COURT FILE NO.: CNJ 9653
DATE: 2020/12/08
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
RICHARD JOHN NOBBS
Defendant
Dominique Kennedy, Counsel for the Crown
Bruce Ritter, Counsel for the Defendant
HEARD: November 10, 2020
D.A. Broad
REASONS FOR SENTENCe
(Orally)
[1] Richard John Nobbs was convicted on September 16, 2020 of the following offences committed against his then spouse Yvonne Nobbs (the “complainant”):
Count 1: that he did by verbal communication knowingly utter a threat to Yvonne Nobbs to cause death to her contrary to section 264.1(2) of the Criminal Code of Canada;
Count 2: that he did wound Yvonne Nobbs thereby committing an aggravated assault contrary to section 268 of the Criminal Code of Canada.
[2] The circumstances of the offences were detailed in my Reasons for Decision reported at 2020 ONSC 5345 and do not need to be repeated here in detail. For present purposes, the following summary will suffice.
[3] In the early morning hours of July 7, 2018, following a party at the residence of Mr. Nobbs and the complainant, Mr. Nobbs emerged from the rear door of the residence and confronted the complainant who was sitting at a patio table with a young man Darien Roberts. Mr. Nobbs became enraged and began yelling and screaming obscenities at the complainant and calling her demeaning names. Mr. Nobbs stated “I’ll fucking kill you. I hate you.”
[4] Mr. Nobbs then choked the complainant by applying force to her neck with at least one hand and struck the complainant’s face with his hand at least five times. The complainant sustained a fractured jaw in three places and bleeding as a result of the assault. She also lost a tooth. The complainant required surgery and hospitalization, which was followed by a long period of recovery and rehabilitation. The complainant continues to suffer residual physical and emotional effects of the assault.
Victim Impact Statement
[5] The complainant Yvonne Nobbs provided a written Victim Impact Statement which was read into the record by Crown counsel.
[6] The complainant stated that she and her three sons (aged 16, 22 and 22 at the time of the offences) were traumatized by the events of July 7, 2018. She described how she was scared and in pain in the hospital. She underwent surgery and spent three days in the intensive care unit. Her jaw was wired shut and she had difficulty breathing and was unable to speak. The pain was unbearable and she was only able to eat or drink by sucking clear fluid from a syringe through gaps in her teeth. The wires in her mouth constantly cut her lips. She felt frustrated and violated.
[7] The complainant described her home as silent and cold upon her return. She was unable to speak or eat and suffered constant pain. The medication that she was on made her sick and she spent two months in depression and pain.
[8] The complainant stated that she was forced to resign from her job of 30 years as she was no longer physically or mentally capable to perform it. Following her resignation, she no longer had any dental coverage for the costly and frequent repairs to her teeth and adjustments to the metal bars in her mouth that she underwent. She has built up substantial credit card debt as a result.
[9] The complainant spent a number of months at the family cottage attempting to heal. She described herself as a “shell of my former self”. She was no longer a talkative extrovert and became silent, withdrawn, sad, lonely and angry.
[10] The complainant was able to return to the workforce at a new job in order to try to keep her home for herself and her youngest son. She underwent numerous dental surgeries and had two teeth replaced. Although her jaw has healed for the most part, she still has pain, tightness, dry mouth from a severed salivary gland, and chipping from pressure from her new front tooth crowns. Her jaw has not completely fused and she has been advised that it will take a long time to fully heal. She experiences spasms in her jaw and cannot fully extend her jaw to yawn. She has developed a slight lisp which was not previously present.
[11] The complainant stated that the situation has been exceedingly difficult and embarrassing for her three sons. She stated that she has been most impacted by the lack of empathy that Mr. Nobbs has shown in front of the boys. She believes that this hurts them and in turn hurts her.
[12] The complainant concluded by saying that she forgives Mr. Nobbs for what he has done to her - mostly because she has a new life now and she needs to forgive him in order to have peace and happiness moving forward down her new path.
Pre-Sentence Report
[13] The Crown filed a Pre-Sentence Report (the “PSR”).
[14] Mr. Nobbs is 53 years of age. He reported experiencing a positive upbringing, having been raised in a loving two-parent home free from abuse and substance misuse. His parents are still alive and happily married. His father is in ill health and he attends at his parents’ residence to help as much as he can. He has always maintained a close relationship with both of his parents as well as with his older brother. He reports that both of his parents and his brother are aware of his conviction and remain supportive of him.
[15] Mr. Nobbs and the complainant were married for 22 years and separated following the incident in July 2018. He described his marriage to the complainant as unhealthy and “rocky with a lot of ups and downs.”
[16] Mr. Nobbs currently resides with one of his twin sons. He has been in a relationship with a current partner, with whom he does not reside, for two years. His new partner reports the relationship to be healthy and describes Mr. Nobbs as helpful and a “great person” who gets along well with her adult children and her grandchildren.
[17] After finishing high school Mr. Nobbs took some courses at a local college. He is now employed as a full-time customer service manager in sales at a steel roofing company, where he has worked for 10 years. His direct supervisor describes Mr. Nobbs as having a “fantastic work ethic” and as a person whom he turns to if there is a difficult situation to deal with. The supervisor is aware of the offences and has indicated that, no matter the outcome of the sentencing process, Mr. Nobbs has a job to return to with the company.
[18] Mr. Nobbs admitted to having 1 to 2 drinks up to three or four times per week, mostly in social settings. He maintained that he does not enjoy being intoxicated and does not drink to get drunk. He acknowledged an impaired driving conviction from 1991 on his criminal record. He stated that alcohol was not a factor in the matter before the court and he has never attended counselling for any substance use issues.
[19] Although as a teenager he experimented with drugs such as marijuana, hash and cocaine, he has not used any drugs since his teenage years.
[20] The author of the PSR reported that Mr. Nobbs stated that he did not recall his actions on the night of the incident. This statement is disputed by Mr. Nobbs. Nevertheless, Mr. Nobbs did not accept responsibility for his actions.
[21] Mr. Nobbs stated that he keeps a small group of close friends all of whom are aware of the offences and remain supportive of him. He also confirmed that he does not suffer from any mental health concerns and is not taking any medications at the present time.
Letters of Support
[22] The defence filed six letters of support attesting to Mr. Nobbs’ work ethic, good character, support of his family and community involvement, to which I have had regard. One letter was from his present girlfriend, one from the Chief Human Resources Officer of his employer, and four from friends.
Guiding Principles
[23] 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.
[24] 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.
[25] 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).
[26] 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.
[27] 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.
[28] 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
[29] Ms. Kennedy for the Crown seeks a sentence of 3 ½ years in prison for the aggravated assault conviction, together with the following ancillary orders:
(a) a DNA order;
(b) a weapons prohibition for 10 years under s. 109 of the Criminal Code; and
(c) an order under s. 743 of the Criminal Code that Mr. Nobbs have no contact with the complainant Yvonne Nobbs while in custody.
[30] The Crown submits that an appropriate sentence in relation to the conviction for uttering threats would be six months, to be served concurrently.
[31] The Crown submits that the paramount principles of sentencing following conviction for aggravated assault in a domestic setting are denunciation and deterrence, citing the cases of R. v. Inwood, 1989 CanLII 263 (ON CA), [1989] O.J. No. 428 (C.A.) and R. v. J.B. [2012] O.J. No. 2670 (S.C.J.) at para. 21.
[32] Ms. Kennedy submits that an appropriate sentence would include a custodial term given the paramount sentencing objectives of denunciation and deterrence and the fact that the complainant suffered significant bodily harm.
[33] Ms. Kennedy stated that the aggravating circumstances include:
(a) that the assault was committed within a domestic relationship and therefore represented a violation of trust; and
(b) the severity of the complainant’s physical and emotional injuries, and other damage, including financial loss, which have been long-lasting and persistent.
[34] The mitigating circumstances include:
(a) the social support which Mr. Nobbs enjoys from his family, his employer and friends;
(b) that he is a first offender.
[35] Although not an aggravating factor, Mr. Nobbs does not benefit from what would otherwise have been a mitigating factor, had he pleaded guilty and accepted responsibility for his actions. Ms. Kennedy submits that there is an absence of insight by Mr. Nobbs into the effect of his actions which does not support potential for his rehabilitation.
[36] Ms. Kennedy submits that the letters of support filed by the defence should not be used to draw any inferences other than that Mr. Nobbs has lived a pro-social lifestyle. It is evident that Mr. Nobbs’ friends know one side of him but not the side exemplified by his actions resulting in the conviction, and there is no explanation of how the two sides connect. She submits that minimal weight should therefore be placed on the letters of support.
[37] The Crown relied on the following cases:
(a) R. v. Dockery, [2018] O.J. No. 6076 (O.C.J.), aff’d [2020] O.J. No. 1974 (C.A.)
(b) R. v. Tourville, 2011 ONSC 1677, [2011] O.J. No. 1245 (S.C.J.)
(c) R. v. J.B., [2012] No. 2670 (S.C.J.)
(d) R. v. Kakekagamick, 2006 CanLII 28549 (ON CA), [2006] O.J. No. 3346 (C.A.)
[38] In Dockery the offender was convicted of aggravated assault on his girlfriend in a restaurant where a number of other patrons were present. He slapped the victim’s face, grabbed her by the hair, pushed her to the ground and stomped on her face, rendering her unconscious. The victim was taken to the hospital and was required to undergo surgery on her jaw which had been broken in multiple places. Although the accused pleaded guilty, the mitigative effect of the fact of the guilty plea was blunted by the fact that a Gardiner hearing was required to be held with respect to the question of whether the offender was in an intimate relationship with the victim at the time of the assault. The offender had an extensive criminal record, a factor which is not present in the case at bar. A five-year sentence of incarceration was imposed.
[39] In Tourville Code, J. observed at paras. 27-30 that the range of sentences for aggravated assault fall into three general categories:
a) At the bottom end is an exceptional case as exemplified by R. v. Peters, (2010) 2010 ONCA 30, 250 C.C.C. (3d) 277 (Ont. C.A.) which involved a young aboriginal offender with no prior adult record. The “Gladue report” disclosed that she had experienced a very difficult upbringing in a violent and abusive home leading to alcoholism and drug abuse, but by the time of sentencing she had obtained employment and was making real progress in counselling. She was sentenced to a suspended sentence and three years probation.
b) In the mid-range are cases where high reformatory sentences have been imposed between 18 months and two years less one day. These cases generally involve first offenders and generally contain some elements suggestive of consent fights but where the accused has resorted to excessive force.
c) At the high end of the range are cases where 4 to 6 years imprisonment have been imposed. These cases generally involve repeat offenders with serious prior criminal records, or they involve unprovoked or premeditated assaults with no suggestion of any elements of consent or self-defence.
[40] In J.B. the offender entered an early guilty plea to aggravated assault upon his domestic partner. The victim suffered a fractured jaw which was disabling as it was surgically wired for six weeks. She also received stitches in her scalp. The offender had an extensive criminal record. He was 21 years of age at the time that he was charged and came from a very disadvantaged background. His childhood and youth were marked by family breakdown, violence and alcohol and substance abuse. He became involved in the child protection system and became a Crown Ward, living off and on in group homes until the age of 16.
[41] Allen, J. noted at paragraph 25 that the maximum sentence for aggravated assault has 14 years with no minimum and that a conditional sentence was not available. She stated that a custodial sentence was appropriate, and that its length must send a message of deterrence and denunciation for the severity and violence of the assault. However, given the offender’s youth and his problems managing his anger, the objective of rehabilitation should also be reflected in the sentence. She found three years of incarceration to be a fit sentence.
[42] In Kakekagamick, the offender who was Aboriginal had beaten his domestic partner in an apparent fit of anger with multiple punches and kicks. The complainant suffered two broken vertebrae in her neck, fractured ribs and a fractured collarbone. The Court of Appeal upheld the five-year sentence imposed based upon aggravating factors that included the brutal nature of the assault, that the victim was the offender’s domestic partner, and the statement in the pre-sentence report that the offender had been assessed as a high risk to re-offend.
Position of the Defence
[43] Mr. Ritter for the defence submits that the assault on the complainant was out of character for Mr. Nobbs, as demonstrated by his positive upbringing and background as disclosed in the PSR, and the positive comments in the letters of support from his employer and friends. He noted Mr. Nobbs’ responsibilities to his parents who are elderly, and in particular, to his father who is in ill health.
[44] Mr. Ritter acknowledged that the offence of aggravated assault is a serious one, carrying with it a maximum sentence of 14 years imprisonment.
[45] Mr. Ritter noted that conditional sentences are not usually available following conviction for crimes of violence and particularly where the aggravating factors of serious injury to the victim and that the assault was committed in the domestic relationship are present. Nevertheless, he submits that a conditional sentence remains available for aggravated assault given the recent decision in R. v. Sharma, 2020 ONCA 478, [2020] O.J. No. 3183 (C.A.) and therefore must be considered as an available option.
[46] Mr. Ritter cited the case of R. v. Doering, [2020] O.J. No. 3960 (S.C.J.) in which Pomerance, J. noted at paras. 73-74 that the determination of whether the objectives of deterrence and denunciation can be adequately addressed through a conditional sentence is resolved by the court’s assessment of the gravity of the offence and the circumstances of its commission. The court must assess the degree to which punitive objectives are paramount. She went on to quote the Supreme Court of Canada in R. v. Proulx, 2000 SCC 5 at paras. 113-116, including the following passage at para. 115:
…it bears pointing out that a conditional sentence may be imposed even in circumstances where there are aggravating circumstances relating to the offence or the offender. Aggravating circumstances will obviously increase the need for denunciation and deterrence. However, it would be a mistake to rule out the possibility of a conditional sentence ab initio simply because aggravating factors are present. I repeat that each case must be considered individually.
[47] Mr. Ritter argued in favour of a sentence of two years less one day to be served by Mr. Nobbs in the community under house arrest, followed by 12 months probation with a requirement that he perform community service. Mr. Ritter agrees that the sentence for uttering a threat be served concurrently, however he submits that it should be a suspended sentence or limited to one day. He does not dispute the ancillary orders sought by the Crown.
[48] The defence made reference to the following additional cases:
R, v. D.R.C., [2016] O.J. No. 4308 (S.C.J.)
R. v. Bell, [2015] O.J. No. 705 (O.C.J.)
R. v. MacDonald, [2009] O.J. No. 1065 (S.C.J.)
R. v. Jones, [2008] O.J. No. 2067 (S.C.J.)
R. v. Perdomopena, [2011] O.J. No. 6469 (S.C.J.), aff’d [2012] O.J. No. 4414 (C.A.)
R. v. Arnott, [1998] O.J. No. 2155 (O.C.J.)
[49] In D.R.C. the offender was convicted of one count of simple assault, three counts of assault with a weapon, and one count of aggravated assault. The complainant in respect of each count was the offender’s domestic partner. The assaults were committed repeatedly over a period of six years. The offender was sentenced to a global sentence of 4 ½ years less pre-sentence custody. Twelve months’ incarceration was attributed to the conviction for aggravated assault, to be served consecutively with the sentences on other counts.
[50] In Bell the offender was convicted of aggravated assault of his domestic partner. The offender pulled the victim from her bed by her hair, thumping her head on the floor. His hand “gouged” at her face. The offender grabbed the victim while she attempted to escape and pulled her back. The victim broke her wrist while protecting herself as she fell to the floor. Blouin, J. found that an appropriate range of sentence was 18 to 21 months. He found that had the offender punched or kicked the victim he would have placed him closer to the top of the range. A sentence of 19.5 months was imposed.
[51] In MacDonald the offender pled guilty to seven charges including assault causing bodily harm, assault with a weapon, aggravated assault with a knife, administering a noxious substance, and failing to comply. The assaults were perpetrated on the offender’s domestic partner. A global sentence of five years, less pre-sentence custody credit, was imposed, including an effective term of 18 months in relation to the aggravated assault.
[52] Jones dealt with an application by the Crown to have the offender declared a dangerous offender. He had been convicted of aggravated assault, sexual assault and assault. The aggravated assault was committed against one of the offender’s sureties while on bail for the sexual assault and assault charges relating to his former girlfriend. Hill, J. found that in reference to the aggravated assault conviction, the offender was deserving of a measure of leniency associated with his guilty plea and the fact that he was only 21 years of age at the time of the offence. Based upon a joint submission of counsel a sentence of 12 months for the aggravated assault was found to be fit, based upon the totality principle.
[53] In Perdomopena the offender pled guilty to aggravated assault and break and enter. The assault, consisting of multiple stabbings with a kitchen knife, was committed against the partner of the offender’s ex-wife. The offender was sentenced to 19 months in custody, followed by three years probation. The sentencing judge made specific reference to the mitigating factors, namely, that the accused pled guilty, there is no pre-planning on the part of the offender, the offender had no criminal record, the conduct was totally out of character for the offender, and he demonstrated clear remorse for his actions. The sentence was upheld by the Court of Appeal which noted that although the ultimate sentence may be considered lenient, it did not amount to a marked departure from an acceptable range.
[54] In Arnott the oral decision of the sentencing judge lacked clarity concerning what the offender was convicted of. The sentencing judge did note that the situation involved spousal abuse involving a severe beating administered to the victim resulting in bodily harm and requiring 8 days’ hospitalization. A sentence of 24 months less credit for pre-sentence custody, followed by two years of probation was found to be fit.
Analysis
[55] 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.
[56] 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. Nobbs’ individual circumstances. The Criminal Code directs sentencing judges to determine the least restrictive sentence that would meet the purpose and principles of sentencing.
[57] As indicated, the Crown and the defence are not in disagreement on the guiding principles, and, in particular, that the objectives of denunciation and deterrence are the primary sentencing objectives in a case of this nature.
[58] I agree with the characterization of the mitigating and aggravating factors as suggested by the Crown.
[59] It is incumbent upon me to address the defence submission that a conditional sentence in Mr. Nobbs circumstances must be considered.
[60] Ms. Kennedy takes a serious issue with Mr. Ritter’s position that, as a result of the decision in Sharma, a conditional sentence remains available following a conviction for aggravated assault.
[61] The majority decision in Sharma declared that ss. 742.1(c) and 742.1(e)(ii) of the Criminal Code unjustifiably infringed ss. 7 and 15 of the Charter and are therefore of no force or effect (see para. 185).
[62] The decision did not address the constitutionality of ss. 742.1(e)(i) which removes the availability of conditional sentences for an offence, prosecuted by way of indictment for which the maximum term of imprisonment is 10 years, that resulted in bodily harm.
[63] Ms. Kennedy submitted that s. 742.1 of the Code should not be interpreted in a manner which would result in the absurdity which would flow from a conditional sentence being available for aggravated assault but not for the included and lesser offence of assault causing bodily harm.
[64] In my view, is not necessary to resolve the question of whether a conditional sentence remains available following a conviction for aggravated assault. I find that a sentence to be served in the community in a case like the present, involving a vicious unprovoked beating inflicted in a domestic setting resulting in severe and life-changing injury to the victim, would not adequately address the paramount sentencing principles of denunciation and deterrence, and as such, would not be consistent with the fundamental principles and purposes of sentencing. The legal question respecting the availability of conditional sentences following a conviction for aggravated assault is best left to be decided in a case where the issue is squarely engaged on the facts.
[65] The Nova Scotia Court of Appeal commented forcefully on the “blight” of domestic assault in the case of R. v. MacDonald, 2003 NSCA 36, quoting at para. 26 the Alberta Court of Appeal in R. v. Brown, 1992 ABCA 132, [1992] A.J. No. 432 (Alta. C.A.) as follows:
In R. v. Brown (1992), 1992 ABCA 132, 73 C.C.C. (3d) 242, [1992] A.J. No. 432 (Alta. C.A.), a case which pre-dates the implementation of the conditional sentencing provisions of the Criminal Code, the Court discussed the blight that is spousal assault, at p. 249 (C.C.C.):
This court's experience is that the phenomenon of repeated beatings of a wife by a husband is a serious problem in our society. It is not one which may be solved solely by the nature of the sentencing policy applied by the courts where there are convictions for such assaults. It is a broad social problem which should be addressed by society outside the courts in ways which it is not within our power to create, to encourage, or to finance. But when such cases do result in prosecution and conviction, then the courts do have an opportunity, by their sentencing policy, to denounce wife beating in clear terms and to attempt to deter its recurrence on the part of the accused man and its occurrence on the part of other men.
In cases of assault by a man against his wife, or by a man against a woman with whom he lives even if not married, the starting-point in sentencing should be what sentence would be fit if the same assault were against a woman who is not in such a relationship. For example, what would be the fit sentence if the man had assaulted a woman on the street or in a bar — and if the aggravating factors (such as severe violence, or a serious record of previous convictions for similar or other assaults), or the mitigating factors (such as a guilty plea or other evidence of remorse) were the same as in the actual case?
Then the court should examine the circumstances which are peculiar because of the relationship. When a man assaults his wife or other female partner, his violence toward her can be accurately characterized as a breach of the position of trust which he occupies. It is an aggravating factor. Men who assault their wives are abusing the power and control which they so often have over the women with whom they live. The vulnerability of many such women is increased by the financial and emotional situation in which they find themselves, which makes it difficult for them to escape. Such women's financial state is frequently one of economic dependence upon the man. Their emotional or psychological state militates against their leaving the relationship because the abuse they suffer causes them to lose their self-esteem and to develop a sense of powerlessness and inability to control events.
In the case of assaults by a man against his wife or other female partner in life, two of the applicable principles are that the sentence should be shaped in the hope of furthering the rehabilitation of that man and in the hope of deterring him from repeating his conduct in the future. However, the more important principles are that the sentence should be such as to deter other men from similarly conducting themselves toward women who are their wives or partners (what is called the principle of "general deterrence"), and that the sentence should express the community's wish to repudiate such conduct in a society that values the dignity of the individual (the "denunciation principle"). The importance of giving effect to these latter two principles has been driven home by recent remarks in cases that did not relate to sentencing in criminal cases. The first is R. v. Lavallee, in the passage from Wilson J.'s judgment which has already been quoted. The second is the dissenting judgment of Hetherington J.A. in R. v. Coston (1990), 1990 ABCA 200, 108 A.R. 209 (C.A.).
[66] These observations were echoed by Trotter, J., as he then was, in the case of R. v. Chirimar, 2007 ONCJ 385 (O.C.J.) at paras. 14-15 and 18 as follows:
Domestic violence is a grave social problem in Canadian society. As Justice Wilson for the majority of the Supreme Court of Canada said in R. v. Lavallee (1990), 1990 CanLII 95 (SCC), 55 C.C.C. (3d) 97 (S.C.C.), at p.112:
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.
There is little to suggest that much has changed since Justice Wilson wrote more than 17 years ago.
…The principles discussed in Inwood are equally applicable today. Courts have since recognized that, while all of the objectives of sentencing now found in ss.718 to 718.2 of the Criminal Code are important in fashioning an appropriate sentence, when sentencing offenders for crimes of domestic violence, judges must emphasize the sentencing objectives of general deterrence, specific deterrence and denunciation.
[67] Although these passages refer to repeated assaults of a domestic partner, in my view they apply with equal force to a case such as this involving a single instance of severe assault resulting in serious injury.
[68] Mr. Ritter candidly acknowledged that conditional sentences are not usually available following conviction for crimes of violence, particularly where they were committed against a domestic partner and resulted in serious injury. It is noteworthy that no case was cited in which a conditional sentence was imposed when these characteristics were present.
[69] The cases cited by counsel dealt with fact situations involving widely varying instances of domestic assault by offenders in widely varying circumstances. They are therefore of limited assistance in crafting an appropriate sentence in the case at bar. As I have noted, a number of the cases cited by the defence involved situations where the offender had been convicted of multiple offences and the court applied the totality principle. The cases do, however, serve to demonstrate the wide range of sentences imposed following convictions for aggravated assault.
[70] The decision of Code, J. in Tourville is instructive in that it seeks to organize the wide range of available sentences for aggravated assault into three broad categories. It is noted however, that the descriptions of cases falling within the suggested ranges do not specifically address assaults committed in a domestic context.
[71] I would place the case at bar somewhere between the mid and upper ranges as described by Code, J. in Tourville. Although Mr. Nobbs is a first offender, elements suggestive of a consensual fight escalating to excessive force are not present. Moreover, the fact that the assault in this case was severe and perpetrated on a domestic partner is an important distinguishing and aggravating factor, elevating it beyond the mid-range.
[72] The case of J.B. in which a three-year sentence was imposed is comparable to the case at bar, particularly in relation to the nature of the injuries sustained by the victim. However, it has some important distinguishing features. The offender in that case had a prior criminal record, including crimes of violence, and was described as a controlling person who had assaulted the victim on previous occasions. Significantly, the violent attack on the victim was found to have been pre-planned, thereby increasing the moral culpability of the offender. It is noted that the offender did plead guilty, which was an important mitigating factor, and he was relatively young.
[73] In the case at bar there is no suggestion of previous abuse or controlling behavior on the part of Mr. Nobbs against the complainant nor of any pre-planning of the assault. Moreover, Mr. Nobbs’ antecedents and letters of support suggest that the incident was out of character for him. His prospects of rehabilitation are high, and specific deterrence is not at the forefront of the applicable considerations.
[74] In my view, in consideration of the aggravating and mitigating circumstances, the sentences imposed by other courts in the cases cited by counsel and the applicable principles of sentencing, I find that a sentence of 30 months (or 2 1/2 years) in custody would represent a fit sentence for the conviction for aggravated assault in all of the circumstances. I find a sentence of 6 months in respect of the conviction for uttering a threat would be fit, to be served concurrently.
Disposition
Mr. Nobbs please stand.
[75] I sentence you to 30 months’ (2.5 years) imprisonment for aggravated assault and 6 months for uttering a threat to cause death, to be served concurrently.
[76] You shall:
(a) provide a DNA sample on the basis that the offence under section 268 is a primary designated offence;
(b) be subject to a weapons prohibition under s. 109 of the Criminal Code for a period of ten years; and
(c) have no contact with the complainant Yvonne Nobbs directly or indirectly during the custodial period of your sentence pursuant to s. 743.21 of the Criminal Code.
D.A. Broad, J.
Date: December 8, 2020
COURT FILE NO.: CNJ 9653
DATE: 2020/12/08
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
RICHARD JOHN NOBBS
REASONS For sentence
D.A. Broad, J.
Released: December 8, 2020