R. v. Rose, 2020 ONCJ 381

ONTARIO COURT OF JUSTICE CITATION: R. v. Rose , 2020 ONCJ 381 DATE: 2020-08-19 B E T W E N : HER MAJESTY THE QUEEN -and- CHRISTOPHER ROSE Before Justice D. Oleskiw Heard on July 30, 2020 and August 5, 2020 Reasons for Sentencing released on August 19, 2020 B. Donohue..................................................................... Counsel for the Crown P. Morabito .................................. Counsel for the defendant, Christopher Rose Oleskiw, J. Introduction [ 1 ] On October 8, 2019 Mr. Rose pleaded guilty before me to the offences of Assault Cause Bodily Harm to D.C. in April of 2017; unnecessary injury to a dog contrary to s. 445.1(1)(

a) in December of 2017; and two counts of Assault on D. C. in April 2018 and August 2018. D.C. is Mr. Rose’s former girlfriend and the dog was a new puppy the couple had recently adopted. [ 2 ] Sentencing did not proceed on the original sentencing date of December 19, 2019 because Mr. Rose did not attend at the probation office in order to

schedule an interview for the purpose of preparing the Presentence Report ordered by the Court on October 8, 2019. The next sentencing date of January 20, 2020 also did not proceed because Mr. Rose still did not attend for

preparation of the Presentence Report. On February 7, 2020, when Mr. Rose did not attend court for his third scheduled sentencing date, the Court issued a bench warrant for his arrest. [ 3 ] Mr. Rose came before me on July 30, 2020 for the sentencing hearing after he was arrested on the warrant issued on February 7, 2020. Submissions were heard on July 30 and August 5, 2020 and today I imposed sentence with oral reasons, with written reasons to follow. These are my written reasons.

Circumstances of the Offences [ 4 ] The Agreed Statement of Facts regarding the circumstances of the offences is as follows: [ 5 ] D.C. dated the offender for a while when she was 15 or 16 years old. Mr. Rose is 7 years older than D.C. and the age difference made him uncomfortable. [ 6 ] When D.C. was 17 years old, they resumed their relationship. [ 7 ] Initially, when they each lived with their own parents, the relationship was good. However, in January of 2017, when Mr.

Rose moved out of his mother’s home and in with a friend, things became more tense and, eventually, violent. [ 8 ] In early 2017 there was an incident in which Mr. Rose asked D.C. to leave. She did not want to do so. Mr. Rose asked her several more times and eventually started walking her out of the house. In the course of getting her to leave he raised his hand and hit her head. He was wearing rings at the time. D.C. felt embarrassed and ashamed, mostly because she was asked to leave the home so aggressively in front of people that she knew. Assault Bodily Harm – April 2017 [ 9 ] By April of 2017 Mr.

Rose had moved out of his friend’s home and in with D.C. On April 27 or 28, in the early morning hours, D.C. and Mr. Rose got into an argument. Mr. Rose became frustrated and threw a marble ashtray past D.C., shattering a snake tank in the room. Glass shards fell on D.C., which Mr. Rose told her was her fault. D.C. told him to stop. Mr. Rose got up and punched her in the right eye with a closed fist. Mr. Rose does not recall, but D.C. says that Mr. Rose then grabbed her by the throat and squeezed. D.C. suffered a black eye from this assault. Animal Cruelty – December 2017 [ 10 ] On December 17, 2017, D.C. and Mr.

Rose got a puppy. By this time, they had moved out of D.C .’s parents’ home to Niagara Falls. D.C.’s parents did not want Mr. Rose around, and D.C. wanted to be with Mr. Rose. Around December 20, 2017, Mr. Rose and D.C. got into an argument. D.C. believes that the argument scared the puppy who started defecating throughout the house. Mr. Rose responded to this by throwing the puppy down concrete steps to the basement floor. D.C. was afraid to go the vet, but she recalls that the puppy was lethargic after the incident and had difficulty standing up. [ 11 ] D.C. was afraid of Mr. Rose and she loved him.

She felt like things would only get worse for her or their dog if she went to the police. Assault – April 2018 [ 12 ] In April of 2018 D.C. was rubbing Mr. Rose’s back and this startled him. He turned around and struck her in the face, hitting her nose. D.C. believed that her nose was broken but she did not seek medical treatment until much later. Assault – August 2018 [ 13 ] In the summer of 2018 Mr. Rose continued to be violent with D.C.. In particular, on August 23, 2018, in the early morning hours, D.C. got out of bed to throw up. When she returned to bed Mr. Rose was cocooned in the blanket.

D.C. tried to get some blanket, which enraged Mr. Rose. He started punching D.C. in the head. The dog began to urinate on the floor, which Mr. Rose blamed on D.C., so he continued to punch her in the head. Mr. Rose then stomped on D.C. with his slippers on. At one point, D.C. looked up to see where Mr. Rose was and he stomped on her head. [ 14 ] Mr. Rose then grabbed a knife and said that he was going to harm himself. D.C. screamed, “No, no, no”. Mr. Rose said it wasn’t worth it and D.C. should go back to bed. D.C. did not know what to do so she lay

in bed with Mr. Rose for a few hours before getting ready to “leave for work”. In fact, D.C. went to her parents’ home, where her father called the police. [ 15 ] When D.C. originally spoke to the police she only disclosed what transpired in the summer of 2018. A few days later, she met with the police and disclosed the violence throughout their relationship. SOCO photos were taken of her injuries she had at the time of her statement. These photos were entered as exhibits and show D.C. with a black eye, a large an abrasion on her left thigh, and bruising on her back shoulders and on other parts of her body.

At the suggestion of the police, D.C. got an X-ray. At the time of the x-ray, her nose was not broken but it was clear that her nose had been broken in the past and healed. Circumstances of the Offender [ 16 ] Mr. Rose is 29 years old. The Court has little objectively verifiable information about him because he did not attend for any appointments for preparation of the Presentence Report that was ordered by this Court on October 8, 2019. [ 17 ] He has a youth and criminal record that starts in 2008 and runs until September of 2014.

He has seven convictions for failing to comply with a court order and entries for escaping lawful custody, flight while pursued by peace officer and obstructing a peace officer. He has six convictions for violent offences including four robberies, one assault and one assault with intent to resist arrest. [ 18 ] Defence counsel advises that Mr. Rose has a grade 10 education and attended a computer programming course at a College, but he did not finish that programming. He last held employment as a line-cook at a roadhouse style restaurant until January of 2020.

Since October of 2019, his housing has been unstable and he says that is the main reason he did not meet with a probation officer for preparation of the presentence report. [ 19 ] Defence counsel also indicated that Mr. Rose has asthma and some abdominal issues, but no confirmation was provided. I decline to rely on unsubstantiated health information. [ 20 ] The Court has no reliable information concerning Mr. Rose’s prospects for rehabilitation. Victim Impact [ 21 ] D.C. was only 17 years old when she resumed her relationship with Mr. Rose.

She suffered extreme damage to her self esteem and could not hold down a job due to always being fatigued and covered in bruises. She has since recovered some confidence, but still suffers from nightmares, other sleep disturbances, migraines and she feels like she is “still drowning” in her words. [ 22 ] She indicates in her Victim Impact Statement that she still has trouble moving air through her right nostril and that the stomp to her left cheek on August 23, 2018 caused teeth to be impacted. She has had to have two teeth extracted.

She also indicates that much of her property was damaged during the relationship. [ 23 ] She remains to be afraid of Mr. Rose and wants no contact, even indirectly with him. Positions of the Parties [ 24 ] The Crown seeks a total sentence of 15 – 18 months ’ jail less presentence custody. Additionally, the Crown seeks two years of probation and ancillary orders. [ 25 ] The Defence seeks a conditional sentence and, in the alternative, a maximum of 8 months in jail. Sentencing Principles

[26] The determination of a fit sentence requires the court to consider and balance the purposes and principles of sentencing set out ins.718 – 718.2 of the Criminal Code; the aggravating and mitigating factors; and the direction of our higher courts in how these are to bebalanced. Fundamentally, any sentence I impose must be proportionate in the sense that it must be tailored to the gravity of the offenceand the degree of moral culpability of the offender. [27] Since at least 1989, starting in the case of R. v. Inwood, (ON CA), [1989] O.J.

No. 428 (C.A.), but repeated inmultiple subsequent decisions, our Court of Appeal has stressed that domestic violence is a serious offence for which deterrence anddenunciation must be the paramount sentencing considerations. In R. v. Bates, (ON CA), [2000] O.J.

No. 2558 (C.A.),Moldaver J.A., as he then was, noted at ¶. 30: The courts have been made increasingly aware of the escalation of domestic violence and predatory criminal harassment in our society.Crimes involving abuse in domestic relationships are particularly heinous because they are not isolated events in the life of the victim.Rather, the victim is often subjected not only to continuing abuse, both physical and emotional, but also experiences perpetual fear of theoffender. [28] In R. v.

Getachew, [2013] ONSC 3219, Justice Campbell emphasized at ¶. 27: ...Spouses are entitled to be protected against violence within the sanctuary of their own home. In cases where significant bodily harmhas been inflicted, such violence must be repudiated and denounced by the sentence imposed. Moreover, the existence of the spousalrelationship serves only to aggravate the circumstances of the offence as the violence of the accused is a flagrant breach of the trustinherent in such intimate relationships.

The application of these principles is especially important in cases where the victims havehad to endure persistent or prolonged assaultive behaviour over a period of time.... [29] In R. v. T.R.M., [2017] ONSC 5618, Justice Pomerance recognized the seriousness of the social problem encompassed by intimatepartner abuse at ¶. 30: ...Partner violence is a serious social problem. It often takes places in the privacy of the home, without other witnesses.

Often the victimis subject to physical and emotional abuse that leads to feelings of helplessness, hopelessness and fear, such that it is difficult for thevictim to leave the relationship.

Family violence destroys the sense of security and safety that normally attaches to the home, it can havedebilitating impact. [30] In addition to the multiple pronouncements of our higher courts, the Criminal Code directs this Court to treat it as an aggravatingfactor when there is "evidence that the offender, in committing the offence, abused the offender's spouse or common-law partner.": s.718.2(a)(ii). [31] Accordingly, while the sentencing court is always obliged to respect the principle of restraint and to consider the possibility ofrehabilitation, it is clear that deterrence and denunciation must be at the forefront of sentencing in this case.

Application to this Case [32] The mitigating factors are few. Mr. Rose pleaded guilty to these charges. However, the pleas occurred on the first day of trial anddo not have the same mitigating effect as an early guilty plea. He does get some credit for saving court time. [33] I am not satisfied that his guilty pleas or his apology for wasting the Court’s time and to the victim are genuine expressions ofremorse or acceptance of responsibility. I say this in part based on Mr. Rose’s own words, but also based on the fact that he failed toattend at his sentencing hearing.

A bench warrant was in effect for six months after February 7, 2020 until he was finally brought beforeme on July 30, 2020 for sentencing. He claims that there were complications in his life, including not being able to leave a puppy at hisfriend’s house, that caused him to miss the last sentencing date. I do not accept his excuses for failing to attend either his sentencing hearing or any probationappointment for the purpose of preparing a Presentence Report. Rather, I find that Mr.

Rose has not taken this criminal process seriously.He has not demonstrated a real acceptance of responsibility and has not shown any insight into his offending behaviour. This does notbode well for his prospects of rehabilitation. [34] There are a number of aggravating factors, including the following: [35] Mr. Rose has a previous criminal record that includes crimes of violence. [36] The offences took place in the context of a domestic relationship, which is a statutorily aggravating factor.

[ 37 ] The offences took place in the victim’s home, a place where she was entitled to feel safe. [ 38 ] The incidents were not isolated, but rather were part of a pattern of abuse and violence. [ 39 ] The offences are marked by the offender’s attempts to control the victim not only through direct violence to her, but also through humiliation, violence to their puppy, and threats to harm himself. [ 40 ] D.C. was only 17 years old when the abusive relationship started and Mr. Rose was seven years older than her. The severe emotional trauma and damage to her self-esteem cannot be understated.

She also suffers lasting physical injuries from the assault, including issues with her nose and teeth. [ 41 ] The last assault on August 23, 2018, in particular, although only charged as a simple assault, involved repeated punching to the victim’s head and stomping on her body and her head. [ 42 ] In R. v. Smith, [2011] ONCA 564, the Court of Appeal concluded that a sentence of one to two years will generally be appropriate for a conviction for common assault when committed against a spouse or domestic partner in the context of a lengthy pattern of domestic abuse (¶. 86). The common assault for which Mr.

Smith was sentenced was domestic violence over a period of six years wherein he pinched the victim’s legs, elbowed her in the stomach, threw forks at her, whipped the back of her legs with a wire, grabbed her hair, hit her on the back of the head and kicked her (¶. 27). For this, the Court of Appeal endorsed a sentence of 10 months jail consecutive to a 2 month sentence on a count of uttering threats and a 2 year sentence on a count of sexual assault (¶. 91). [ 43 ] In R. v. Deacon , [2018] O.J.

No. 241 , Justice Henschel helpfully analyzed the sentencing decisions in Getachew and T.R.M . and concluded that a sentence of two years’ custody for the offence of assault bodily harm was a fit sentence, to run concurrently with two year sentences for separate incidents of assault with a weapon and another simple assault. In Deacon the facts of the assault bodily harm were similar to the case before me, but in that case there were further aggravating factors of Mr.

Deacon having a more serious prior criminal record that included a long history of violence (although not domestic violence), and the fact that the offences occurred in the presence of the victim’s children. [ 44 ] In R. v. Shepherd , [2020] O.J. No. 676 , the Ontario Court of Appeal upheld a sentence of two years less one day on one count of assault bodily harm in a domestic context.

Although the facts are not flushed out in the appellate decision, the Court notes that the “assault was significant and the bodily harm substantial” but that the mitigating factors included the fact that the offender had family support, was intelligent with employable skills and was working on his mental health concerns. [ 45 ] In R. v. Jamieson , [1999] O.J. No. 3437 Justice Fraser sentenced the offender to 16 months’ jail on one count of assault bodily harm where the victim was “punched and kicked senseless” but, by luck, suffered relatively minor injuries. This case is relevant to my consideration because Mr.

Rose’s assault upon D.C. on August 23, 2018 was repeated punching of D.C. ’s head, then stomping on her body and then, when she looked up, stomping on her head. It is, frankly, fortuitous that the bruising, abrasions and black eye seen in Exhibits 3 and 4 are the only physical injuries D.C. suffered from this last assault. [ 46 ] Mr. Morabito has also provided me with the case of R. v. Mercer, [2018] ONSC 881, wherein Justice Doyle, sitting as a

summary conviction appeal court, afforded the sentencing judge “great deference” and refused to interfere with an eight month custodial sentence for one count of assault bodily harm the facts of which are somewhat similar to the case before me, and one count of assault involving shaking and a knee to the victim’s stomach. [ 47 ] I have considered all of the cases put before me and will not detail the facts of any more of them in this judgement. I note, however, that the case of R. v. Helfer , [2014] O.J.

No. 2984 (OCJ) , has been of assistance in reminding this Court that the offence of cruelty to an animal is also an offence for which denunciation and deterrence must be emphasized. [ 48 ] In this case, the Crown proceeded summarily. Accordingly, the maximum custodial sentences are 18 months on the assault bodily harm, 6 months on the assault charges and 18 months on the cruelty to animal charge. [ 49 ] It is patently obvious to this Court that a conditional sentence would be unfit for Mr.

Rose. [ 50 ] Balancing all of the relevant facts set out above and the applicable sentencing principles, I find that a fit sentence is a total sentence of 16 months ’ jail less credit for presentence custody. The custodial time will be apportioned as follows:

̶ Assault Bodily Harm on April 27/28, 2017 being the punch in face which resulted in a black eye: 6 months jail; ̶ Cruelty to animal on December 20, 2017, throwing the puppy down the stairs: 1 month jail, consecutive; ̶ Assault in April 2018 being the punch in face which likely caused her broken nose: 3 months jail, consecutive, less credit of 77days for 51 days of presentence custody.

Thus, the actual sentence on this count today is 13 days jail, consecutive. ̶ Assault on August 23, 2018 being the prolonged beating after D.C. was sick, including stomping which resulted in the physicalinjuries shown in Ex. 3 & 4; 6 months jail, consecutive. [51] Mr. Rose has spent 51 real days in presentence custody. I am prepared to grant him credit for those days at a ratio of 1.5 to 1. He will receive 77 days’ credit which will apply to the assault in April of 2018.

Accordingly on that count he will be sentenced todayto a period of 13 days jail. [52] In crafting this sentence I have considered that the COVID-19 pandemic may, going forward, cause the offender to be subject toharsher conditions in prison than would otherwise be the case. At the time of sentencing, the pandemic is under relative control in theProvince of Ontario. However, in the event of a second or subsequent waves, it is likely that conditions of imprisonment will beadversely affected. In recognition of the very real possibility of subsequent waves of COVID, I have given Mr.

Rose two months lesstotal custody than I otherwise would have: See R. v. Hearns, 2020 ONSC 2365 , [2020] O.J. No. 1648 (ONSC). [53] I have also considered the principle of totality when deciding that these sentences are properly served on a consecutive, rather thana concurrent basis. [54] Upon his release, Mr. Rose will also be subject to a probation order for 18 months.

The terms of that order will include thestatutory terms outlined in s. 732.1(2) of the Criminal Code as well as the following additional terms: ̶ Report to a probation officer within 48 hours of your release from custody and thereafter at all times as places as directed by yourprobation officer or designate. ̶ Do not contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means with D.C. anddo not be within 200 metres of any place where you know her to live, work, go to school, frequent or any place you know her to be. ̶ Do not possess any weapons as defined by the Criminal Code. ̶ Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer andcomplete them to the satisfaction of the probation officer, particularly for: domestic violence, which may include the Partner AssaultResponse (PAR) Program. ̶ Sign any release of information forms or provide proof to the probation officer that you have attended at and successfullycompleted the above programs. ̶ Do not to own any animal as a pet and you are not to reside in the same residence as a dog or cat. [55] There will be a s. 110 Order prohibiting you from possessing weapons for a period of 5 years as well as a DNA Order pursuant to s.487.051(1) of the Code.

The victim fine surcharge will be waived. Released: August 19, 2020 Justice D. Oleskiw