R. v. Danielisz

2009 BCCA 401 R. v. Danielisz COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Danielisz, 2009 BCCA 401 Date: 20090914 Docket: CA036227 Between: Regina Respondent And David Laszlo Danielisz Appellant Before: The Honourable Madam Justice Rowles The Honourable Madam Justice Kirkpatrick The Honourable Madam Justice Neilson On appeal from: Provincial Court of British Columbia, May 29, 2008 (R. v. Danielisz, 78766-1K) Oral Reasons for Judgment Counsel for the Appellant: R. Dhanu Counsel for the Respondent: U. Botz Place and Date of Hearing: Vancouver, British Columbia September 14, 2009 Place and Date of Judgment: Vancouver, British Columbia September 14, 2009 [1] NEILSON J.A.: On May 29, 2008, the appellant plead guilty before a Provincial Court judge to a charge of assault causing bodily harm to his wife. This was his eighth conviction for assaulting her since 2001. The Crown proceeded by indictment. The judge determined that a fit custodial sentence was three years, but deducted 10 months from that as the appellant had spent five months in pre-trial custody. Thus the actual custodial sentence was 26 months. The judge also imposed two years' probation with terms that the appellant have no contact with his wife and attend counselling as directed. [2] The probation order was illegal pursuant to s. 731(1)(b) of the Criminal Code, which provides that a probation order may only attach to a custodial sentence that does not exceed two years. The appellant accordingly sought leave to appeal his sentence and have the probation order set aside. The parties agree that the illegality must be corrected, but disagree about how that should be done. [3] The appellant argues that the probation order should be struck and his custodial sentence remain unchanged. He says that is the routine remedy in this situation and best reflects the paramount concern of the sentencing judge that he must be physically isolated from his wife. He also says that to reduce his custodial sentence in order to retain the probation order would interfere with his involvement in institutional programming that has been very beneficial to him. He says that he and his wife have terminated their relationship and so the risk of any future danger to her is minimal. [4] The Crown seeks an order reducing the custodial sentence to two years and increasing the term of probation to three years. It says that, given the history of assaults on the same victim, the paramount concern should be a condition of no contact for the longest possible term. In addition to his history of assaulting his wife, the appellant has three convictions for breaching probation orders imposed in relation to those assaults, two of which resulted from him breaching a no contact provision. [5] It is clear that when an offender appeals his sentence an appellate court, in considering the fitness of the sentence, has the discretion to increase it or decrease it: Regina v. Hill, [1977] 1 S.C.R. 827, 25 C.C.C. (2d) 6. [6] The sentencing judge gave comprehensive reasons. He described the circumstances of the offence at paras. 4-6 of his decision: [4] The incident had its beginnings on New Year's Eve 2007. You and your wife, Heather Danielisz, the victim and complainant in this case, were having a New Year's celebration. Considerable alcohol was consumed by you, and matters began to degenerate as the evening wore on. [5] The unhappy aspect of the events of that evening began with name-calling. You used foul and frankly grotesque language to refer to your wife. She understandably sought to take refuge from you, to get some distance from you. You punched her in the chest clavicle area. She sought refuge again by moving to your daughter's empty bedroom and you sought her out in that location and administered more punches. [6] During one of the interactions on this unhappy occasion, you struck Ms. Danielisz with an open hand across the side of her face with sufficient force to cause markings to her face and most particularly to tear an earring completely out of her ear lobe, an earring that was in place by reason of a piercing. [7] He then went on to consider the victim impact statement and the significant psychological, physical and economic injury the appellant's wife and her family had suffered as a result of the appellant's chronic aggression and violence towards her over seven years. He noted the positions taken by the Crown and defence, and reviewed the aggravating and mitigating factors, as well as the sentencing objectives set out in the Code. It is clear from his reasons that he viewed the wife's future safety and security as the most important objectives to be served by the sentence imposed. [8] Apart from the aspect of illegality, neither party argues that the sentence was unfit. Nor have they pointed out an error in principle, or a failure to consider some relevant factor or principle. In those circumstances, the sentence imposed is subject to a deferential standard of review: Regina v. C.A.M., [1996] 1 S.C.R. 500, 150 C.C.C. (3d) 327 at paras. 89-92. [9] In my view, reduction of the custodial sentence by two months and maintenance of a two year term of probation with the present conditions provides the most appropriate means of curing the illegality, while maintaining the substance of the original sentence imposed and its objectives. [10] The Crown seeks a minor amendment to condition five of the existing probation order to clarify the no contact order. The appellant does not oppose that and, accordingly, that condition should be changed to read as follows: You must have no contact whatsoever, directly or indirectly, with Heather Danielisz, even with her consent, except through legal counsel or a family justice or court counsellor. [11] I would accordingly grant leave and allow the appeal to the extent of reducing the custodial sentence from 26 months to two years, and amending condition five as indicated. [12] ROWLES J.A.: I agree. [13] KIRKPATRICK J.A.: I agree. "The Honourable Madam Justice Neilson"