CITATION: R. v. Brunet, 2010 ONCA 781

DATE: 20101119

DOCKET: C50467

COURT OF APPEAL FOR ONTARIO

Laskin, MacPherson and Karakatsanis JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert Brunet

Appellant

Joseph Di Luca, for the appellant

Robert Gattrell, for the respondent

Heard: October 20, 2010

On appeal from the sentence imposed by Justice Robert Maranger of the Superior Court of Justice, dated September 15, 2008.

Karakatsanis J.A.:

[1] The appellant seeks to appeal the period of parole ineligibility imposed following his conviction for second degree murder. In the sentence imposed on September 15, 2008, Justice Maranger of the Superior Court ordered that the appellant not be eligible for parole for 20 years.

[2] The appellant submits that the sentencing judge erred in principle by failing to adequately consider the character of the offender as mandated by s. 745.4 of the Criminal Code and by imposing a sentence based on circumstances which could not properly be treated as aggravating factors. He submits that the length of period of parole ineligibility imposed is not a fit sentence. The respondent’s position is that the sentencing judge did not err in principle and that the sentence imposed was not outside the range of fit sentences.

Background Facts

[3] This was a brutal, vicious, violent murder. The appellant entered through the window of a basement apartment and raped, beat and strangled an 81 year old woman in her home.

[4] DNA and fingerprints were found at the scene of the crime but police were unable to find a match. Five years later, the police asked neighbouring residents to volunteer DNA samples and the appellant agreed to do so. The DNA and fingerprint evidence collected from the appellant proved that he was the assailant. The appellant was a 63 year old hard-working family man with no criminal record.

[5] The appellant testified that he had no recollection of the events. He said that when he heard about the brand of cigarette stubs found outside the victim’s apartment, he questioned whether they were his. Initially, the defence proposed to call evidence of automatism induced by the consumption of alcohol and the appellant’s diabetes. However, after the appellant testified in chief, the defence elected to call no further evidence. Both counsel invited the judge to find the appellant guilty of second degree murder. The Crown requested a period of parole ineligibility of 20 years and the defence requested a period of 15 years.

Personal Circumstances of the Offender

[6] The sentencing judge clearly recognized that s. 745.4 was the governing section with respect to parole ineligibility. Section 745.4 provides:

Subject to section 745.5, at the time of the sentencing under section 745 of an offender who is convicted of second degree murder, the judge who presided at the trial of the offender or, if that judge is unable to do so, any judge of the same court may, having regard to the character of the offender, the nature of the offence and the circumstances surrounding its commission, and to the recommendation, if any, made pursuant to section 745.2, by order, substitute for ten years a number of years of imprisonment (being more than ten but not more than twenty-five) without eligibility for parole, as the judge deems fit in the circumstances.

[7] The sentencing judge turned his mind to the relevant factors set out in s. 745.4: the character of the accused, the nature of the offence and the circumstances surrounding its commission. He referred to the fact that the appellant was 63 years of age, was married with three children, expressed some remorse, had worked for most of his life and had no criminal record. The judge noted that the appellant indicated he had virtually no recollection of the offence and could offer no explanation for it. Although the Crown invited the judge to disbelieve the evidence of amnesia and to reject the expression of remorse, he did not do so.

[8] The sentencing judge stated that he did not take issue with the mitigating factors outlined by the defence, including the accused’s age, lack of criminal record and the fact that much of the Crown’s evidence went in unchallenged. However, he made no reference to the appellant’s health issues or to the defence medical report indicating that the appellant will not present a danger in the future.

[9] Although the reference to the mitigating personal circumstances of the appellant was very limited, I am unable to conclude that the sentencing judge failed to consider the mitigating factors or the character of the accused as required by s. 745.4.

[10] The appellant also argues that the sentencing judge failed to take into account all of the principles of sentencing and that he put too much emphasis on denunciation and deterrence. I disagree. In considering the sentence, the judge looked to the principles of sentencing and to the sentencing objectives and determined that denunciation and general deterrence were paramount and of primary consideration in this case. He was entitled to do so.

[11] Accordingly, I would reject this first ground of appeal.

Aggravating Factors

[12] The sentencing judge quite properly considered the following aggravating factors in this case: the planned and brutal nature of the attack; the sexual assault; the age and vulnerability of the victim asleep in her own home; and the impact of the crime upon the victim’s family and their small community. However, while enumerating the aggravating circumstances of the case before him, the sentencing judge also included the following:

Mr. Brunet doesn’t suffer from any psychiatric disorder. Mr. Brunet, despite his amnesia, admitted to questioning his possible involvement when cigarette butts of the brand that he smokes were found in the vicinity by the police and he never thought to come forward with any information, even upon determining that. There remains no explanation of any kind for the crime, for what happened here.

[13] After listing the various aggravating factors, including the circumstances quoted above, the sentencing judge concluded that the cumulative impact of the aggravating factors in this case demanded a parole ineligibility period at the higher end.

[14] The respondent properly concedes that the absence of a psychiatric disorder and the failure to assist police in their investigation are not aggravating factors in this case. At most, these circumstances reflect an absence of mitigating factors.

[15] The respondent submits that the absence of an explanation – regardless of whether the appellant was unwilling or unable to provide one - means that there is no basis to say that the appellant is any less dangerous now than he was the day before the commission of the offence. The respondent relies on R. v. Shropshire, 1995 47 (SCC), [1995] 4 S.C.R. 227, where the Supreme Court held that in some circumstances, the lack of an explanation for the commission of the offence can be an aggravating factor in sentencing. The respondent criticizes the appellant’s purported rationale for not explaining his conduct as a dubious claim of memory loss. However, the sentencing judge did not reject the appellant’s evidence of his amnesia. Therefore, unlike the situation in Shropshire, the lack of explanation in this case was not attributable to a deliberate refusal on the part of the accused. Rather, the appellant was unable to offer any insight into the offence because he had no recollection of even being inside the apartment. This was not an aggravating factor in the circumstances of this case.

[16] The respondent’s position is that the sentencing judge did not turn absent mitigating factors into aggravating factors. It submits that having looked at certain aggravating factors, the judge quite properly considered circumstances that, in other cases, have served to attenuate those aggravating factors.

[17] I disagree. Such an interpretation is inconsistent with both the preceding and subsequent language used by the sentencing judge that clearly characterizes these facts as aggravating factors. It is also inconsistent with the submissions of the Crown at the sentencing hearing. The Crown invited the sentencing judge to disbelieve the appellant’s amnesia and find the lack of an explanation to be an aggravating factor. The Crown also submitted that the accused’s decision to keep silent during the investigation resulted in a delay in bringing closure to the victim’s family. As well, the Crown tendered two medical reports as exhibits, over the objection of the defence, for the stated purpose of showing that the accused was not suffering from a psychiatric or physical condition at the time of the offence. In these circumstances and reading the reasons as a whole, I am satisfied that the sentencing judge erred in considering these factors to be aggravating.

Fitness of the sentence

[18] If the sentencing judge commits an error in principle, the sentence imposed is no longer entitled to deference and an appellate court may impose the sentence it thinks fit. R. v. Rahaman, 2008 ONCA 1; R. v. Rezaie (1996), 1996 1241 (ON CA), 31 O.R. (3d) 713 (C.A.).

[19] The range of periods for parole ineligibility for second degree murder is 10 to 25 years. Although elements of first degree murder may have been present in this case, the conviction is for second degree murder and s. 745.4 requires the judge to consider not just the nature of the offence, but also the character of the accused in determining the period of parole ineligibility.

[20] Where a particularly egregious offence is coupled with the most aggravating of offender characteristics such as a history of violence and a high risk of recidivism, the uppermost range of 20 to 25 years will be appropriate.

[21] This was a brutal and violent attack upon an elderly woman in her own home, involving a break and enter and a sexual assault. There are significant aggravating factors in the circumstances of the offence. The murder of this helpless, 81 year old woman left a devastating mark on both her family and on the small community where she lived, as evidenced by the Victim Impact Statements.

[22] However, there are significant mitigating factors in this case. The appellant’s age, health, remorse and lack of criminal record are important considerations in arriving at a fit sentence. He was a hard-working family man. His wife considered him to be a good husband and a good provider. The defence medical report apparently indicated that he will not present a danger in the future. As the sentencing judge noted, this murder was completely out of character.

[23] The nature of the offence and the circumstances surrounding its commission need to be balanced against the character of the accused. In doing so, and in light of the aggravating and mitigating factors, as well as the sentencing principles, a period of parole ineligibility of 16 years is a fit sentence for this offender.

[24] Accordingly, leave to appeal sentence is granted, the appeal is allowed and the sentence is varied to provide for a period of parole ineligibility of 16 years.

RELEASED: November 19, 2010 “JL”

“Karakatsantis J.A.”

“I agree John Laskin J.A.”

“I agree J. C. MacPherson J.A.”