COURT FILE NO.: CR/18/40000458/0000
DATE: 20200207
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
ravinthiran kathirgamanathan
Rochelle Liberman, for the Crown
Richard O’Brien, for Mr. Kathirgamanathan
HEARD: May 22, 2019 and January 15, 2020
kelly j.
reasons for sentence
[1] Mr. Kathirgamanathan has been found guilty of two counts of attempted murder contrary to 239(1) of the Criminal Code, R.S.C., 1985, c. C-46. The convictions arise from Mr. Kathirgamanathan’s attempt to murder his two children, aged 8 and 6 at the time.
[2] Crown Counsel submits that a sentence of 15 years is appropriate in all of the circumstances. Counsel for Mr. Kathirgamanathan submits that the appropriate sentence is 8 to 10 years.
[3] Both counsel agree that Mr. Kathirgamanathan should be given credit for the time he has spent in pre-sentence custody, pursuant to s. 719(3.1) of the Criminal Code, R. v. Summers[^1] and R. v. Duncan.[^2] They also agree that Mr. Kathirgamanathan should provide a sample of his DNA and be subject to a weapons prohibition for life.
[4] After considering the facts giving rise to the convictions, the impact of the offending behaviour on the victims, the personal background of Mr. Kathirgamanathan and the legal framework applicable, I find that the appropriate sentence is 15 years, less 4 years of time served for a remaining sentence of 11 years to serve.
[5] An order is made for the taking of a sample of Mr. Kathirgamanathan’s DNA and a s. 109 order for life.
[6] What follows are my reasons.
The Facts
[7] The facts giving rise to the convictions were provided by way of an Agreed Statement of Facts. It may be summarized as follows:
a. Mr. Kathirgamanathan and Ms. Kayalvili Ravinthiran were married in June of 2007. They have two children, Kardiken Ravinthiran and Ganga Ravinthiran (the victims of these offences).
b. At the time of the offences, Kardiken was 8 years-old and Ganga was 6 years-old.
c. Ms. Ravinthiran decided to leave the marriage in 2013. This angered Mr. Kathirgamanathan. He told his then wife that he would make sure their children did not exist.
d. Mr. Kathirgamanathan continued to have hopes of reconciliation with his wife; however, it seems that at some point prior to the offences, he started to realize this would not happen.
e. Ms. Ravinthiran had custody of their two children.
f. By October of 2017, Mr. Kathirgamanathan only had access to the children on Saturdays, from 9:00 a.m. to 4:00 p.m. This arrangement of access angered Mr. Kathirgamanathan.
g. On Saturday October 7, 2017, at approximately 9:00 a.m., Mr. Kathirgamanathan met Ms. Ravinthiran at 52 Division for the purpose of access to his children.
h. At some point during the day, Mr. Kathirgamanathan took the children to his residence, located at 5000 Jane Street, unit 108. This was after he had taken them shopping for toys.
i. Kardiken and Ganga ate their lunch and played with their toys in the apartment.
j. At approximately 3:00 p.m., Ganga had to go to the washroom. She asked her father for help. Mr. Kathirgamanathan grabbed a hammer and followed his daughter into the washroom.
k. Mr. Kathirgamanathan closed the washroom door and started to hit Ganga on the head with the hammer. He hit her several times and choked her. Ganga was screaming and crying.
l. Kardiken was in the living room, playing with Lego when he heard his sister’s cries. He went to the washroom and opened the door. When he opened the door, he saw his father hitting his little sister on the head with a hammer.
m. Kardiken tried to run away, but Mr. Kathirgamanathan grabbed him and pulled him into the washroom. He locked the door so that his children could not escape.
n. Mr. Kathirgamanathan began hitting Kardiken on the head with the same hammer. Kardiken tried to block the blows by putting his hands on the top of his head. Mr. Kathirgamanathan also choked Kardiken.
o. After striking the children numerous times with the hammer and choking them, Mr. Kathirgamanathan opened the bathroom door and walked toward the kitchen to get a knife. He then entered the bedroom and used the knife to stab himself several times in the neck and chest. He did this in front of his children and said, “Join me and kill yourselves too.”
p. Mr. Kathirgamanathan started to lose consciousness. Kardiken and Ganga were able to escape from the apartment.
q. Kardiken approached a stranger in the parking lot and asked her to call 911. He said, “My dad just hit me and my sister with a hammer.”
r. Police and emergency services attended immediately. Kardiken and Ganga were transported to The Hospital for Sick Children.
s. Both children suffered lacerations to their scalp and a skull fracture. Kardiken also suffered a fractured finger.
t. Mr. Kathirgamanathan was located on his bed in a pool of blood. He was transported to Sunnybrook Hospital where he was eventually arrested.
[8] These are the facts upon which Mr. Kathirgamanathan is being sentenced. I will now turn to a consideration of the impact of this tragic incident.
Victim Impact
[9] Victim Impact Statements were provided to the Court by the two children and their mother. They may be summarized as follows.
[10] Ms. Ravinthiran stated as follows:
a. The cycle of violence and the last incident has impacted her sense of safety and the safety of her children. She said that she left her marriage to protect her children from the violence they were witnessing and experiencing. She stated as follows:
I was hospitalized after the offender assaulted me with a rolling pin, requiring stitches at the hospital. I was working on moving forward. This incident was re-traumatizing and triggering for me. Washing the blood from my children’s hair reminded me of when I had to do this for myself. It was extremely difficult for me to see the violence I experienced, done to my children in even more horrific ways. I do not feel safe. I do not feel my children are safe.
b. She has cut herself off from the community as she feels anxious and is worried that information of her whereabouts (and that of her children) will be reported to Mr. Kathirgamanathan. Since she has no family in Canada, it has been further isolating.
c. She feels sad that she was not able to protect her children from harm and to give them a normal life. She further stated:
I have watched the pain this has caused my children and the many triggers they have as a result of normal life. I comfort them in the middle of the night when they have nightmares. I comfort them in the day when they see or hear something that reminds them of what happened. I see the way my daughter watches other fathers with their children when we are in the community. This incident impacts us every day.
d. She and the children have been enrolled in trauma therapy for two years. She expects this will continue as they move through different stages in their lives. The appointments have caused her to drop courses and made learning difficult. She also had to postpone her placement following graduation, adding to the financial burden of being a single mother on a limited income.
e. She observes that her children have experienced more violence in their lives than most people can imagine. She says, “They have had to make sense of a world where a parent tried to murder them.” She worries that they will never feel safe or secure again.
[11] Mr. Kathirgamanathan’s son, Kardiken, provided a Victim Impact Statement that may be summarized as follows:
a. Prior to this incident, he slept very well. After it occurred, he did not sleep well, did not go to school as often and spent time alone. He felt “sad, hurt, fear, depressed”. He now gets a lot of “tummy aches”.
b. He is afraid of members of the Tamil community. He used to like going to the area in Toronto at Jane and Finch Streets but now he feels scared in that area.
c. He sleeps with his mother and feels afraid of things. He cannot close the door when he sleeps.
d. He describes that there is a toolbox in the bathroom. It reminds him of what happened and makes him scared. They are building a condominium next to his home. When they use a hammer, he feels scared, depressed and helpless.
e. In a letter to me, the judge, he wrote, “when my dad leaves jail, I will feel super duper uber sad, depressed, helpless and too scared, stressed and worried. I will never be brave again because when I see him all my braveness will run away”. At the end of his letter, Kardiken has drawn a self-portrait. He has drawn himself with a heart on his chest and a sad face. His hands are covering his eyes.
[12] Mr. Kathirgamanathan’s daughter, Ganga, provided a Victim Impact Statement that may be summarized as follows:
a. She explained that she slept well before the incident but now she wakes up in the middle of the night.
b. She is afraid to see her dad. She is also afraid of other men because she does not know who they are. She, too, gets bad tummy aches. When she thinks about what happened, she gets nervous.
c. Ganga, too, drew a self-portrait. In it, she draws herself with the word “nervous” next to it. A second self-portrait depicts herself with a frown and the word “sad” next to it.
[13] I will now turn to a consideration of Mr. Kathirgamanathan’s background.
Personal Background
[14] Mr. Kathirgamanathan’s background was provided by way of a pre-sentence report. It may be summarized as follows:
a. Mr. Kathirgamanathan was born on November 2, 1963.
b. He was born and raised in the northern part of Sri Lanka. He is the oldest of two sisters and four brothers.
c. Mr. Kathirgamanathan’s parents worked in a textile store. His mother was a homemaker. His father is deceased. His mother lives in Toronto. Mr. Kathirgamanathan advises that his mother remains supportive.
d. Mr. Kathirgamanathan has a grade 12 education. He discontinued his education because he was expected to work and help support his family. In Toronto, Mr. Kathirgamanathan attended English as a Second Language classes before seeking employment.
e. Mr. Kathirgamanathan has worked as a baker in Sri Lanka and in various kitchens in Toronto. Recently, he worked as a dishwasher. The family often had to rely on social assistance and the child tax benefits they received.
f. Mr. Kathirgamanathan advises that he drank alcohol socially but then he started to drink it more often. He resorted to alcohol as a coping mechanism to deal with stress. He agrees that alcohol led to the disintegration of his marriage.
g. Mr. Kathirgamanathan has attended counseling for alcoholism in the past. He is described as a “different person” when under the influence of alcohol.
h. All collateral sources interviewed by the probation officer describe Mr. Kathirgamanathan as a “caring, loving, family-oriented” individual.
i. Mr. Kathirgamanathan has been prescribed Cipralex (an antidepressant) and Seroquel (for sleeping) while at the Toronto South Detention Centre. In the past, he was given medication for treating schizophrenia.
[15] Mr. Kathirgamanathan has a criminal record as follows:
| Date | Offence | Sentence |
|---|---|---|
| December 11, 2012 | Driving with more than 80 mgs of alcohol in his blood. | $1,000 fine and probation for 6 months, together with a driving prohibition for 1 year. |
| May 8, 2014 | Assault causing bodily harm (domestic). | 1 day’s imprisonment in addition to credit of 6 days of pre-trial custody together with 2 years of probation and a s. 110 order for 10 years. |
[16] Mr. Kathirgamanathan’s marriage history was described in the pre-sentence report and it may be summarized as follows:
a. Mr. Kathirgamanathan had an arranged marriage in June 2007 in Singapore. Mr. Kathirgamanathan returned to Canada and then sponsored his wife (Ms. Ravinthiran) who is 13 years his junior. She has a Bachelor’s degree in science and wished to continue her education.
b. Ms. Ravinthiran arrived in Canada six months later. They had two children – a son born in 2008 and a daughter born in 2010. He described the commencement of the marriage as the “best” and he was a dedicated father.
c. Mr. Kathirgamanathan admits that the consumption of alcohol led to a domestic related occurrence in 2013. He and his wife have been separated since that time. He tried to reconcile with his wife (and family) but his attempts were unsuccessful.
d. Visits with his children were through the child access centre but occasionally, he was required to go to the police station when the child access centre was closed. This arrangement “upset” Mr. Kathirgamanathan.
e. Mr. Kathirgamanathan has battled alcohol, spending a lot of money on it. In 2011/2012 he declared bankruptcy. In 2013, he assaulted his wife, resulting in a trip to the hospital and eight stitches to her head. This gave rise to his arrest for assault causing bodily harm and his conviction in 2014.
f. When the parties separated, it is reported that he told his wife that if he “cannot have the kids, she too will not have the kids”. Eventually, Ms. Ravinthiran moved out of the home and into a shelter. She severed all ties with Mr. Kathirgamanathan’s family as well as the Tamil community.
g. The Children’s Aid Society became involved and an application was made for custody of both children by Ms. Ravinthiran. In December 2016 a final award of custody was made in favour of Ms. Ravinthiran. Mr. Kathirgamanathan was granted visitation rights on each Saturday between 9:00 a.m. and 4:00 p.m.
h. Family describe that Mr. Kathirgamanathan became depressed following his marriage breakdown. A nephew described that he “fell into a hole” and was traumatized by his inability to see his children.
i. Ms. Ravinthiran returned to school for a course in Assaulted Women and Children Counselor Advocacy. A month later the aforementioned assault occurred.
j. A Family Service Worker with the Children’s Aid Society of Toronto indicated that a file was opened in 2013 after Mr. Kathirgamanathan was charged criminally with the assault of his wife. It was reported that Mr. Kathirgamanathan’s wife and children had been abused and that they were afraid of him. He had threatened to kill his wife, the children and then himself.
k. Mr. Kathirgamanathan’s wife and the children were also referred to a Child and Family Clinician at The Child Development in Family Violence Programme. It was described that Kardiken was shutting down and the two children were having nightmares as a result of their father’s conduct. It has been difficult to calm them down following these nightmares.
l. It was noted that the children (and in particular, Kardiken) made progress during their counseling sessions and when residing at the shelter.
m. In 2014, Ms. Ravinthiran stated that Mr. Kathirgamanathan was a “manipulative” person. She reported experiencing physical, emotional, verbal and financial abuse at the hands of Mr. Kathirgamanathan. She never reported his conduct to authorities because of family and cultural differences.
n. Mr. Kathirgamanathan reports that he has been suicidal since his separation in 2013. On the date of the offences, he consumed a half-can of anti-freeze but that did not kill him. After injuring his children, he stabbed himself.
o. When interviewed by Toronto Police Services, Mr. Kathirgamanathan “displayed immense love for his two children but the opposite feeling for his estranged wife, coupled with a level of anger towards her”.
[17] The pre-sentence report also provides input from various friends and family members regarding Mr. Kathirgamanathan. Their comments may be summarized as follows:
Mrs. Nirmaladevi Mohanaraj: Mrs. Mohanaraj is Mr. Kathirgamanathan’s sister. She describes her brother as a very nice person and “lovable”. She says that her brother never displayed violent tendencies. He would babysit her children, on occasion, and there were no problems. She believes that the breakdown of her brother’s marriage and his inability to parent his children affected him a great deal. She will not accept that her brother is a criminal, despite her knowledge of the offences. She believes that Mr. Kathirgamanathan was not himself and told her that “some ghost” made him commit the offences. She believes that he has learned his lesson.
Mr. Sarujan Mohanaraj: Mr. Mohanaraj is Mr. Kathirgamanathan’s nephew. He advises that he has spent a lot of time with his uncle. He describes his uncle as “friendly” and “kind-hearted”. He is “straightforward” and has a “caring” personality. He says that his uncle “fell into a hole” following the separation from his wife and family. He was traumatized when he was not able to see his children regularly.
Mr. Abdulrahman Mohamed Ali-Jinnah: Mr. Ali-Jinah is a friend of Mr. Kathirgamanathan. He describes Mr. Kathirgamanathan as a “good guy” who loves his family and provided for his children. He was shocked by the offences as he and Mr. Kathirgamanathan had been at his apartment just before the offences were committed and everything seemed “normal”.
Mr. Theva Sithamparapillai: Mr. Sithamparapillai is also a friend of Mr. Kathirgamanathan. He describes his friend as a “good” and “caring” person.
Mrs. Susithra Rajendram: Mrs. Rajendram is also a friend. She describes Mr. Kathirgamanathan as a “very nice person” and that she could not “believe” that he had committed such offences.
[18] The probation officer described Mr. Kathirgamanathan’s current situation as follows:
The subject was polite, respectful and cooperative for the purposes of this report. He accepted responsibility for his behaviours and at times became emotional. He repeated a few times that he offers his apologies to his children and to the court and will abide by the conditions as ordered by the court. He indicated that his children are ‘funny and lovely’, that he loves them dearly and keeps thanking God that they are alive. He appeared to lack insight into his actions as he said that in custody he keeps thinking as to why he did what he did and that he cannot sleep as he keeps thinking of this ‘problem’. He stated that he misses his children greatly and keeps questioning himself – ‘why, why, why?’ At the same time, it appeared that he fails to understand the impact of his actions and the harm caused to his children and appeared to be unaware of how fearful they are of him thinking that ‘my children love me’ and that he will be able to ‘see them’ as adults.
[19] Mr. Kathirgamanathan provided a statement to the Court which stated as follows:
a. That he takes full responsibility for his actions and he is not making excuses for them. He said, “Realizing that the two people who have brought me the most joy in life, are sadly the two people most negatively impacted by all of this, causes me great anguish.”
b. That after separating, he wanted joint custody of his children. He said that he took counseling, treatment and went through the family court system. At the end, he was permitted access for 7 hours a week. He was permitted to pick up and drop off the children at daycare. When the daycare was closed, he was required to do this at the police station which he described as a “crushing experience”. He said, “The negativity, between my ex-wife and I should never have led to our children having to go to a Police Station to see their Father.” He said:
What happened in Oct 2017 did not happen in a vacuum. A single event did not lead to what transpired. It was a collection of horrible choices between a Mother and Father that impacted the two people it should never have impacted at all. And the anguish and sorrow that has filled my heart since that moment has been emotionally crippling to say the very least.
c. Mr. Kathirgamanathan concluded his statement as follows:
I would like to say the following to Kardiken and Ganga, if I may. I miss you, I miss you both every day that I am not with you, and I know that I let you both down. But I would do anything for either of you. You make me want to wake up each day. And your [sic] in my dreams every night. You are the most important people in the world to me, and you will always remain so. I love you both dearly. I always have and I always will. I made mistakes in my life, and today is part of my taking responsibility for those mistakes. I am ashamed of myself, and I regret what I did completely. The word that is used to describe that emotion within you, is called ‘remorse’. I want you to both to know that such a small word can not [sic] properly represent the depth of regret and shame I have within my heart. If there was a word that was defined as ‘infinite remorse’, I would question if even that word would properly convey what I feel in my heart.
I will do everything I am able to, to help you both going forward. What steps I have to take to be able to contribute to your lives in a meaningful way, I will take. I love you, and I am deeply sorry to both of you.
The Legal Principles
[20] I will now turn to a consideration of the law that is to be applied.
[21] In determining an appropriate sentence, regard must be had to the sentencing objectives in s. 718 of the Criminal Code, which provides as follows:
- The fundamental purpose of sentencing is to protect society and 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 that have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
[22] Section 718.01 of the Criminal Code provides that when a court imposes a sentence for an offence that involves the abuse of a person under the age of 18, it shall give primary consideration to the principles of denunciation and deterrence. Section 718.2 of the Criminal Code provides that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, including the fact that the abused person is under the age of 18 and that in committing the offence, the offender abused a position of trust or authority in relation to the victim. Such facts will be considered aggravating.[^3]
[23] The sentencing judge must also have regard to the following: any aggravating and mitigating factors, including those listed in ss. 718.2(a)(i) to (vi); the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(b)); the principle that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh (s. 718.2(c)); and the principle that courts should exercise restraint in imposing imprisonment (ss. 718.2(d) and (e)).[^4]
[24] Pursuant to s. 718.1 of the Criminal Code, “[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”. Imposing a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime.[^5]
[25] Crown counsel provided cases in support of her position on sentencing, some of which are summarized as follows:
R. v. A. (J.):[^6] J.A. was found guilty by a jury of the second degree murder of his six-year-old daughter and the attempted murder of his seven-year-old son. Following the dissolution of his marriage, J.A. was suicidal. He attended at the school of the two victims, telling officials the children had medical appointments to attend. That was not true. He picked up some alcohol and sleeping medication before attending at a hotel. He gave each child some sleeping medication and sparkling wine. Eventually, the police were alerted when the two children did not return from school. When the police arrived at the hotel room, one child was unconscious (and eventually died). The other was drowsy. The cause of death was the combined toxicity of the sleep medication combined with alcohol. On the count of murder, J.A. was imprisoned for life with parole eligibility set at 18 years. He was given a concurrent sentence of 10 years for attempted murder.
R. v. Postma:[^7] Ms. Postma attempted to murder her daughter. At that time, she had separated from her husband and had four daughters. The victim was the youngest. Ms. Postma became distraught after the separation. When Ms. Postma went to visit her daughter (the victim), she slit her throat. The victim ran from her mother as she was being chased. Eventually, the police arrived. There is no explanation as to why Ms. Postma attempted to murder her daughter. There was no evidence of a mental disorder. She was 48 years of age at the time of the offence and had no criminal record. The court imposed an 11-year sentence.
R. v. Tan:[^8] Mr. Tan pleaded guilty to attempted murder, forcible confinement, robbery and sexual assault. He was given a 15-year sentence. He appealed. At the time of the offences, Mr. Tan was 34 years of age and unemployed. The victim was a university student. They knew each other through a mutual friend. After moving the victim from her apartment and while in the car, Mr. Tan suggested that the victim break up with her boyfriend. When she declined to do so, Mr. Tan became enraged. Eventually, he bound and gagged her. He made her lie down in the car and brandished a knife. He collected a tarp and some clothing. He drove three hours to a friend’s cottage in Bancroft, Ontario where he sexually assaulted her. He put her in a chokehold and told her that he was going to kill her. He slit her throat and stabbed her, causing a collapsed lung. He asked the victim about her bank accounts and obtained her PIN number. He took her identification documents, including her passport. He covered her with the tarp and she lost consciousness. He dragged her 40 feet into the bush, covered her with dirt, leaves and the tarp. He left her to die but she did not. Eventually, the victim struggled to the main road where she was assisted. Her injuries, both physical and psychological, were devastating and permanent. The sentence of 15 years was upheld by the Court of Appeal.
In considering whether the sentence of 15 years was excessive, the Court examined the range of sentences for attempted murder. After doing so, it held that a 15-year sentence for a first offender who entered a guilty plea and expresses remorse was high. However, it held that the sentence was justified for a number of reasons, including: the domestic context of the offence, the specific intent to kill, the elements of planning and deliberation, the length of the attack, the concealing of the body and identity of the victim, the fact that the victim was left to die and the serious physical and psychological injuries on the victim.[^9]
R. v. Adamson:[^10] While the victim was sleeping in her home, Mr. Adamson entered and crept upstairs to her bedroom. He approached her, punched her in the head and when asked why he was doing this, he responded, “I’m sorry”. He rolled her onto her back and put a gloved hand over her mouth. He pulled out a knife and began to slit her throat saying, “I love you”. The victim screamed and Mr. Adamson fled. Mr. Adamson was the victim’s boyfriend and the father of the child she was carrying at the time. Mr. Adamson denied, to a judge and jury, that he was the perpetrator of these offences. He was found guilty. The Court of Appeal found that the sentence of 13 years was justified.
[26] Counsel for Mr. Kathirgamanathan provided cases in support of his position, some of which may be summarized as follows:
R. v. Edwards:[^11] Mr. Edwards was convicted of two counts of attempted murder. On the day in question, Mr. Edwards became frustrated and angry because his job prospects were limited and he had run out of cigarettes and alcohol. He had attended a social at the Canadian Mental Health Association but was picked up by his father because he was being disruptive. At the time of the offences, he had been under medical care for his mental health for some time. At approximately 6:40 p.m. that day, Mr. Edwards approached a neighbor, Mr. Singh, suggesting they talk. Mr. Edwards pulled out a knife and tried to stab him. Mr. Singh was able to get away. Shortly thereafter, Mr. Edwards approached another neighbor who was walking home from work. Mr. Edwards stabbed him in the back with a kitchen knife. Considering all principles, the trial judge sentenced Mr. Edwards to 9 years’ imprisonment.
R. v. Kormendy:[^12] Mr. Kormendy was convicted of, amongst other things, three counts of attempted murder by arson. Mr. Kormendy was in a romantic relationship with one of the victims. They were living together in Windsor, Ontario with her three children. Two of the children were also victims in the arson, a seven-year-old daughter and a one-year-old-daughter. The third escaped the consequences of the arson because she was not home at the time. The fire was started because the victim had asked Mr. Kormendy to leave the home. He poured gasoline around the room and on the outside of the door where she was sleeping with her 7-year-old daughter. He also poured gasoline on the beds. By pouring gasoline around the door, Mr. Kormendy essentially trapped the two victims in the room by fire. Despite the screams of his victims after the fire started and the rooms being engulfed in flames, Mr. Kormendy did nothing to help his victims. During the sentencing proceeding, Mr. Kormendy demonstrated little insight into his behaviour. Mr. Kormendy was given a global sentence of 11 years.
The Court of Appeal increased Mr. Kormendy’s sentence to 20 years.[^13] In doing so, the Court of Appeal addressed the sentencing principles for domestic attempted murder:
26 The moral blameworthiness for an attempt to murder someone is as serious as in a crime of murder. The only difference is that despite the accused's effort and intent, the victim did not die, although often the victim has suffered terrible long-term effects. The seriousness of a conviction for attempted murder was clearly explained by the Supreme Court in R. v. Logan, [1990] 2 S.C.R. 731, at p. 743:
The stigma associated with a conviction for attempted murder is the same as it is for murder. Such a conviction reveals that although no death ensued from the actions of the accused, the intent to kill was still present in his or her mind. The attempted murderer is no less a killer than a murderer: he may be lucky-the ambulance arrived early, or some other fortuitous circumstance-but he still has the same killer instinct. Secondly, while a conviction for attempted murder does not automatically result in a life sentence, the offence is punishable by life and the usual penalty is very severe.
27 The same concept was observed by Doherty J.A. in R. v. McArthur (2004), 182 C.C.C. (3d) 230 (Ont. C.A.), at para. 47, where he stated:
Under our law, a person can only be convicted of attempted murder if he or she intended to kill. The moral culpability of the attempted murderer is at least equal to that of a murderer. He or she avoids a murder conviction and the automatic sentence of life imprisonment not because of any mitigating factor, but because through good fortune, the victim was not killed.
28 While every attempted murder is a most serious crime, attempted murders in the domestic context are particularly heinous. The domestic partner victims are uniquely vulnerable because they are in a relationship of trust with the perpetrator. Even more vulnerable are children of the person in the relationship with the perpetrator, who often suffer terribly in a myriad of ways, if they survive the murder attempted on them.
R. v. Botelho:[^14] Mr. Botelho had engaged in a history of violent behaviour toward the complainant. He had two convictions for domestic assault. The last one involved the same complainant. In breach of his terms of bail, and after having consumed alcohol, Mr. Botelho stabbed the complainant numerous times in a vicious attack. But for immediate medical attention, the complainant would have died as a result of the injuries inflicted by Mr. Botelho. He did not accept responsibility for his conduct and maintained that the injuries were caused by accident. As such, the Court of Appeal found that he continued to be a danger to society. The Court held that, “In these circumstances, a sentence of eight and a half years for the offence of attempted murder is the lowest sentence that in our view, could be considered fit.”
[27] As can be seen, the range of sentence which a court can impose for the conviction of attempted murder is a very broad one and can reach a maximum sentence of imprisonment for life. I accept that no case will be identical to the one before me with respect to the nature of the offence or of the offender. For example, in the cases referred to by counsel, some accused did not have a criminal record. Some of the conduct was more gruesome. In most, there was only one victim. Some of the offences committed were not in a domestic context. Mental illness was a factor in some cases, but not all. Some involved almost complete strangers. And some were sentenced after trial. As such, the cases are useful because they provide a range.
[28] I will now turn to a consideration of the fit sentence.
Analysis
a. The Aggravating Factors
[29] In considering the appropriate sentence, I consider the following to be the aggravating factors:
a. The offence of attempt murder “includes the most morally blameworthy state of mind known to our law – the intent to kill a fellow human being”.[^15] In this case, Mr. Kathirgamanathan pleaded guilty to two counts of attempted murder, an acknowledgment that his state of mind was a specific intent to kill two helpless human beings, his children.
b. The crimes that Mr. Kathirgamanathan committed against his two children are an egregious breach of parental trust. At the time of the offences, it appears that the children had no reason to fear their father – he had just taken them to McDonald’s and bought them toys to play with in the apartment.
c. Mr. Kathirgamanathan abused Ganga after she asked him to help her in the washroom. Her brother was required to act as her savior to intervene and prevent their father from killing them.
d. The scene of the crime paints a horrifying picture, permitting insight into the struggle that must have occurred. Blood is all over the bathroom. There are small handprints of the children in their own blood on the walls and in the bathtub. The picture painted by this alone, is devastating.
e. The impact on the children did not stop with the abuse by their father in taking a hammer to them and trying to choke them. Equally disturbing is that they witnessed him stabbing himself and inviting them to kill themselves.
f. The children appear to have escaped this nightmare only because their father passed out, giving them the opportunity to leave the apartment. The video shows the cruel juxtaposition of their lives versus other children in the area. They are seen exiting the building, covered in blood, into a community of children playing innocently outdoors. Ganga is clutching the doll that her father had purchased for her just hours before. They are asking for help.
g. Part of the motivation in Mr. Kathirgamanathan abusing his children appears to be out of spite towards his wife. The implication, of course, is that he wanted to deprive their mother of the children’s companionship and upbringing. The attempted murder of the two children was committed in a domestic context.
h. The conduct of Mr. Kathirgamanathan is devastating to both the children and their mother. The physical, emotional and psychological impact on the two children is obvious. It has had a resounding impact on their mother who is already isolated in the community.
i. The content of the Victim Impact Statements tells the effects of this event on the children and also reflects their youth. The depiction of their emotions in their self-portraits is indescribable and moving. At this stage in their lives, their drawings should not have to reflect emotions such as sadness, nervousness and fear of their father. The psychological impact of these offences is immense.
j. The children are physically scarred by their father’s conduct of wielding a hammer to inflict injury on them. The physical scars will provide a constant reminder of what their father did to them at a very young age.
k. The children are haunted by nightmares and are sometimes inconsolable. They will, no doubt, continue to suffer psychologically from the attack as they experience constant fear.
l. The incident may affect the children’s relationships in the future. They may have trust issues arising from the fact that their father attacked them with a hammer – the very person who should have been protecting them.
m. As a result of the attack, the children have lost any benefit they may have had in a relationship with their father. They have become isolated in the community due to the incident itself.
n. The offence was conducted in a domestic-like relationship. Mr. Kathirgamanathan used his familial relationship to access the children and he abused it.
o. The attack has also negatively affected others, including his former spouse and those who must pick up the pieces of Mr. Kathirgamanathan’s devastating acts.
p. This is not Mr. Kathirgamanathan’s first act of violence toward his family. He has been convicted of assault causing bodily harm. The victim was his spouse.
q. There are serious consequences for the victims and their family.
[30] I will now turn to a consideration of the mitigating factors.
b. The Mitigating Factors
[31] The mitigating factors are as follows:
a. Mr. Kathirgamanathan pleaded guilty. The plea provided certainty of result and the saving of court resources.
b. The plea spared the necessity of the victims having to testify at trial.
c. The plea is a sign of remorse.
d. Remorse was also shown during the statement Mr. Kathirgamanathan provided to the court.
e. There appears to be some depression suffered by Mr. Kathirgamanathan, arising from the separation from his wife and children. Others saw him disintegrating and he was medicated when imprisoned.
f. There is obvious support for Mr. Kathirgamanathan in the community. Both family and friends remain supportive of him and were present during the court proceedings.
g. He advises that he is amenable to counselling.
[32] I will now turn to my conclusion regarding the fit sentence.
c. The Fit Sentence
[33] So, what is the fit sentence? In a case involving attempted murder of two children, the primary objectives of sentencing are denunciation and deterrence.[^16] Part of the motive of Mr. Kathirgamanathan to injure and attempt to murder his two children was to spite his wife and deprive her of what she loved most – her two children. As O’Marra J. stated in R. v. A. (J.) at para. 55, “where one parent chooses to kill a child to inflict the ultimate pain on their estranged spouse” the court must make it clear that such conduct will attract denunciatory sentences. That is the case here.
[34] As the Court of Appeal stated in Kormendy, “… the courts have continued to emphasize the critical need for denunciation and deterrence to be the paramount considerations for domestic abuse, and in particular, attempted murder. That reason, fully applicable in this case, is that the abuser feels entitled to control the victim, and when that control is rejected, the abuser feels entitled to attack the victim, terrorize her, or kill her and her children”.[^17] In these circumstances, the need for denunciation and deterrence is obvious.[^18]
[35] The Court of Appeal in Kormendy also held, “The message the court must send is that abusers who feel entitled to control their domestic partners and punish them for resisting will be severely dealt with when their conduct is criminal. They are not entitled to exercise control over the other person.” These principles are applicable here.
[36] It is my view that a sentence of 15 years’ imprisonment is appropriate. Mr. Kathirgamanathan will also receive a credit based on the following principles.
The Summers Credit
[37] Mr. Kathirgamanathan will be given credit for time spent in pre-sentence custody in accordance with s. 719(3.1) of the Criminal Code and Summers. Mr. Kathirgamanathan has been in custody since October 7, 2017 — 854 days (28 months). Enhanced at 1.5 days for each day spent in pre-sentence custody, Mr. Kathirgamanathan will be given credit for 42 months or, 3.5 years.
The Duncan Credit
[38] In certain circumstances, particularly when harsh conditions prevailed during pre-sentence incarceration, mitigation greater than the 1.5 days’ credit as set out in s. 719(3.1) of the Criminal Code may be appropriate. In considering whether any enhanced credit should be given, the court will consider the conditions of the pre-sentence custody and the impact of those conditions on the defendant. If the court finds that there is an adverse effect on the defendant flowing from the pre-sentence conditions, the sentence can be reduced further to reflect the added mitigation for the conditions of the pre-sentence incarceration.[^19]
[39] Mr. Kathirgamanathan has been incarcerated at the Toronto South Detention Centre for 28 months. He advises that during that time, he was subject to 174 days of full lockdowns (approximately 6 months) and 188 days of partial lockdowns (approximately 6 months). All were due to staff shortages.
[40] Although no affidavit was filed, Crown Counsel agrees that there would have been a negative impact on Mr. Kathirgamanathan during that time. For example:
a. Lockdowns make life more difficult in the facility.
b. The inmates would lose time normally permitted to be spent outside their cells.
c. Access to phones, showers and other services would be limited.
[41] In considering the above, I find that the conditions of the pre-sentence custody have had a negative impact on Mr. Kathirgamanathan. As such, and as agreed to by Crown Counsel, he will be given a further enhanced credit of 6 months.
Conclusion
[42] For all the above-mentioned reasons, Mr. Kathirgamanathan is sentenced as follows:
a. Count 1: For the offence of attempt murder of Kardiken, 15 years less time served of 4 years for a remaining sentence of 11 years to serve.
b. Count 2: For the offence of attempted murder of Ganga, 15 years imprisonment concurrent to Count 1.
[43] Mr. Kathirgamanathan will be subject to the following ancillary orders:
a. An order that he provide a sample of his DNA; and
b. An order that he be subject to a s. 109 order for life.
Kelly J.
Released: February 7, 2020
COURT FILE NO.: CR/18/40000458/0000
DATE: 20200207
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
ravinthiran kathirgamanathan
REASONS FOR SENTENCE
Kelly J.
Released: February 7. 2020
[^1]: 2014 SCC 26 [^2]: 2016 ONCA 754 [^3]: See: ss. 718.2(a)(ii.1) and (iii) of the Criminal Code, respectively. [^4]: See R. v. Nur, 2011 ONSC 4874, aff’d 2013 ONCA 677, aff’d 2015 SCC 15 [^5]: See R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 80 [^6]: 2017 ONSC 525 [^7]: 2013 ONSC 7218 [^8]: 2008 ONCA 574 [^9]: See also R. v. Kormendy, 2019 ONCA 676 at para. 32 [^10]: 2018 ONCA 678 [^11]: 2015 ONSC 3308 [^12]: 2017 ONSC 6426 [^13]: 2019 ONCA 676 [^14]: 2010 ONCA 497 [^15]: See: R. v. Adamson, supra, at para. 119 [^16]: See: R. v. Frickey, 2017 ONCA 1024 at para. 4 [^17]: See R. v. Kormendy, supra, at para. 57 [^18]: Ibid., at para. 58 [^19]: R. v. Duncan, supra, at paras. 6 and 7