R. v. Kunath (D.W.),

• Judge: Wittmann
• Neutral Citation: 2013 ABQB 71
• Citation: (2013), 554 A.R. 185 (QB),2013 ABQB 71,554 AR 185,(2013), 554 AR 185 (QB),554 A.R. 185
• Date: 21 December 2012
• Court: Court of Queen's Bench of Alberta (Canada)

R. v. Kunath (D.W.) (2013), 554 A.R. 185 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. AP.011

Her Majesty the Queen v. Dale Walter Kunath (110553146Q1; 2013 ABQB 71)

Indexed As: R. v. Kunath (D.W.)

Alberta Court of Queen's Bench

Judicial District of Calgary

Wittmann, A.C.J.Q.B.

February 4, 2013.

Summary:

The 27 year old accused pleaded guilty to two counts of aggravated assault against a six week old baby. The accused admitted injuring the baby by causing a tearing injury to the baby's penis, which required reconstructive surgery, inserting an object into the baby's anus, and burning the bottom of the baby's feet with a lighter. The admitted intention was to cause the baby pain.

The Alberta Court of Queen's Bench sentenced the accused to seven years' imprisonment on the first count and five years' imprisonment (consecutive) on the second count. Applying the totality principle, the court reduced the consecutive sentences to six and four years respectively, for a total of 10 years' imprisonment. The court declined the accused's request for enhanced credit for pre-trial custody on a 1.5 to 1.0 basis. He was limited to 21 months' credit for 21 months' pre-trial custody, most of which he spent in segregation for his own safety.

Criminal Law - Topic 5804

Sentencing - General - Consecutive sentences - Reduced total term (totality principle) - [See Criminal Law - Topic 5938 ].

Criminal Law - Topic 5833.1

Sentencing - Considerations on imposing sentence - Child abuse - [See Criminal Law - Topic 5938 ].

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served - The 27 year old accused was in a relationship with the mother of a six week old baby (not his) - On at least two separate occasions, with the admitted intent of causing pain, the accused caused a tearing injury to the baby's penis (reconstructive surgery required), inserted objects in the baby's anus, and burned the bottom of the baby's feet with a lighter - The accused sought enhanced credit (1.5 to 1.0) for 21 months' pre-trial custody on the ground that he spent most of his time (up to 23 hours a day) in segregation - The Alberta Court of Queen's Bench dismissed the request for enhanced credit - The accused was segregated for his own protection and safety, given threats made against him because of the nature of the offences - The court stated that "where segregation is for the safety and protection of an inmate, it is difficult for the court to accept that this bare fact establishes unduly harsh conditions or circumstances which justify enhanced credit. I therefore decline to give it." - See paragraphs 82 to 89.

Criminal Law - Topic 5938

Sentence - Aggravated assault - The 27 year old accused was in a relationship with the mother of a six week old baby (not his) - On at least two separate occasions, with the admitted intent of causing pain, the accused caused a tearing injury to the baby's penis (reconstructive surgery required), inserted objects in the baby's anus, and burned the bottom of the baby's feet with a lighter - The accused pleaded guilty to two counts of aggravated assault by wounding and maiming - The accused was from a broken home, may have been sexually abused as a child, had a sporadic work history and abused alcohol and marijuana since age 14 - He was controlling and verbally and physically abusive towards the mother - He admitted intentionally causing the baby pain because of the mother's ongoing communications with the baby's father - He had eight unrelated adult convictions for property-related offences - The accused lacked remorse or empathy, and was assessed as having a high risk of re-offending - The psychiatric evaluation lacked sufficient evidence to substantiate or rule out a diagnosis of paraphilia, with aspects of pedophilia and sexual sadism - The Crown sought consecutive sentences totalling 14-16 years' imprisonment - The accused sought concurrent sentences of six years' imprisonment - The accused's moral responsibility was at the highest end of the spectrum - He intentionally inflicted pain to an utterly helpless child - The acts were "despicable, depraved and disgusting" - The Alberta Court of Queen's Bench sentenced the accused to seven years' imprisonment on the first count and five years' imprisonment (consecutive) on the second count - Applying the totality principle, the court reduced the consecutive sentences to six and four years respectively, for a total of 10 years' imprisonment - The court declined the accused's request for enhanced credit for pre-trial custody on a 1.5 to 1.0 basis, giving him only 1.0 to 1.9 credit for 21 months' pre-trial custody.

Cases Noticed:

R. v. J.L.M.A. (2010), 499 A.R. 1; 514 W.A.C. 1; 2010 ABCA 363, refd to. [para. 27].

R. v. Sninocco, 1993 CarswellOnt 2303, refd to. [para. 27].

R. v. M.C.N. (2012), 524 A.R. 366; 545 W.A.C. 366; 2012 ABCA 158, refd to. [para. 27].

R. v. Nickel - see R. v. M.C.N.

R. v. McNall (B.A.) (1995), 169 A.R. 162; 97 W.A.C. 162 (C.A.), refd to. [para. 27].

R. v. J.M., 1993 CarswellOnt 3636, refd to. [para. 27].

R. v. Bourgeois (T.F.) (2001), 296 A.R. 111; 2001 ABPC 155, refd to. [para. 27].

R. v. Wilson, 1992 CarswellOnt 2105 (C.J.), refd to. [para. 27].

R. v. B.W. (2006), 257 Nfld. & P.E.I.R. 223; 776 A.P.R. 223; 2006 NLCA 43, refd to. [para. 27].

R. v. Smith (C.C.) (2005), 376 A.R. 389; 360 W.A.C. 389; 2005 ABCA 404, refd to. [para. 27].

R. v. Tate (D.J.) (2005), 367 A.R. 170; 346 W.A.C. 170; 2005 ABCA 217, refd to. [para. 27].

R. v. Laberge (K.K.) (1995), 165 A.R. 375; 89 W.A.C. 375; 1995 ABCA 196, refd to. [para. 27].

R. v. Brown, 1993 ABCA 190, refd to. [para. 27].

R. v. B.J.G. (2012), 550 A.R. 15; 2012 ABPC 254, refd to. [para. 27].

R. v. Draper (T.G.) (2010), 251 Man.R.(2d) 267; 478 W.A.C. 267; 2010 MBCA 35, refd to. [para. 27].

R. v. Tiegs (B.D.), [2012] A.R. Uned. 42; 2012 ABCA 116, refd to. [para. 27].

R. v. K.D.H. (2012), 546 A.R. 248; 2012 ABQB 471, refd to. [para. 27].

R. v. Great White Holdings Ltd. et al. (2005), 371 A.R. 256; 354 W.A.C. 256; 2005 ABCA 188, refd to. [para. 27].

R. v. Stonefish (S.T.) (2012), 288 Man.R.(2d) 103; 564 W.A.C. 103; 2012 MBCA 116, refd to. [para. 27].

R. v. Tremoyne (R.J.) (2000), 271 A.R. 391; 234 W.A.C. 391; 2000 ABCA 322, refd to. [para. 27].

R. v. Seymour (C.W.), [2011] B.C.T.C. Uned. 1682; 2011 BCSC 1682, refd to. [para. 27].

R. v. Jewell (E.T.) and Gramlick (G.) (1995), 83 O.A.C. 81; 100 C.C.C.(3d) 270 (C.A.), refd to. [para. 35].

Counsel:

Jayme Williams, for the Crown;

Jim Lutz, for the accused.

This matter was heard on December 21, 2012, before Wittmann, A.C.J.Q.B., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on February 4, 2013.