Court of Appeal for Ontario
BETWEEN
Her Majesty the Queen
Respondent
and
David Hagen
Appellant
COUNSEL:
Robin Parker, duty counsel
Susan Ficek, for the respondent
Heard and released orally: November 16, 2011
On appeal from the sentence imposed by Justice Frederic M. Campling of the Ontario Court of Justice on June 16, 2010.
ENDORSEMENT
1The appellant committed a group of extremely serious offences on September 13, 2009. He was on his way to commit arson with two glass bottles containing flammable liquid, also with a stolen sawed-off shotgun and ammunition. When stopped by police, he struck one of the officers, attacked him with a shotgun, then pointed the shotgun and threatened to kill the officer. In response, the officer shot the appellant, injuring him.
2The shotgun was illegally sawed-off. The appellant was on probation and was in breach of conditions not to possess firearms, to keep the peace and to be of good behaviour. He was also in breach of a weapons prohibition under s. 110.
3The appellant pled guilty to assault police, assault causing bodily harm, pointing a firearm, possession of a prohibited weapon with accessible ammunition, possession of a stolen firearm, possession of an incendiary device for the purpose of arson and two counts of breaching court orders.
4The trial judge imposed a global sentence of 8 years 9 months less credit for pre-trial custody counted as 2:1, leaving a net sentence of 7 years 3 months. Duty counsel on behalf of the appellant submitted to this court that although the offence calls for a penitentiary sentence, the one imposed by the trial judge was too harsh for this offender. He has a significant record but his longest previous sentence was 2 years in the penitentiary. Furthermore, the trial judge “jumped” the Crown submission of 6 years less 1 year of credit for pre-trial custody for a net sentence of 5 years.
5In our view, where the trial judge intends to jump the Crown on sentence, particularly by a significant amount, as here, the judge should advise counsel and give them the opportunity to make submissions and provide further authorities, if so advised.
6Although that was not done in this case, however, in our view, the significant sentence that the trial judge imposed was warranted in the circumstances. The seriousness of an attack with a weapon on a police officer while on the way to commit arson cannot be minimized. The fact that the appellant was breaching court orders at the time is also a significant aggravating factor. In addition, the appellant has an unenviable record including prior convictions for forcible confinement and assault on his wife.
7The trial judge reduced the sentence he intended to give to reflect counsels’ submissions and some mitigating factors. However, we share his view of the seriousness of the offences and the need for a significant deterrent sentence.
8In the result, leave to appeal sentence is granted but the appeal against sentence is dismissed.
Signed:
“K. Feldman J.A.” “Janet Simmons J.A.” “David Watt J.A.”
