurred in Ms. Bennett’s own home, a place where she should have felt safe, is in my view an aggravating factor, together with the fact that the assault was unprovoked. Finally, given that Mr. Turner was bound by a court order that prohibited any contact with Ms. Bennett, is a further aggravating factor that this court should take into account.
Position of the Defence
[22] As previously noted, Mr. Carter argues that an appropriate disposition is one of incarceration where the totality of his sentence would be one of two and a half years less time served. In that regard, Mr. Carter points to the “step principle” and notes that the longest period of incarceration that Mr. Turner has previously served is that of one year. As such, to accede to the suggested sentence of the Crown of five years would not properly take into account the step principle.
[23] While Mr. Carter acknowledges that this court must send a message through the sentence that it imposes to reflect the principles of deterrence and denunciation, he asks this court to consider the principle of rehabilitation. In that regard, Mr. Carter points to the fact that if Mr. Turner is released he does have the offer of a position of employment, as reflected in Exhibit 5, which would allow him to resume employment in his former chosen field as a contractor and drywaller.
[24] As for the actual charges themselves, Mr. Carter notes that the only issue disputed by Mr. Turner was the charge of attempt murder, none of the other charges were contested. As for those charges, Mr. Carter notes that they do not arise out of a break and enter, nor was there any long-term injury caused to Ms. Bennett. There is no evidence that any of her injuries required medical treatment. Mr. Carter suggests that Ms. Bennett, on the evidence, was not tortured or bound by Mr. Turner. Mr. Carter also points out that this court does not have the benefit of any victim impact statement from Ms. Bennett, and that the actual assault on Ms. Bennett was not one of a prolonged nature.
Position of the Crown
[25] Mr. Scott, on behalf of the Crown, argues that there are no mitigating factors that this court can take into account, and that the aggravating factors are obvious ones – those being a long history of domestic violence, reflected in Mr. Turner’s criminal record and the numerous occasions in the past where he has been in breach of various court orders, as is the case on the facts before this court.
[26] As for the assault itself on Ms. Bennett, Mr. Scott notes that the assault itself was unprovoked and that a weapon, specifically a knife, was involved.
[27] Mr. Scott points to the fact that on the occasion in question, the evidence points to the conclusion that Mr. Turner was again under the influence of alcohol, which is a dominating feature of the various other domestic assaults reflected in his criminal record.
[28] As for Mr. Turner himself, Mr. Scott points to the fact that there is no real evidence that Mr. Turner has done anything to try to help himself. Specifically, there is no evidence that he has enrolled in Alcoholics Anonymous, or taken any kind of counselling sessions that might have been available to him while he has been incarcerated over the last 15 months. In this regard, Mr. Scott also points to the fact that the author of the Pre-Sentence Report notes that despite the direction given to him, Mr. Turner has not followed through on any of the suggestions made to him as to how he could improve himself by taking some form of counselling.
[29] As for the principles of sentencing, Mr. Scott points to the fact that given the nature of the domestic violence demonstrated by Mr. Turner - not only in the incident that brings Mr. Turner to court but also the prior incidents reflected in his criminal record, that denunciation and deterrence should be the primary consideration in crafting a sentence for Mr. Turner.
Analysis
[30] The issue of domestic violence is, unfortunately, not something new to our society. Where in past generations of victims of domestic violence at the hands of their spouses or partners may have gone unnoticed by the judicial system, today - thanks in part to the courage of many victims of domestic violence, our courts have been forced to deal with the harsh reality that domestic violence is regrettably something that occurs all too often, particularly where alcohol and drugs are involved. Madam Justice Wilson, speaking for the majority in the Supreme Court of Canada decision in R. v. Lavallee, [1990] 55 C.C.C. (3d) 97, at para. 112 framed the issue as follows:
The gravity, indeed, the tragedy of domestic violence can hardly be overstated. Greater media attention to this phenomenon in recent years has revealed both its prevalence and its horrific impact on women from all walks of life.
[31] Our Court of Appeal has dealt with numerous cases involving cases of domestic violence. In R. v. Bates, [2000] O.J. No. 2558, the court stated at para. 30:
The courts have been made increasingly aware of the escalation of domestic violence and predatory criminal harassment in our society. Crimes involving abuse in domestic relationships are particularly heinous because they are not isolated events in the life of the victim. Rather, the victim is often subjected not only to continuing abuse, both physical and emotional, but also experiences perpetual fear of the offender.
[32] While every case of domestic violence may involve different facts and levels of violence, the fact remains that just one incident of domestic violence between parties, who presumably at one stage either liked or loved each other, is one too many. The facts of each case have to be looked at carefully. There may be significant differences in the levels of violence and the length of time that the violence has been suffered by the victim, often in silence.
[33] In R. v. Hunda, 2008 ONCA 244, [2008] O.J. No. 1254, the Court of Appeal dealt with the appeal of a sentence imposed of four and a half years, where the domestic assault occurred when the accused had held a knife to the victim’s throat, and did so after forcing his way into her home. The accused in that case was on probation at the time for offences committed against the very same victim. He had a criminal record which included over 50 convictions, many of which involved assault offences.
[34] The trial judge in Hunda refused to accept a joint submission from the Crown and defence counsel of two years’ incarceration plus three years probation. Rather, the trial judge jumped the joint submission and imposed a sentence of four and a half years. Dealing with these facts, the Court of Appeal held at para. 2:
We are satisfied that the trial judge did not err in concluding that the joint submission fell far below the minimum jail term that could appropriately be imposed in all of the circumstances. We are, however, satisfied that the trial judge, given the joint submission, should have imposed a sentence at the bottom of the appropriate range. We would impose a total sentence of four years.
[35] In R. v. Ibrahim, 2011 ONCA 611, the accused was convicted of assault with a weapon and assault causing bodily harm. The accused was a mature first offender who had committed a serious assault on his spouse, which resulted in disfiguring injuries caused when he struck her with a shovel. The assault is noted to have occurred in the context of a crumbling and acrimonious domestic relationship. Dealing with these facts, the Court of Appeal at para. 15 stated:
…The sentencing principles that exert the greatest influence in determining the length of the sentence and the manner in which it should be served are denunciation and deterrence. The sentence imposed in cases such as this must also promote a sense of responsibility among spousal abusers and an acknowledgement of the harm done not only to their immediate victims, but equally to the community at large.
[36] The defence had sought a conditional sentence, taking into account that the accused in Ibrahim was a first offender. The Crown had sought a sentence of four to six months. The trial judge ultimately imposed what he concluded was a minimum sentence of 12 months custody. The Court of Appeal, applying the principles set forth above, refused to interfere with the 12 month sentence imposed by the trial judge.
[37] Recently, R.M. Pomerance J. in R. v. TRM, 2017 ONSC 5618, had occasion to deal with the sentencing of an individual who much like Mr. Turner had experienced trauma, abuse and addiction, for much of his life. Like Mr. Turner, the accused before Pomerance J. had become what she described as a “violent and angry man himself”, and noted that he had a history of domestic violence involving a number of female partners in the past. Like Mr. Turner, TRM on the occasion when he was sentenced by Pomerance J., had assaulted his partner on a prior occasion.
[38] In ultimately imposing a sentence of 35 months as suggested by the Crown, Pomerance J. at para. 30 stated:
Parliament has also stressed the aggravating nature of partner violence, codifying it in s. 718.2 of the Criminal Code. In cases of this nature, courts must send a strong message that it is not acceptable to resort to violence in the domestic context. Partner violence is a serious social problem. It often takes places in the privacy of the home, without other witnesses. Often the victim is subject to physical and emotional abuse that leads to feelings of helplessness, hopelessness and fear, such that it is difficult for the victim to leave the relationship. Family violence destroys the sense of security and safety that normally attaches to the home, it can have debilitating impact.
[39] The purpose and principles of sentencing are well known and set forth in s. 718 of the Criminal Code of Canada (“the Code”). The court is required by s. 718.2 of the Code to increase or reduce the sentence, taking into account any relevant aggravating or mitigating circumstances, some of which are set forth in ss. 718.2 (a)(i-vi). I have already eluded to one of those aggravating factors, that an accused has committed the offence in the context of abusing his or her spouse or common-law partner.
[40] Mr. Carter, on behalf of his client, opposes the dramatic increase in sentence proposed by the Crown (five years) from any prior sentence that has been imposed on Mr. Turner (one year). He refers to the step principle, or what is also referred to as the jump principle. The Court of Appeal referred to the rationale for the jump principle in R. v. Courtney, 2012 ONCA 478, at para. 10 as follows:
… Accordingly, the rationale for the jump principle – that successive sentences should be increased gradually – is simply not engaged. As this court observed in R. v. Borde (2003), 63 O.R. (3d) 417, at para. 39:
[The jump] principle cautions a court against imposing a dramatically more severe sentence than the sentences imposed upon the offender for similar offences in the recent past. It has little application where the severity of the offender’s crimes shows a dramatic increase in violence and seriousness.
[41] The jump or step principle was analyzed by Molloy J. in R. v. Ferrigon, at para. 9 as follows:
… The jump principle reflects the underlying premise of sentencing that any given sentence should be no harsher than is needed to accomplish the purposes of sentencing. Thus, while a second offence would typically attract a more severe sentence than a first offence, that sentence should not be drastically more onerous unless this is necessary to accomplish one of the purposes for which the sentence is imposed.
[42] Molloy J. in Ferrigon goes on to state:
It has often been observed that the jump principle is most applicable in situations where rehabilitation is a significant factor in sentencing. As stated by the British Columbia Court of Appeal in R. v. Robitaille (No. 2) (1993), 31 B.C.A.C. 7 (C.A.):
…the conclusion, in any given case, that the increase in sentence should not be too large rests on a consideration of the circumstances of the particular offender and a desire not to discourage any effort he may be making to rehabilitate himself by the imposition of a sentence that may be seen by him to be a dead weight on his future life.
Accordingly, when rehabilitation is not a significant factor influencing sentence, the jump principle also has less relevance: R. v. J.G., [2005] O.J. No. 4599 (S.C.J.) at paras. 44-45; R. v. Manning, [2007] O.J. No. 1205 (S.C.J.).
[43] While Mr. Carter is quite correct that the jump principle is one that this court should consider along with the question of Mr. Turner’s potential for rehabilitation, there is very little if any evidence to support the conclusion that Mr. Turner has done anything over the last 15 months to further his rehabilitation, by engaging himself in any form of counselling. Nor is there anything that might give this court some comfort that Mr. Turner is as serious as he portrayed himself in his oral submissions to me about turning his life around. Actions speak louder than words.
[44] Mr. Turner was undoubtedly sincere in his oral presentation to me when called upon to make any submissions that he chose to make on his own behalf. The history of Mr. Turner’s criminal behaviour, reflected in his criminal record and the ongoing history of domestic violence, together with his complete lack of respect for any court order, engages the principles of denunciation and deterrence that this court is bound to apply, as made abundantly clear from the various Court of Appeal decisions referenced above. None of the prior sentences that have been imposed on Mr. Turner in the past seem to have had any impact on him whatsoever.
[45] If there was some evidence that would support the logical conclusion that Mr. Turner was serious about turning his life around, and he was engaging in the resources available to him with his problems with alcohol and drugs, then I would agree with Mr. Carter that the jump principle is one that this court could seriously take into account in militating against a sentence that came close to the one suggested by the Crown.
[46] I have, therefore, come to the conclusion that the goals of sentencing which must have primacy in the final result are those of deterrence and denunciation, specifically deterrence and the protection of the public. Regrettably, in the absence of any supportive evidence concerning Mr. Turner’s ability to turn his life around, the issue of rehabilitation is secondary to the aforesaid considerations. There are too many aggravating factors arising out of Mr. Turner’s history of domestic violence and his refusal to abide by earlier court orders, to justify the sentence proposed by Mr. Turner.
[47] The range of sentence to be imposed lies somewhere between the 35 months imposed by Pomerance J. in TRM, and the minimum four years suggested by the Court of Appeal in Hunda. In my view, an appropriate global sentence is one of 46 months less credit for time served, which I address below.
Pre-Trial Custody Credit
[48] At the time of hearing sentencing submissions, counsel agreed that Mr. Turner had served the equivalent of 15 months in pre-trial custody. With the lapse of time between those submissions and these Reasons, I assume counsel would now be in agreement that Mr. Turner is entitled to 16 months of enhanced credit. As such, based on a minimum credit of 1.5 to 1 for his time in custody, Mr. Turner would be entitled to a credit of 24 months as against the global sentence that I have imposed of 46 months.
[49] There remains the submission made on behalf of Mr. Turner, that because of numerous lockdowns during the course of his pre-trial incarceration he should be entitled to credit not at the rate of 1.5, but rather times 2 for each month of pre-trial incarceration.
[50] Where an accused is subject to an extraordinary number of lockdowns while he or she is in custody, the Court of Appeal in R. v. Duncan, 2016 ONCA 754, has accepted that the usual enhanced credit of 1.5 to 1 set forth in R. v. Summers, 2014 SCC 26, should allow for further enhanced credit for pre-trial incarceration.
[51] As for the evidence with respect to the number of lockdowns and the impact on Mr. Turner, I received in evidence a letter dated May 28, 2019 from the Central East Correctional Centre, detailing the number of lockdowns experienced by Mr. Turner during the course of his pre-trial incarceration. The totality of those lockdowns was approximately 590 hours, or approximately 24 days.
[52] I also heard from Mr. Turner on the impact of those lockdowns on him personally, and in particular the deprivation of time that he would otherwise have been allowed out of his cell for such basic amenities as looking after his personal needs, such as having a shower.
[53] In addition to the lockdowns, Mr. Turner was housed in what is described as alternative housing over the course of 16 days of his pre-trial incarceration. Alternative housing is a form of a behavioural unit where an accused is only allowed out of his or her cell two hours per day. In cross-examination, Mr. Turner acknowledged that the time he spent in the alternative housing was as a result of his own misbehaviour in jail. It is hard to conceive that an accused should be entitled to enhanced credit for being housed in alternative housing, where this occurs as a result of an accused’s own misconduct.
[54] As it relates, however, to the lockdowns for which Mr. Turner cannot be held responsible, I accept that this would amount to an instance of harsh pre-trial custodial conditions which have impacted on Mr. Turner, such that this court should exercise its discretion to grant enhanced credit beyond the Summers credit of 1.5 to 1. The only issue is whether or not that should apply to the totality of his pre-trial incarceration as suggested by Mr. Carter.
[55] If the lockdown had been experienced by Mr. Turner on an ongoing and regular basis during the entirety of his pre-trial incarceration, then I would tend to agree with Mr. Carter. The records, however, from the Central East Correctional Centre, do not support such a conclusion. The total lockdown period was 590 hours. This equates to the equivalent of 24 days. I am, therefore, using my discretion and applying the principles of Duncan in providing Mr. Turner with further credit of 2 months, to be added to the 16 months which I believe is agreed to between counsel.
[56] Using the Summers formula for the 16 months, this equates to further enhanced credit of 24 months plus the additional 2 months enhanced credit for the lockdowns. Mr. Turner shall, therefore, be entitled to credit for time served of 26 months, to be set off against the global sentence that I have imposed of 46 months. As such, Mr. Turner has remaining 20 months to serve. The global sentence imposed shall be concurrent on all charges for which Mr. Turner stands convicted.
[57] If there are issues with respect to my calculation of the actual time served by Mr. Turner in pre-trial incarceration, I may be spoken to.
[58] The ancillary orders sought by the Crown were not opposed by the defense. These include a no communication order with Ms. Bennett, a DNA order and a s. 109 order for life. These orders shall issue.
Justice M.L. Edwards
Released: July 30, 2019
NOTE: As noted in court, on the record, this written decision is to be considered the official version and takes precedent over the oral decision read into the record. If any discrepancies between the oral and written versions, it is the official written decision that is to be relied upon.