R. v. Joseph Richard Duke

COURT FILE NO.: CNJ 9498

DATE: 2019/11/04

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. JOSEPH RICHARD DUKE

BEFORE: Justice D.A. Broad

COUNSEL: A. Sethi, Counsel for the Crown D. Johnson, Counsel for Joseph Richard Duke

HEARD: September 27, 2019

REASONS FOR SENTENCE

[1] Mr. Duke was convicted on June 10, 2019 of the following offences committed against a single complainant, Kathryn Amanda Barrett, following a trial without a jury:

(a) Assault causing bodily harm on November 22, 2017;

(b) Attempted murder on November 24, 2017

(c) Uttering a threat to cause death on November 24, 2017;

(d) Unlawful confinement on November 24, 2017; and

(e) Assault on November 24, 2017.

Facts

[2] The facts giving rise to the convictions were recited in detail in my oral Reasons for Judgment delivered June 10, 2019 and need not be comprehensively detailed here.

[3] In summary, it was found that in the evening of November 22, 2017 Mr. Duke choked Ms. Barrett, while they were seated in Mr. Duke’s vehicle, by pressing his hands around her neck and throat area, causing her to lose consciousness and to vomit. It was found that the choking assault committed by Mr. Duke interfered with Ms. Barrett’s health and comfort, in a way that was more than merely transient or trifling, and therefore constituted an assault causing bodily harm. It was also found that Mr. Duke inflicted blows to Ms. Barrett on November 22, 2017 causing her to sustain painful bumps on her head, also constituting bodily harm.

[4] It was also found that in the evening of November 24, 2017, again while seated in Mr. Duke’s vehicle, Mr. Duke held Ms. Barrett around her head and neck and pressed on her throat and neck alternately with two hands and one hand. On at least one occasion Mr. Duke stated that he intended to kill Ms. Barrett, specifically telling her that she was going to die. By telling Ms. Barrett that she was going to die and pressing two hands and one hand alternately on her neck and throat, Mr. Duke was found to have had the specific intent to kill Ms. Barrett supporting his conviction for attempted murder.

[5] It was also found that Mr. Duke knowingly uttered a threat to cause Ms. Barrett’s death, supporting his conviction for uttering a threat to cause death.

[6] After Mr. Duke began assaulting Ms. Barrett in his vehicle upon picking her up on the evening of November 24, 2017, Ms. Barrett attempted to exit the vehicle by the passenger door when Mr. Duke forcibly pulled her away from the door by grabbing her hair, putting his arms around her head or neck, thereby restraining her freedom of movement. It was found that Mr. Duke told Ms. Barrett that, if she tried to escape from the vehicle, he would drive the car fast around the corner, to prevent her from doing so, thereby conveying to her that it was his intention to confine her to the vehicle. These facts supported his conviction of forcible confinement.

[7] It was found that Mr. Duke began verbally and physically attacking Ms. Barrett immediately or shortly after she entered Mr. Duke’s vehicle on November 24, 2017, thereby supporting his conviction for assault.

[8] It was found that on the evening of November 24, 2017 Mr. Duke had an animus towards Ms. Barrett emanating from Mr. Duke’s jealousy, possessiveness and controlling attitude towards her.

[9] As a result of Mr. Duke’s actions, Ms. Barrett experienced the terror and trauma of strangulation on each of November 22 and 24, 2017. She also suffered bruising, swelling and lacerations on multiple locations on her head, face and neck. Fortunately, Ms. Barrett’s physical injuries were not long-lasting or permanent. Although she was assessed by a registered nurse and sexual assault examiner with the Waterloo Region Sexual Assault and Domestic Violence Treatment Centre, she was discharged from hospital following examination and did not require admission to hospital or follow-up treatment.

No Victim Impact Statement

[10] Counsel for the Crown, Ms. Sethi, informed the court that Ms. Barrett has advised that she did not know how to put the impact that the attacks had on her into words and was unable to express how the attacks made her feel. Accordingly, no victim impact statement from Ms. Barrett was made available to the court at the sentencing hearing.

Pre-Sentence Report

[11] Mr. Duke’s counsel, Mr. Johnson, filed a copy of a Pre-Sentence Report dated November 9, 2017 prepared in respect of the sentencing on November 28, 2017 in a criminal proceeding at Sarnia, Ontario, involving a different female complainant.

[12] The Pre-Sentence Report described Mr. Duke’s upbringing as extremely difficult and traumatic as a result of ongoing conflict between his parents which led to Mr. Duke and his siblings to being apprehended by Family and Children Services. Mr. Duke was placed in foster care several times after his parents separated when he was approximately four years old. At sixteen years old he signed himself out of the group home at which he resided and transferred into Independent Living Status where he continued to receive support through the Sarnia-Lambton CAS.

[13] Between the ages of 16 and 18, Mr. Duke began using a significant quantity of street drugs including crystal methamphetamine. As of the date of the PSR he no longer used hard drugs but admitted to marijuana use to help him fall asleep.

[14] Although Mr. Duke reported to the author of the PSR that his consumption of alcohol was not problematic, Mr. Johnson advised that he does, at this time, suffer from alcohol addiction.

[15] The PSR reported that information collected from a psychological assessment conducted on June 26, 2017 by Deb Hounam indicated that Mr. Duke experiences a number of intellectual and mental health concerns which have a significant impact on his level of functioning. He experiences difficulties in areas such as impulse control, social interactions, attention deficits, life skills, mood regulation, irritability and self-regulation capacities.

[16] The PSR indicates that Mr. Duke has not completed his high school credits, has little work history and experiences a great deal of social anxiety and difficulty controlling his temper. At the time of the PSR he was supported by ODSP.

Psychological Assessment

[17] Mr. Johnson also filed a copy of a Psychological Assessment Report dated June 26, 2017 prepared by Deb Hounam, Psychological Associate, supervised by Dr. Robert Carey, Psychologist. The assessment revealed that Mr. Duke had cognitive skills which were overall in the “intellectually impaired” range. He is able to work effectively with visual information but can be very easily frustrated by tasks and becomes irritable and impulsive when not able to complete a task easily. He demonstrated very weak academic skills.

[18] Completion of anxiety and depression scales supported, at the date of diagnosis, a major depressive disorder, and generalized anxiety disorder with significant social anxiety and panic disorder. He was described as having significant issues with impulse control, attention and focus and that he loses his temper very quickly over minor issues. Due to his experiences of significant trauma while growing up, a diagnosis of post traumatic stress disorder was supported. Mr. Duke has a significant number of mental health issues as well as intellectual impairment and weak academic skills and will not be competitively employable until his significant temper, anxiety and mood swings can be addressed.

[19] Mr. Johnson submitted that the findings of the PSR and Psychological Assessment have remained static since their preparation in 2017, and it was therefore not necessary to have them updated for the purposes of the sentencing hearing in the case at bar.

Application of Kienapple Principle

[20] The Kienapple principle, derived from the case of R. v. Kienapple, (1974), 1974 14 (SCC), 15 C.C.C. (2d) 524 (S.C.C.) was very usefully described and summarized by Doherty, J.A. in the case of R. v. Kinnear, 2005 21092 (ON CA), [2005] O.J. No. 2434 (C.A.) at paras. 27-40. He noted that the principle that emerged from Kienapple provides that where the same transaction gives rise to two or more offences with substantially the same elements and an accused is found guilty of more than one of those offences, the accused should be convicted of only the most serious of the offences and the other charges should be stayed.

[21] Counsel for the Crown and Mr. Duke are in agreement that the Kienapple principle applies in respect of the convictions for uttering a threat to cause death and for assault on November 24, 2017, and that convictions for those offences should be stayed. They also agree that the conviction for assault causing bodily harm on November 22, 2017 is not subject to the Kienapple principle. They differ with respect to the application of the principle in respect of the conviction for forcible confinement on November 24, 2017. Mr. Johnson submits on behalf of Mr. Duke that the Kienapple principle should apply, whereas Ms. Sethi for the Crown disputes that the principle has application.

[22] Doherty, J.A. at para. 32 of Kinnear confirmed that the Kienapple rule precluded multiple convictions for different offences only where there was both a factual and a legal nexus connecting the offences. The factual nexus is established when the charges arise out of the same transaction. The legal nexus exists if the offences constitute a single wrong or delict.

[23] In R. v. Prince [1986] 2. S.C.R. 3 (S.C.C)., Dickson, C.J.C. observed at p. 44 that some of the factors used to conduct the factual nexus inquiry include the remoteness or proximity of the events in time and place, the presence or absence of relevant intervening events, and whether the accused’s actions were related to each other by a common objective.

[24] In my view, there is no factual nexus between Mr. Duke’s actions in carrying out a forcible confinement and his actions in attempting to murder Ms. Barrett. The forcible confinement occurred while Mr. Duke was driving the vehicle in which Ms. Barrett was in the passenger seat between her home and the plaza. There is no evidence that at the time he committed the forcible confinement he had formed an intent to murder Ms. Barrett, or that he committed the forcible confinement with the intent to assist him to commit attempted murder which took place at the rear of the plaza while the vehicle was parked. The forcible confinement and attempt murder were remote in time and place and were not connected to each other by a common objective.

[25] I would therefore not stay the conviction for forcible confinement on November 24, 2017. The convictions for uttering a threat to cause death and for assault on November 24, 2017 are stayed pursuant to the Kienapple principle, as agreed by the Crown.

Guiding Principles

[26] As set forth in s. 718 of the Criminal Code, the purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions on the offender. The stated objectives of any sentencing decision include denunciation, deterrence, rehabilitation, reparation for harm done, promotion of offender responsibility and acknowledgement of harm done.

[27] Section 718.1 of the Code explicitly states that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[28] The principle of parity requires a sentence to be similar to sentences imposed on similar offenders for similar offences committed under similar circumstances, however, sentencing remains an individualized process such that sentences imposed for similar offences may not be identical (see R. v. Cox, 2011 ONCA 58 (Ont. C.A.) at para. 45).

[29] Under the introductory portion of s. 718.2(a) a sentence is to be reduced to take into account mitigating circumstances relating to the offence or the offender or increased to account for any aggravating circumstances.

[30] Sub-section 718(a)(ii) provides that evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner, shall be deemed to be an aggravating circumstance.

[31] S. 718.2(b) requires that a sentence be similar to those imposed on similar offenders in similar circumstances, and s. 718.2 (d) and (e) provide that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered.

Position of the Crown

[32] The Crown seeks a global sentence of eight (8) years imprisonment, less enhanced credit for pre-sentence custody. The Crown would attribute a sentence of three (3) years to the assault causing bodily harm conviction, eight (8) years for attempted murder, and six (6) months for forcible confinement, all to be served concurrently. As ancillary orders, the Crown seeks a weapons prohibition for life under section 109 of the Criminal Code, a requirement that Mr. Duke provide a blood sample for DNA analysis as attempted murder is a primary designated offence, and an order that Mr. Duke not have any contact with Ms. Barrett during his period of incarceration.

[33] The Crown argues that an eight (8) year global sentence recognizes denunciation and deterrence as the predominant sentencing principles applicable in the circumstances, including, in particular, the viciousness of both attacks on Ms. Barrett on November 22 and 24, 2017 respectively. The Crown argues that eight (8) years would be considered to be at the lower of the applicable scale in the circumstances of the case, including the important fact that the attacks were carried out in the context of an intimate partner relationship.

Position of the Defence

[34] The defence argues in favour of a sentence calling for a period of incarceration, net of enhanced credit for pre-sentence custody equal to 600 days (as of the sentencing hearing), of two (2) years less a day. This would be equivalent to a total sentence of approximately 3.6 years. Mr. Johnson argues that the imposition of a net period of incarceration of less than two (2) years would permit the court to impose the maximum period of probation of three (3) years following Mr. Duke’s release from custody. This will afford him the opportunity to be under supervision while on probation and to receive counselling and services to address his ongoing alcohol addiction, his depression and anxiety.

[35] The defence stresses the fact that, at the age of 21 years and without a criminal record at the time of the offences, Mr. Duke must be considered a youthful first-time offender, and as such, any first sentence of imprisonment should be as short as possible, be tailored to his individual circumstances and emphasize individual rather than general deterrence.

Analysis

(a) Generally

[36] The sentencing of an individual is one of the most difficult tasks for a judge. It is well recognized that determining a fit sentence is an individualized process. Each case is unique, with a different factual context and different circumstances of the individual offender.

[37] The task of the court in this case is to craft a fit sentence which will adequately address the predominant principles of denunciation and deterrence while also promoting the objective of rehabilitation in Mr. Duke’s individual circumstances. As I have stated, the Criminal Code directs sentencing judges to determine the least restrictive sentence that would meet the purpose and principles of sentencing.

(b) Aggravating and Mitigating Circumstances

[38] The aggravating circumstances cited by counsel for the Crown in this case are as follows:

(a) the attacks on Ms. Barrett on both November 22 and 24 were brutal and vicious;

(b) there were two separate attacks on two evenings involving the same victim;

(c) at the time of the attacks on Ms. Barrett, Mr. Duke was out on bail for two sets of outstanding charges involving domestic assaults on separate complainants;

(d) the attacks on Ms. Barrett took place in a domestic context.

[39] The mitigating circumstances include the following:

(a) at the time of the offences Mr. Duke did not have a criminal record;

(b) Mr. Duke was 21 years of age at the time of the offences and therefore may be considered to be a youthful first-time offender;

(c) Mr. Duke has low functioning mental abilities; and

(d) at the sentencing hearing Mr. Duke expressed remorse, however the effect of this expression is blunted by the fact that his primary focus was on his own situation rather than on the harm he caused to Ms. Barrett.

[40] It is noted that, although not an aggravating factor, Mr. Duke does not benefit from the mitigation which would accompany a guilty plea or early acceptance of responsibility.

[41] There is an issue as to whether the mental health issues affecting Mr. Duke in the Psychological Assessment Report ought to be treated as a mitigating factor.

[42] Mr. Johnson argues that there is a nexus between Mr. Duke’s actions and his mental health issues. He references, in particular, the comments of Ms. Hounam in the Psychological Assessment Report that at the time of the assessment Mr. Duke suffered from a major depressive disorder and potentially bipolar disorder, noting that it was difficult to provide a diagnosis of bipolar disorder given his level of distress and anxiety. Ms. Hounam also noted that Mr. Duke suffered from generalized anxiety disorder.

[43] Mr. Duke’s Basic Personality Inventory results showed clinical scales significantly elevated in a number of areas, including depression, alienation, anxiety, thinking disorder and impulse expression. His Interpersonal Problems score suggested that he was easily annoyed by minor inconveniences, frustrations and disappointments. Mr. Johnson suggested that the most concerning aspect of the Psychological Assessment Report was the results of the Trauma Symptom Inventory, scoring in the clinically elevated range in all four of the major factor scales, being self-disturbance, post traumatic stress, externalization, and somatization. The report noted that Mr. Duke appeared to struggle to manage his symptoms of distress effectively.

[44] In the case of R. v. Fernandes, [2018] O.J. No. 7054 (S.C.J.) Fuerst, J. noted at para. 63 the case of R. v. Al-Masajidi, 2018 ONCA 305 (C.A.) in which the Court of Appeal treated the offender’s mental illness as a mitigating circumstance, finding that the illness was a major factor in the commission of the offence.

[45] In Fernandes, Fuerst, J. accepted that the offender had a long history of thought disorder or delusional thinking, consistent with schizophrenia or schizoaffective disorder however, on the evidence, she was unable to find that his mental health issues were a major factor in the commission of the offence, or that he would not have committed the murder in that case but for his mental illness (see para. 64).

[46] Ms. Sethi for the Crown submits that it would be an error in law to find the existence of a nexus between the mental health issues described in the Psychological Assessment Report and the commission of the offences by Mr. Duke. She points out that nowhere in the Psychological Assessment Report is it stated that Mr. Duke, by reason of the issues identified, has the potential to react violently. She also submits that a finding of a nexus would require an opinion from a forensic psychiatrist.

[47] Based upon the evidence before the court, although Mr. Duke tested for depression, anxiety, thinking disorder and lack of impulse control in 2017, I am unable to find on the evidence before the court that his mental health issues were a major factor in the commission of the offences or that he would not have committed them but for his mental illness. Accordingly, the mitigative effect of mental health issues identified in the Psychological Assessment Report is significantly reduced.

[48] Without discounting the seriousness of the attacks on Ms. Barrett, Mr. Johnson points out the following aspects of them, which distinguish the case at bar from a number of the authorities cited by the Crown:

(a) the assaults were of relatively short durations;

(b) the injuries suffered by Ms. Barrett were not persisting. She was discharged from hospital on the same day with no follow-up and no clinical records were presented at trial;

(c) Mr. Duke did not engage in any relevant post-offence conduct;

(d) Mr. Duke did not engage in any terrorizing behaviour;

(e) There was no evidence of planning and deliberation. In particular, there was no evidence that, when he picked up Ms. Barrett from her home, he had formed an intent to kill her but rather that intent was formed as the argument escalated;

(f) no weapon was used; and

(g) there is no evidence of any substance abuse.

[49] Mr. Johnson references the case of R. v. Priest, (1996) 1996 1381 (ON CA), 30 O.R. (3d) 538 (C.A.) in which Rosenberg, J.A., writing for the panel, stated at page 6 of the report that it is a well-established principle of sentencing that a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence.

[50] It is noted, however, that Priest involved a conviction of a nineteen-year-old first-time offender who pled guilty to breaking and entering a convenience store and stealing property worth approximately $2,700. Many of the cases involving attempted murder which were cited by counsel also involved first-time offenders and resulted in lengthy prison terms. The case of R. v. Tan, 2008 ONCA 574, [2008] O.J. No. 3044 (C.A.) involved a thirty-four-year-old first-time offender who pled guilty to attempted murder, forcible confinement, robbery and sexual assault and was sentenced to 15 years imprisonment. Laskin, J.A., writing for the panel in dismissing the appeal, distinguished Priest at paras. 32-33, noting that Rosenbeg, J.A. was careful to exclude “very serious offences and offences involving violence” from the principle that sentences for a first offender should emphasize individual deterrence and rehabilitation. Even accepting that an offender is entitled to the shortest sentence possible consistent with the relevant sentencing principles, Laskin, J.A. noted that the sentence must still be proportionate to the gravity of the offences.

[51] In support of his submission advocating for a reformatory term of two years less a day, net of credit for pre-sentence custody, together with a term of probation, Mr. Johnson points to the case of R. v. Skillings, [2005] O.J. No. 2819 (O.C.J.) in which the offender pled guilty to the attempted murder of his domestic partner and was sentenced to 2 ½ years in penitentiary. Justice Livingstone noted that the circumstances of the plea of guilty were very relevant to the appropriate sentence. By pleading guilty at a very early date after the incident, the offender spared the complainant the obligation of having to testify at the preliminary hearing and at a trial. She also noted that the offender cooperated by turning himself in. She also noted that the offender, while attempting to suffocate and murder the complainant with the use of smoke from a fire in the household, returned to the residence and was engaged in pushing the complainant out of the residence, thereby attempting to reverse what he had done and to save her, once it was apparent that her life was in significant danger.

[52] At para. 9, Justice Livingstone noted that, when the court is sentencing an accused person to the penitentiary, a sentence that would include probation is precluded by law and that the sentence that the court was able to impose cannot include probation.

[53] I find Skillings to be distinguishable in the case at bar, particularly by reason of the high mitigating effect Justice Livingstone attached to the unique circumstances of the offender’s guilty plea, and the mitigating effect of his actions in attempting to reverse what he had done and to save the complainant from harm. Moreover, it is noted that, even with these unique mitigating circumstances, a penitentiary term was nonetheless imposed.

[54] Mr. Johnson also referenced the case of R. v. Tokhi, [2014] O.J. No. 2782 (S.C.J.) in which the offender was convicted of hiring someone (namely an undercover police officer) to murder her husband. She was sentenced to a term of imprisonment of 3 ½ years.

[55] Molloy, J. noted at para. 38 that the maximum sentence for attempted murder is life imprisonment and there is no minimum, and that because the offence can be committed in a vast spectrum of circumstances, there is a correspondingly wide range in sentencing.

[56] At para. 50, Molloy, J. noted that, based upon the factors present in the case, a sentence of 5 to 6 years could be justified, however, the Crown sought a sentence of only 3 to 4 years. She found that that was the appropriate range for the offender based primarily on her difficult personal circumstances of being forced into an arranged marriage and motherhood at a very young age, with virtually no control over her own life. She had never attended school and was unable to read or write and lived under her husband’s thumb and the control of male members of her own family. The offender was described as naïve, uneducated and unsophisticated. Although these factors did not justify murder, they did provide a basis for compassion and mercy.

[57] Because of the unique facts of Tokhi, including, in particular, the fact that the Crown sought a sentence of only 3 to 4 years when Justice Molloy found that a sentence of 5 to 6 years could be justified, I find it is distinguishable from the case at bar.

[58] The Crown cited 6 cases in which sentences were imposed for attempted murder and the defence submitted 7. With the exception of Tokhi and Skillings referred to above, none of them found a fit sentence to be less than 6 years. The sentences for attempted murder ranged from 6 to 15 years.

[59] In the case of R. v. Boucher, 2004 17719 (ON CA), [2004] O.J. No. 2689 (C.A.) the offender was convicted following a trial of attempted murder of his wife and two counts of threatening her. He had driven to his estranged wife’s home while intoxicated. The victim attempted to get away in her vehicle but was followed by the offender. He drove his car into hers and caused it to spin. The offender’s vehicle drove into a ditch. The offender telephoned a family member and stated that he had tried to kill his wife and himself. The trial judge imposed a sentence of two years less a day in addition to twenty-eight months credit for time served on the attempted murder charge followed by two years of probation. The offender was fifty-three years old and had no prior criminal record. On appeal, the Court of Appeal found that the sentence was unfit. The absence of physical injuries to the complainant was a function of chance. The fact that the offence was a domestic offence was found to be an aggravating circumstance. At para. 27 it was noted that the Court had repeatedly emphasized that the principles of denunciation and deterrence are of paramount importance in cases involving domestic violence, and, at para. 29, held that the appropriate sentence was six years imprisonment less credit for time served.

[60] In my view the sentence proposed by the defence in this case it would be unfit, as it would not give proper effect to the principles of denunciation and deterrence which the Court of Appeal has directed shall have paramount importance in cases of domestic violence.

[61] In balancing the principles of denunciation and deterrence, which are of primary importance, with the principle of restraint, I find that a global sentence of six (6) years, less credit for pre-sentence custody, would be a fit sentence in all of the circumstances. I attribute a sentence of three (3) years for the assault causing bodily harm conviction, six (6) years to the attempted murder conviction and six (6) months for the forcible confinement conviction, all to be served concurrently.

[62] Mr. Duke has served 438 days of pre-sentence custody. The Crown acknowledges that he is entitled to credit for pre-sentence custody at a ratio of 1.5: 1 or 657 days or 22 months. The net period of incarceration is therefore fifty (50) months.

Disposition

[63] Mr. Duke, would you please stand.

[64] I sentence you to a period of incarceration of three (3) years on the assault causing bodily harm conviction, six (6) years on the attempted murder conviction and six (6) months on the forcible confinement conviction, all to be served concurrently. You are given credit for 22 months of pre-sentence custody resulting in a net total period of incarceration of 50 months or 4 years and 2 months;

[65] You shall have no contact with the complainant named in the Indictment, Kathryn Amanda Barrett, directly or indirectly during the custodial period of your sentence pursuant to s. 743.21 of the Criminal Code;

[66] I order you to provide such samples of your bodily substances that are reasonably required for the purpose of forensic DNA analysis for the DNA databank, on the basis that the offence of attempted murder under s. 271 of the Criminal Code is a primary designated offence;

[67] You are prohibited from possessing any firearm, and any cross-bow, restricted weapon, ammunition and explosive substance for life pursuant to s. 109 of the Criminal Code.

[68] It is recommended that during your period of incarceration you receive available counselling and programming to address issues of addiction and anger management.

D.A. Broad J

Date: November 4, 2019