R. v. Kunath (D.W.), (2013) 561 A.R. 281

• Judge: Hunt, Martin and Watson, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: November 07, 2013
• Citations: (2013), 561 A.R. 281;2013 ABCA 372

R. v. Kunath (D.W.) (2013), 561 A.R. 281; 594 W.A.C. 281 (CA)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. NO.041

Her Majesty the Queen (respondent) v. Dale Walter Kunath (appellant)

(1301-0043-A; 2013 ABCA 372)

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

Alberta Court of Appeal

Hunt, Martin and Watson, JJ.A.

November 7, 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, in a judgment reported (2013), 554 A.R. 185, 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. The accused appealed against sentence on the grounds that there was no discernible credit for his guilty plea, no enhanced credit for pre-trial custody, misuse of the forensic report and an unfit sentence.

The Alberta Court of Appeal dismissed the appeal.

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 trial judge 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 judge 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." - The Alberta Court of Appeal held that the trial judge did not err in exercising his discretion not to give enhanced credit.

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 trial judge 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 judge 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 1.0 credit for 21 months' pre-trial custody - The Alberta Court of Appeal dismissed the accused's sentence appeal, stating that "the facts of this case were exceptionally egregious and the injuries inflicted on this tiny infant occurred at different times. Even if the sentences were longer than those imposed in previous child abuse cases in Alberta, we cannot say they were unfit".

Cases Noticed:

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81; 105 C.C.C.(3d) 327, refd to. [para. 9].

R. v. Johnson (F.B.) (2013), 553 A.R. 157; 583 W.A.C. 157; 2013 ABCA 190, refd to. [para. 10].

R. v. B.J.G. (2013), 556 A.R. 6; 584 W.A.C. 6; 2013 ABCA 260, refd to. [para. 14].

R. v. Lewis (G.A.) (2012), 536 A.R. 258; 559 W.A.C. 258; 2012 ABCA 289, refd to. [para. 14].

R. v. Seymour (C.W.), [2011] B.C.T.C. Uned. 1682; 98 W.C.B.(2d) 266; 2011 BCSC 1682, refd to. [para. 17].

R. v. Stonefish (S.T.) (2012), 288 Man.R.(2d) 103; 564 W.A.C. 103; 295 C.C.C.(3d) 52; 2012 MBCA 116, refd to. [para. 17].

R. v. Neve (L.C.), [1999] 11 W.W.R. 649; 237 A.R. 201; 197 W.A.C. 201; 1999 ABCA 206, refd to. [para. 23].

R. v. M.C.N. (2012), 524 A.R. 366; 545 W.A.C. 366; 2012 ABCA 158, refd to. [para. 25].

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

Counsel:

J. Antonio, for the respondent;

A.A. Sanders, for the appellant.

This appeal was heard on October 22, 2013, before Hunt, Martin and Watson, JJ.A., of the Alberta Court of Appeal.

On November 7, 2013, the following memorandum of judgment was filed by the Court.