R. v. Wardak, 2011 ONCJ 583

COURT FILE No.: 998-11-04214-00 DATE: 2011·10·24 Citation: R. v. Wardak , 2011 ONCJ 583 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — WALY WARDAK Before Justice K.P. Wright Heard on April 26, July 9, September 9, 2010 and February 7, February 8, May 3 and May 6, 2011 Reasons for Judgment released on June 9, 2011 Reasons for Sentence released on October 24, 2011 D. DeSantis ............................................................................................................... for the Crown S.

Willoughby ....................................................................................... for the accused W. Wardak WRIGHT J.: [ 1 ] On June 9, 2011, after a lengthy trial, this court found Mr. Wardak guilty of domestic assault and threaten death. [ 2 ] On October 18, 2011, counsel appeared before this court and made sentencing submissions and the matter was put over to today for sentence. [ 3 ] The facts that Mr. Wardak was found guilty of are set out in detail in my judgment of June 9, 2011. I do not intend to repeat them now.

I will, however, provide a brief overview of the facts for contextual purposes. Overview of the Facts [ 4 ] Mr. Wardak and Nasima Naderi were married and had five children at the time of this incident. [ 5 ] On March 14, 2009, after a verbal argument, Mr. Wardak punched Ms. Naderi in the head in the front hallway of their family residence. The blow to her head was so forceful that she became instantly dizzy and had to sit on the floor. This was followed by Mr. Wardak making comments to Ms. Naderi that amounted to a threat to kill her. Ms. Naderi, fearing and believing that Mr.

Wardak would make good on his threat to kill her, decided to attempt to scale down the outside of her building from the 4 th floor to the ground. At some point in the course of scaling the balconies she fell to the ground and injured her back. She was, however, able to right herself and flag down a passerby. The passerby took Ms. Naderi to the police station where she not only reported this incident but the fact that she had been physically and emotionally abused by Mr. Wardak, consistently, for the entirety of their marriage. Offender [ 6 ] Mr. Wardak is currently 59 years old.

He is originally from Afghanistan and moved to Canada in 1988. He and Ms. Naderi were wed in Pakistan in 1991 and shortly thereafter moved to Canada. They have since had five children, who range in age from 19 to 11 years old. All of the children currently reside with Mr. Wardak. [ 7 ] Mr. Wardak, as I understand it, has never held a job since moving to Canada and currently remains unemployed. [ 8 ] Mr. Wardak has no prior criminal record. [ 9 ] Mr. Wardak has been on a strict house arrest bail since arrested and released on these charges.

Victim Impact [10] Ms. Naderi completed a victim impact statement. In it she reports the severe emotional and physical pain she nowendures on a daily basis as a result of the abuse inflicted upon her by Mr. Wardak. [11] She finds herself unable to pursue any kind of employment or education due to the constant pain she is in. She takesmedication and does physiotherapy on a daily basis. [12] Her trauma is not limited to the physical. She is currently undergoing counselling and therapy to deal with the emotionaldamage that this abusive relationship has caused her.

In addition to dealing with the chronic physical pain, she has been shunned by herchildren and her community in Canada and abroad. Positions of the Parties [13] Both Crown counsel and defence counsel agree that Mr. Wardak’s pre-trial custody in this matter totals 27 days. Counselalso agree that Mr. Wardak should be given the benefit of his pre-trial custody on a two-for-one basis as it was served prior to anychange in the law. [14] The Crown submits that Mr. Wardak’s total sentence should be in the range of 60 to 90 days of incarceration, followed bytwo years of probation.

Crown counsel urges me to impose a sentence at the upper end of their suggested range. [15] Defence counsel submits that Mr. Wardak should be given a suspended sentence, followed by two years of probation. Analysis [16] The starting point for any domestic violence sentencing in Ontario is the Ontario Court of Appeal decision in R. v.Inwood, (ON CA), [1989] O.J. No. 428 (C.A.): This court has acted on the principle that where there is a serious offence involving violence to the person then general and individualdeterrence must be the paramount considerations in sentencing in order to protect the public.

In my opinion, this principle is applicablenot only to violence between strangers but also to domestic violence. Domestic assaults are not private matters, and spouses are entitledto protection from violence just as strangers are. This does not mean that in every instance of domestic violence a custodial term shouldbe imposed, but that it should be normal where significant bodily harm has been inflicted, in order to repudiate and denounce suchconduct.

I am pointing out later that battered wives, where there are persistent or prolonged assaults, may require specialconsideration in determining the appropriate punishment. [emphasis added] [17] The principles discussed in Inwood are equally applicable today. Moreover, courts have repeatedly recognized thatoffences of domestic violence are rarely isolated incidents. As such, a sentencing judge is directed to focus on the principles of generaldeterrence, specific deterrence and denunciation when it comes to matters of domestic violence. [18] This theme was reinforced in R. v.

Bates (2000), (ON CA), 146 C.C.C. (3d) 321 (Ont.

C.A.), in whichthe Court said at p. 330: 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. [19] The principles established in these decisions are now statutorily recognized in s. 718.2(a)(ii) of the Criminal Code. [20] The words of the Court of Appeal in Bates capture the reality of Ms.

Naderi’s life with Mr. Wardak. She was subjected toconsistent physical and emotional abuse at the hands of Mr. Wardak during their 18 years of marriage. Her injuries from the physicalassaults over the years have resulted in her inability to pursue education and employment. Her days are now consumed with attemptingto manage her pain with medication and daily physiotherapy. [21] Moreover, the evidence revealed, and I found as a fact, that Ms. Naderi was completely controlled by Mr. Wardak in thecourse of their marriage.

She was essentially a prisoner in her own home and lived in constant fear of being killed by him. Theseriousness of the threats to kill and the depth of her fear was demonstrated on March 14, 2009 when, after Mr. Wardak once againthreatened to end her life, she chose to scale the outside of her building to escape him. [22] Defence counsel argues that the history of violence as described by Ms. Naderi should not factor into my sentencingassessment. I disagree. The history of the relationship provides an important factual backdrop against which the rest of the evidence canbe considered.

In my view, it is an essential feature in the sentencing process and I am duty-bound to consider it. [23] Defence counsel argues that the specific incident where Ms. Naderi testified that she was pushed down a flight of stairsby Mr. Wardak should not be considered by the court because it was a highly contentious issue at trial. Again, I disagree. In this case Iaccepted Ms. Naderi’s evidence in its entirety and, in doing so, I accept and find as a fact that she was pushed down that flight of stairs,in the way she described, by Mr.

Wardak. [24] In my view, the history of ongoing assaultive behaviour is a serious aggravating factor in this case which I must take into

consideration, along with many other aggravating features in this case. They include, but are not limited to, the fact that these assaults almost always happened in the family home with at least one child present and more often than not resulted in injury to Ms. Naderi. [ 25 ] As previously stated, Mr. Wardak comes before this court as a first offender. The absence of a criminal record is a factor favouring mitigation of sentence, which I must also consider. I also appreciate and take into consideration all five children currently live with and are cared for by Mr.

Wardak. [ 26 ] This court, however, remains concerned that there has been no demonstration or expression of remorse by Mr. Wardak, that there has been no attempt by Mr. Wardak to gain any insight or understanding into his violent behaviour and the nature of his anger. As such, Mr. Wardak continues to pose a real risk to others, especially in a domestic context. [ 27 ] After consideration of all of the circumstances, with a particular emphasis on the aggravating circumstances as discussed above, it is my view that Mr.

Wardak’s offending must be met with a custodial sentence. [ 28 ] Determining the appropriate quantum of sentence is a difficult task. In doing so, I take into account the fact that Mr. Wardak has been on a very strict house arrest bail for the past two and a half years. I also take into account the Crown position of 90 days, despite finding the position to be an overly lenient one. But for these factors I would have been inclined to sentence Mr.

Wardak to a much lengthier period of incarceration. [ 29 ] However, balancing all the mitigating and aggravating circumstances of this case as I must, I find a sentence of 90 days, on each count concurrent, is warranted. Deducted from that will be 57 days of pre-trial custody, leaving Mr. Wardak with a total of 33 days left to serve. [ 30 ] Upon completion of the custodial portion of his sentence, Mr. Wardak will be placed on probation for three years. During that time, he will abide by the statutory terms, set out in s.732.1(2) of the Criminal Code .

He will also abide by the following conditions: • Report to a probation officer within 48 hours of his release from custody and thereafter as directed by his probation officer; • Refrain from communicating, directly or indirectly, with Nasima Naderi, except through counsel for family court purposes; • Refrain from attending within 100m of the residence, place of employment, or any place Nasima Naderi might be, except for the purposes of family court proceedings; • Refrain from possessing any weapons as defined by the Criminal Code ; and • Attend, participate in, and complete the Partner Abuse Program (PAR), or its equivalent, to the satisfaction of your probation officer [ 31 ] In addition to the term of probation, there will be a firearms and weapons prohibition under s. 110 of the Criminal Code for five years.

There will also be a DNA order under s. 487.051(3) of the Criminal Code . [ 32 ] Victim fine surcharge is waived. Released: October 24, 2011 Signed: “Justice K.P. Wright”