R. v. Kormendy, 2019 ONCA 676
APPEAL FROM SENTENCE - ATTEMPTED MURDER - DEMONSTRABLY UNFIT
Background
ONCA increases the Respondent’s sentence from 11 years to 20 years concurrent on 3 counts of attempted murder. The Respondent attempted to kill his girlfriend, SR, and her two children by burning down their house. At sentencing, SR provided a victim impact statement where she described the horrific physical and emotional toll the incident and injuries on her and one of her daughters.
On trial, the Crown sought a life sentence with parole ineligibility set to 10 years. The Respondent sought a 10 year sentence with parole eligibility left to the Parole Board. The trial judge weighed the horrific nature and consequences to the victims, the presence of alcohol given the Respondent’s history with alcohol against the Respondent’s lack of prior abuse. Ultimately, the trial judge imposed a sentence of 11 years concurrent for each of the attempted murder counts.
Analysis
1) When can an appellate court intervene on sentencing?
The test of appellate review of a sentence imposed by a trial judge was recently summarized by the SCC in R v Lacasse, 2015 SCC 64. Appellate courts must pay significant deference to a sentence imposed by a trial judge. An appellate court, however, may set aside a sentence where an error of law, or an error of principle had an impact on the imposed sentence.
Additionally, Lacasse confirmed that a sentence may be ‘demonstrably unfit’ even if the judge made no error in imposing it. A sentence is ‘demonstrably unfit’ when it represents an unreasonable departure from the principle of proportionality codified in s. 718.1 of the Criminal Code.
2) When is it appropriate to impose the maximum sentence?
In R v Cheddesingh, 2004 SCC 16, the SCC confirmed that a maximum sentence, by its very nature, will only be imposed rarely as it will only be appropriate if the offence is of sufficient gravity, and the offender is of sufficient moral blameworthiness. The court, however, held that maximum sentences are not necessarily reserved for the “worst offences” or “worst offenders”.
3) What are the primary sentencing considerations for attempted murder?
The moral blameworthiness for attempted murder is equally as serious as for murder (See R v Logan, [1990] 2 SCR 731). A murder, or attempted murder, committed in a domestic context is of heightened seriousness given the increased vulnerability of a domestic partner and the inherent relationship of trust between the perpetrator and victim. As a result, denunciation and deterrence are the primary sentencing objectives for domestic attempted murder (See R v Tan, 2008 ONCA 574).
4) Is the sentence of 11 years demonstrably unfit?
Yes, as it does not reflect the degree of responsibility of the offender or the gravity of the three attempted murders. While the victims ultimately survived, the Respondent’s intent was to kill them as demonstrated by the fact that he did not assist them to escape and did not call for help.
Feldman JA, writing for the court, identifies a number of errors made by the trial judge in imposing a sentence of 11 years (per count):
First, the trial judge failed to give sufficient weight to the gravity of the offence and moral blameworthiness of the offender. The evidence in this case establish that the Respondent’s degree of responsibility was at the highest level: he intentionally set a fire and purposefully failed to warn or save the victims with the express purpose of killing them. The fact that two of the victims were helpless children further aggravates the seriousness of the offence.
Second, although the trial judge reference deterrence and denunciation as the primary sentencing objectives in domestic cases, he failed to give effect to these considerations in imposing a sentence. In his reasons for sentence, the trial judge focused on rehabilitation. The trial judge did not fully appreciate the heightened importance of deterrence and denunciation in the domestic context. Courts must send the message to violent partners that their conduct is criminal and will be dealt with severely by the court system. No partner or person is entitled to exert control over another person.
Third, the trial judge failed to use the most relevant case law to gauge a fit sentencing range. The trial judge’s 11 year sentence was significantly lower than highly analogous cases where there were fewer victims.
5) What is the appropriate sentence?
Given the presence of several aggravating factors: the severe gravity of the offence, the high degree of blameworthiness of the Respondent, denunciation and deterrence as the primary sentencing objectives, three victims including two children, and the long-lasting, horrific effects of the offence require the imposition of a sentence at the high end of the range.
Feldman JA, writing for the court, grants the Crown’s appeal, and imposes a sentence of 20 years per count, less credit for pre-sentence custody.
Read the full decision here.