



WARNING

The President
    of the panel hearing this appeal directs that the following should be attached
    to the file:

An order
    restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4)
    or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

486.4       (1)
Subject to subsection (2), the presiding judge or
    justice may make an order directing that any information that could identify
    the complainant or a witness shall not be published in any document or
    broadcast or transmitted in any way, in proceedings in respect of

(a)     any of
    the following offences;

(i)   an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172,
    172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or
    347,

(ii)  an
    offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent
    assault on female), 156 (indecent assault on male) or 245 (common assault) or
    subsection 246(1) (assault with intent) of the
Criminal Code
, chapter
    C-34 of the Revised Statutes of Canada, 1970, as it read immediately before
    January 4, 1983, or

(iii) an
    offence under subsection 146(1) (sexual intercourse with a female under 14) or
    (2) (sexual intercourse with a female between 14 and 16) or section 151
    (seduction of a female between 16 and 18), 153 (sexual intercourse with
    step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent
    or guardian procuring defilement) or 167 (householder permitting defilement) of
    the
Criminal Code
, chapter C-34 of the Revised Statutes of Canada,
    1970, as it read immediately before January 1, 1988; or

(b)     two
    or more offences being dealt with in the same proceeding, at least one of which
    is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2)
In
    proceedings in respect of the offences referred to in paragraph (1)(a) or (b),
    the presiding judge or justice shall

(a)  at the first
    reasonable opportunity, inform any witness under the age of eighteen years and
    the complainant of the right to make an application for the order; and

(b)  on application
    made by the complainant, the prosecutor or any such witness, make the order.

(3)
In
    proceedings in respect of an offence under section 163.1, a judge or justice
    shall make an order directing that any information that could identify a
    witness who is under the age of eighteen years, or any person who is the
    subject of a representation, written material or a recording that constitutes
    child pornography within the meaning of that section, shall not be published in
    any document or broadcast or transmitted in any way.

(4)
An
    order made under this section does not apply in respect of the disclosure of
    information in the course of the administration of justice when it is not the
    purpose of the disclosure to make the information known in the community. 2005,
    c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

486.6     (1)
Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)
For
    greater certainty, an order referred to in subsection (1) applies to prohibit,
    in relation to proceedings taken against any person who fails to comply with
    the order, the publication in any document or the broadcasting or transmission
    in any way of information that could identify a victim, witness or justice
    system participant whose identity is protected by the order. 2005, c. 32, s.
    15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. D.S., 2013
    ONCA 244

DATE: 20130418

DOCKET: C54958

MacPherson, Blair and Juriansz JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

D.S.

Respondent

Peter Scrutton, for the appellant

Misha Feldmann, for the respondent

Heard: March 27, 2013

On appeal from the sentence imposed by Justice Laurence A.
    Pattillo of the Superior Court of Justice on January 9, 2012.

By the Court:

A.

introduction

[1]

Following a jury trial, the respondent, D.S., was convicted of 32 counts
    relating to sexual assaults against his common law partner and domestic
    violence against his partner and four children.  The trial judge imposed a
    sentence of six years imprisonment.

[2]

The Crown appeals the sentence.  The Crown contends that the trial judge
    made several errors in principle in his sentencing reasons and that the
    sentence is manifestly unfit.

B.

Facts

(1)

The parties and events

[3]

The respondent was convicted of 32 offences that took place over the
    almost ten-year period from October 1999 to April 2009.  The offences included
    six counts of sexual assault, 14 counts of assault with a weapon, one count of
    assault causing bodily harm, four counts of assault, five counts of uttering
    threats, one count of possession of a prohibited weapon, and one count of
    breach of a recognizance.

[4]

The respondent sexually assaulted his common law partner, R.B.  The sexual
    assaults occurred on three occasions in 2007 when the respondent came home
    drunk, called his partner a whore, and threatened to kill her if she refused to
    have sex with a friend he had brought home.  Each time, the respondent forced
    his partner to have sex with the friend and then with himself afterwards.  On
    one occasion, the respondent, a martial arts and weapons enthusiast, punched
    his partner in the face with the flat part of a sword handle when she initially
    refused to have sex with the stranger.  On a second occasion, he put the tip of
    a sword blade against his partners neck to force her to have sex with the
    stranger.  On the third occasion, the stranger paid the respondent $50 for the
    sex with his partner.

[5]

The respondent assaulted his partner and four of his five children on numerous
    occasions throughout the ten-year period.  The assaults escalated toward the
    end of the period, from 2006 to 2009.  The assaults were violent and very
    dangerous, often involving weapons such as swords, knives, poles, an axe, a
    meat cleaver, and a homemade spear.  They caused injuries to R.B. and the
    children.

[6]

After his arrest on April 15, 2009, the respondent was released on a
    recognizance.  One of the conditions was that he not communicate with R.B.  The
    respondent breached the recognizance on April 20, 2009 by calling R.B. three
    times in the middle of the night and then sending a text trying to cover up the
    breach.

(2)

The sentencing reasons

[7]

In comprehensive reasons, the trial judge canvassed the details of the
    32 offences arising out of 17 incidents over a ten-year period.  He said that
    the offences here involved a reign of terror... which has destroyed the lives
    of [R.B.] and their sons.

[8]

The only mitigating factors the trial judge found were the strong
    support of the respondents family (not his former partner and children) and
    current girlfriend and the fact that his criminal record was stale-dated, with
    no convictions in the 15 years prior to the case.

[9]

The trial judge listed a number of aggravating factors.  The offences
    consisted of significant physical, verbal and mental abuse.  Serious weapons
    were used in many of the attacks.  The abuse continued over almost ten years,
    with a significant escalation from 2006 to 2009.  The abuse of a common law
    spouse is a statutory aggravating factor, provided for in s. 718.2(a)(ii) of
    the
Criminal Code
.  The abuse of young children was extremely
    aggravating.

[10]

The
    trial judge first determined the appropriate sentence for each offence, then
    whether it should be imposed consecutively or concurrently, and then whether
    the totality principle was offended by the aggregate amount. He imposed a total
    sentence of 26 years and seven months for all of the offences.  Combining only
    the consecutive sentences, the sentence was ten years.  He then said:

I consider, however, ten years to be too great a sentence,
    given all of the circumstances here.  In my view, the totality principle
    requires that I reduce that.  You have effectively no prior time in jail and
    your prior offences go way back.  So Im going to sentence you, sir, in total
    to six years in the penitentiary.  I consider that to be a serious sentence for
    serious misconduct on your part.

[11]

The
    trial judge then credited the respondents two years of pre-sentence custody on
    a 2:1 basis, resulting in a further custodial sentence of two years less a day,
    to be followed by a three-year period of probation.

[12]

The
    Crown appeals this sentence.

C.

Analysis

[13]

A
    trial judge who has presided over a trial, heard the witnesses, and considered
    the evidence should be accorded considerable deference with respect to the
    sentence he or she imposes on a convicted person.  The sentence should be set
    aside only if the trial judge has made an error in principle or if the sentence
    is manifestly unfit: see
R. v. Shropshire
, [1995] 4 S.C.R. 227, at
    para. 46; and
R. v. M. (C.A.)
, [1996] 1 S.C.R. 500, at paras. 90-91.

[14]

The
    Crown contends that the trial judge made several errors in principle in his
    sentencing reasons, including his application of the totality and jump
    principles, arbitrary assignment of concurrent sentences to some offences, and
    overemphasis of the respondents rehabilitation prospects.

[15]

In
    our view, all of these submissions flow into what we take to be the Crowns
    main submission, namely, that a six-year sentence for this offender and this
    offence is manifestly unfit. As this submission is dispositive of the appeal,
    it is not necessary to address the others.

[16]

The
    respondent committed 32 crimes of violence against his common law spouse and
    four male children.  He did so over a ten-year period, with the violence
    escalating toward the end of the period.

[17]

Here
    is how the trial judge described, in a general way, the respondents assaults
    against his family:

As noted, [the respondent] physically and verbally abused
    [R.B.] first and then later the children on a regular basis.  He would curse at
    them, push or hit them, and in the case of [J.], who had long hair and a pony
    tail, pull his hair.  Often, he would get a knife, a sword or a metal pole or
    poles from the closet in the apartment to facilitate his assaults.  On one
    occasion, he used a spear which hed made by taping a knife to a broom handle.
    He also used a meat cleaver from the kitchen.

His favourite weapon, however, was a sword, of which he had
    many.  He also used the sheath of a sword.  He would wave the sword around in
    front of [R.B.] and the children and hold it up to their face or neck.  At
    times, he would hit them with the flat side of the blade.  On occasion, his
    assaults would cut [R.B.] or the boys and end up leaving a scar.

[18]

Here
    is how the trial judge described, in a general way, the respondents sexual
    assaults on his partner:

In addition to the verbal and physical abuse, [the respondent]
    also forced [R.B.], on three separate occasions, against her will, to have sex
    with his friends and then afterwards to have sex with him.  It was very
    demeaning and upsetting for [R.B.].

[19]

The
    trial judge reviewed the facts underlying each of the 32 offences.  He
    described one incident of assault  sadly, a typical one  in this fashion:

The evidence is that in the summer of 2006, when [J.] was 4, he
    went into [the respondent] and [R.B.s] bedroom in their apartment and locked
    the door.  He didnt know how to open it.  [R.B.] tried to explain to him how
    to open it, but [J.] didnt understand.  [The respondent] got angry and
    frustrated and began to swear at [J.].  He then went to the kitchen and got a
    knife.  He put the knife under the door to scare [J.].  [J.] was saying that he
    didnt know how to open the door and was crying.  [The respondent] kept jamming
    the knife under the door and yelling at [J.].  He told him he was stupid.  [The
    respondent] then went around to the window on the outside of the apartment and
    crawled in the bedroom window. [The respondent] then unlocked the door and [J.]
    came out crying.

During the incident, [the respondent] told [J.], [A.] and [E.]
    they were stupid and he could put a knife into them and kill them.  [The
    respondent] and [R.B.] got into an argument on how to get [J.] out of the
    room.  He pushed her pretty hard up against the wall by the throat at the base
    of her neck.  They kept on yelling at each other.  She said during the
    incident, [the respondent] told her she was an unfit mother and he could kill
    her right there and right now because she was stupid.  She also said that when
    he opened the bedroom door after releasing [J.], he put the knife up against
    her face and said: Im going to kill you.  You are a dumb mother.

[20]

There
    were three incidents of sexual assault that resulted in convictions.  All three
    were quite similar and involved forced sex on R.B. by the respondent and one of
    his friends.  The trial judge described one of these incidents in this fashion:

The evidence is that sometime in 2007, [the respondent] came
    home around 2:00 a.m. after drinking with friends.  [R.B.] and the kids were
    asleep.

[The respondent] came into the bedroom and told her he brought
    someone home for her to sleep with.  She said no.  He told her that if she
    embarrassed him, he would kill her.  She could smell the alcohol and said he
    was intoxicated.  [The respondent] then left the bedroom.

The door then opened and someone came into the room.  She
    thought it was [the respondent] coming back.  She asked who it was.  The person
    responded that [the respondent] said, you are a whore and youre going to sleep
    with me.  She refused.  The person left the room.  She didnt see what he
    looked like.

[The respondent] then came back into the room.  He swore at her
    and told her that she was going to sleep with his friend.  She again refused
    and he punched her in the face with the flat part of a blade of a long handle
    of a silver sword which had a blue jean cloth wrapped around the handle.  She
    felt threatened, hurt, ashamed and very scared.

[The respondent] left and the person, again, entered the room. 
    He got into bed.  She said she didnt want to have sex.  He ignored her,
    climbed on top of her and forced his penis into her vagina.  When it was done,
    he got off her and said, thank you for a good time, and left the room.  She was
    crying.

About five minutes later, [the respondent] came back into the
    room.  She was still crying in bed.  He took off his clothes and lay on the bed
    beside her.  He said: Its my turn now.  You serviced my friend; now its time
    for you to service me.  She said nothing.  She was scared and did whatever he
    wanted.  She didnt want to have sex with him at this point.  He climbed on top
    of her, pulled her underwear off, put his penis in her vagina and had sex with
    her.  She lay there and let him do whatever he wanted.  When he finished he
    said to her that thats what a good whore does and then fell asleep.

[21]

The
    descriptions of the assaults and sexual assaults committed by the respondent
    against his common law spouse and children provide overwhelming support for the
    trial judges observation, noted above, that the offences here involved a
    reign of terror... which has destroyed the lives of [R.B.] and their sons.

[22]

The
    victim impact statements by R.B. and the four boys also stand as graphic and
    sad indictments of the respondents attacks on them and the terrible effects of
    those attacks.  The trial judge reviewed them in his reasons.  By way of
    illustration, we set out what the trial judge said about R.B.s and one sons
    statements:

With respect to [R.B.], needless to say, [the respondents]
    actions have had a significant impact on her.  There is no question that she
    was afraid for her safety, for herself and her children, and what [the
    respondent] might do to them both before he was arrested and afterwards.  That
    fear remains with her today.  She talks about having long and painful sleepless
    nights.  She has very little self-esteem and feels she cant trust anyone or
    have another relationship.  She is particularly concerned for the children and
    what [the respondent] has done to them.  The important thing is that she and
    the children are in counselling and are putting their lives back together.  It
    will take a long time, however, and in the meantime she is left to raise the
    children herself.

. . .

[E.] was 11 when [the respondent] was arrested.  He says that
    when his father was in his life he had no fun at school, no friends and all he
    had to look forward to coming home was being beaten.  Hes much happier now and
    feels safer and doesnt want to see or talk to his father again.

[23]

Against
    this background, we agree with the Crown that the six-year sentence imposed by
    the trial judge was manifestly unfit.  The number of offences (32), the number
    of incidents (17), the duration of the attacks (ten years), the escalation in
    the attacks, the number of victims (five), the extreme vulnerability of the
    victims, especially the children, the violence of the attacks, often involving
    dangerous weapons, the stark horror of the sexual assaults involving forced sex
    with a complete stranger, and the significant effects of the attacks on all of
    the victims, require a more substantial punishment.

[24]

In
R. v. D.K.
(2003), 169 O.A.C. 97, this court upheld a ten-year
    sentence on a guilty plea to five counts of sexual assault with a weapon.  The
    offender sexually assaulted his wife five times over ten years using different
    weapons, twice threatening to kill her.  The offences were characterized as
    dehumanizing treatment designed to demean, terrorize, humiliate, and subjugate
    the victim.

[25]

In
R. v. Young
, [2003] O.J. No. 5124, this court upheld an 11-year
    sentence imposed for abuse of a spouse on an almost daily basis for two years,
    punctuated by several acts of unspeakable cruelty involving violence and one
    sadistic sexual assault that went on for several hours.

[26]

In
    our view, this appeal is similar to these cases.  The respondent forced his
    partner to have sex with a stranger on three occasions.  Twice he used a weapon
    to make her succumb.  All of this, in our view, amounts to unspeakable cruelty
    involving violence, designed to demean and humiliate.

[27]

Both
D.K.
and
Young
involved a single victim, a spouse.  In this
    appeal, there is a spousal victim.  However, the respondents reign of terror
    was also visited on four young children, with devastating consequences.

[28]

In
    these circumstances, it is our view that a fit global sentence in this case is
    12 years imprisonment.

D.

disposition

[29]

The
    appeal is allowed and the sentence is varied to 12 years imprisonment.

Released: April 18, 2013 (J.C.M.)

J.C. MacPherson J.A.

R.A. Blair J.A.

R.G. Juriansz J.A.


