COURT OF APPEAL FOR ONTARIO
Weiler, Gillese and Armstrong JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Barry Eugene Phillips
Appellant
James Carlisle, for the appellant
Leanne Salel, for the respondent
Heard: October 3, 2008
On appeal from the sentence imposed on June 24, 2005, by Justice Robert F. Scott of the Superior Court of Justice, sitting without a jury.
ENDORSEMENT
1The appellant pled guilty to one count of manslaughter. Including pre-trial custody he was sentenced to an effective term of imprisonment of 12.5 years. The appellant appeals on the basis that the sentence is unfit having regard to the appellant’s participation in the crime and the range of sentence in similar cases.
Facts
Facts
2The appellant and his girlfriend, Darlene Quick, were jointly charged with first degree murder for the shooting of Gordon Wilman. Wilman had taken the couple into his home in Trenton after they had been evicted from their apartment.
3The appellant and Quick had a tumultuous relationship prior to Wilman’s murder. The appellant was jealous about Quick spending time with other men and some of his jealousy was directed at Wilman.
4On the evening before the murder, Quick did not return to Wilman’s residence. The appellant found her the next afternoon at another man’s house. They returned together to the Wilman residence on June 22, 2003, where they argued. The appellant then loaded a shell into a shotgun owned by Wilman. Quick took the gun and shot Wilman while he was seated in his truck. The appellant, who was in Wilman’s house when the shot was fired, saw the shooting, came outside and dragged Wilman by his legs out of the truck and onto the ground.
5The appellant and Quick dug a shallow grave in a fire pit and covered Wilman’s body with dirt. The next day, they stole Wilman’s car and absconded to St. Catharines. On July 5, 2003, they returned to Trenton and stayed at Wilman’s house. The appellant helped Quick disguise herself. The two transferred their belongings from Wilman’s car to his truck and left for a campground where they were arrested a couple of weeks later.
6After being arrested, Quick confessed to the murder and stated that the appellant had helped her to bury the body. Confronted with this information the appellant, who had previously given a statement denying any involvement in the killing, stated:
“You helped me. I didn’t do anything. I helped bury it.”
7The next day the appellant provided a further statement to the authorities in which he admitted to seeing the shooting and assisting at the burial but denied any involvement in the pre-planning.
8Quick pled guilty to second degree murder and received the mandatory sentence of life imprisonment. Parole eligibility was set at the minimum ten years.
9Following a pre-trial, the appellant pled guilty to manslaughter.
10During submissions on sentence, the Crown sought a sentence of fifteen years with credit given for his 23 months pre-trial custody on a 1:1 basis. The defence submitted that the appropriate range of sentence was seven to nine years.
11The sentencing judge credited the appellant’s pre-trial custody on a 2:1 basis for a total of 46 months and sentenced him to an additional nine years, for an effective sentence of 12 years and 10 months.
Issue and Analysis
Issue and Analysis
12The sole issue is the fitness of the appellant’s sentence. The appellant submits his complicity in the offence cannot be more than minimal involvement falling into a class of manslaughter that can be called “foreseeable danger”, a class to be distinguished from “participant” or “near murder” cases. The appellant points out that on the facts as read in, there is no indication he gave Quick the gun. In addition to showing remorse by his plea of guilty, the appellant apologized to the family of the victim in court, an additional indication of remorse. The appellant submits his sentence should be the four year minimum sentence for manslaughter with a firearm such as in R. v. Cole, [2004] O.J. No. 1691 and R. v. Walcot, [2001] B.C.C.A. 342.
13The Crown submits that the factual backgrounds in Cole and Walcot are missing many of the aggravating factors present in this case. In this regard the Crown relies on the following factors:
Loading a firearm is an inherently dangerous activity;
Given the circumstances and the appellant’s knowledge of Quick’s unstable temperament, the appellant’s loading of a firearm was highly reckless;
The appellant was under a firearms prohibition at the time of loading the gun;
Wilman was a vulnerable victim;
Wilman had extended the couple kindness by taking them into his home;
The appellant’s previous criminal record contains two convictions for impaired driving, a conviction for harassment, common assault, breach of probation and fail to comply with a recognizance;
The manner of burying the body was callous and disrespectful;
The appellant and Quick took advantage of Wilman by stealing his vehicles;
The appellant fled the jurisdiction with Quick and helped her disguise herself; and
He feigned surprise when confronted with news of Wilman’s death and denied involvement in it, showing lack of remorse for his actions.
14Because there is no evidence that the appellant actually participated in the killing of Mr. Wilman and he does not have a serious related criminal record, we agree with the appellant that the sentence imposed was outside the range of sentences for this offence and it is therefore unfit. However, having regard to the aggravating factors enumerated by the Crown above, in our opinion a fit sentence is a sentence of nine years less the 46 months credit for time served granted by the trial judge.
15Accordingly, leave to appeal sentence is granted, the appeal as to sentence is allowed and the sentence is reduced to nine years.
“K.M. Weiler J.A.”
“E.E. Gillese J.A.”
“Robert P. Armstrong J.A.”
