



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kormendy, 2019 ONCA 676

DATE: 20190828

DOCKET: C64627

Feldman, Paciocco and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Kenneth Kormendy

Respondent

Elise Nakelsky, for the appellant

Peter Copeland, for the respondent

Heard: February 12, 2019

On appeal from the sentence imposed on November 6, 2017
    by Justice Christopher M. Bondy of the Superior Court of Justice without a jury,
    with reasons reported at 2017 ONSC 6426.
[1]

Feldman J.A.:

Overview

[1]

The Crown is appealing the sentence of 11 years concurrent that Mr.
    Kormendy received for attempting to kill three people, his recent girlfriend
    and two of her children, by burning down their house and trying to trap them
    inside.

While all three escaped, one of
    the children suffered horrendous burn injuries causing her terrible pain and resulting
    in permanent scarring on her face and a permanent loss of functionality in her
    hands and feet. The mother also suffered serious burn injuries. Mr. Kormendy was
    convicted of three counts of attempted murder as well as one count of arson
    causing damage to property and one count of possession of incendiary materials.

[2]

The Crown submits that the sentence imposed was demonstrably unfit. At
    trial, the Crown sought a life sentence without eligibility for parole for ten
    years to adequately reflect the gravity of the offences and the moral
    blameworthiness of the respondent. It renews its request for a life sentence on
    appeal or, in the alternative, an elevated sentence.

[3]

For the reasons that follow, I would grant leave to appeal the sentence,
    allow the appeal and impose a sentence of 20 years concurrent on each charge of
    attempted murder, less credit for pre-sentence custody.

Facts

[4]

S.R. met Kenneth Kormendy online in 2015. After dating for a couple of
    weeks, in early September he moved into her house, where she lived with her two
    school-aged daughters, ages nine and seven, and her baby of one year. However,
    their domestic relationship quickly deteriorated, and after two weeks she asked
    him to move out. She found him controlling and clingy. He did not want her visiting
    family and friends during the day while he was at work or talking to her
    friends on the phone. He did not want her to attend her fathers birthday
    dinner.

[5]

Text messages presented at trial suggested that the respondent first
    accepted S.R.s request for him to move out, but then he resumed his efforts to
    stay. In the days immediately preceding the fire, as well as the day of the
    fire (October 24, 2015), he was regularly texting her, generally without a
    response.

[6]

In the morning of October 24, 2015, S.R. first drove the respondent to
    buy six to eight tall boy cans of Budweiser. Her nine-year-old daughter was already
    at her grandmothers residence. S.R. then left with her other two children,
    dropped the baby off with her father, and took the seven-year-old to visit with
    S.R.s father for the day. She arrived home with the two girls at around 9 p.m.
    It was evident that the respondent had been drinking. He had consumed the beers
    but denied being intoxicated.

[7]

S.R. put the baby to sleep in her crib. Then S.R. went to sleep with her
    seven-year-old daughter in her daughters room. But the respondent kept coming
    in to debate her request for him to move out. S.R. kept asking him to leave. He
    came in a total of approximately eight times. The fifth or sixth time he
    smelled of gasoline. When S.R. asked him about the smell, he said he had made a
    campfire in the backyard. She asked him to wash his hands but he still smelled
    of gasoline when he came back. She told him they were over seeing one another
    and asked him to leave. When he came back in for the last time to talk, he
    asked if their relationship was finished. She said yes. He left again but this
    time he returned with a gasoline container that he poured onto the floor of the
    bedroom as well as on S.R.s track pants and on the blankets and the bed where S.R.
    and her daughter were sleeping.

[8]

When he tried to ignite the cigarette lighter in his hand, S.R. saw
    sparks, jumped up, led him out of the room, and held the door shut with her
    body so that he couldnt get back in. She then heard the sound of gasoline
    being poured on the door and on the floor outside the bedroom. Then the
    respondent ignited the fire, which quickly appeared under the door. S.R.s pants
    caught fire almost immediately.

[9]

S.R. took off her burning pants, opened the window and pushed out the
    screen. Then she woke her seven-year-old daughter and they moved to the window.
    S.R. went through first and directed her daughter to follow through the window
    that was engulfed in flames. They were both screaming in pain. When the mother
    reached through the window to help her daughter, she burned her hands.

[10]

The respondent did nothing to warn them, to help in any way or to call
    for help, including on his cell phone, which he had in his pocket.

[11]

S.R. ran over to a cab that was dropping off some neighbours, screaming
    about the fire and that her baby was inside. The cab driver called 911 then
    entered the house with two neighbours to find the baby. Seeing that they were
    about to enter the house, the respondent went in and, after some time, came out
    with the baby. S.R. screamed at him that he had started the fire and tried to
    kill them.

[12]

When the police arrived, S.R. and her daughter were screaming. The respondent
    was standing five to ten feet away in a bit of a daze, with the smells of
    gasoline and alcohol on him. The remains of a gasoline container were found on
    the lawn. The cab driver later testified that he found one burning gasoline
    container immediately outside the seven-year-olds bedroom door, which he moved
    outside of the house.

[13]

The seven-year-old daughter suffered partial thickness (second degree)
    and full thickness (third degree) burns to approximately 15% of her body. Most
    affected were her arms, hands, face, back, legs and feet. She underwent surgeries
    to multiple parts of her body. The surgeries involved removing the burnt tissue
    and replacing it with skin taken from other parts of her body in order to
    permit limited movement and function of her damaged extremities. At the time of
    sentencing, the seven-year-old still needed further surgeries for improved
    functionality. She will never recover full function of her hands and feet, and
    the scars on her face are permanent. She will also have long-term loss of
    sensitivity in her fingers, toes and feet.

[14]

S.R. suffered painful burns to her hands, arms, neck and hip. Generally
    her burns were partial thickness (second degree) burns. Luckily, the baby was
    not injured.

[15]

The respondent testified at trial. He claimed that S.R. started the fire
    after he told her he was reconciling with a former girlfriend. According to
    him, she decided to kill all of them rather than lose him. The trial judge
    rejected Mr. Kormendys evidence, finding him not credible and evasive. He
    found that the respondents numerous text messages demonstrated his controlling
    nature.

[16]

The trial judge found that the respondent intended to kill S.R. and the
    two children, and that his actions in setting the fire were considered and
    deliberate. The trial judge further found that the respondent took no steps to
    warn them or to save them, although he could have, and that that demonstrated
    his continuing intent that they die in the fire. The respondent also intended the
    baby to die in the fire, but changed his mind when other people arrived. He
    only saved her because he perceived it to be in his interest to do so.
    Specifically, the trial judge concluded that his re-entry into the home was an
    effort to distance himself from having caused the fire.

[17]

S.R. provided a victim impact statement but did not attend the
    sentencing hearing in person because she did not want to see the respondent. In
    her statement, she described the terrible toll on her seven-year-old daughter
    and herself physically and emotionally. Her daughter is angry and confused.
    Their relationship has changed. S.R. now only sees her daughters a couple of
    times a week for a couple of hours. Some days she feels like a failure as a
    mother. The seven-year-olds father also sent a victim impact statement again
    describing how his daughter was robbed of her childhood, her self-esteem and
    her enjoyment of life. After the fire, she was in hospital for a month in
    terrible pain. Following her discharge from hospital, she had to attend
    numerous medical appointments and endure follow-up surgeries to try to minimize
    her facial scarring. She wears a full mask at school. She is no longer a happy,
    playful child. Instead, she has persistent dread and anxiety and constant worry
    about her appearance. She is apprehensive about being in public or with
    strangers, and spends recess inside alone for fear of stares or hurtful words
    from classmates. The fire affected her relationship with her older sister, who
    was also traumatized and now sees a clinical psychologist. It also impeded her
    ability to enjoy the arrival of a baby brother from her father and his new
    partner.

[18]

The respondent has a record consisting of three driving convictions
    involving alcohol, two for over 80 from 1992 and 2002, and one for impaired
    driving from 1996. The pre-sentence report noted alcohol as a problem for the
    respondent but he disagreed. He had a number of letters of support from family
    and friends and a co-worker.

[19]

The Crown asked for a life sentence with no eligibility for parole for
    10 years. The respondents position was 10 years, with parole eligibility left
    to the Parole Board.

[20]

In his reasons for sentence, the trial judge identified the range for a
    domestic attempted murder as 8.5 years to life imprisonment, although he found
    that where there was serious injury and a life sentence was not imposed, the
    range was 10 to 14 years. While acknowledging the particularly egregious
    behaviour of the respondent, the horrific nature and degree of violence and
    consequences to the victims, and the fact that alcohol was involved, given his
    previous alcohol-related convictions, the trial judge focused on the fact that
    it was an isolated incident with no prior pattern of abuse and imposed a sentence
    of 11 years concurrent for each of the 3 charges of attempted murder, 1 year
    concurrent for arson and 6 months for possession of incendiary materials.

Issues

1)

Should the sentences imposed by the trial judge be
    set aside as demonstrably unfit?

2)

If so, what is the appropriate sentence?

Analysis

(1)

Appellate review of
    sentences

[21]

In
R. v. Lacasse
,
2015 SCC 64, [2015] 3 S.C.R. 1089, the
    Supreme Court revisited the test for appellate review of a sentence imposed by
    the trial judge. While re-emphasizing the importance of giving wide latitude to
    sentencing judges and according them deference on appeal, the court clearly
    stated how an appeal court is to approach a sentence appeal at paras. 11 and
    12:

Ultimately, except where a sentencing judge makes an error of
    law or an error in principle that has an impact on the sentence, an appellate
    court may not vary the sentence unless it is demonstrably unfit.

In such cases, proportionality is the cardinal principle that
    must guide appellate courts in considering the fitness of a sentence imposed on
    an offender. The more serious the crime and its consequences, or the greater
    the offenders degree of responsibility, the heavier the sentence will be. In
    other words, the severity of a sentence depends not only on the seriousness of
    the crimes consequences, but also on the moral blameworthiness of the
    offender.

[22]

The court also discussed when a sentence may be considered demonstrably
    unfit at paras. 52 and 53:

It is possible for a sentence to be demonstrably unfit even if
    the judge has made no error in imposing it. As Laskin J.A. mentioned, writing
    for the Ontario Court of Appeal, the courts have used a variety of expressions
    to describe a sentence that is demonstrably unfit: clearly unreasonable,
    clearly or manifestly excessive, clearly excessive or inadequate, or
    representing a substantial and marked departure (
R. v. Rezaie
(1996), 31 O.R. (3d) 713 (C.A.), at p. 720). All these expressions reflect the
    very high threshold that applies to appellate courts when determining whether
    they should intervene after reviewing the fitness of a sentence.

This inquiry must be focused on the fundamental principle of
    proportionality stated in s. 718.1 of the
Criminal Code
, which
    provides that a sentence must be proportionate to the gravity of the offence
    and the degree of responsibility of the offender. A sentence will therefore be
    demonstrably unfit if it constitutes an unreasonable departure from this
    principle. Proportionality is determined both on an individual basis, that is,
    in relation to the accused him or herself and to the offence committed by the
    accused, and by comparison with sentences imposed for similar offences
    committed in similar circumstances. Individualization and parity of sentences
    must be reconciled for a sentence to be proportionate: s. 718.2 (a) and (b) of
    the
Criminal Code
.

[23]

To summarize, while an appellate court must accord significant deference
    to the sentence imposed by the trial judge, it may set aside a sentence where
    the trial judge made an error of law or an error in principle that had an
    impact on the sentence, or where the sentence is demonstrably unfit. The test
    for unfitness rests on the proportionality principle. A sentence will be
    demonstrably unfit if it constitutes an unreasonable departure from a
    sentence that is proportionate to the gravity of the offence and the degree of
    responsibility of the offender, examined in the context of the accused and the
    offence as well as similar offences committed in similar circumstances.

(2)

Imposing the maximum
    sentence

[24]

In
R. v. Cheddesingh
,
2004 SCC 16, [2004] 1 S.C.R. 433, an
    appeal by the accused from the imposition of the maximum sentence of life
    imprisonment on a conviction for manslaughter resulting from sexual assault,
    the Supreme Court held that the terms stark horror, worst offence and
    worst offender should be avoided as they add nothing to the analysis of when
    the maximum penalty may be imposed. The court stated at para. 1:

All relevant factors under the
Criminal Code
,
R.S.C.
    1985, c. C-46, must be considered. A maximum penalty of any kind will by its
    very nature be imposed only rarely (see A. Manson,
Law of Sentencing

(2001), at p. 106) and is only appropriate if the offence is of sufficient
    gravity and the offender displays sufficient blameworthiness. As is always the
    case with sentencing, the inquiry must proceed on a case-by-case basis. Here we
    are satisfied that the sentencing judge considered all the relevant factors and
    exercised his discretion judicially in sentencing the appellant to life
    imprisonment.

[25]

The Supreme Court elaborated on its brief decision in
Cheddesingh
and clarified its meaning in
R. v. L.M.
,
2008
    SCC 31
, [2008] 2 S.C.R. 163, where the court explained at para. 22 that:

Thus, the maximum sentence cannot be reserved for the abstract
    case of the worst crime committed in the worst circumstances. The trial judges
    decision will continue to be dictated by the fundamental principle that a
    sentence must be proportionate to the gravity of the offence and the degree of
    responsibility of the offender (s. 718.1
Cr. C.
).

(3)

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 accuseds
    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 luckythe ambulance
    arrived early, or some other fortuitous circumstancebut 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.

[29]

Our courts have continually emphasized that denunciation and deterrence
    are the paramount sentencing objectives for attempted murder in the domestic
    context:
R. v. Tan
,
2008 ONCA 574, 268 O.A.C. 385, at para. 31;
R. v. Boucher

(2004), 186 C.C.C. (3d) 479 (Ont. C.A.), at para
    27;
R. v. Denkers

(1994), 69 O.A.C. 391 (C.A.). In
Boucher
,
    this court specifically addressed the issue that people in romantic
    relationships must be able to end their relationships, if they want to, without
    fear of violence. The way the law sends that message is through a very heavy
    sentence that makes denunciation and deterrence the overriding considerations:

[T]his court has repeatedly emphasized that the principles of
    denunciation and deterrence are of paramount importance in cases involving
    domestic violence: see, for example,
Edwards
and

Levo

[
R.
    v. Edwards
(1996), 28 O.R. (3d) 54 (C.A.),
    leave to appeal refused, [1996] S.C.C.A. No. 201]
;
Campbell
[
R. v. Campbell
(2003), 170 O.A.C.
    282 (C.A.)]
; and
Denkers

[
R. v. Denkers

(1994), 69 O.A.C. 391 (C.A.)]. In
Denkers
, in particular, this
    court indicated that the sentences imposed in cases involving domestic violence
    must be such that they will foster an environment in which individuals can feel
    free to leave romantic relationships without fear of harassment or harm, and
    without fear of violence aimed at forcing a return to a no longer wanted
    relationship:

The victim, and others like her, are entitled to break off
    romantic relationships. When they do so they are entitled to live their lives
    normally and safely. They are entitled to live their lives free of harassment
    by and fear of their former lovers. The law must do what it can to protect
    persons in those circumstances. In this case its order that the appellant not
    have contact with the victim failed to provide that protection.

It follows that the principles
    of general and specific deterrence must be the overriding consideration in the
    determination of the sentence in this case. Those principles demand a very
    heavy sentence to act as a general deterrent to other persons who cannot abide their
    rejection by a person whom they love. The sentence must act as a specific
    deterrent to this appellant who was not deterred by the victims requests that
    he leave her alone nor by a court order requiring him to do so. [Citations
    added.]

[30]

In
Tan
, Laskin J.A. discussed the range of sentences for attempted
    murder that this court has upheld. While noting
Boucher
where this
    court granted a Crown appeal and raised a sentence of two years less a day plus
    probation to six years but did not reincarcerate, he identified the low end as nine
    years in
R. v. Campbell
(2003), 170
    O.A.C. 282 (C.A.)
. The high end is the maximum of life imposed in
R.
    v. Charlebois

(1987)
,
22 O.A.C. 235 (C.A.),
R. v. Lieug

(1995)
,
82 O.A.C. 317 (C.A.), and
R. v. Mesgun

(1997),
    36 O.R. (3d) 739 (C.A.). I would add to those cases
R. v. Simpson

(1981),
    58 C.C.C. (2d) 308 (Ont. C.A.). In the middle of the range is the case of
R.
    v. Spurway

(1996), 94 O.A.C. 58 (C.A.), where the offender broke
    into his wifes home and attempted to shoot her in bed, but the gun was
    defective and did not fire. This court reduced the global sentence of 17 years
    for which 15 were for the attempted murder, to 13 with 11 for the attempted
    murder.

[31]

Having identified the range, Laskin J.A. considered the sentence of 15
    years imposed by the trial judge. The appellant was 34 at the time of the
    offence, while the victim was a university student acquaintance. After he
    helped her move out of her boyfriends apartment, he told her he wanted to be
    her boyfriend. When she rejected his advances, he became enraged, refused to
    let her out of his car, bound her hands and feet and taped her mouth. He
    brandished a knife and told her to be quiet or he would kill her. He drove her
    three hours to a friends cottage in Bancroft, where he tried to sexually
    assault her. He then put her in a chokehold, told her he was going to kill her
    and slit her throat with the knife, then kneeled on her back and stabbed her in
    the side collapsing her right lung. He obtained her PIN number for her bank
    accounts and took all of her identification. He then dragged her into the bush,
    covered her with a tarp and left her to die. Miraculously, she regained
    consciousness, got to the main road and was picked up by a passer-by and taken
    to a hospital. She suffered serious physical and psychological long-term
    effects. The appellant eventually pled guilty and expressed remorse.

[32]

The court observed that a 15-year sentence for a first offender who
    entered an early guilty plea and expressed remorse was high. However, the court
    found that it was justified in this case for a number of reasons: a) the
    domestic context was an aggravating factor; b) the specific intent to kill; c)
    the elements of planning and deliberation; d) the prolonged duration of the
    attack; e) the concealing of the body and the identity of the victim; f) the
    victim was left to die; and g) the serious physical and psychological injuries.

[33]

A number of domestic attempted murder cases since
Tan
in 2008
    have added to and filled in the range. In
R. v. K.G.
, 2010 ONCA 177, 266
    O.A.C. 334, the accused struck and then drove over his wife from whom he was
    separated, with his two young children in the car, and left her for dead. He
    pleaded guilty to attempted murder and was sentenced to 14 years. That sentence
    was upheld by this court. In
R. v. Adamson
,
2018 ONCA 678, 364
    C.C.C. (3d) 41, the accused was the victims boyfriend. The victim was pregnant
    with his child. He entered her room while she was asleep, punched her in the
    head, told her he loved her as he cut her neck. The appellant was convicted of attempted
    murder following a jury trial. On appeal, the court upheld the sentence of 13
    years. The court identified the following aggravating factors in addition to
    the significant moral blameworthiness for the crime where there is intent to
    kill: a) the domestic-like context; b) the breach of trust; c) the planned
    nature of the attack; d) the invasion of the victims home; e) her pregnancy;
    and f) the serious consequences for the victim and her family. The victim only
    escaped death because the knife was dull.

[34]

Another relevant domestic case is
R. v. Stubbs
,
2013
    ONCA 514, 300 C.C.C. (3d) 181, where the victim was the offenders
    ex-girlfriend. He broke down her apartment door and shot her in the head at
    close range while she was calling 911. The appellant received a global sentence
    of 22 years, 16 of which were for the attempted murder. On appeal, the court
    noted that 16 years was within the range established by this court for
    attempted murder committed in the context of a domestic relationship.

[35]

R. v. Mann
,
2016 ONSC 2675 (conviction and sentence
    appeal outstanding, C65574), is an Ontario trial decision. The accused believed
    he had a relationship with a woman he met as an escort and wanted to move in
    with her, but when she did not want to talk about it with him, he smashed her
    head into the floor, partially shearing both her carotid arteries and causing
    bleeding in her brain, and he choked her around the neck fracturing her larynx.
    Due to multiple high velocity blows, her liver was broken into multiple pieces,
    which caused severe internal hemorrhaging. The victims 17-year-old daughter
    came in and saw the appellant smashing her mothers head. The daughters
    boyfriend, a large young man, tried to pull the appellant off the victim but
    was unable to do it. The appellant told the 911 operator, whom the daughters
    boyfriend had called, that his so-called girlfriend had pissed him off so I
    killed her. The intent to kill was clear. Healy J. imposed a life sentence.
    While counsel for the respondent argued in oral submissions that
Mann

is distinguishable from the present case because Healy J. found the accused
    to be deeply disturbed psychologically, there is nothing in the decision to
    indicate that Healy J. perceived this as an aggravating factor in sentencing.

[36]

In
R. v. Vienneau
,
2015 ONCA 898, the victim was the
    appellants ex-girlfriend. The appellant broke into her home while she and her
    new boyfriend were asleep. He slashed her throat, then tried to commit suicide.
    He appealed his sentence of 11 years but it was upheld by this court.

(4)

Attempted murder by
    fire

[37]

There have also been previous cases where the accused tried to kill a domestic
    partner by dousing the partner or the partners residence in gasoline and
    lighting a fire. In
R. v. Quance

(2000), 146 C.C.C. (3d) 153
    (Ont. C.A.) the appellant went to the house where his estranged wife and her
    boyfriend were living, taking with him four containers of gasoline, which he
    began to splash around the house. There was an altercation between him and his
    wife and her boyfriend, during which gasoline was spilled or poured on them.
    The gasoline ignited and the two victims were horribly burned. The appellant
    was convicted by a jury of two counts of attempted murder as well as other
    charges that were conditionally stayed. He was sentenced to 14 years in addition
    to a credit of 3 years for pre-sentence custody for a total sentence of 17
    years.

[38]

On appeal, this court upheld the sentence imposed by the trial judge.
    While the appellant was of previously good character and presented psychiatric
    evidence that he was likely suffering from an adjustment disorder and was a low
    risk to reoffend, the court focused on the very high degree of responsibility
    for the crimes, which would have been first degree murder had the victims died.
    The court also considered the horrific effect on the victims of lifelong pain
    and suffering and permanent disabilities. The court commented that the sentence
    was high given the previous good character of the appellant and his pretrial
    custody, but it was not unwarranted.

[39]

More recently, in
R. v. Borel
(15 August 2014), St. Catherines,
    1883/12 (Ont. S.C.), (conviction and sentence appeal outstanding, C62693), the
    offender who was again a man of previously good character, was convicted by a
    jury of attempted murder of his former girlfriend. The victim and the accused
    were involved in an intimate relationship for a few months. She described him
    as jealous, controlling and threatening. Following a tumultuous break-up, he
    sent her a series of very disturbing emails that she forwarded to a friend in
    case something happened to her. And it did. The accused arranged to meet her at
    a community centre, where he arrived with a jerry can of gasoline and matches,
    doused her with the gasoline and lit her on fire.

[40]

The victim suffered burns to 60% of her body. The medical evidence at
    trial was that her risk of mortality was very high. She was significantly
    disfigured and would be traumatized for the rest of her life. The accused was
    51 years old at trial. He was a first-time offender with two teenaged sons with
    whom he had a close and loving relationship. He was actively involved with
    coaching. He also had significant family support, including from a previous
    common law spouse. He was described in letters filed as peaceful, kind and
    generous. At the time of the offence, he was employed as an I.T. specialist
    with the Ministry of Government Services of Ontario.

[41]

The Crown asked for a sentence of life in prison. The defence submitted
    that the sentence should range between 7 and 11 years, in addition to credit
    for his 3 years of pretrial custody.

[42]

In fashioning the appropriate sentence, the trial judge grounded her
    analysis in ss. 718, 718.1 and 718.2 of the
Criminal Code
,
R.S.C.
    1985, c. C-46. She noted that s. 718.2 mandates that abuse of a spouse or common
    law partner and significant effect of the crime on the victim are deemed to be
    aggravating factors on sentence. She also referred to the proposition
    established in the case law that for a conviction for attempted murder the paramount
    principles of sentencing are deterrence and denunciation, while rehabilitation
    of the offender is a lesser consideration.

[43]

Focusing on the crime itself, the trial judge stated:

The circumstances of the offence are horrific and unimaginable.
    Mr. Borel purposely doused Ms. Campbell with gasoline, set her afire and
    watched her burn. This is an act of incomprehensible cruelty. I find that the
    gravity of this offence is very high, as is the degree of Mr. Borels
    responsibility.

[44]

Based on those circumstances, and taking account of the mitigating and
    aggravating factors, the trial judge concluded that the sentence must be at the
    higher end of the range for sentences for attempted murder. She rejected a life
    sentence only because of the accuseds unblemished record with no history of violent
    behaviour. The total sentence she imposed was 19.5 years made up of a credit of
    4.5 years for the 3 years in pre-sentence custody together with 15 additional
    years.

[45]

The last case involving a fire is
R. v. Klair
(2004), 71 O.R.
    (3d) 336 (C.A.), however, it was not an attempted murder nor did it occur in
    the domestic context. The appellant was a 70-year-old grandfather who was baby-sitting
    his 4-year-old grandson at his sons home. There were also tenants living on
    the lower level of the home, some of whom were at home, although it was not
    clear whether the appellant was aware of that. Around 2 p.m., the appellant
    started three fires in the bedrooms of the home, using gasoline as an
    accelerant, then walked away from the home. One of the tenants coaxed the
    grandson to come outside and doused the flames covering him. The appellant
    returned the next day intoxicated, asking if the grandchild had been saved, and
    was relieved when he was told that he had been. The grandchild suffered
    terrible burn injuries with excruciating pain and lasting disabilities and
    scarring.

[46]

The appellant pled guilty to one count of arson causing bodily harm. At
    sentencing, he denied any intention to harm his grandson and expressed remorse.
    The trial judge imposed a sentence of life in prison. On appeal, the majority
    of the panel reduced the sentence to 12 years, primarily because the appellant
    did not intend to cause harm.

(5)

Is the sentence of 11
    years demonstrably unfit?

[47]

At trial, the Crown sought a sentence of life imprisonment for each of
    the three attempted murder convictions, with no parole eligibility for 10 years.
    The respondent submitted that 10 years was appropriate and asked that parole
    eligibility be left to the Parole Board. The trial judge sentenced the
    respondent to 11 years on each count of attempted murder concurrently, leaving
    parole eligibility to the Parole Board. On the appeal, the Crown again seeks a
    sentence of life imprisonment on each attempted murder offence but does not ask
    for a limit on parole eligibility, or alternatively, an elevated sentence.

[48]

In my view, the sentence imposed must be set aside as demonstrably unfit,
    as it is wholly inadequate in light of the degree of responsibility of the
    offender and the gravity of these three attempted murders. The moral
    blameworthiness of these crimes is at the highest level. As in a number of
    other cases of especially violent attempted murders, the fact that the victims
    survived was by sheer luck. They continue to suffer terrible injuries. The
    respondent not only intentionally set fire to his girlfriend and her home, deliberately
    trapping her and the two children in the burning house, he stood outside
    without helping or calling for help.

[49]

The trial judge made a number of errors that affected the sentence.
    First, he failed to give effect to the gravity of the offence and the moral
    blameworthiness of the offender. Second, while the trial judge acknowledged
    that the crimes were carried out in a domestic context, he failed to treat
    deterrence and denunciation as the primary sentencing objectives and failed to
    appreciate why those objectives are paramount in the domestic context: see
Boucher
at para. 27. Third, although he reviewed the case law referred to him by
    counsel, the trial judge failed to use the most relevant cases to assist in
    gauging a fit sentence. As a result, the trial judge imposed a sentence that is
    wholly inadequate and therefore demonstrably unfit.

(a)

Failure to give effect
    to the gravity of the crimes and the moral blameworthiness of the offender

[50]

In the context of setting out the background to the sentencing, the
    trial judge reiterated a number of findings that he had made in his reasons for
    conviction that are particularly significant for sentencing: a) the respondents
    reaction to S.R.s request that he move out of her home was to pour gasoline on
    her and on her bed, around the room and outside the bedroom door, and then
    light it, effectively trapping her and her seven-year-old daughter in the room
    by fire; b) the respondent acknowledged that he never called to warn them and
    that he passed by the bedroom window twice on the outside and did not stop to help
    or to call them; c) he made no effort to seek help from neighbours, or to use
    his cellphone to call the fire department, an ambulance, or the police; d)
    because he could hear the screams and did nothing to help, the trial judge
    found the respondent to be steadfast in his intent to kill them both; e) the
    respondent only went in to get the baby when he realized that S.R. had escaped
    and help was on the way, and he did so for the purpose of trying to distance
    himself from causing the fire; and f) both S.R. and the seven-year-old suffered
    serious injuries.

[51]

These findings make very clear that the respondents degree of
    responsibility was at the highest level. All of his actions in setting the fire
    and his failure to act to warn or save two of the victims were for the
    deliberate purpose of murdering S.R., her seven-year-old daughter and her one-year
    old baby  and, doing it in a way that created maximum terror and horrendous
    physical and psychological suffering.

[52]

There were three victims. While the trial judge was well-aware of that,
    he failed to take it into account in discussing where, within the range of
    sentence, a triple attempted murder should properly fall. And the victims were the
    respondents live-in girlfriend and her two young children. I will discuss the
    domestic aspect more fully below. However, the fact that two helpless children
    were targeted for murder is an aspect of the case that warrants separate
    consideration when assessing the moral blameworthiness of the offender. The
    trial judge noted that it is a statutory aggravating factor under s. 718.2 of
    the
Criminal Code
and a reason for denunciation, but did not address
    it in the context of placing the sentence within the appropriate range.

[53]

The terrible gravity of this deliberate attempted murder of three
    victims and the high degree of responsibility of the offender called for a
    sentence at the high end of the range. It was an error to impose a sentence that
    was at the lower end of the range for the attempted murder of a single victim,
    and this error resulted in the imposition of a sentence that was demonstrably
    unfit.

(b)

Failure to treat
    denunciation and deterrence as primary sentencing objectives

[54]

In his discussion of the objectives of sentencing, the trial judge
    stated that denunciation and specific and general deterrence were both important
    considerations. However, while he referred to the case of
Boucher
, and
    quoted this courts directive that the principles of denunciation and
    deterrence are of paramount importance in cases of domestic violence, he did
    not make them the paramount considerations.

[55]

Rather he talked about the need to balance the principles of
    denunciation and rehabilitation. While the need to balance these factors is
    generally part of the sentencing analysis, when the offence is attempted murder
    in the domestic context, it is an error for the sentencing judge not to make
    denunciation and deterrence the paramount principles to be applied. Further,
    the trial judge appeared to give significant weight in the balancing to the
    fact that the respondent was taking courses in prison in anger management and
    supportive relationships, which he found demonstrated some insight on the
    part of the respondent into the factors that contributed to his actions, and
    also to the contents of the supportive letters that described the respondent as
    considerate, non-violent and helpful. The trial judge discussed the respondents
    rehabilitation at length in paras. 51-59 of his reasons, and specifically listed
    the potential for rehabilitation in his discussion of mitigating factors at
    paras. 65-66 of his reasons:

As a result, I have good reason to believe Mr. Kormendy can,
    with time, be rehabilitated. Mr. Kormendy has significant support from both his
    family and friends who will no doubt assist with continued rehabilitation once
    Mr. Kormendy is released from prison.

[56]

While the trial judge was entitled to take this evidence into account in
    determining the appropriate sentence, it was an error for him to give it as
    much or more weight than the paramount factors of denunciation and deterrence.
    This error contributed to the imposition of a demonstrably unfit sentence.

[57]

More significantly, although the trial judge mentioned that, under s.
    718.2 of the
Criminal Code
, the fact that the crimes were committed
    in a domestic context is deemed to be an aggravating factor, he did not refer
    to the reason that the courts have continued to emphasize the critical need for
    denunciation and deterrence to be the paramount considerations in sentencing
    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, kill her, or kill her and her children.

[58]

In this case, the respondent had moved into the victims home. He then
    tried to control her actions, whom she spoke to and where she went. When she
    told him to move out, he first argued with her, trying to get her to allow him
    to stay. But when she would not do that, he decided if he wasnt staying,
    neither was she. He proceeded to burn down the house with her and her children
    inside. The fact that this kind of situation continues to recur in the case law
    is shocking. The need for denunciation and deterrence is obvious.

[59]

Two comments in particular by the trial judge in his reasons for
    sentence demonstrate his failure to fully appreciate the dynamic in a domestic
    abuse situation. First, when discussing at para. 44 of his reasons the fact
    that the violence was directed in part at the two children, the trial judge refers
    to them as innocent victims who had nothing to do with the conflict between
    the adults.

[60]

The reference to a conflict between the adults in comparison to the innocence
    of the children fails to acknowledge and reflect the reality of the abusive
    situation where the victim was rejecting the respondents attempt to control
    her. This was not a conflict involving two active participants; this was a
    one-sided attempt to control and then, when that failed, to kill. 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.

[61]

Second, to distinguish the case of
Mann
, where a life sentence
    was imposed, the trial judge in this case stated that the victim in
Mann
was
    not a common law partner but a sex trade worker whom the accused believed he
    had the right to control. Again, the trial judge failed to appreciate that the
    offender wanted a relationship and that it is the belief in the right to
    control in a domestic situation that defines the problem in domestic abuse and attempted
    murder scenarios and is the basis for the need for denunciation and deterrence.

[62]

The trial judge also erred by purporting to distinguish this case from
    other cases of domestic violence on the basis that this was an isolated
    incident with no pattern of abuse. First, while the trial judge correctly
    recognized that the respondent had never before been convicted of a violent
    crime, the trial judge erred in going further than that, and finding that
    there was no evidence of a pattern of abuse. The trial judge failed to understand
    that the respondents controlling behaviour during their relationship, leading
    up to his refusal to leave the house when asked on the day of the fire, does
    constitute a pattern of abusive behaviour, and one that ultimately resulted in
    violence as his solution. Second, in a number of other cases, the violence also
    seemed to be an isolated incident, significantly in
Quance
and
Borel
,
    two very similar cases to this one, and in
Mann
, but significant
    sentences were still imposed to express the required denunciation and
    deterrence.

(c)

Failure to apply the
    most relevant cases

[63]

The trial judge did refer to many cases in his case law review,
    including the three cases where the accused started a fire in a home. He
    focused initially on the case of
Klair
, where this court reduced a
    sentence of life in prison imposed by the trial judge to 12 years. However,
Klair
is not a similar case because he was not convicted of attempted murder, nor was
    it a case of domestic abuse. In that case, the appellant pled guilty only to
    arson causing bodily harm and denied any intention to harm the child. Even
    then, the sentence of 12 years was higher than the one imposed by the trial
    judge in this case.

[64]

The trial judge also referred briefly to
Quance
, but effectively
    discounted its importance and relevance. There the appellant went to the home
    of his estranged wife and her boyfriend with four gas cans, spread the gas
    around the house, spilled or poured it on the victims, then lit it, causing
    terrible burns to the victims. He was convicted of attempted murder and
    sentenced effectively to 17 years (14 years plus 3 years credit for presentence
    custody). That sentence was upheld by this court. In upholding the sentence,
    Rosenberg J.A. stated at para. 40:

On the findings made by the trial judge, this was in effect an
    attempted first degree murder. The gravity of the crime could only have been
    greater if the victims had died. The appellants degree of responsibility was
    also very high. The psychiatric report, aside from indicating an adjustment
    disorder with mixed disturbance of emotions and conduct, offered no
    psychiatric explanation for this conduct.

[65]

In referencing
Quance
, the trial judge incorrectly stated that
    the sentence was 14 years (not 17). The trial judge also stated that the facts
    were somewhat distinguishable because the offender had made prior threats.
    While that is true, the fact of the prior threats was not the stated basis for
    upholding the sentence.

[66]

Finally, the trial judge also referred only briefly to
Borel
.
    In
Borel
, the trial judge imposed an effective sentence of 19.5 years on
    the appellant who was controlling of his girlfriend and, following a break-up,
    set her on fire, causing her terrible burns and pain. The trial judge in the
    case at bar focused only on the fact that the trial judge in
Borel
rejected
    a life sentence because of the appellants prior unblemished record and no
    previous violence. He did not acknowledge the relevance of the significant
    sentence of 19.5 years imposed on a similarly situated offender.

[67]

In my view, in imposing an 11-year sentence, the trial judge effectively
    excluded the importance and similarity of these cases, where significantly higher
    sentences were imposed in situations where there were fewer than three victims
    and where the offender was of previously good character.

[68]

The trial judges failure to give adequate weight to these highly
    analogous cases to discern the proper application of the underlying principles
    in a case such as this led to a sentence that is demonstrably unfit.

[69]

The trial judge and the respondent referred to some domestic attempted
    murder cases in which sentences of 11 and 12 years were imposed or upheld on
    appeal by the offender,
[2]
including
R. v. McDonald
,
[2007] O.J. No. 3859;
R.
    v. Champagne

(2002)
,
166 O.A.C. 194 (C.A.);
    and
Vienneau
.
While these
    are also terrible cases of domestic abuse, they are all distinguishable from
    the present case. In
McDonald
,
a trial decision,

there
    was no history of controlling behaviour, no prior convictions, no child
    victims, and the offender pled guilty and demonstrated remorse. Similarly, in
Vienneau
,
there was only one victim, no children were targeted, the appellant pled
    guilty, expressed remorse, and had no prior criminal record. Finally,
Champagne

involved only one victim, and the sentence imposed was still higher than
    the respondents sentence in this case.

The proper sentence

[70]

Having found that the trial judge erred in law and imposed a sentence
    that is demonstrably unfit, it falls to this court to impose the appropriate
    sentence.

[71]

Having regard to all of the circumstances discussed above, including the
    gravity of the offences, the moral blameworthiness of the offender, the paramountcy
    of the objectives of deterrence and denunciation in the domestic context, the
    fact of three victims including two children, and the terrible, lasting
    injuries to the seven-year-old child, a sentence at the high end of the range
    is required. I would impose a sentence of 20 years in prison less the credit
    for pre-sentence custody that was granted by the trial judge.

[72]

In light of all the circumstances in this case, a life sentence may well
    have been fit. However, for the reasons I have articulated, a 20-year sentence
    is also fit. Thus, in accordance with this courts customary practice when increasing
    a sentence imposed at trial, I will impose the lower of the two  a 20-year
    sentence: see
R. v. D.D.
(2002), 58 O.R. (3d) 788 (C.A.), at para. 30.

Conclusion

[73]

I would grant the Crown leave to appeal sentence, set aside the sentence,
    and impose a sentence of 20 years, less credit for pre-sentence custody.

Released: K.F. August 28, 2019

K. Feldman
    J.A.

I agree.
    David M. Paciocco J.A.

I agree. B.
    Zarnett J.A.





[1]
Mr. Kormendy is also appealing his conviction as an inmate appeal
    (C64638). On November 16, 2018, by order of MacPherson J.A., on consent of all
    parties, this Crown sentence appeal, where Mr. Kormendy is represented by
    counsel, was bifurcated from the inmate conviction appeal and allowed to
    proceed before the conviction appeal.



[2]

In such appeals, the only issue is whether the sentence should
    be lowered, not raised.


