Her Majesty the Queen v. Cheddesingh

[Indexed as: R. v. Cheddesingh]

60 O.R. (3d) 721

[2002] O.J. No. 3176

Docket No. C33325

Court of Appeal for Ontario

Carthy, Abella and MacPherson JJ.A.

August 20, 2002

*Application for an extension of time granted and application for leave to appeal to the Supreme Court of Canada granted September 4, 2003 (Gonthier, Major and Arbour JJ.). S.C.C. File No. 29662. S.C.C. Bulletin, 2003, p. 1037.

Criminal law -- Sentence -- Life sentence -- Manslaughter -- Accused broke into apartment of 76-year-old victim and sexually assaulted her -- Accused told victim that he had razor and threatened to suffocate her -- Victim bled profusely from severe lacerations to her vagina and developed pneumonia leading to fatal multi-organ dysfunction -- Accused convicted of manslaughter -- Trial judge did not err in characterizing offence as one of "stark horror" justifying sentence of life imprisonment.

Criminal law -- Sentence -- Parole ineligibility period -- Accused sexually assaulted 76-year-old victim -- Victim subsequently died from complications of severe lacerations to vagina -- Trial judge concluded that offence was one of "stark horror" and sentenced accused to life imprisonment -- Trial judge imposed parole ineligibility order based on expert evidence of future dangerousness -- Trial judge did not commit error of relying on same factors in imposing life sentence and parole ineligibility order -- Accused's sentence appeal dismissed.

The accused broke into the apartment of the 76-year-old victim, announced his intention to rape her, told her that he had a razor and threatened to suffocate her. He sexually assaulted her, digitally penetrating her, performing cunnilingus, violently raping her and possibly sodomizing her. Before leaving her apartment, he stole her glasses and the contents of her wallet. The victim sustained severe lacerations to her vagina and bled profusely. She developed pneumonia and a number of other complications leading to multi-organ dysfunction. She died one month after the assault of septic complications from cirrhosis associated with vaginal trauma. The accused was convicted of manslaughter. Characterizing the offence as one of "stark horror", the trial judge sentenced the accused to life imprisonment and imposed an eight-year parole ineligibility period. The accused appealed.

Held, the appeal should be dismissed.

The trial judge did not err in finding that the offence involved circumstances of "stark horror" justifying the maximum sentence of life imprisonment. [page722]

In imposing the parole ineligibility order, the trial judge did not fall into the error of relying on the same factors which he considered in sentencing the accused to life imprisonment. Rather, he relied on expert evidence of future dangerousness, on the basis of which he concluded that recidivism was a virtual certainty if release occurred in the near future. As the accused had already spent almost 34 months in pre-trial custody, he would have been eligible for parole in 4 1/2 years if no period of parole ineligibility were imposed. The trial judge's conclusion that the only way to guarantee society's protection and the accused's rehabilitation was to impose a sentence of life imprisonment without parole eligibility for a number of years was demonstrably fit and entitled to deference.

The parties agreed that when the period of parole ineligibility is increased, pursuant to s. 743.6 of the Criminal Code, in connection with a life sentence, it is increased to ten years. The trial judge erred in imposing an eight-year period of parole ineligibility. The life sentence is affirmed and the period of parole ineligibility is varied to ten years.

APPEAL by an accused from a sentence for manslaughter.

Cases referred to R. v. Dankyi (1993), 1993 4283 (QC CA), 59 Q.A.C. 118, 86 C.C.C. (3d) 368, 25 C.R. (4th) 395 (C.A.); R. v. Davis (1999), 1999 3683 (ON CA), 117 O.A.C. 81, [1999] O.J. No. 141 (C.A.); R. v. Goulet (1995), 1995 1198 (ON CA), 22 O.R. (3d) 118, 97 C.C.C. (3d) 61, 37 C.R. (4th) 373 (C.A.); R. v. Osborne (1996), 1996 980 (ON CA), 110 C.C.C. (3d) 161 (Ont. C.A.)

Statutes referred to Criminal Code, R.S.C. 1985, c. C-46. s. 743.6

David Tanovich, for appellant. Sandra Kingston, for respondent.

The judgment of the court was delivered by

ABELLA J.A.:

1This is an appeal from a life sentence imposed after the appellant's conviction for manslaughter resulting from the rape and subsequent death of a 76-year-old widow.

Facts

2On the evening of July 29, 1996, the 20-year-old appellant, David Cheddesingh, went to the apartment of some friends where he drank and had an argument over the phone with his girlfriend. He and one of his friends had made plans to steal a compressor that night, but his friend refused to go through with the plan, leading to an argument between the appellant and his friend. The appellant then suggested to another of his friends that they purchase some marijuana. When the friend declined, the appellant became angry and left the apartment.

3At 2:50 a.m. the appellant broke into a ground floor apartment in Mississauga. The occupant of the apartment heard the [page723] appellant, confronted him, and punched him in the nose, causing it to bleed. The appellant, who had been carrying a bottle of gasoline, threw it at the feet of the occupant, where it shattered.

4He then broke into an apartment at a senior citizens' residence around the corner. He ransacked the apartment, taking a number of items, while the 82-year-old male occupant remained asleep.

5At approximately 3:20 a.m., in the same senior citizens' residence, he broke into the apartment of Irma Seale, a 76- year-old widow. She woke up when the appellant came into her bedroom, confronted him, and demanded to know what he was doing there. He told her to "shut-up" and threw her back down on her bed. He then sat on her bed and began talking to her. Mrs. Seale tried to placate him in order to avoid violence. The appellant, however, announced his intention to rape her, then he entered into a lengthy discussion about whether he would follow through, while Mrs. Seale tried to talk him out of it. He told her he had a razor, that she should remain quiet, and he threatened to suffocate her. Mrs. Seale was convinced the appellant was going to kill her.

6The appellant then sexually assaulted Mrs. Seale, digitally penetrating her, performing cunnilingus, violently raping her, and possibly sodomizing her. Throughout the prolonged assault, she attempted to stop him, but was afraid to cry out. Before finally leaving the apartment at 6:15 a.m., the appellant stole Mrs. Seale's glasses and the contents of her wallet.

7As a result of the assault, Mrs. Seale sustained severe lacerations to her vagina. She bled so profusely that she required a blood transfusion. On admission to hospital she was "anxious, shaky, shivering", expressing "disbelief at what had happened to her".

8Prior to the assault, Mrs. Seale suffered from a number of chronic medical conditions, none of which was life threatening. Over the month that she was in hospital, Mrs. Seale's condition deteriorated dramatically. She developed pneumonia and a number of other complications leading to multi- organ dysfunction. Her psychological condition deteriorated dramatically as well. In contrast to her disposition before the attack, she became extremely depressed and may have suffered from post-traumatic stress syndrome. The trial judge found that the decline of her mental state contributed significantly to her physical deterioration.

9On August 29, 1996, Mrs. Seale died. The cause of death was septic complications from cirrhosis (caused by congestive heart failure) associated with vaginal trauma.

10As a result of the assault, the appellant was charged with two counts of break, enter and theft, and one count of manslaughter. He was convicted after a five-week trial. [page724]

11The Crown had sought a life sentence together with a period of parole ineligibility of ten years. The defence position was that a sentence in the range of nine to 11 years was appropriate.

12The appellant was sentenced to life imprisonment. An eight-year period of parole ineligibility was also imposed, but on appeal, both parties conceded that the minimum ineligibility period under s. 743.6 of the Criminal Code, R.S.C. 1985, c. C- 46 in connection with a life sentence is ten years.

Analysis

13The appellant argued that the life sentence was excessive, and that the trial judge erroneously applied the same analysis in imposing this sentence as he did in imposing the period of parole ineligibility.

Life imprisonment

14The trial judge's imposition of a life sentence was based on his conclusion that the horrifying nature of this offence warranted the maximum possible sentence. He described the circumstances of "stark horror" in his reasons as follows:

One reason why these offences are offences of stark horror is that the rights so brutally violated were those fundamental rights of privacy and security in a dwelling. In a very real sense, these offences are every woman's worst nightmare.

Although I have found that Mr. Cheddesingh did not set out, deliberately, to torture Mrs. Seale, it is clear that his actions did, in fact, torture her. He first announced his intention to rape her. He then followed that announcement by entering into a discussion with her whether he would follow through or not. In this cat and mouse manner, Mrs. Seale was forced to endure a period of protracted uncertainty which must have been exquisite torture. Mr. Cheddesingh engaged in this "will I or won't I" debate with complete indifference to the effects of his actions upon Mrs. Seale.

This assault occurred in almost complete darkness. It was accompanied by Mr. Cheddesingh's statement that he was in possession of a razor. That he, in fact possessed only the knife that was found at the scene does not detract from the horror of the contemplation of what damage he could do to her with such an instrument.

Mrs. Seale was an elderly woman. She was a member of a class of persons especially deserving of protection by the law and of respect from younger members of the community. Mr. Cheddesingh surely offered her neither protection, nor respect. Again, the rights of the victim can be protected only by the sentencing policy and practice of this court. Again, it is a further element in the assessment of stark horror that the crime was committed against a person of a particularly vulnerable class.

After assaulting Mrs. Seale, Mr. Cheddesingh discussed aloud with her, the possibility of tying her up and leaving bound and helpless in her residence [page725] for two days, until the next expected visit of her daughter. He also attempted, albeit briefly, to smother her with a pillow. These factors and the fact that the offences continued for a period of two to three hours, all reinforced the conclusion that the offence was one of stark horror.

The sexual atrocities committed on Mrs. Seale included cunnilingus, digital penetration, and rape, finally crossed the threshold of Mrs. Seale's fear. When Mr. Cheddesingh caused her to believe that he would sodomize her, she demurred -- razor or no razor. She never was certain whether he had succeeded. That his threat to commit an act so abhorrent to her is another element of stark horror.

Mr. Cheddesingh persisted in his acts of rape despite Mrs. Seale's complaints of pain, despite his knowledge of her age and despite his unavoidable knowledge that she was bleeding copiously. Although it would have been easy for him to do so, he failed, even anonymously, to summon any help for her after he left her. He did however, have the presence of mind to steal her credit cards and to dispose of them later.

These offences led to the utter destruction of Mrs. Seale's dignity, individuality and psyche. They precipitated her death, although it was not Mr. Cheddesingh's intention to kill her. Her death took a month to happen; a month during which she suffered a gradual and inexorable diminution of her appearance, her pride, and her intelligence. Finally, bloated with acidities, she died unconscious and unknowing, a grotesque caricature of the loving mother she had been.

Ultimately, Mr. Cheddesingh's callous brutality forced Mrs. Seale's children to make the decision to remove her life support and to put her out of her misery, like an old dog. Can any doubt remain that this offence was one of stark horror?

The horror of this offence is not only that Mr. Cheddesingh caused Mrs. Seale's death, it is equally, how he debased her life.

15This compelling depiction manifestly justifies the decision to characterize this offence as one of "stark horror". I would not, therefore, interfere with the imposition of a sentence of life imprisonment.

Parole ineligibility

16The remaining issue is whether the trial judge was justified in delaying parole eligibility under s. 743.6 of the Code.

17The appellant argued that the trial judge erred because his reasons for imposing the order were the same as his reasons justifying the life sentence. This, the appellant submitted, was contrary to the jurisprudence directing that there be two discretely articulated analyses, one considering the factors justifying the length of the sentence, and the second considering whether parole should be delayed. [page726]

18The Crown argued that the trial judge did not err in making this order and was aware of the appropriate principles guiding the imposition of an order under s. 743.6, which states:

743.6 (1) Notwithstanding subsection 120(1) of the Corrections and Conditional Release Act, where an offender receives, on or after November 1, 1992, a sentence of imprisonment of two years or more, including a sentence of imprisonment for life imposed otherwise than as a minimum punishment, on conviction for an offence set out in Schedules I and II to that Act that was prosecuted by way of indictment, the court may, if satisfied, having regard to the circumstances of the commission of the offence and the character and circumstances of the offender, that the expression of society's denunciation of the offence or the objective of specific or general deterrence so requires, order that the portion of the sentence that must be served before the offender may be released on full parole is one half of the sentence or ten years, whichever is less.

19In R. v. Goulet (1995), 1995 1198 (ON CA), 22 O.R. (3d) 118, 97 C.C.C. (3d) 61 (C.A.), this court set out the test for determining when to impose a period of parole ineligibility. The court called the provision an "exceptional measure" to be invoked in limited circumstances. As Griffiths J.A. said at, p. 123 O.R., p. 65 C.C.C.:

[P]arole eligibility may only be delayed where, having regard to the circumstances of the commission of the offences and the character and circumstances of the offender, the expression of society's denunciation of the offences or the objectives of specific or general deterrence so requires.

20Griffiths J.A., adopting the reasoning of Fish J.A. of the Quebec Court of Appeal in R. v. Dankyi (1993), 1993 4283 (QC CA), 86 C.C.C. (3d) 368, 25 C.R. (4th) 395 (Que. C.A.), set out the requisite approach at pp. 124-25 O.R., p. 67 C.C.C. as follows:

The sentencing judge should first determine what is a fit sentence having regard to the accepted principles relating to sentencing which will, of course, include the possible rehabilitation of the accused. It is only after the sentencing judge has arrived at an appropriate sentence that he or she should then consider whether the particular circumstances of the offence, or the character and circumstances of the offender, require that the normal statutory powers of the Parole Board be circumscribed by a s. 741.2 [now s. 743.6] order.

In my view, s. 741.2 should only be invoked as an exceptional measure where the Crown has satisfied the court on clear evidence that an increase in the period of parole ineligibility is "required". There should be articulable reasons for invoking s. 741.2 and, as suggested in R. v. Dankyi, supra, the trial judge should give clear and specific reasons for the increase in parole ineligibility.

The circumstances of the offence will rarely provide much additional assistance under s. 741.2 where those circumstances have formed the primary basis for fixing the appropriate period of incarceration. If the offence is one of unusual violence, brutality or degradation, then the need to strongly express society's denunciation of the offence may make a s. 741.2 order appropriate. The section should not be invoked on the basis of more general concerns [page727] which are not specific to the particular offence such as the frequency of the commission of that type of offence in the community.

The distinguishing characteristics of the offender may provide more fruitful grounds for invoking s. 741.2 as an exceptional measure. Where the Crown has adduced clear evidence that the offender will not be deterred or rehabilitated within the normal period of parole ineligibility, an order under s. 741.2 will be appropriate. A history of prior parole violations, or violations of other forms of conditional release, or evidence that significant prior custodial sentences have had little impact would be appropriate factors to consider in applying s. 741.2.

21This court revisited this issue in R. v. Osborne (1996), 1996 980 (ON CA), 110 C.C.C. (3d) 161 and R. v. Davis (1999), 1999 3683 (ON CA), 117 O.A.C. 81, [1999] O.J. No. 141 (C.A.). In Osborne, relying on Goulet, Charron J.A. confirmed the exceptional nature of the provision. She cautioned that in justifying the delay of parole eligibility, a judge must not rely on the same factors he or she considered in determining the appropriate term of imprisonment. There should be some distinguishing feature such as evidence that the accused could not be rehabilitated within the normal parole eligibility period. In Davis, the court found that the provision would be appropriately imposed if the accused represented a continuing danger to society, and emphasized the importance of articulated reasons beyond those that led to the imposition of the life sentence.

22The reasons of Justice Langdon indicate that he was well aware of the law surrounding parole ineligibility orders under s. 743.6 of the Criminal Code and the constraints placed upon him by the case law. He explicitly recognized that in order for the court to invoke s. 743.6 of the Criminal Code, the Crown must demonstrate on clear evidence that an increase in the period of parole ineligibility is required. He also noted that there must be articulable reasons for invoking those provisions beyond those found in the circumstances of the offence alone.

23Far from relying on the same factors in imposing the life sentence and the s. 743.6 order, his reasons for sentence are properly bifurcated. First, he considered whether the offence was one of "stark horror" and therefore amenable to the imposition of the maximum sentence. Second, he considered whether the appellant's personal circumstances justified the imposition of a parole ineligibility order under s. 743.6 of the Code. In particular, he considered the particular circumstances of the appellant, including the likelihood of his rehabilitation within the normal period of parole ineligibility and his continuing dangerousness.

24The key evidence supporting the Crown's request for a ten-year period of parole ineligibility came from Dr. Graham Glancy, a forensic psychiatrist who testified extensively about the appellant's [page728] chances of rehabilitation and recidivism. Dr. Glancy testified that the appellant has two personality disorders: a borderline personality disorder and an antisocial personality disorder. Dr. Glancy also stated the behavioural manifestations of those disorders tend to burn out as the individual ages. The borderline disorder tends to burn out in the third decade of life, and the anti-social disorder in the fourth decade.

25Regarding future dangerousness, Dr. Glancy observed:

Q. . . . we're looking at future dangerousness, and the victim group at risk would tend to be middle-aged, older women -- correct?

A. Possibly, yes.

Q. But its because of these unresolved angers towards his mother.

A. Yes.

26On the issue of recidivism, the following exchange took place, based on the fact that as a child the appellant had been sexually abused by his mother and physically abused by his alcoholic father.

Q. And I'd like, then, to put to you the potential that until this question of his mother's conduct is fully resolved and the anger is out of his system, that a potential for a repeat of this very type of conduct remains.

A. Yes, I would agree.

27Regarding treatment, Dr. Glancy testified:

Q. Now, through no fault of his own, he has received no treatment to date -- correct?

A. I think he's received the beginnings of treatment but not in an intensive manner.

Q. Yes, that's more accurate. Could we agree that the predictors as to how successful treatment will be is more difficult since he's received just the beginnings. Its very difficult to predict how far he will go and how fast he will be treated, if at all, because we only have the early stages.

A. Yes, that's correct.

Q. And its possible, I suggest to you, that he might never be able to get rid of the emotional baggage of his mother's conduct because it was over so many years and so extreme.

A. Yes, it is a difficult therapeutic task so, it may be possible that he'll never get rid of some of that rage and anger.

28Dr. Glancy also testified that treatment for the appellant's conditions "is by no means easy and neither is it assured of success".

29During his examination-in-chief, Dr. Glancy stated that the appellant "comes under a high risk category for repeat [page729] antisocial behaviours and a significant, but low to moderate risk of repeating sexual behaviours, of future rapes". He was asked for clarification on this point during cross-examination:

Q. Can you explain to His Honour what you mean by a "moderate risk of re-offending"? Let's take it in a sexual assault connotation here. "What does a moderate risk of re-offending" mean?

A. Well, I wouldn't want to put exact numbers on this because in this circumstance, given the information available, and all the problems inherent in risk prediction, its very difficult to put a number on it but, generally speaking when you're talking about risk -- low to moderate puts you in the 25 to 50 [per cent] range.

30In his reasons for sentence, the trial judge found that the above factors combined to make the appellant a clear danger to society, and that Dr. Glancy's evidence that there would be a 25 to 50 per cent risk of recidivism, was "not a tolerable alternative". As he said, summarizing the factors Dr. Glancy identified as being barriers to effective treatment:

Unfortunately, Mr. Cheddesingh possesses many traits and characteristics which tell against early or successful treatment. Some of these features are: his personal history of sexual and physical abuse; his low social competence; his low IQ; his failure to hold employment; his general irresponsibility; his failure to have satisfying long-term relationships; his history of disobeying court orders; his chaotic family background; his absence of familial support and his abuse of alcohol and street drugs which, of course, possess disinhibiting side effects.

31Contrary to the appellant's submission, the trial judge carefully considered the evidence and found that it provided ample support for an extended period of parole ineligibility. After correctly stating the law, he engaged in a detailed analysis of the appellant's characteristics and personality disorders, which demonstrated that the appellant would be a continuing danger until he was rehabilitated, but would not likely be rehabilitated within the time he would normally be eligible for parole.

32Justice Langdon observed that since the appellant had already spent almost 34 months in pre-trial custody, he would be eligible for parole in 4 1/2 years if no period of parole ineligibility were imposed. Based on his conclusion from the evidence that recidivism was a virtual certainty if release occurred in the near future, he imposed the delay in parole eligibility for the following reasons:

The Corrections and Conditional Release Act make Mr. Cheddesingh eligible for parole in less than four-and-a-half years if a life sentence is imposed now.

The evidence, now available, persuades me that there is simply no way in which Mr. Cheddesingh could be fit for release; that is, no longer a substantial [page730] danger to society within that period of time. In order to effect the goal of societal protection, the period of parole ineligibility must be increased.

33Even if the appellant was genuine in his desire to undertake a program of treatment, Justice Langdon found that there was no guarantee that the treatment would succeed and even if it did, the most likely result would simply be to moderate the rate of recidivism, rather than cure the disorders. He accepted Dr. Glancy's hypothesis that the appellant's personality disorders may well have been the result of sexual abuse by his mother and physical abuse by his father, but concluded that this did not diminish his dangerousness.

34Based on the evidence of Dr. Glancy, the trial judge concluded the appellant would not be rehabilitated within the normal parole ineligibility period and that the earliest period upon which he might "burn out" from his borderline personality disorder was in his 30s:

That is not mandated by the offence, but rather by Mr. Cheddesingh's continuing dangerousness which flows from his personality disorders and the time needed for him either to burn out, or to achieve some benefit from the rehabilitative process. In a best case scenario, I cannot imagine that Mr. Cheddesingh would be a fit candidate for parole below the age of 30. In order to accomplish that objective, a period of parole ineligibility . . . is required.

35Justice Langdon's reasons have a sound legal and evidentiary basis. His conclusion that the only way to guarantee society's protection and the appellant's rehabilitation was to impose a sentence of life imprisonment without parole eligibility for a number of years, is demonstrably fit and therefore entitled to deference.

36Accordingly, I would grant leave to appeal the sentence, vary the parole ineligibility period to ten years in accordance with s. 743.6 of the Code, but otherwise dismiss the appeal.