House arrest, no jail time for B.C. man who beat ex-wife in front of daughter

A man with a history of domestic violence convicted of beating his ex-wife in front of their five-year-old daughter will not serve any jail time, a B.C. Supreme Court judge has ruled.

The man, referred to as G.M. due to a publication ban that is in place to protect the identity of the victim, was convicted of one count of assault and acquitted of one count of sexual assault after a trial by jury last year

On Nov. 28, G.M. was sentenced to three months of house arrest followed by 21 months of probation.

The judge's reasons for sentencing were posted online Friday, shedding light on the assault itself, its impact on the victim, and G.M.'s history of domestic violence.

THE ASSAULT

Justice Geoffrey Gomery noted that G.M. partially admitted to the assault on his ex-wife and the mother of his two children, in her Richmond home in September of 2019. 

"He acknowledges that he grabbed her by the forearms and pushed her so that she fell, but I find that the assault was more serious," he wrote.

The judge, in parts of his decision, described what G.M. did as a "beating" and a "sustained assault." He accepted the victim's evidence that her ex-husband punched her in the head, neck, back, and shoulders and "struck her head on the stairs," causing bruising, dizziness and persistent pain. Hospital records and the victim's police interview supported this testimony, the judge determined.

The couple's five-year-old daughter also testified that she "saw her father hitting her mother's head on the stairs," Gomery wrote

The court heard that even though the pair had separated, they were making an effort to co-parent their two children. The family spent the day together on the day of the assault, and G.M. was going to spend the night on the couch.

"As he prepared for bed, G.M. could not find his phone. He became upset," Gomery wrote, adding that G.M. "roused" his ex-wife while looking for the device.

"He was noisy and inclined to blame someone for the fact that his phone was missing. (The victim) got up and accompanied him downstairs to help him look for the phone. G.M. and (the victim) began to argue. He says that she insulted his mother. It is clear that he was angry with her."

In a victim impact statement, the woman told the court about the impact the assault has had on her life. While the physical pain from her injuries subsided, she said she continues to experience anxiety, depression and symptoms of post-traumatic stress disorder.

"She says that she has recurring nightmares in which she is assaulted, and has trouble sleeping. All this has affected her parenting because she is anxious that G.M. will come after them," the court heard.

HISTORY OF DOMESTIC VIOLENCE BUT NO CRIMINAL RECORD

Gomery said that G.M.'s criminal record consisted of "a single, stale conviction" for impaired driving in 1998.

But the decision also noted a more recent and relevant history of involvement with the criminal justice system.

In 2014, G.M. entered into a peace bond after a complaint that the victim in the current case made to police.

"While this did not involve a criminal conviction or an admission of criminal conduct by G.M., it would have resulted from a complaint by (the victim) that she had reasonable grounds to fear that he would cause her personal injury or would damage her property," Gomery wrote.

A peace bond often functions as a protection or no-contact order, requiring a person to abide by conditions or face a criminal charge for breaching those conditions. G.M. was never charged with a breach and the peace bond expired after 12 months.

In 2011, the judge said, G.M. was convicted of assaulting a "former intimate partner." However, he was given a conditional discharge, meaning "the conviction does not form part of his criminal record."

This option is available for all crimes except those with mandatory minimum sentences or those that carry a sentence of more than 14 years in prison.

"The court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order," according to the Criminal Code of Canada.

THE SENTENCE

G.M.'s defence lawyer argued for either a conditional discharge or a suspended sentence with 24 months of probation. Unlike a conditional discharge, a suspended sentence is reflected on one's criminal record. 

Gomery rejected the option of another conditional sentence, citing G.M.'s past as well as the details of the assault.

"It is not in the public interest that G.M. be discharged without a criminal record. In coming to this conclusion, I am particularly influenced by his prior receipt of a conditional discharge for a domestic assault in 2011. That experience and the peace bond G.M. entered into in 2014 should have prodded G.M. into self reflection and earlier efforts to govern himself," the judge wrote.

"I am also influenced by the nature of the offence. It was a sustained assault on his ex wife in her home while she was vulnerable, resulting in lasting injuries, and it was witnessed by his young daughter. The community would rightly regard such an assault as deserving of particular condemnation."

The Crown asked for a four-to-six-month jail sentence or a conditional sentence of the same length that would "amount to house arrest" followed by 18 months of probation. In addition, the Crown asked for a firearms prohibition, an order to submit DNA, and an order to reimburse the victim for medical costs.

In deciding on a three-month sentence to house arrest followed by 21 months of probation, the judge listed a number of aggravating factors, including the fact that it was a case of domestic violence, that the victim was harmed in her home which should have been a safe place, and the fact that it was witnessed by the five-year-old girl.

G.M.'s lack of a "relevant criminal record" and his participation in counselling were considered mitigating factors, according to the decision.

Gomery also said that G.M. has said he is "sorry for his actions." But the judge suggested that G.M. fell short of taking full accountability.

"I think that G.M.'s expression of regret is sincere. I am doubtful that he has truly come to terms with his responsibility for assaulting (his ex-wife) I am not sure that he is sorry that he hurt her."