R. v. Dindyal, 2019 ONSC 6916

Her Majesty the Queen v. Anand Dindyal

COURT FILE NO.: 9/18

DATE: 2019-12-02

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ANAND DINDYAL

M. Godinho, for the Crown

S. Tejpal, for Anand Dindyal

HEARD: 12 November 2019

REASONS FOR SENTENCE

GIBSON J.

1This is a domestic abuse case that involves a sustained pattern of violence committed against an intimate partner.

2Anand Dindyal (“Dindyal”) was charged with 11 counts on an Indictment dated January 10, 2018:

1. That between the 1st day of June, in the year 2016, and the 31st day of July, in the year 2016, both dates inclusive, at the Town of Halton Hills, in the said Region, he did commit an assault upon Jennifer Hamp, contrary to Section 266 of the Criminal Code of Canada.

2. And further that between the 1st day of October, in the year 2016, and the 31st day of October, in the year 2016, both dates inclusive, at the City of Brampton, in the said Region, and/or elsewhere in the Province of Ontario, he did commit an assault on Jennifer Hamp, contrary to Section 266 of the Criminal Code of Canada.

3. And further that on or about the 13th day of December, in the year 2016, at the Town of Halton Hills, in the said Region, he did wound, maim, or disfigure Jennifer Hamp, thereby committing an aggravated assault, contrary to Section 268(1) of the Criminal Code of Canada.

4. And further that on or about the 30th day of December, in the year 2016, at the Town of Halton Hills, in the said Region, he did commit an assault on Jennifer Hamp, contrary to Section 266 of the Criminal Code of Canada.

5. And further that on or about the 30th day of December, in the year 2016, at the Town of Halton Hills, in the said Region, he did commit mischief by wilfully damaging without legal justification or excuse and without colour of right to property, to wit: the cellular phone of Jennifer Hamp, the value of which did not exceed five thousand dollars, contrary to Section 430(4) of the Criminal Code of Canada.

6. And further that on or about the 30th day of July, in the year 2017, at the Town of Halton Hills, in the said Region, he did commit an assault upon Jennifer Hamp using a weapon, to wit: a coffee mug, breakfast plate, and/or a butter dish, contrary to Section 267(a) of the Criminal Code of Canada.

7. And further that on or about the 30th day of July, in the year 2017, at the Town of Halton Hills, in the said Region, he did commit an assault on Jennifer Hamp, contrary to Section 266 of the Criminal Code of Canada.

8. And further that on or about the 10th day of August, in the year 2017, at the City of Brampton, in the said Region, and/or elsewhere in the Province of Ontario, he did commit an assault upon Jennifer Hamp, contrary to Section 266 of the Criminal Code of Canada.

9. And further that on or about the 10th day of August, in the year 2017, at the City of Brampton, in the said Region, and/or elsewhere in the Province of Ontario, he did commit an assault upon Jennifer Hamp using a weapon, to wit: a motor vehicle door, contrary to Section 267(a) of the Criminal Code of Canada.

10. And further that between the 10th day of August, in the year 2017, and the 26th day of August, in the year 2017, both dates inclusive, at the Town of Halton Hills, in the said Region, he did commit an assault on Larzs Kovacevic or otherwise known as Larz Kovacevic, contrary to Section 266 of the Criminal Code of Canada.

11. And further that on or about the 2nd day of September, in the year 2017, in the City of London, in the said Region, and/or elsewhere in the Province of Ontario, he did commit an assault on Jennifer Hamp, contrary to Section 266 of the Criminal Code of Canada.

3Mr. Dindyal pleaded not guilty to all 11 counts on the Indictment.

4The trial proceeded before me as a judge alone trial.

5Anand Dindyal was found guilty of Counts 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10 on the Indictment. He was found not guilty on Count 11.

6It is now my task to determine a fit and just sentence.

Evidence at Trial

7A significant amount of evidence was adduced at trial in relation to each of the incidents underlying each of the 11 counts on the Indictment. That evidence is set out in detail in the reasons for judgment in this case, and I will not repeat it here. On the evidence as a whole, I found that Anand Dindyal repeatedly assaulted Jennifer Hamp in the context of their domestic relationship, over the span of some 15 months. He was convicted of six counts of assault, two counts of assault with a weapon, one count of aggravated assault, and one count of mischief in relation to Jennifer Hamp, and also of one count of assault in relation to her son, Larz Kovacevic. As a result of the assaults, Ms. Hamp has suffered permanent and life-altering injuries.

Evidence on Sentencing

8A Pre-Sentence Report dated September 13, 2019 was made an exhibit in evidence on the sentencing hearing. It confirms that Mr. Dindyal is currently 25 years old, and that he is a first-time offender. He was raised in what is reported to be a loving home with both parents and two younger brothers. He has earned an undergraduate degree (Bachelor of Commerce Human Resources Management) from Humber College in Toronto, awarded in May 2018, and has been working full-time since July 2018 as a sales person at a local Good Life fitness centre in London, Ontario. He currently resides with his parents. He is single, and has no children. Both Mr. Dindyal and Ms. Hamp described their relationship while together as unhealthy, with frequent arguments and excessive drinking. It is evident that during the relationship Anand Dindyal displayed frequent anger management issues, impulsiveness, aggression and violent behavior.

9A Victim Impact Statement provided by Jennifer Hamp was introduced into evidence as an exhibit on the sentencing hearing, and Ms. Hamp read the statement. In it, Ms. Hamp compellingly detailed the significant physical, psychological and emotional impact that the assaults have had on her, as well as the continuing effects upon her son Larz. These include lingering and permanent pain issues associated with the injury to her facial orbital bone, and on her self-confidence and ability to trust others and to enter into other relationships

10The Defence submitted a report by a social worker, Stephanie Swayne, summarizing her counselling sessions with Anand Dindyal, and a report by a Psychologist Vincent Murphy expressing the opinion that the risk of Mr. Dindyal reoffending is very low. It also submitted letters from family, friends and employers expressing support for Mr. Dindyal.

Assessment

11I turn now to an assessment of the facts and sentencing factors pertinent in this case.

12Anand Dindyal is currently 25. He is employed and resides with his parents. He has no children.

13Anand Dindyal does not have a criminal record.

14The evidence demonstrates that this case is properly characterized as involving a situation of domestic abuse and intimate partner violence occurring over an extended period of time.

15The Crown submits that these are very serious offences, and that consecutive sentences are warranted because there were discrete transactions involved. The Crown suggests that the total aggregate sentence for the 10 offences that Mr. Dindyal has been convicted of be 60.5 months, or 5 years and 15 days, expressed as follows: Count 1: 15 days; Count 2: 45 days consecutive; Count 3: 3.5 years consecutive; Counts 4 and 5: 75 days consecutive; Counts 6 and 7: 5 months consecutive (but concurrent to each other); Counts 8 and 9: 6 months consecutive (but concurrent to each other); Count 10: 90 days consecutive.

16The Defence differs dramatically in its submissions on sentence. It suggests that there should be a suspended sentence, or in the alternative a “minimal” custodial sentence. It did not suggest a specific period for such a sentence. It suggested that a period of probation would be appropriate. The Defence submitted that the global sentence of 5 years proposed by the Crown would be disproportionate and “crushing.”

17The aggravating factors present in this case include the following:

a. The nature of the offences, involving violence committed against his common law partner and her child in the context of an intimate relationship;

b. The direction of Parliament at s.718.2(a)(ii) that the abuse by the offender of the offender’s spouse or common-law partner shall be deemed to be an aggravating circumstance;

c. With regard to the assault count concerning Larz Kovacevic, the direction of Parliament at s.718.2(a)(ii.1) that the abuse of a person under the age of 18 years be deemed to be an aggravating circumstance;

d. The extreme nature of the violence involved in some of the offences;

e. The significant and persisting physical and psychological impact upon the victim, Jennifer Hamp, a recounted in her Victim Impact Statement. The injuries are permanent and life-altering. In addition to cuts, bruises, scrapes, soreness and a fracture necessitating major reconstructive surgery, her face has been permanently disfigured and she has been left with a metal mesh in her head, which causes continuing pain, especially when the weather is cold;

f. The duration of the domestic abuse, over some 15 months, and the frequency of its repetition;

g. Many of the offences were committed against Ms. Hamp and her son in their home, a location where they would have expected to feel the safest;

h. That Anand Dindyal used the disparity in their physical stature to abuse and control Jennifer Hamp. One striking aspect of this case is the very apparent disparity in the physical size and strength of Mr. Dindyal and Ms. Hamp. Her evidence was that at the time of the commission of the offences she was 5’0” and weighed 115 pounds, while Anand Dindyal was 6’2” and weighed 230 pounds;

i. Mr. Dindyal was aware of the prior physical violence that Ms. Hamp had suffered at the hands of a former intimate partner, and the devastating effect its repetition would have upon her;

j. The objective gravity of the offences: the offence of aggravated assault is punishable by imprisonment for up to 14 years, and the offence of assault with a weapon is punishable by imprisonment for up to 10 years;

k. In relation to Count 2, Ms. Hamp was pregnant at the time of the offence; and,

l. In relation to Count 4, Ms. Hamp was still recovering from major facial reconstructive surgery necessitated by his previous assault, when Mr. Dindyal picked her up and threw her face-first into the couch.

18The mitigating factors in this case would include:

a. Mr. Dindyal’s relatively young age (now 25, 22-23 at the time of the commission of the offences); and,

b. That Mr. Dindyal has no criminal record and is a first offender before the Court.

19I have carefully considered all of the sentencing purposes and principles elaborated at ss. 718, 718.01, 718.1 and 718.2 of the Criminal Code. I have also considered the sentencing precedents in the caselaw jurisprudence submitted by the Crown and the Defence, and the relevant aggravating and mitigating factors in this case. Having done so, I consider that the imposition of a custodial sentence in this case is required to fulfil the requirements of denunciation and specific and general deterrence. I have also had regard to the prospects for rehabilitation, the promotion of a sense of responsibility in offenders, and the necessity to separate offenders from society in some circumstances.

20In a case such as this one – where extreme intimate partner violence spans a long period of time, involving a pattern of abuse and the use of weapons in the assault, and causes permanent and life-altering injuries – the most important sentencing principles engaged are denunciation, and general and specific deterrence.

21The mitigating factors in this case are limited, while the aggravating factors are significant.

22However, Mr. Dindyal is relatively youthful, is employed, has no criminal record, and appears to have strong family support. His prospects for serious life-long rehabilitation and change must be considered.

23The myriad of circumstances and sentences evident in the cases provided to me by the Crown and Defence on the sentencing hearing reflect a gamut of sentencing dispositions. I have given careful consideration to all of the cases presented to me by both Crown and Defence.

24The fundamental principle of sentencing, as reflected at s.718.1 of the Criminal Code, is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

25I agree with the submission of the Crown that, on the facts of this case, an appropriate sentence would be a significant custodial sentence. That the offence involved repeated violence in an intimate partner context calls for a sentence that clearly expresses denunciation and deterrence of such conduct.

26On the facts of this case, the sentencing position submitted by the Defence of a suspended sentence or a “minimal” custodial sentence do not sufficiently engage and fulfil the relevant sentencing factors.

27However, Mr. Dindyal’s prospects for rehabilitation are also an important consideration, especially given his relatively young age. That is largely what inclines me to consider that a penitentiary sentence would not be the optimal disposition in this case. The evidence indicates that Mr. Dindyal lacked maturity and insight into how to appropriately be in an intimate domestic relationship with another person. A penitentiary sentence is unlikely to make him a better person, or to foster the development of such insight. Specific deterrence is a very important consideration here. But there is also some cogency to the Defence submission that a period of supervision while on probation would be more likely to achieve an outcome which advances utility both for Mr. Dindyal and for society generally. He has very strong and responsible parental support. I am satisfied that he has significant rehabilitative potential.

28I would note the comments of Leach J. at para. 56 in R. v. Kavinsky, 2017 ONSC 3792:

Clearly, while society has an interest in appropriate denunciation and deterrence, it also has a long term interest in not crushing, through an overly harsh sentence, (with corresponding prolonged exposure to negative influences in a penal institution), the prospects of rehabilitation for a young person who admittedly has made a serious mistake, but who also seems intent on putting such negative conduct behind him and avoiding any further criminal conduct—especially when all indications suggest there is an excellent choice of his doing just that.

29I was struck by the comment made by Ms. Hamp during the trial that one of the prime factors prompting her to initially engage Anand Dindyal’s parents, and then to come forward with her complaint to police, was to try to ensure that any future persons with whom Anand Dindyal might be in relationship not be subject to the same pattern of physical abuse by him. This was an insightful and laudable goal. How best to foster this should factor into the Court’s consideration of an appropriate sentencing disposition in this case. Mr. Dindyal must change. He must develop a better and more appropriate sense of how to be a man in a relationship. But to echo the comments of Justice Leach, it is not apparent how a prolonged period of exposure to negative influences in a penitentiary environment will assist him to do that.

30The service of a custodial sentence will be difficult for Mr. Dindyal. However, how he reacts to this experience, and what he makes of it, will be something that remains with him for the rest of his life. If it serves as a reminder of the strong family supports and potential that he clearly has, if it makes him determined to change in a positive way, and to make more mature and insightful decisions, it can serve as a foundation for a productive life. The Court profoundly hopes that he succeeds with that.

31On balance, and having regard to all the circumstances, I think that justice will best be served in this particular case by the imposition of a custodial sentence of two years less a day, to be followed by a period of three years of probation. I do not accept the Crown’s submission that the sentences imposed should run consecutively.

Sentence

32Mr. Dindyal is therefore sentenced as follows:

a. On Count 1, 15 days imprisonment;

b. On Count 2, 45 days concurrent;

c. On Count 3, two years less a day, concurrent;

d. On Count 4, 75 days concurrent;

e. On Count 5, 5 days concurrent;

f. On Count 6, 30 days concurrent;

g. On Count 7, 12 months concurrent;

h. On Count 8, 6 months concurrent;

i. On Count 9, 12 months concurrent; and,

j. On Count 10, 30 days concurrent.

33The global custodial portion of the sentence will thus be imprisonment for two years less a day.

34In relation to the custodial sentence, Mr. Dindyal shall receive credit for the four days he spent in pretrial custody, credited at a ratio of 1.5 to 1, for a credit of six days, to be subtracted from two years less a day.

35The conditions of Mr. Dindyal’s release while on bail awaiting trial were not onerous, and no application was made to vary them. He was able to successfully complete his degree at Humber while on bail. There is no apparent basis to credit Mr. Dindyal with additional Downes time due to the severity of his conditions of release while on bail awaiting trial and sentencing.

36Pursuant to s.743.21 of the Criminal Code, Mr. Dindyal is not to communicate, directly or indirectly, with Jennifer Hamp or Larz Kovacevic while incarcerated.

37Following release from custody, there shall be a term of probation for three years, the conditions of which include:

i. Keep the peace and be of good behaviour;

ii. Appear before the Court when required to do so;

iii. Notify the Court or your probation officer in advance of any change of name or address or of any change of employment or occupation;

iv. Report within 48 hours of release from incarceration to a probation officer and thereafter as directed by your probation officer;

v. Reside at an address approved by your probation officer;

vi. Actively participate in any assessment, counselling, evaluation, or treatment that may be directed by or arranged by your probation officer;

vii. Sign any waivers, consents or releases necessary to monitor compliance with this and any other condition of your probation order;

viii. Participate in any outpatient assessment, counselling, evaluation or treatment in relation to anger management or mental health issues that may be directed or arranged by a mental health professional, their designate, or an equivalent program approved by your probation supervisor;

ix. Do not possess any weapons of any kind, including firearms or crossbows;

x. Abstain from the purchase or consumption of drugs (except in accordance with a medical prescription), alcohol, or any other intoxicating substance;

xi. Do not travel outside Canada without the written permission of your probation supervisor;

xii. Seek and maintain full time employment or attend an educational program approved by your probation officer; and,

xiii. Abstain from communicating, directly or indirectly, with Jennifer Hamp or Larz Kovacevic.

1As the offence of aggravated assault is a primary designated offence, pursuant to s. 487.051 of the Criminal Code, a sample of bodily substances shall be provided for the purpose of forensic DNA analysis.

2There shall be a s.109 weapons prohibition order for ten years in respect of any firearm, other than a prohibited firearm or restricted firearm, and any cross-bow, restricted weapon, ammunition and explosive substance, and for life in respect of any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition.

M. Gibson J.