R. v. Filipowicz, 2011 ONCJ 41

COURT FILE No.: Toronto Region Citation: R. v. Filipowicz, 2011 ONCJ 41 ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) E. Rokach, ) for the Crown ) — AND — ) ) ) WLODZIMIERZ FILIPOWICZ ) A.Harnett, ) for the defendant ) ) ) ) HEARD: January 19, 31, 2011 FELDMAN J.: [1] I found Mr. Filipowicz guilty of 3 counts of assaulting his now estranged wife, Emilia.

These findings derive fromallegations contained in a 17-count Information and relate to offences committed in a domestic context, one that covered several monthsand was marked by aggravating features of his controlling and abusive behaviour. [2] I found the narrative evidence that I admitted helpful in understanding the nature of the relationship in which theseincidents of violence occurred. In his rude and demeaning language, physical aggression and intimidating presence, the defendantdemonstrated animus towards his spouse, all of which contributed to their deteriorating marriage.

He was likely fuelled in his animosityby his mother. His anger outbursts were unpredictable and often disproportionate. [3] The defendant was also callous in his treatment of the complainant and not straightforward in his testimony about thenature of his relationship with her. He was deceitful in intercepting the complainant’s telephone calls and mean-spirited in how he wasplanning to gain custody of their son and cut her loose without support. As indicted in an earlier judgement, I found his minimizing andself-serving evidence in this regard unworthy of credit.

The Assaults [4] Sometime in December of 2007, the complainant found herself locked in the washroom with her husband after earlierbeing upbraided by him for a perceived slight. She was in a panic over the safety of her one-month old child whom she had just fed. Mr.Filipowicz was indifferent to his wife’s concerns until she became belligerent to get his attention.

In a punishing response, he shook andthen pushed her, despite her resistance, into the bathtub which caused bruising to her breast, waist and tricep. [5] On December 19, in another one of his self-described “over reactions” to a perceived affront, the defendant held a soileddiaper to his wife’s face with an intent to denigrate her and having the effect of causing her to briefly lose her breath. [6] Later on in the same day, the complainant hid a portable phone from her husband to discourage him from seeking hismother’s advice, as he usually did, following an argument between them.

The defendant could have used another phone, but insteadwent after his spouse demanding she reveal its location. She refused. In anger, he manhandled her for her defiance, pulling the chair inwhich she was sitting out from under her causing her to fall and hit her head on the floor. Victim Impact Statement [7] Ms. Filipowicz submitted a victim impact statement. She indicated that since leaving this abusive relationship she hasstruggled emotionally and suffered from depression, as well as nightmares that the defendant will return to hurt her. She says shestruggles with trust and self-esteem.

She is involved in counselling for these issues. Sentencing Principles [8] The nature and extent of domestic violence is becoming increasingly well known in the community at large. With this inmind, while the court, in sentencing an offender, should act so as to encourage his or her rehabilitation, it must remain mindful of theparamount role of individual and general deterrence in such cases. Equally important is the imposition of a sentence that reflectssociety’s revulsion and repudiation of the particular conduct: R. v. Pitkeathly, (ON CA), [1994] O.J.

No. 546 (Ont.C.A.). [9] All of these principles are elements of the overriding tenet that spouses are entitled to protection from violence. By itssanction, the court must play its limited role in addressing this pressing social concern. I am mindful of these principles in consideringthe appropriate disposition. Position of the Crown [10] Ms. Rokach, for the prosecution, suggests a global sentence of 6 months to reflect these important principles of sentencing.

She finds support for her position in R. v. Inwood, (ON CA), [1989] O.J. No. 428 (Ont. C.A.), where the accused wassentenced to 3 months for threatening and assaulting his wife causing her to suffer bruising and other minor injuries following an attackof brief duration. As in this case, that accused’s victim, a recent immigrant, was isolated and subject to a controlling and abusivehusband upon whom she was emotionally and financially dependent. Inwood refers to R. v. Glen, [1983] O.J. No. 179 (Ont.

C.A.),where the court was clear that the sanctions for domestic violence will be severe. [11] The Crown submits that the multiple assaults here causing injury and committed in the context of an abusive relationshiprequire a strict sanction to effect appropriate denunciation of this behaviour and, in particular, to deter others. She says that a conditionalsentence would not act as an adequate deterrent. Position of the Defence [12] Mr.

Harnett, for the accused, submits that the nature and scope of the violence here does not require a jail term and that asuspended sentence would satisfy the relevant sentencing principles. He says that while this is a close case, a conditional jail sentencewould be unnecessarily punitive. [13] Mr. Filipowicz is a 31-year old first offender who spent the equivalent of 8 days in pre-trial custody. It has taken 33months to complete these proceedings, an undoubted burden on all parties. [14] I am advised that the defendant is not now in a relationship and is focussed on his career and maintaining access to his son.

He has completed his designation as an accountant and works for Deloitte Touche. It is unclear if these convictions will jeopardize hisprofessional status, although a term of incarceration may cost him his employment. [15] Counsel suggests, perhaps accurately, that the accused was too inexperienced and immature to handle the stresses of amarriage to a virtual stranger and the birth of a son while still an accounting student. As noted earlier, it is unfortunate his mother didnot play a more positive role here. [16] Mr.

Harnett describes his client as an intelligent, self-reflective man who has learned some hard lessons in this humiliating,public process. He says he has taken my findings to heart. I am satisfied on the evidence that Mr. Filipowicz is a good candidate forrehabilitation and that personal deterrence is a less significant factor in the sentencing analysis.

Analysis and Conclusion [17] What is troubling on the evidence is that in the course of these events the defendant demonstrated anger impulses anddeficits of character which led him to resort to intimidation, abuse and deception to resolve conflict in his marriage and ultimately toorchestrate its demise. In my view, his behaviour caused physical and emotional harm to his victim to the degree that requires emphasison accountability, denunciation and deterrence as a signal to the community that protection of spouses from domestic violence is anoverriding principle in such cases.

In this regard I am mindful of the direction in Code s. 718.2 (a)(ii) that the court is to weigh abuse ofone’s spouse as an aggravating factor in sentencing. [18] I have concluded that the nature of these multiple assaults, in their troubling domestic context, call for a custodial term tosignal the community’s repudiation of this conduct and to deter others. I take into account the defendant’s personal circumstances inarriving at a proper disposition. [19] In imposing sentence, however, I must also bear in mind the principle of restraint set out in Code ss. 718© and 718.2 (d)and (e).

This requires that I consider the suitability of an s. 742.1 conditional sentence, one the Crown opposes and about which thedefence is unenthusiastic. [20] With regard to this sentencing option, I must be satisfied, as is required in R. v.

Proulx (2000), 2000 SCC 5 , 140C.C.C. (3d) 449 (S.C.C.), that in the circumstances, this form of disposition is consistent with the fundamental purpose and principles ofsentencing set out in sections 718 to 718.2 and importantly, that the need for denunciation or deterrence is not so pressing thatinstitutional incarceration is neither the preferred, nor only sanction. [21] On the evidence, the defendant is a potential candidate for this type of disposition. I am satisfied the safety of thecommunity would unlikely be endangered by having him serve his sentence in the community. Mr.

Filipowicz is an otherwise pro-social, productive individual who has, I infer, been at least somewhat chastened by pre-trial custody, as well as a lengthy proceeding thathas served to highlight his personal inadequacies. I also accept he is capable of benefitting from the insights to be gained fromcounselling in relation to anger management and spousal abuse. His family issues are before the Court. By his conduct and as a result ofthis sentence there may be some jeopardy to his employment, if not his career. [22] A conditional sentence is one in which both punitive and restorative objectives may be achieved.

It is also one, asindicated in Proulx, that where restorative objectives can be achieved, as in this case, it can, as well, provide a significant amount of bothdenunciation and deterrence.

This is particularly so where punitive conditions are imposed and the duration of the sentence extendedbeyond that of the term of incarceration that would ordinarily have been imposed. [23] The evidence, however, leads me to the conclusion that the aggravating circumstances apparent in these offences, includingmultiple assaults intended to degrade and humiliate the victim while causing her minor injuries, in addition to the intimidation andemotional abuse that accompanied this violence requires the imposition of a term of incarceration to effect a sanction that adequatelydenounces this conduct and serves to deter others in a way that a sentence in the community alone would not. [24] For these reasons, Mr.

Filipowicz will be sentenced to 30 days for the “washroom incident” assault. In light of hisemployment, it can be served intermittently. As well, in relation to the two remaining assaults that are part of a pattern of unacceptableabuse, he will be sentenced concurrently to 4 months to be served in the community to denounce this conduct but also to encourage hisrehabilitation. During this period of time he will be under house arrest but for religious, employment, legal or medical purposes. I will

review these terms in more detail with counsel. [ 25 ] In addition, the defendant will be placed on probation for 24 months, again on terms to be discussed with counsel. In his evidence, Mr. Filipowicz minimized his conduct, presented himself as a victim and tended to demonize his spouse. It is not yet clear he has gained insight into the nature of his distorted thinking and the impact of his behaviour. The probationary period will continue the rehabilitative process, at the same time it provides a sense of security for the complainant. Released: January 31, 2011 Signed: “Justice L. Feldman”