W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
A non-publication and non-broadcast order in this proceeding under s. 486(3) of the Criminal Code, concerning the identity of and any evidence that would tend to identify the complainant(s), shall continue. As relevant in this case, s. 486(3) and s. 486(5) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under s. 486(3), read:
486.(3) Subject to subsection (4), where an accused is charged with
(a) an offence under section 151, 152, 153, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,
(b) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(c) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988,
the presiding judge or justice may make an order directing that the identity of the complainant or of a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way.
(5) Every one who fails to comply with an order made pursuant to subsection (3) is guilty of an offence punishable on summary conviction.
DATE: 20050705
DOCKET: C41596
COURT OF APPEAL FOR ONTARIO
BORINS, FELDMAN and GILLESE JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Ian W. Bulmer for the appellant
Applicant (Appellant)
- and -
J. L.
Paul Calarco for the respondent
(Respondent)
Heard: June 23, 2005
On appeal from the sentence imposed on March 5, 2004 by Justice Anne M. Molloy of the Superior Court of Justice.
BORINS J.A.:
[1] The Crown seeks leave to appeal the conditional sentence of two years less a day followed by three years probation imposed on the respondent J.L. following his conviction for aggravated assault, and asks this court to set aside the sentence and impose a mid‑range penitentiary term. In the Crown’s submission, given the seriousness of the offence and the injuries sustained by the victim, the conditional sentence is demonstrably unfit, and, in any event, on the authority of R. v. Fice, 2005 SCC 32, 2005 S.C.C. 32, a conditional sentence was not available in the circumstances of this case. In addition, the Crown submits that in imposing sentence the trial judge failed to address adequately the principles of denunciation and deterrence.
[2] The respondent pleaded guilty on the basis of an agreed statement of facts. The 17‑year old female victim was alone in her bed in the condominium unit which she shared with her mother when the respondent, who was a 19‑year old air‑conditioning apprentice employed by the building management, gained entry to the unit. He told her that he had come to fix the air conditioner. The respondent viciously attacked the victim, strangling her and attempting to break her neck by twisting her head. After she lost consciousness, the respondent left her on the floor to die. As a result of the attack the victim was hospitalized in intensive care having sustained severe, life threatening injuries. She also sustained severe, continuing emotional trauma from the attack.
[3] The trial judge described the attack as an “unprovoked”, “horrible”, “vicious” crime committed on an extremely vulnerable young woman in her own home by the respondent who had invaded her privacy. She described in detail the “terrible physical injuries” sustained by the victim. The trial judge agreed with the Crown that the appropriate range of sentence was five to seven years in the penitentiary, with allowance for the seven months that the respondent was in custody before his trial. She added that “the nature of the crime merits penitentiary time”.
[4] At trial, the appellant pled guilty to aggravated assault. The position of defence counsel on sentence was that the proper sentence was a maximum conditional sentence of two years less one day, followed by three years probation. The trial judge imposed the sentence requested by the respondent. She characterized his actions as unplanned and impulsive, rather than premeditated. Although she acknowledged that a penitentiary term would adequately denounce the respondent’s conduct, the trial judge concluded that it would serve little purpose in terms of specific deterrence. The trial judge also accepted psychiatric evidence tendered by the defence that the respondent’s risk of reoffending was low. Absent that opinion and the support that the respondent received from family and friends, the trial judge would have imposed a penitentiary sentence.
[5] It is important to examine how the trial judge crafted the sentence that she imposed. She concluded that an appropriate sentence was 42 months. However, she arrived at an actual jail sentence of two years less one day after giving the respondent credit for 18 months for the seven months that he had spent in pre‑sentence custody. The trial judge then determined that since the actual jail term to be imposed was within the reformatory range, a conditional sentence was available under s. 742.1(a) of the Criminal Code. She calculated the actual jail sentence as follows:
…I think that eighteen months is reasonable credit for time served, so if I add to that another approximately twenty-four months, I think that is not indefensible. It is certainly lenient but it is, I think, within the range given the extraordinary circumstances here.
The trial judge then ordered that the sentence be served in the community, instead of in prison, notwithstanding that she had determined that a 42 month period of incarceration was the appropriate sentence.
[6] When she sentenced the appellant, the trial judge did not have the benefit of R. v. Fice which was not decided until May 20, 2005. At the time of sentencing, Ms. Fice had spent approximately 16 months in pre‑sentence custody and six months in a circumstance of house arrest. Defence counsel conceded that a penitentiary sentence would have been appropriate had it been imposed at the time of plea. The sentencing judge considered the accused’s pre‑sentence custody to be the equivalent of almost three years of incarceration and concluded that she should serve an additional 14 months in the community on certain conditions. The Supreme Court of Canada held that ss. 742.1 and 719(3) of the Criminal Code do not allow a sentencing judge to take pre‑sentence custody into account for the purpose of determining the duration of sentence under the conditional sentence regime.
[7] The majority of the Supreme Court decided that under s. 742.1 a conditional sentence cannot become available to an offender who otherwise deserves a penitentiary term solely because of the time that the offender has spent in pre‑sentence custody. Speaking on behalf of the majority, Bastarche J. concluded that when a sentencing judge considers the gravity of the offence and the moral blameworthiness of the offender and concludes that a sentence in the penitentiary range is warranted, then a conditional sentence is therefore unavailable pursuant to s. 742.1(a), and time spent in pre‑sentence custody ought not to disturb this conclusion. Thus the time spent in pre‑sentence custody should be considered part of the offender’s total punishment rather than a mitigating factor that can affect the range of sentence and the availability of a conditional sentence.
[8] In my view, the circumstances of this case are indistinguishable from those in Fice. Once the trial judge concluded that a global sentence of 42 months was warranted, as a sentence of this duration is a penitentiary sentence she was precluded from imposing a conditional sentence by crediting the respondent with 18 months in pre‑sentence custody and thereby reducing the sentence to one of less than two years. Therefore, on the basis of the trial judge’s conclusion that a penitentiary sentence was required she could not order that the sentence be served in the community because allowing a credit for pre‑sentencing custody reduced the effective sentence to one of less than two years. It is necessary, therefore, for this court to determine the sentence that should have been imposed.
[9] I agree with the Crown’s submission and its reasons that in the circumstances of this case a conditional sentence of two years less a day followed by probation for three years was a demonstrably unfit sentence. The trial judge, who had the benefit of very thorough submissions from the Crown and the respondent, concluded that in all of the circumstances of the offence and the offender a fit sentence was one of 42 months. Although in my view, while a sentence in the range proposed by the Crown would be fit, I would accord the customary deference to the global sentence that the trial judge found to be appropriate. Had Fice been decided at the date of sentencing, allowing the respondent a credit of 18 months pre‑sentence custody he would have been sentenced to a reformatory term of 24 months less one day, but a conditional sentence would not have been available. Applying the principles considered in R. v. F.(G.C.) (2004), 2004 4771 (ON CA), 188 C.C.C. (3d) 68 (Ont. C.A.), the respondent should receive a further credit of 15 months for the portion of the conditional sentence that he has served.
[10] In the result, I would grant leave to appeal the sentence and allow the appeal. I would vary the conditional sentence of two years less a day to a custodial sentence of nine months by crediting the respondent with having served 18 months in pre‑sentence custody and a further 15 months representing the portion of the conditional sentence that he has served. His sentence of nine months will commence when the respondent surrenders or is arrested. I would not disturb the three year probationary order imposed by the trial judge.[^1]
RELEASED: July 5, 2005 (“SB”)
“S. Borins J.A.”
“I agree K. Feldman J.A.”
“I agree E. E. Gillese J.A.”
[^1]: Section 731(1)(b) of the Criminal code permits the court to order that an offender comply with the conditions prescribed in a probation order when sentenced to imprisonment for a term of less than two years. In Fice, at para. 42, Bastarche J. stated that the relationship between pre‑sentence custody and the availability of a suspended sentence, a probation order, a discharge or a fine was an issue that was not before the court and was “an issue that is better left for another day”.