R. v. M.S.G., 2021 BCPC 157

Citation: R. v. M.S.G. 2021 BCPC 157 Date: 20210510 File Nos: 228743-6-K-C 228743-7-K-A Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. M.S.G. U.S.G. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. BOBLIN Counsel for the Crown: L. Kenworthy, in person; D. Moghadamian, by telecommunication Counsel for the Defendant M.S.G. R. Gill , in person Counsel for the Defendant U.S.G. D. Lawrence , in person Place of Hearing: Surrey , B.C. Date of Hearing: February 22, 2021

Date of Judgment: May 10, 2021 Corrigenda were released by the Court on May 21 and June 22, 2021.

The corrections have been made to the text and the Corrigenda are appended to this document. [ 1 ] On February 13, 2020, I found M.S.G. (“M.”) guilty after trial of three offences of aggravated assault, one offence of assault causing bodily harm, one offence of assault, and one offence of uttering threats to cause death or bodily harm, all of which he committed against his former spouse, T.K.G. (“T.”), between October 1, 2009 and June 21, 2018. [ 2 ] I also found U.S.G. (“U.”) guilty after trial of one offence of assaulting his mother, T.K.G., on or about June 21, 2018. [ 3 ] All of the offences are set out on Information 228743-6-K-C, which is the only Information before the court but for a breach offence that we will deal with later.

I am going to refer that Information from now as simply “the Information”. [ 4 ] On February 22, 2021, I heard sentencing submissions from Crown counsel and counsel for the offenders and these are my oral reasons for sentence. [ 5 ] M.S.G., U.S.G., T.K.G., and A.G. are all members of the same family, with the same surname. When I refer to them in my reasons for sentence from now on, I will refer to them by their first names only, for the sake of clarity.

I do not mean any disrespect to anyone. [ 6 ] Today I am imposing sentence on both M. and U., so I will set out the circumstances of the offences first, followed by the legal principles of sentencing, particularly as they apply to both offenders.

When I consider any legal principles that apply to only one of the offenders, the offender’s personal circumstances, and any other factors that guide my determination of the appropriate sentence for each of the offenders individually, I will address M.’s sentence first and U.’s sentence second. [ 7 ] A copy of my Reasons for Judgment, in which I set out the circumstances of the offences in detail, will be marked as the next exhibit on sentence, which will be Exhibit Number 7. The circumstances of the offences, in chronological order, in somewhat more

summary form, hopefully, for the purpose of sentencing, are as follows. [ 8 ] On a date between April 9 and April 16, 2009, M. and T. were arguing in the master bedroom when M. hit T. once on the left side of her face between her eye and her nose with a closed fist, with a lot of force, breaking her nose.

The injuries T. suffered, in addition to the nasal fracture, included swelling to both of her eyes, bruising and swelling to her nose, lacerations on her lower chin, and a through-and-through laceration to her lower lip. [ 9 ] The circumstances of this incident form the basis of M.’s conviction for assault causing bodily harm, as set out on Count 4 on the Information. [ 10 ] On a date between October 1 and October 5, 2009, M. and T. were again arguing in the master bedroom about finances and U.’s behaviour.

When T. left the room to avoid any further argument, M. called her a “bitch” and a “whore” and pushed her down the stairs from behind. T. fell to the landing area partway down the stairs, where M. pushed her again down the remaining stairs. T. fell to the floor at the bottom and when she tried to get up she could not put any weight on her left leg. Her daughter A. came and helped her to the sofa. [ 11 ] M. was off work for three days, and throughout that time, he slept with T. on the sofa and would not allow A. to take T. to the hospital, even though T. was in pain and her leg was swelling.

When M. went to work on the third day, A. asked a neighbour to help her get T. into the car because T. could not put any weight on her leg at all, and took her to Vancouver General Hospital, where T. received medical treatment. [ 12 ] When T. arrived at VGH on October 5, 2009, there was no pulse, sensation, or motor function in her lower left leg, and it was massively swollen. She was diagnosed with a traumatic occlusion, which is a blockage caused by the application of blunt force, of the left popliteal artery located at the back of her knee.

This blockage caused inadequate blood supply to the leg and the death of muscle fibres, resulting in the release of their contents into the bloodstream which, in turn, caused acute renal failure. [ 13 ] On the same day she was admitted to hospital, T. had surgeries to relieve swelling and pressure in four compartments of her left leg below the knee, which involved cutting open the tissue in and around the affected area.

The surgeon found that the popliteal artery was completely blocked, so he performed an arterial reconstruction by harvesting a vein from another part of T.’s leg and repurposing it as an artery to restore blood flow to the affected areas. The surgeon was concerned that the leg was not viable, but felt he should attempt to save it and discuss amputation with the patient after the fact. [ 14 ] Thereafter, T. had surgery for skin grafting to her left leg and suffered further complications from the injury, including a seizure, a wound infection and significant neuropathic pain.

She remained at VGH for three months and then moved to Langley Memorial Hospital for one more month for rehabilitative purposes. [ 15 ] After her discharge from the hospital in January 2010, T. suffered from pain, swelling in her leg, and mobility issues for months following. By September 2010, although she continued to experience pain in her lower leg, there was significant improvement in her mobility and function.

She was walking well, although with a limp, and she used canes for walking longer distances. [ 16 ] Photographs of T.’s leg, filed as an exhibit at trial, show that she has been seriously and permanently disfigured because of the injury M. caused and the medical intervention that was necessary to save her leg from amputation. [ 17 ] The circumstances of this incident form the basis for M.’s conviction for aggravated assault, as set out in Count Number 1 on the Information.

[ 18 ] On or about June 2, 2015, T. and M. were arguing upstairs again, this time about U. playing his music too loud. T. had asked U. to stop because the downstairs tenants were complaining. M. told T. to “shut up” and pushed her into the linen closet at the top of the stairs, where she fell against the wall. T. tried to hold on to the bannister, but she was unable to do so, slipped, and fell down the stairs. Her foot became stuck between the metal railings on the stairs at about the third or fourth step. M. came down the stairs, stepped on her foot and put pressure on it until T. heard a crack.

M. did not say anything to T. at that time; rather, he passed by her, laughed, and went into his room. [ 19 ] T. went to Surrey Memorial Hospital by ambulance the same day, where it was determined that she had a comminuted fracture of the left distal tibia and a small fracture of the distal fibula.

She was put in an above-knee cast and was not able to go home because her leg was too swollen, and she was in too much pain. [ 20 ] She was transferred to a convalescent facility on June 6 and then to Langley Memorial Hospital for further convalescent care on July 3, where she stayed until she went home on July 16, 2015.

T. testified at trial that her ankle had healed completely, and she had no continuing problems with it. [ 21 ] The circumstances of this incident form the basis for M.’s conviction for aggravated assault, as set out in Count Number 2 on the Information. [ 22 ] On or about March 11, 2017, M. was sitting on the sofa watching TV while T. was making tea in the kitchen. To T., everything seemed calm until M. got up from the sofa very quickly, picked up the tea kettle, said T. was taking too long to make the tea and threw the boiling contents of the kettle at her.

When the boiling tea hit T., she fell to the floor, screaming in pain. A. came running and called the paramedics, who took T. to Royal Columbian Hospital. [ 23 ] T. had first and second degree burns to her abdomen and lower extremities. She was discharged from hospital the same day and received home healthcare treatment for her burn wounds thereafter. She had several infections which slowed the healing process but, after about three months, her injuries had healed, except for one on her right ankle that sometimes continued to ooze.

At trial, T. testified that she “has no problems now but for the scars.” [ 24 ] Photographs of T.’s burn scars, filed as an exhibit at trial, show that she has been further seriously and permanently disfigured because of the injury M. caused. [ 25 ] The circumstances of this incident form the basis for M.’s conviction for aggravated assault, as set out in Count 3 on the Information. [ 26 ] On or about June 21, 2018, M. and T. were arguing about M. sending money to his sister in India. M. told T. to, "Suck my dick”, called her a “whore”, and suggested that U. was not his son, which made T. furious.

M. was sitting on his bed with a plate of food on his lap and T. picked up the plate and threw it on the floor. M. got up and slapped her in the face, hard. T. tried to push him, but before she could do so, M. slapped her twice more, and T. fell to the floor, given the lack of control she has over her left leg. [ 27 ] A. was present and she confronted her father about slapping her mother and threatened to call the police. M. denied slapping T. and told A. to “prove it” and left the room.

T. got very angry and called M. a “fucking bastard” and challenged him to “have the guts to admit” beating her up in front of his daughter. A. told T. to be quiet and suggested they go upstairs. [ 28 ] M. returned a few moments later with U. and said, "She's talking in front of me again today," at which point U. put his hand around T.'s throat and pushed her into the wall in M.'s bedroom, then picked her up off the floor by her throat briefly before he let her go. [ 29 ] T. and A. tried to leave the room but U. blocked their way and told T. to be quiet.

T. refused, and U. picked her up by the throat and pushed her up against the wall again outside the door to M.'s bedroom. T. told U. that she could not breathe and he let her go. [ 30 ] T. and A. then tried to go upstairs, but U. and M. followed them. On the stairs, U. held T. by her hair, her neck and her arms, trying to stop her from going up the stairs. T. pushed U. and told him to stay away from her and to stop beating her. U. called T. a “bitch”, told her to “shut up” and pushed her into the railing, which broke. A. told T. to come with her into the bedroom, but U. and M. followed.

At the door to the master bedroom, U. grabbed T. by the back of the neck and pushed her onto her back, on the bed. U. told T. to be quiet, and put both hands around her throat and started choking her. T. told U. that she could not breathe and tried to push him off, but she was not able to do so. M. stood at the side of the bed and told U. repeatedly to, "Finish her. Finish her right now. Finish her", with a lot of anger and vigour in his voice. T. took “finish her, finish her”, to mean kill her. [ 31 ] T. could not breathe, and she thought her husband and son were going to kill her.

She worried about what would happen to A. [ 32 ] Meanwhile, A. was screaming at M. and U., trying to get them to stop. She then got on the bed and kneed U. in the face, dislocating her knee. U. fell against the bedroom wall, and A. got off the bed, pushed U. and M. out of the room and locked the door. A. and T. remained locked in the bedroom throughout the night and tried to figure out what to do. [ 33 ] The next day, T. went to a walk-in clinic to get checked and, for the first time, she told a doctor there the truth about what had happened.

That doctor told T. that she needed to see her own doctor and she needed to report the incident to the police. [ 34 ] T. did not report the assaults to the police, but she did see her own doctor, and also for the first time, she told her doctor the truth about what had happened. T.’s doctor told T. that if she did not report the incident to the police, she would have to. She told T. to go to the police and call her when she got there, and if she did not hear from T., she was going to report the incident to the police herself.

T. took her doctor’s advice, went to the police the same day and provided a statement. [ 35 ] Photographs filed as an exhibit at trial show that T. suffered scratches and abrasions on her chest and throat, and numerous bruises on her arms because of the assault. She also complained of pain or tenderness.

[ 36 ] The circumstances of this incident form the basis for M.’s conviction for assault, as set out in Count 6 on the Information, and for U.’s conviction for the lesser included offence of assault, as contained in Count 5 on the same Information. [ 37 ] T. testified at trial about the threats M. made to her over the course of their 33-year marriage. As early as 2009, M. told her he would chop her into so many pieces and throw her in so many places that her family would not find her. He would also tell her that he was going to bury her in the backyard and put a cherry tree there so she would be happy.

M. said those words to her “a lot more than before” in the months leading up to the incident on June 21, 2018, especially after her mother died and M. was forced to be around T.’s family.

T. testified that, even at the time of trial, she was “100 percent sure” that M. was going to kill her one day. [ 38 ] Those circumstances form the basis for M.’s conviction for uttering threats to T. to cause death or bodily harm to her from December 21, 2017 to June 26, 2018, as set out in Count 8 on the Information. [ 39 ] I will turn next to the principles of sentencing. [ 40 ] The fundamental principles and purposes of sentencing, set out in s. 718 to 718.2 of the Criminal Code , apply to both offenders. [ 41 ]

Section 718 provides that the fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that has one or more of six objectives.

These objectives include denunciation, deterrence, protection of the public, rehabilitation, reparations for harm done to victims or to the community, the promotion of a sense of responsibility in offenders, and an acknowledgement of the harm done to victims and the community. [ 42 ] The relative weight of the various objectives will vary depending on the nature of the crimes and the circumstances of the offender. [ 43 ]

Section 718.1 provides, as a fundamental principle of sentencing, that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 44 ]

Section 718.2 provides, in part, that a court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [ 45 ] Crown counsel and counsel for M. provided me with 79 case authorities between them in support of their respective positions, which cases address the principles of sentence; the range of sentence; examples of where an offender’s sentence fell in relation to that range based on the circumstances of the offence and the offender; whether the offender’s sentences should be concurrent or consecutive; and the principles and factors that apply to the Crown’s application for delayed parole eligibility. [ 46 ] Counsel for U. provided me three authorities in support of his position. [ 47 ] A list of all of the authorities provided to me will be marked as Exhibit 8 on sentence.

Crown and defence counsel thoroughly reviewed these authorities in their submissions, and I do not intend to review them further here, but I have read and considered all of them.

I will refer only to those cases that are necessary to explain my reasons for sentence. [ 48 ] Not surprisingly, Crown counsel and counsel for M. argue that the cases the other party relies on to establish the ranges of sentence, particularly the range of sentence for aggravated assault, are distinguishable from M.’s case based on the circumstances of the offence and of the offender, including any aggravating and mitigating factors that apply. They are both right.

There are distinguishing features between all of the cases and M.’s circumstances. [ 49 ] In some of the cases counsel for M. relied on in support of his position on sentence, there were mitigating circumstances that are not present in M.’s case, including a guilty plea; that the offence was an isolated incident; the existence of exceptional or unusual circumstances; true remorse; positive PSRs; youthful offenders; that the offender had taken steps to address underlying issues and was committed to continuing rehabilitation; a real prospect of rehabilitation; the court was dealing with an Aboriginal offender or persons with mental health issues; or the offences were not committed in the context of an intimate partner relationship, none of which apply to M. [ 50 ] In some of the cases Crown counsel relied on in support of her position on sentence, the offender had a lengthy and/or related criminal record, the offences were planned or deliberated, or involved an element of unlawful confinement, or were brutal, prolonged attacks, or were surprise attacks, most of which do not apply to M. [ 51 ] While I have attempted to discern a range of sentence for the offences M. has been convicted of, based on the cases provided by both counsel in order that I can address the important principle of parity, it is trite law that sentencing is an individualized process and ranges of sentence are guidelines, not rules. [ 52 ] In R. v.

Bacon , 2013 BCCA 396 , MacKenzie J.A. commented on the usefulness, or lack thereof, of ranges of sentence at

paragraphs 38 and 39 of her dissenting judgment. Although MacKenzie J.A. disagreed with the majority’s conclusion that the trial judge had erred by declining to consider authorities presented by the Crown that included the more serious offence of conspiracy to import cocaine in arriving at the range of sentence for conspiracy to traffic cocaine, her discussion about the nature of sentencing and the limited usefulness of ranges of sentence are helpful nevertheless.

She said: [38] The Supreme Court of Canada has repeatedly said we are not "range-bound" in sentencing, that it is a highly individualized, contextual exercise that is in the discretion of the sentencing judge (subject to certain limitations), who takes into account the circumstances of the offence and the offender together with the codified principles of sentence. This means that no two sentences are bound to be the same, and why judges so often say the cases are only helpful for the general principles applicable in a case of this nature because every case depends upon its own peculiar facts. In R. v.

Nasogaluak ... at para. 44, the Court cautioned: ... while courts should pay heed to these ranges, they are guidelines rather than hard and fast rules . A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit . [Emphasis added in original.] Continuing with MacKenzie J.A.'s comments at paragraph 39, she said: [39] I agree with Madam Justice Newbury, although speaking for herself in R. v. Bernier ... when she cited the seminal R. v.

C.A.M . and said: [106] As mentioned earlier, I agree with the suggestion made by Madam Justice Southin that since Parliament has now codified the principles of sentencing, it would be better for courts to focus upon those principles and how they apply in particular cases, than on "ranges". On the other hand, I acknowledge that "ranges" are a convenient shorthand for counsel to use in making submissions on sentencing and that the Supreme Court of Canada has given its approval to this approach in cases such as R. v. C.A.M. ...

But the usefulness of ranges will always be limited by the countervailing consideration that in Canada, each case must still be assessed on its own facts and that as also noted in C.A.M., "... the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction." [ 53 ] In the final analysis, my overarching duty is to draw upon all the legitimate principles of sentencing to determine a just and appropriate sentence, which reflects the gravity of the offence committed and moral blameworthiness of the offender. [ 54 ] Turning now to the legal parameters and the ranges of sentences, to the extent that I can discern them. [ 55 ] There are no mandatory minimum sentences for any of the offences that M. and U. have been convicted of.

When the Crown elects to proceed by indictment, as happened in this case, s. 266 (

a) of the Criminal Code provides that the maximum sentence available for assault is five years’ imprisonment. [ 56 ] Based on the authorities provided to me, I find that the range of sentence for assault in the context of a domestic or familial relationship is generally between four and 12 months. (See, for example, R. v. Andrade , R. v. Ruffell , R. v. Cousineau and R. v. Vignjevic. ) [ 57 ]

Section 264.1(2) (

a) of the Criminal Code provides that the maximum sentence available for uttering threats is five years' imprisonment. [ 58 ] Based on the authorities provided to me, I find that the range of sentence for uttering threats is three to six months. (For example, in R. v. Bullewell. ) [ 59 ]

Section 267(

b) of the Code provides that the maximum sentence available for assault causing bodily harm is 10 years’ imprisonment. [ 60 ] Based on the authorities provided to me, I find that the range of sentence for assault causing bodily harm is generally five to 12 months. (See, for example, R. v. Donaldson ; R. v. Bell ; R. v. Newcombe ; and R. v. Donnelly , in which B.M. Joyce J. canvassed numerous authorities at paragraphs 37 to 43 of the decision, including R. v. Inwood; R. v. Chirimar ; R. v. Thompson ; R. v. Stokes ; R. v. Bonneteau ; and R. v.

Friginette.) [ 61 ] Section 268(2) of the Code provides that the maximum sentence available for aggravated assault is 14 years’ imprisonment. [ 62 ] In British Columbia, the range of sentence for aggravated assault is between 16 months to six years; however, sentences may go higher depending on the nature of the offence and the circumstances of the offender. (See R. v. Heiney at para. 58.) [ 63 ] Unprovoked attacks with a weapon will attract a sentence at the higher end of the range, while a consensual fight that has escalated with resulting injury tends to result in a sentence at the lower end. ( See R. v.

Craig , 2005 BCCA 484 at para. 10 .) [ 64 ] Sentences of six to eight years for assaults causing life-altering injuries to the victim are not uncommon. Even higher sentences are not unknown in especially heinous cases. (See, for example, R. v. Sesay and R. v. Wilson.) [ 65 ] I will turn to M.’s sentence now, beginning with the positions of the Crown and defence counsel. [ 66 ] Crown counsel is seeking a cumulative sentence of imprisonment for M. totalling 11 years.

They submit that consecutive sentences for each of the offences M. has been convicted of are appropriate, which add up to a cumulative sentence of 14 years and four months. However, recognizing that a 14 year and four month sentence may offend the totality principle, the Crown suggests that I adjust some of the individual sentences downward, so that M.’s cumulative sentence is 11 years, as follows.

[ 67 ] On Count 4, the assault causing bodily harm in April 2009, the nose injury, the Crown suggests four months. [ 68 ] On Count 1, the aggravated assault in October of 2009, the first leg injury, the Crown is recommending a four-year sentence, reduced in recognition of the totality principle by 11 months to three years and one month. [ 69 ] On Count Number 2, the aggravated assault on June 2, 2015, that is the ankle injury, the Crown is recommending a sentence of four years, reduced in recognition of the totality principle by 11 months to three years and one month. [ 70 ] On Count 3, the aggravated assault on March 11, 2017, this is the boiling tea incident, Crown is recommending a sentence of five years, reduced in recognition of the totality principle by 16 months to three years and eight months. [ 71 ] On Count 6, the assault on June 21, 2018, the Crown is recommending a five-month sentence, reduced in recognition of the totality principle by one month to four months. [ 72 ] On Count 8, uttering threats between December 21, 2017 and June 26, 2018, the Crown is recommending a four-month sentence, reduced in recognition of the totality principle by one month to four months. [ 73 ] That amounts to a total sentence, before reduction, of 14 years and four months, reduced on application of the totality principle to 11 years. [ 74 ] The Crown advises that M. is entitled to credit for time served of two actual days in custody.

When you multiply that by one-and- a-half days for every day he has served, he is entitled to three days enhanced credit. [ 75 ] The Crown also seeks an order for delayed parole eligibility under the Criminal Code for the sentences imposed on the three convictions for aggravated assault. They acknowledge that the order is out of the ordinary, but argue that this is not an ordinary case. [ 76 ] They argue that M.’s criminal conduct was egregious and repeated, and caused devastating physical and/or emotional harm to T. and A.

His prospects for rehabilitation are extremely limited and the psychological report supports the need to separate M. from society for an extended period. Consequently, the Crown argues, there is a pressing need in this case for a punishment that emphasizes specific and general deterrence and denunciation.

In order to give adequate expression to those principles in this case of extreme spousal violence, additional punishment is required in the form of delayed parole eligibility. [ 77 ] The Crown also seeks several ancillary orders, which are not in dispute and I will impose those orders, along with M.’s sentence, at the conclusion of my analysis. [ 78 ] Defence counsel acknowledges that the principles applicable to determining M.’s sentence are well established, including that deterrence and denunciation are more important in his case than rehabilitation.

However, he argues that the Crown’s position on sentence is disproportionate to M.’s conduct.

He submits that Crown counsel is seeking to make an example of M. and are reducing him to a mere tool to prove a point about domestic violence by seeking a sentence of 11 years' imprisonment. [ 79 ] Defence counsel argues that the injuries T. sustained, although a factor, should not be overemphasized and must not be allowed to outweigh well-established sentencing principles, including the right to be treated fairly in comparison to similarly situated offenders. [ 80 ] As I alluded to earlier in my reasons for sentence, counsel for M. argues that the cases the Crown relies on to establish the length of M.’s sentence are factually distinguishable from the case here, because they deal with offenders with significant related criminal records, offences that were planned and deliberate, those that involved unlawful confinement, or were brutal, prolonged attacks, or surprise attacks. [ 81 ] Although counsel for M. conceded in oral argument that consecutive sentences, or a combination of consecutive and concurrent sentences, are appropriate, he submits that a cumulative sentence of three to five years of imprisonment adequately addresses the principles of sentence, is consistent with the sentences for similar offenders in similar circumstances, and reflects M.’s overall moral culpability. [ 82 ] He suggests that I impose sentences of two-and-a-half years on Count 1; two years on Count 2; two years on Count 3; 30 days on Count 4; 30 days on Count 6; and one day on Count 8.

He proposes further that all counts run consecutive, one to the other, except Counts 1 and 3, for a cumulative sentence of four years, eight months and one day. [ 83 ] Counsel for M. opposes the Crown’s application for delayed parole eligibility.

He says that there is no or insufficient evidence to support the application in M.’s case. [ 84 ] I will now set out the additional legal principles that I have taken into account in determining M.’s sentence, including those that relate to consecutive versus concurrent sentences, the application of the totality principle and the Crown’s application for delayed parole eligibility.

I will also set out the fundamental principles of sentence as they relate specifically to M.’s case because he committed the offences in the context of a domestic relationship. [ 85 ] Starting with consecutive versus concurrent sentences, s. 718.3(4) (b)(

i) of the Criminal Code directs that when imposing terms of imprisonment at the same time for more than one offence, a sentencing Court shall consider directing that they be served consecutively when the offences do not arise out of the same event or series of events. [ 86 ] The test for the imposition of consecutive or concurrent sentences is “whether the acts constituting the offences were part of a linked series of acts within a single endeavour.” (See R. v. G.P.W., at para. 35, which is adopted in R. v. Li, at para. 42.) [ 87 ] More recently in R. v.

Friesen , the Supreme Court of Canada held, at paragraph 155: [155] The decision whether to impose a sentence concurrent with another sentence or consecutive to it is guided by principles. While

the issue warrants further discussion in another case, the general rule is that offences that are so closely linked to each other as to constitute a single criminal adventure may, but are not required to, receive concurrent sentences, while all other offences are to receive consecutive sentences… [ 88 ] In R. v. G.P.W. , Rowles, J.A., for the majority of the B.C Court of Appeal, concluded that consecutive sentences should be imposed when sentencing an offender for multiple similar offences, perpetrated on the same person over a long period, in a domestic setting.

She held, at paragraph 116: [116] The trial judge could not be said to have erred in principle by imposing consecutive sentences in the manner he did so that, in the end, the appellant would not benefit from the fact that he has committed so many offences over so long a period of time. In my opinion, a person convicted of separate and distinct offences should not get special consideration simply because the offences, in which the same or similar conduct is repeated, are committed against the same people in a domestic setting…. [ 89 ] I will turn now to the totality principle. [ 90 ]

Section 718.2(

c) of the Code provides that when consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. [ 91 ] In R. v. Li , the B.C. Court of Appeal advocated for a two-stage approach, whereby individual sentences are imposed for each offence and the court determines if they will be concurrent or consecutive. Then, the court will look at the cumulative sentence to determine if it is unduly harsh. D.A.

Smith J.A. held at paragraphs 26 to 28: [26] Whether sentences for multiple offences are made consecutive or concurrent, it is the task of the sentencing judge to fix an appropriate global sentence that reflects the specific circumstances of the offences and the unique circumstances of the offender.

The importance of this balancing is reflected in the principle of proportionality, which has been codified in s. 718.1 of the Criminal Code under the heading "fundamental principle": A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [27] The principle of totality also factors into the imposition of an appropriate aggregate sentence for multiple offences.

In M.(C.A.), Lamer C.J.C. described the principle as follows: [42] In the context of consecutive sentences, this general principle of proportionality expresses itself through the more particular form of the "totality principle". The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. As D.A.

Thomas describes the principle in Principles of Sentencing ...at p. 56: The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate sentence is "just and appropriate". [28] Thus, there is a two-stage approach to sentencing an offender convicted of multiple offences.

The first stage is to determine the appropriate sentence for each offence and decide whether the individual sentences should be made consecutive or concurrent. If consecutive sentences are imposed, then the second stage is to determine whether the sentences, in the aggregate, offend the totality principle.

If the sentence, as a whole, is unduly harsh or disproportionate, then the length of the individual sentences should be adjusted in order to arrive at an appropriate global sentence… [ 92 ] Another method of applying the totality principle that is available to me, rather than adjusting each of the consecutive sentences downward, is to impose one or more concurrent sentences, rather than a series of all consecutive sentences. [ 93 ] In R. v. Ivanic , for example, the trial judge imposed a series of concurrent and consecutive sentences for 11 offences, which resulted in a total or cumulative sentence of 15 years.

The judge then concluded that the totality principle prevented her from imposing a sentence of such magnitude and reduced the sentence to eight years. However, she did not assign a sentence to each individual offence and after taking time served into account, simply stated that the “global” sentence would be four years and four months. On appeal, E.A.

Bennett J.A. held, at paragraph 22, that: [22] The only error committed by the sentencing judge was to fail to impose a sentence on each offence after she had properly established a fit sentence on each count, reduced the sentence based on the totality principle, and allowed for pre-trial custody. She could have imposed a sentence on each count in several ways, choosing the one most appropriate to the circumstances.

She could have imposed a global sentence for the serious counts, with other counts to run concurrently, or she could have imposed a series of consecutive sentences following her original sentencing scheme, totalling four years and four months…. [ 94 ] To repair the warrant of committal, E.A. Bennett J.A. amended the sentence to reflect the global sentence on each count in that case. [ 95 ] I will turn next to delayed parole eligibility. [ 96 ]

Section 743.6(1) of the Code provides that if the court imposes a term of custody of two years or more for offences found in

Schedule I or II of the Corrections and Conditional Release Act, which have been prosecuted by way of indictment, the court may order that the offender be ineligible for parole until half of the sentence or 10 years, whichever is less, is served. [ 97 ] The court has the power to delay parole when it is “satisfied, having regard to the circumstances of the commission of the offence and the character and circumstances of the offender, that the expression of society’s denunciation of the offence or the objective of specific or general deterrence so requires” such an order.

[ 98 ]

Section 743.6(2) of the Code provides, for greater certainty, that the paramount principles which are to guide the court under this

section are denunciation and specific or general deterrence, with rehabilitation of the offender, in all cases, being subordinate to those paramount principles. [ 99 ] When the question arises at sentencing as to whether parole should be delayed, the court should engage in a two-stage sentencing process. [ 100 ] First, the court should evaluate the facts of the case having regard to the factors set out in s. 718 to determine a fit sentence. [ 101 ] Second, the court should review the same facts to determine whether the power to delay parole should be exercised, but this time giving priority to denunciation and deterrence over rehabilitation, as directed under s. 743.6(2). [ 102 ] The two-stage process should be viewed as one sentencing process, not requiring a special and distinct hearing “where evidence of unusual or extraordinary circumstances must be introduced.” [ 103 ] Delayed parole eligibility is an additional punishment.

Such an order remains out of the ordinary and the provision should not be applied in a routine manner. The prosecution has the burden of demonstrating that the additional punishment of a delayed parole eligibility order is required. I am referring to R. v.

Zinck , a decision of the Supreme Court of Canada, for those principles in respect of the application before me. [ 104 ] I will turn next to the fundamental principles of sentencing as they relate specifically to M.’s case. [ 105 ] There is no dispute in this case that the principles of denunciation and deterrence are of paramount importance in my determination of what M.’s sentence should be. [ 106 ] The cases cited by counsel provide me with the following guidance in that regard. [ 107 ] Deterrence and denunciation are the primary principles of sentencing in cases of aggravated assault. (See R. v.

Wilson at para. 28.) [ 108 ] Spousal violence and abuse are serious offences which require denunciatory sentences, particularly where the criminal misconduct has extended over many months. (See R. v. Cooper , at para. 23.) [ 109 ] A sentence for a serious spousal assault must impress upon the offender and others the abhorrence with which society ought to view violence committed in a person’s home. All persons have the right to feel safe within their home, from their spouses as well as from strangers.

If it is to act as a deterrent to others, the sentence for a serious spousal assault must impress upon others who might be inclined to engage in similar conduct that, if they are convicted, they will receive a punishment that is more than simply a partial denial of one’s liberty. (See R. v. Donnelly , at para. 28.) [ 110 ] The most important principles of sentencing in cases of intimate partner violence are denunciation and deterrence.

Those principles have particular application in spousal relationships where a male partner has taken the position of primary earner, and a female partner has taken the position of primary caregiver of children and homemaker, as was the case with M. and T. [ 111 ] In R. v. Brown , the Alberta Court of Appeal held, at paragraph 21, that: [21] …When a man assaults his wife or other female partner, his violence toward her can be accurately characterized as a breach of the position of trust which he occupies. It is an aggravating factor.

Men who assault their wives are abusing the power and control which they so often have over the women with whom they live. The vulnerability of many such women is increased by the financial and emotional situation in which they find themselves, which makes it difficult for them to escape. Such women's financial state is frequently one of economic dependence upon the man. Their emotional or psychological state militates against their leaving the relationship because the abuse they suffer causes them to lose their self-esteem and to develop a sense of powerlessness and inability to control events. [ 112 ]

Section 718.2 (a)(ii) of the Criminal Code provides that a judge in imposing sentence shall also take into consideration as an aggravating factor evidence that the offender, in committing the offence, abused the offender's spouse or common-law partner. [ 113 ] In R. v. Squires , the Newfoundland and Labrador Court of Appeal cited Brown and held, at paragraph 31, that: The rationale underlying

section 718.2(a)(ii) is directed to the vulnerability and dependency, particularly from an emotional, financial and psychological perspective, presumed to arise from the domestic relationship between married or common-law spouses. The relevance of this factor is heightened where physical or psychological abuse results in a sense of powerlessness making escape or leaving the relationship difficult. [ 114 ] I will turn now to the circumstances of the offender in respect of M., in particular. [ 115 ] At the time the pre-sentence report was prepared, M. was 63 years old.

He was born in India and is the youngest of six children. His father worked in agriculture and his mother was a homemaker.

M. reported to the probation officer who wrote the pre-sentence report that he was raised in a caring home environment where he was well-provided for and suffered no abuse or neglect. [ 116 ] He and T. were married in 1985 through an arranged marriage, and they have two children, A. and U. [ 117 ] M. reported that his marriage to T. was “very good”, and “he denied any issues in the marriage and contended that they had a good relationship, got along well and communicated fine.” He stated that until 2018, the family lived peacefully in their family home until T. and A. came forward with the charges and moved away.

He stated further that he had "no clue” why his wife would spontaneously fabricate offences against him.

[ 118 ] T., on the other hand, reported that, from the outset, her marriage to M. was marred by infidelity and emotional, psychological and physical abuse. T. reported that she stayed in the marriage and endured the abuse due to societal and cultural pressure from her mother. [ 119 ] M. obtained a Bachelor of Arts degree in general studies in India and described himself as a bright student.

He has been gainfully employed for most of his adult life. [ 120 ] At the time the pre-sentence report was prepared and at the sentencing hearing, M. was sharing a basement suite with U. and supporting him financially. [ 121 ] M. has no physical health problems or concerns and reported that he is of sound mental health and has not seen a psychiatrist or psychologist for any reason in the past. He denies any drug use, and although he drinks alcohol regularly, he denies that it is a problem for him.

T., on the other hand, described M.’s alcohol use as excessive. [ 122 ] M. has one criminal conviction for impaired driving from 2017, for which he received a 12-month driving prohibition and a $1,000 fine. [ 123 ] In two letters of reference filed on M.’s behalf at sentencing, he was described by his male relatives as kind, polite, generous, honest, dependable, peaceful and conscientious; “A man of strong moral character who treats others with courtesy and respect” and “a human being with a great heart and a decent person.” [ 124 ] A psychological assessment was completed in anticipation of sentencing to assess M.’s risk to reoffend, treatment options, and the likelihood of successful treatment. [ 125 ] In her psychological report, Dr.

Whitmore prefaced her comments by reporting that: Mr. [G.] was extremely guarded and engaged in positive impression management throughout the interview and testing. He was reluctant to acknowledge minor shortcomings or to disclose any negative events. As a result, the interview was brief and the information obtained limited. In addition, there were limited records.

This must be kept in mind when reading this report. [ 126 ] With respect to his background, M. reported to the psychologist that he was raised in “an idyllic home”, where he had a “perfect” relationship with his parents and siblings, free from any form of conflict. He indicated that there were no arguments at home, and he denied ever doing anything wrong and said he never required any form of punishment.

He described a “fantastic childhood." [ 127 ] He claimed that he enjoyed school and received grades ranging from 95 percent to 98 percent, describing himself as “one of the brilliant children in the class.” He said he never got into any trouble at school, and denied any fights, substance misuse, skipping of classes, or being bullied by or bullying others. [ 128 ] He described a good relationship with his wife, free from any conflict or abuse, contrary to T.’s reports.

He denied any problems and went as far as to deny any arguments. [ 129 ] He described his wife as “beautiful, loving and friendly.” He denied any negative attitudes towards women and he did not outwardly display any patriarchal attitudes. He expressed the opinion that he treats women well. [ 130 ] He also described an "excellent relationship" with his children and said that he and his wife were “ideal parents." [ 131 ] He denied engaging in any form of violence at any time toward his wife or other family members, and he continues to adamantly deny involvement in the offences before me.

When M. was questioned about how his wife incurred her injuries, he had explanations for all of them, and took no responsibility for them. When he was asked why T. would tell the police and the court that he had caused her injuries, he expressed the belief that she felt she could get more money from the sale of their house if he was blamed for them. When asked how he feels about his wife reporting these incidents to the police, he denied having any “hard feelings.” [ 132 ] He described himself as a very, very good person.

He described feeling satisfied with his life and indicated that there was nothing he would change. He expressed the opinion that he has never experienced any failures in life, aside from his current separation in which he perceived himself as having no role. [ 133 ] M. reported that he never experienced stress or worry. He indicated that he is not an angry person and denied ever experiencing any anger or frustration.

Even when the psychologist challenged him regarding the difference between the emotion of anger and the expression of anger, M. denied experiencing anger. [ 134 ] M.’s responses to psychological testing also indicated that he did not respond in a forthright manner; rather, he attempted to present an impression that was overly favourable. Given his high level of defensiveness, Dr. Whitmore concluded that the test results were unlikely to be valid and so no

interpretation was provided. [ 135 ] With respect to risk assessment, Dr. Whitmore concluded that M.’s positive impression management, his denial and his extremely guarded self-disclosure raise the possibility that risk factors not currently identified may be present, and others may have been underestimated. [ 136 ] Some of the factors that Dr.

Whitmore was able to identify include M.’s past and recent history of problems with intimate and non-intimate relationships, his lack of social support and general difficulties establishing or maintaining healthy interpersonal connections, his history of general antisocial attitudes and behaviours, his narcissistic and antisocial personality traits, a history of serious alcohol misuse, information indicating past violent and suicidal ideation, and past and recent distorted thinking about intimate partner violence.

[ 137 ] Dr. Whitmore concluded in the psychological report that: With no intervention or management in place, Mr. [G.] presents a high risk to engage in future intimate partner violence in the community if in a relationship. He presents as an individual with deeply entrenched attitudes that support and condone his violence and he continues to deny his serious actions. Future violence is likely to resemble past violence, including acts of severe violence that may be unpredictable and unprovoked.

Additionally, it is possible for Mr. [G.]'s target of violence to be transferred to another family member living within his home. In this case, his son may become a target for his violence and aggression. Mr. [G.]'s past expression of suicidal ideation, particularly when angered, and in combination with his voicing of serious violent intent, raises serious concerns. Indeed, given his attitudes and personality traits, his suicidal or violent/homicidal ideation would surface, his risk for both more severe and imminent violence, as well as his risk of self-harm, would also increase.

Mr. [G.] does not appear to be a risk for self-harm or suicide currently. [ 138 ] In her recommendations for risk management, Dr. Whitmore continued: Given Mr. [G.]'s history of serious violence, the chronicity of his violence and his denial of his actions, it is unlikely that his risk for violence can be managed in the community at this time. Mr. [G.] presents with a chronic history of serious intimate partner violence. His violence expands 33 years and has been diverse.

It is recommended that he attend and successfully complete the two-part Relationship Violence Prevention Program which is available in custody or through Community Corrections. Treatment should target his attitudes and beliefs, as well as his denial.

Unfortunately, given his deeply entrenched attitudes and resulting behaviour, his prognosis is poor. [ 139 ] I am going to turn to my analysis. [ 140 ] With respect to whether M.’s sentences should be concurrent or consecutive, and where they fit within the range of sentences established by the authorities, I cannot accede to defence counsel’s argument that the proper range of sentence is three to five years' imprisonment, on a global or cumulative basis on all counts. [ 141 ] First, in my view, putting aside the application of the totality principle for now, the law provides that M.’s sentences should run consecutively, as the offences I have found him guilty of are not “so closely linked to each other as to constitute a single criminal adventure.” On the contrary, the offences spanned years and were often separated by months, if not years. [ 142 ] Second, the cumulative sentence proposed by counsel for M. fails to adequately address the principles of deterrence and denunciation in this case, or to reflect the seriousness of the offences, M.’s moral culpability and the impact on the victims. [ 143 ] Given the nature of the three aggravated assaults M. committed against T., the range of sentence established by the authorities is four to eight years for just one of the offences.

It would effectively amount to no sentence at all for two of the aggravated assaults M. committed if I were to sentence him to a cumulative sentence of three to five years as suggested by his counsel. [ 144 ] In G.W.P ., Rowles, J.A. held, on behalf of the majority of the B.C.

Court of Appeal, that an offender should not “benefit from the fact that he has committed so many offences over so long a period of time” and “having been convicted of separate and distinct offences, he should not get special consideration simply because the offences, in which the same or similar conduct was repeated, were committed against the same person in a domestic setting.” [ 145 ] In determining where, within the range of sentence established by the authorities, M.’s sentences for the offences I have found him guilty of should fall, s. 718.2(

a) of the Code provides, that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. [ 146 ] In M.’s case, there are no mitigating factors in respect of any of the offences. [ 147 ] The pre-sentence and psychological reports, filed as exhibits at sentencing, show that M. has no remorse for, or insight into, his offending behaviour. He does not admit that he committed any of the offences and said he does not know why T. would say that he did.

He denies that there were any problems in the relationship, and maintained that he and T. had a very good marriage. He reported to the author of the pre-sentence report that he has never been physically aggressive with his wife or any other family member, and says that he has always had a good relationship with all of them and communication has never been a problem. [ 148 ] Counsel for M. raised the issue of the COVID pandemic as a factor that should reduce M.’s sentence. In my view, COVID-19 is a neutral factor in this case for two reasons.

Firstly, there is no evidence that M. is uniquely vulnerable to the virus; and secondly, this is not a time served situation or a situation where a sentence other than a lengthy prison sentence is a reasonable option. [ 149 ] In R. v. Milne , Ker J. considered a number of authorities that addressed the impact of COVID-19 on sentencing, including the authorities in R. v. Hearns and R. v. McKibbin, cited by counsel in this case.

The McKibbin decision established that, “In the absence of any specific evidence of health risk to the accused, the impact of COVID-19 on sentence is best left to the parole authorities in the province.” [ 150 ] In Milne , at paragraph 130, Ker J. found that the decisions in R. v. Greer , 2020 BCSC 1131 ; R. v. Hearns , 2020 ONSC 2365 ; R. v. Zhao , 2020 BCSC 1552 ; and R. v.

McKibbin , 2020 BCCA 337 are “the controlling decisions for this court” on the impact of COVID-19 on sentencing and determining an appropriate sentence. [ 151 ] She held, at paragraph 134: The import of McKibbin is that, in the absence of concrete evidence of significant risk to an offender's physical health, the fact of COVID-19 on its own does not result in a reduction of the length of a custodial sentence to be imposed, or count as a factor in reducing a sentence below the range otherwise supported by the case authorities. Rather, the matter is best left to the parole authorities to assess as

outlined in Greer and Zhao . [ 152 ] I also cannot accede to counsel for M.’s submission that the fact that M. has only a minor and unrelated record is a compelling mitigating factor in this case. [ 153 ] M.’s criminal record, which is minor, consists of one prior conviction for having care and control of a vehicle or vessel while impaired in August 2017.

His criminal record is a neutral factor, in my view, particularly given the number of offences he committed and the length of time over which he committed them, even though T. did not report any of them to the authorities until 2018. [ 154 ] His criminal record, or lack thereof, does not influence my decision on his sentences one way or the other. [ 155 ] The aggravating factors that I have taken into account in determining M.’s sentence, are as follows. [ 156 ]

Section 718.2 (a)(ii) of the Criminal Code provides that evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner, is an aggravating circumstance for which a sentence should be increased. [ 157 ] The application of this

section to the offences before me is obvious; T. and M. were married for 33 years before she left him, following the commission of the assault on her by M. and U. in June 2018. [ 158 ] Furthermore, the evidence at trial establishes that T. was particularly vulnerable and powerless in her relationship with M.

She was not only powerless financially because M. was the primary income earner, but psychologically, because of the ongoing violence and threats M. subjected her to over the years, her emotional vulnerabilities arising out of that violence, and the pressures, expectations and limitations imposed on her by society and her culture, including the interference and influence of her mother. [ 159 ] When M. pushed T. down the stairs the first time, T. was asked at trial why she did not tell the doctor what really happened. She testified as follows: I was really scared.

I have to tell you I was really afraid of him and afraid that I -- how would I survive without him? And I was afraid that if -- if I -- if I tell anybody, he's going to make my life much more worse than it is. It was always about, well, I don't have the money, I don't have -- you can't make anything, you can't see anybody, you can't -- all that. I was so afraid of him. And I just wanted, I wanted his attention. I wanted him to love me, I didn't want him to bring -- bring these things out and then my kids have to deal with it. I just didn't want to shame anybody for a long time.

I thought if I just -- just surviving and don't say anything, he's going to turn around and say “Wow, she didn’t say anything and now I'm going to treat her really good”. [ 160 ] When M. threw the boiling tea on her, T. testified at trial that she did not tell the paramedics the truth about what happened because her mother forbade her and A. from doing so. [ 161 ] T. testified that when she fell to the floor and started screaming in pain after M. threw the boiling tea on her, A. and T.’s mother both came running.

When T. told A. what had happened, A. insisted that she was going to tell the paramedics what happened this time. T.'s mother said, "No, don't tell the paramedics. You will see me dead if you tell the paramedics. Just stay quiet today, let her go to the hospital and we will talk about it later". [ 162 ] T. did not tell anyone at the hospital the truth about what had happened, although she wanted to very badly, and when she returned home, her mother told her that A. would never get married if T. separated from her husband.

She told T. not to tell anyone and promised to help her get A. “married off” and then T. could come and live with her. [ 163 ] T. testified that her mother was the main person in her life, the only contact she had outside her immediate family, except for her co-workers. T. had received a lot of advice from her mother over the years about how to deal with her unhappy marriage. Her mother told her that women did not matter and that whatever M. said “was the right thing” and T. would just have to do it.

She also told T. that she had to stay with M., “no matter what,” because of the shame she would bring upon her mother and the family if she left him. T. said she did not agree with her mother’s advice, but she took it because of the degree to which she depended on her mother for financial support and other things. [ 164 ] In R. v. Wilson , at paragraph 30, Baird J. held that failure or delay in seeking assistance for someone you have injured is an aggravating factor. [ 165 ] M. never offered T. any assistance after he assaulted and injured her and on one occasion, he actively prevented A. from doing so.

M.’s deliberate failure to offer T. any assistance or allow A. to offer her any assistance after he pushed her down the stairs and injured her leg for the first time gravely exacerbated the seriousness of T.’s injury and almost lead to her death or the amputation of her leg. M.’s refusal to allow T. to go to the hospital also left her with chronic pain and permanent scarring. [ 166 ]

Section s. 718.2(a)(iii.1) of the Criminal Code provides that evidence that the offence had a significant impact on the victim, considering the victim's age and other personal circumstances, including health and financial situation, is an aggravating circumstance. [ 167 ] The full impact of the offences on T. will remain unknown because she died before she completed her victim impact statement. In that portion of her victim impact statement that she was able to put to paper, T. said that she could "write a book” putting into words the impact of M.’s offences and that her statement “merely scratches the surface”.

She wrote briefly about her permanent injuries, her fear, her trauma, and the extreme level of violation she experienced, which she said has no adjective in the English language. She also described how the impact of M.’s offences continued to last long after the moment and reached far beyond her, to her loved ones, her family and friends. [ 168 ] I can also infer the impact of M.’s offences on T. from her testimony at trial, which established the foundation for M.’s convictions.

[ 169 ] A.’s victim impact statement, filed as an exhibit on sentence, establishes that M.’s offences have had a significant and lasting impact on her. A. wrote about the devastating impact on her emotional development and well-being of living in isolation and constant fear for her mother and herself. She also wrote: Even today, as I know there is a restraining order against both [M.] and [U.], I am fearful that they will find me one day and cause me harm.

I never want any contact with either [M.] or [U.] again in my lifetime. [ 170 ] Another factor that affects M.’s sentence is the fact that the offences he committed were in the context of the ongoing physical, psychological and emotional abuse of his spouse over decades.

Although I must not sentence M. for uncharged conduct, and uncharged conduct is not an aggravating factor, the history of his relationship with T. is relevant to his character and his prospects for rehabilitation. [ 171 ] There can be no dispute that M. abused T. over the course of their 33-year marriage. [ 172 ] T.’s and A.’s testimony and their victim impact statements establish that significant physical and emotional abuse were constant in M. and T.’s relationship. [ 173 ] For example, one of the reasons T. could not recall the specifics of the assault in 2009, which formed the foundation for M.’s conviction for assault in Count Number 4, with any degree of clarity is because assaults of that nature happened all the time in their relationship. [ 174 ] T. testified at trial that she was unsure whether she remained standing or fell and hit her face and nose on the Jacuzzi tub after M. punched her because the incident had happened so long ago and an assault of that nature, in that location, was not unique.

T. testified: I don't remember exactly what happened that day, if my nose hit the jacuzzi or not. But I have (indiscernible) worker at (indiscernible). There were – at that time, he had hit me so many times, my nose on that jacuzzi, the same Jacuzzi. So we had lots of fights in that jacuzzi (indiscernible) that bathroom lots of times. T. also testified: I'm really confused about this because I -- as I've been saying to you, that I got hit so many times and that I might have confused one incident with another. Defence counsel then asked T.: Okay. Well, let me ask you this Ms. [G.].

What do you remember happening that day? T. testified: That he hit me. [ 175 ] In her victim impact statement T. wrote: I had been married to M. for 33 years, and being battered and emotionally abused by him the entire duration. He hit me, spit on me multiple times during each incident on my face, arms, head, belly, pulled my hair and abused me and called me a bitch, whore, slut, bastard and much more in my language.

He brainwashed me into admitting I was not good; that I was a complete disgrace to him and the family we built and that if he was in my place, he would commit suicide out of shame, in other words telling me to commit suicide. He also started to threaten to kill me … I thought he was my family and when I expressed fear or feeling unsafe with him, he called it “my self-inflicted depression.” [ 176 ] In her victim impact statement, A. wrote: Every day, even every moment is hard when all you have known is constant fear.

Living constantly with uncertainty of when the next volatile moment is going to happen makes it hard to do anything in life.

My whole life, I have never known what is normal. [ 177 ] Furthermore, counsel for U. submitted at the sentencing hearing that I should consider, as a mitigating factor in determining U.’s sentence, that he was exposed to his father’s abuse of his mother throughout his life. [ 178 ] The history of abuse in the relationship, combined with M.’s delusional perspective on the nature of his relationship with T., as evidenced by his comments in the pre-sentence report and the psychological assessment, establish that his prospects for rehabilitation and positive change are very limited. [ 179 ] I will turn to my specific response to some of defence counsels' submissions. [ 180 ] I cannot accede to counsel for M.’s argument that M.'s sentence or sentences should fall on the lower range of a sentence for aggravated assault for the reasons he gave.

Specifically, I do not agree that recognizing the extent of T.’s injuries and taking the severity of them into account is overemphasizing them at the expense of the principles of parity and proportionality.

The Criminal Code provides for greater sentences for assault based on the harm caused and taking T.’s injuries into account is appropriate and informs my determination of a fit sentence for each of the offences of aggravated assault. [ 181 ] I do not agree that the offences set out in Counts 1 and 2 are less serious than some of the cases cited by Crown because they were not prolonged assaults; rather, they involved “just a push down the stairs.” Pushing someone forcefully down a set of stairs can lead to serious injury, or death.

It is by no means a minor offence and there are additional factors in both incidents that increase M.’s moral culpability. [ 182 ] After M. pushed T. down the stairs for the first time in 2009 and caused the injury to her leg, he showed a callous disregard for

her suffering and her health and well-being when he would not let her go to the hospital for three days, even though she was in pain and her leg was becoming massively swollen. A. was able to get her mother to the hospital only when M. left the house to go to work. When T. got to the hospital, she was in acute renal failure, which can lead to death. Her leg was so badly damaged that the surgeon feared his efforts to save it would fail and the leg would have to be amputated. T.’s leg was also terribly, permanently disfigured and she suffered pain for the rest of her life.

She also testified at trial that M. moved into another bedroom following her leg injury, in part, because he found her scars “too disgusting to look at”. [ 183 ] Then, years later, knowing full well the catastrophic consequences to T. of the earlier injury he had caused, M. pushed T. forcefully down the stairs again in 2015. He then descended the stairs, stepping on the same leg, which was caught in the bannister allowing T. no escape, and applied pressure until T.’s ankle broke.

M. then passed by T. on the stairs, and not only did he not offer her any help, he laughed at her and went into his bedroom. [ 184 ] I do not agree that the offences are less serious than those cases cited by the Crown because they were not surprise attacks, because T. was arguing with her husband immediately preceding the assaults. [ 185 ] As a society, we expect that T. ought to feel free to argue with her husband about family issues they disagree on without fear of physical assault or verbal and emotional abuse. [ 186 ] I do not agree that other offences are necessarily less serious because they were not planned and deliberate.

While planning and deliberation are aggravating factors in most offences, the fact that M. threw boiling tea on T. in a fit of annoyance and without warning, simply because he felt she was taking too long to make his tea, is horrifying. That he then did nothing at all to help her while she lay on the floor, screaming in pain, is more so. [ 187 ] I do not agree the offences are less serious because, in most of the offences, no weapon was used.

In my view, the offences M. committed are egregious in other identifiable ways, regardless of whether a weapon is used, or whether the assault was of short duration or prolonged, or a surprise versus planned and deliberated attack. [ 188 ] In addition to the offences that M. committed on his own, on one occasion, M. involved his son, U., in an assault on T.

Moreover, while U. was assaulting his own mother, M. stood there, watching and actively encouraged U. to assault her by saying, repeatedly, “finish her.” That assault by both offenders ended only when A. physically intervened and pushed U. off of his mother. [ 189 ] None of the cases cited by counsel for M. cause me to depart from the range of sentence established by the authorities generally, particularly when it comes to aggravated assault, which are obviously the harshest sentences that M. is facing. [ 190 ] In the final analysis, none of the cases cited by counsel for M. cause me to deviate from my overarching duty to draw upon all the relevant principles of sentencing to determine a just and appropriate sentence which reflects the gravity of the offence committed and the moral blameworthiness of the offender. [ 191 ] In my view, based on the offences individually and cumulatively, M.’s moral culpability is extremely high. [ 192 ] The circumstances of the offences before me establish that M. brutalized T. over at least a decade.

The offences I have convicted him of include three profoundly serious, permanently disfiguring aggravated assaults against his spouse, an assault causing bodily harm, an assault where M. actively engaged and encouraged his son to assault his mother, and uttering death threats to T. The impact on T. primarily, but also A., was significant. [ 193 ] M.’s rehabilitative prospects are extremely limited based on the pre-sentence report and the psychological assessment, and Dr.

Whitmore concluded that: With no intervention or management in place, Mr. [G.] presents a high risk to engage in future intimate partner violence in the community, if in a relationship. [ 194 ] She recommended treatment that targets his attitudes and beliefs, as well as his denial, but opined that, "Unfortunately, given his deeply entrenched attitudes and resulting behaviour, his prognosis is poor.” [ 195 ] For that reason and others, the primary principles of sentence in M.’s case are deterrence and denunciation. [ 196 ] The sentences I impose on him must adequately reflect society’s abhorrence for his conduct, they must deter M. and others like him from thinking they can get away with this type of criminal offending, and they must protect the public by separating M. from society. [ 197 ] There are no mitigating factors that would push M.’s sentence downward within the range of sentences established by the authorities, and there are numerous aggravating factors that push it upward. [ 198 ] In relation to all of the offences I am sentencing M. for today, the statutory aggravating factors apply.

They are: s. 718.2 (a)(ii) - T. was M.’s spouse; s. 718.2 (a)(iii.1) - the significant impact on T. and, with reference to that last

section again, the significant impact on A. [ 199 ] On Count Number 1, the aggravated assault in October 2009, the first leg injury, to sum up, the aggravating factors include: − no provocation; it was a surprise attack insofar as T. was attempting to walk away from the argument; − M. failed to seek medical attention for T. and actively discouraged T. and A. from doing so; − the effects of the injuries were profound and partially permanent. Before she died, T. never made before a full recovery from the surgeries that were required to save her leg and she continued to have issues with pain and mobility more than 10 years later;

− the injuries involved a substantial recovery time; − T. was seriously and permanently disfigured; and − M. displayed a callous disregard for T. following her discharge from the hospital when he refused to share a bedroom with her, in part, because her leg was “too disgusting to look at”. [ 200 ] On Count Number 1, for the aggravated assault in October 2009, I sentence M. to four years in prison. [ 201 ] On Count Number 2, the aggravated assault on June 15, 2015, the ankle injury, to sum up, the aggravating factors include: − it was an unprovoked attack; − by virtue of the previous assault, T. was rendered vulnerable and M. knew she was defenceless with her leg caught in the banister; − M. focused the assault on the same leg he had injured previously that was badly damaged as a result; and − he showed callous indifference toward her following the assault, when he offered her no assistance, but laughed at her instead as he went into his room. [ 202 ] Crown counsel had recommended a sentence of four years for that offence.

In my respectful view, that sentence is too low given M.'s moral culpability for this offence in particular. In my view, this was a particularly egregious aggravated assault where, after having caused the catastrophic injury to the same leg some years earlier, M. deliberately stepped on T.’s ankle until it broke and then laughed at her.

The principles of specific deterrence and denunciation call for a five-year sentence, in my view. [ 203 ] On Count Number 2, the aggravated assault on June 15, 2015, I sentence M. to five years in prison. [ 204 ] On Count 3, the aggravated assault on March 11, 2017, this is the boiling tea incident, to sum up, the aggravating factors include: − no provocation; − the attack was a complete surprise on a vulnerable victim who had no ability to defend or protect herself; − M. used an inherently dangerous weapon, a kettle of boiling tea, which was obviously going to cause T. painful and disfiguring injuries; − the assault had a significant impact on T. physically and left her with permanent, disfiguring scars; and − this was the third in a series of very serious assaults M. committed against his spouse. [ 205 ] On Count Number 3, the aggravated assault on March 11, 2017, I sentence M. to five years in prison. [ 206 ] On Count Number 4, the assault causing bodily harm in April 2009, the broken nose, the aggravating factors include no provocation and, of course, the statutory aggravating factors that I have mentioned at the outset. [ 207 ] On Count Number 4, the assault causing bodily harm in April 2009, I sentence M. to six months in prison. [ 208 ] On Count Number 6, the assault on June 21, 2018, the assault that involved U. as well, to sum up, the aggravating factors include: − M. enlisted his son U. to assault T., then encouraged him repeatedly to assault T. by choking her; − it was a protracted incident; − T. suffered injuries to her chest and arm; − the incident ended only when A. physically intervened; and − A. sustained an injury protecting her mother. [ 209 ] With respect to the statutory aggravating factors, I have an additional comment with respect to the significant impact on T. of this offence.

As outlined in her victim impact statement, T. thought she was going to die and she continued to fear for her life, as a result of this incident, for the rest of her life. [ 210 ] For Count Number 6, the assault on June 21, 2018, I sentence M. to six months in prison. [ 211 ] Finally, on Count Number 8, the uttering threats from December 21, 2107 to June 26, 2018, the aggravating factors include: − no provocation; and − M. uttered threats to kill T. frequently, without any discernible trigger. [ 212 ] Another remark on the aggravating statutory factor, that being the significant impact on T., I would add is that T. testified and reported in her victim impact statement that she continued to believe that M. would kill her one day. [ 213 ] On Count Number 8, I sentence M. to four months in prison, but I am going to subtract credit for time served of three days, so the

sentence on the uttering threats, Count 8, will be three months and 27 days. [ 214 ] I turn now to the application of the totality principle. [ 215 ] The Crown concedes that the cumulative sentence they recommended of 14 years and four months offends the totality principle and suggests that each of the individual consecutive sentences should be reduced accordingly.

I agree, and I agree, in particular, that the 15 years and four months sentence that I imposed must be reduced, particularly because M. is a first time offender and he has not been sentenced to a period of incarceration before. [ 216 ] However, I prefer to impose individual sentences that truly reflect M.’s moral culpability and the seriousness of the offences he committed and, to give effect to the totality principle, I will adjust some of the sentences that I would otherwise have imposed consecutively, so that they run concurrently. [ 217 ] Counts 2, 3, 4 and 6 will run consecutively, for a total period of 11 years in prison. [ 218 ] Counts 1 and 8 will run concurrently, one to the other and concurrently to Counts 2, 3, 4 and 6 in recognition of the totality principle. [ 219 ] In my view, a cumulative sentence of 11 years is not unduly harsh in the circumstances and anything less would not adequately address the principles of deterrence and denunciation, or reflect the gravity of the offences committed and the moral blameworthiness of the offender. [ 220 ] With respect to the Crown's application for delayed parole eligibility, I am not persuaded that this is a case where there is a pressing need for extra emphasis on deterrence and denunciation that will not be satisfied by the length of the sentence imposed. [ 221 ] Some of the circumstances in the cases cited by the Crown, which caused the courts concern, are not present here. [ 222 ] For example, in R. v.

Donaldson , the specific factors that led court to grant the Crown’s application for delayed parole eligibility included that the offender was bound by a common law peace bond at the time of the offence; he had a long criminal record, including 19 convictions for violent offences, some of which were committed in the context of domestic relationships; and the criminal justice system had already intervened in response to his conduct towards the victim. [ 223 ] In R. v. Leach , the B.C.

Court of Appeal held that the trial judge made no error in principle in imposing a delayed parole eligibility order where the judge concluded that: …there is a demonstrated need in the presen

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