COURT OF APPEAL FOR ONTARIO

DATE: 20000911

DOCKET: C33720

OSBORNE A.C.J.O., DOHERTY and CHARRON JJ.A.

BETWEEN: )

) Tina Yuen
HER MAJESTY THE QUEEN ) for the appellant
Appellant )

• and - )

) Robert Sheppard
JOSEPH SHAUN FINNESSEY ) for the respondent
Respondent )

) Heard: August 31, 2000

On appeal from the sentence imposed by Mr. Justice Edward J. McGrath dated December 30, 1999.

BY THE COURT:

[1] The respondent pled guilty to and was convicted of a number of offences and received a total sentence of 20 months to be followed by three years’ probation. He spent two months in custody prior to sentencing and was given four months’ credit for that time by the trial judge.

[2] The Crown seeks leave to appeal the sentence imposed and ask that this court impose a total sentence of three years. We agree that the sentence imposed reveals an error in principle. In our view, an appropriate total sentence is one of four years.

[3] The respondent and his wife, the complainant, separated early in 1998, but the respondent would not accept that the marriage was over. His conduct toward the complainant became abusive. In early July 1998, the police had to be called to the complainant’s home to escort the respondent off the property.

[4] In late July 1998, the respondent broke into the complainant’s home at 3:00 a.m. and confronted her in the bedroom. Over the next several hours, the respondent terrorized the complainant. He threatened to kill her and members of her family. The complainant was able to contact her landlord who called the police. The police tried to arrest the respondent but he fled and remained at large until November 1999.

[5] In the 15 months following the break in, the respondent continued to terrorize the complainant. The reign of terror included the following:

• The respondent broke into the complainant’s home while she was not there.

• The respondent phoned the complainant hundreds of times at all hours of the day and night. When the complainant took steps to prevent the respondent from phoning her home, he began to place harassing calls to the homes of her friends. During these calls, he threatened to kill the complainant and her friends. Some of these threats were very graphic.

• During the phone calls, the respondent taunted the complainant and the police indicating that he could not be caught and that he would be arriving at the complainant’s home shortly.

• The complainant and her three year-old son were forced out of her home on at least three separate occasions by the respondent’s harassing conduct.

[6] The respondent was eventually arrested in the United States on an unrelated matter and returned to Canada. While in custody, and after one of his court appearances, the respondent became upset, caused minor damage to a police vehicle, and threatened a police officer.

[7] The respondent is 29 years old. He has a truly tragic background. He was abused as a child and grew up without any moral compass.

[8] The respondent has 36 prior convictions beginning when he was 16 years old. He has four convictions for threatening, three convictions for break and enters, two prior assault convictions and five convictions for breaches of various court orders. He also has had his parole revoked and has been convicted of escaping lawful custody on several occasions. He has shown little regard for the law or those who administer it.

[9] Counsel for the respondent acknowledged that the respondent could not control his anger and was unable to “apply reason and common sense when things aren’t going his way.” Counsel observed that much of this could be attributed to the respondent’s tragic childhood. Counsel contended that the absence of any physical violence was a mitigating factor.

[10] In imposing sentence, the trial judge recognized the seriousness of the crimes. He concluded, however, that society would be protected more by a maximum reformatory term followed by three years probation than by a three-year jail sentence which could not be followed by probation. The trial judge then reduced the period of imprisonment from two years to 20 months to take into account the pre-trial custody. In reaching his conclusion, the trial judge noted that he was influenced by the fact that the respondent had only one prior conviction for assault. The respondent, in fact, had two prior convictions for assault and four prior convictions for threatening.

[11] In R. v. Bates, (11 July 2000), Toronto C32619, 2000 5759 (ON CA), [2000] O.J. No. 2558, online: QL (OJ), this court dealt at some length with the principles of sentencing to be applied in cases like this one. The court said, at paras. 35-36:

Domestic violence and harassment cases most often involve conduct directed by a male spouse or partner against a woman. Yet offenders who feel empowered to harass a partner or former partner with impunity will not necessarily confine their behaviour to that person, but may also harass and terrorize her friends and family members. As this case illustrates, the respondent somehow perceived that his love and need for the complainant allowed him to be an unwanted presence in her life and in the lives of her family and associates, and to threaten and terrorize them to achieve his ends. His irrational actions made him a menace to [the complainant] and those close to her.

Consequently, when an offender like the respondent comes before the court for sentencing, it is important for the court to denounce his conduct in the clearest terms by fashioning a heavy sentence. …

[12] The court concluded its statement of the applicable principles of sentencing at para. 42 of the judgment with these words:

The number of recent cases continuing to reach this court emphasizes the extent of the problem with criminal harassment and the need for sentencing courts to respond to this type of offence in the most forceful and effective terms, sending the message of denunciation and general deterrence to the community and specific deterrence to individual offenders.

[13] R. v. Bates did not announce new law. It did, however, set out the applicable principles of sentencing with a clarity and emphasis that was not apparent in our earlier jurisprudence.

[14] There are differences between the facts of this case and the facts in R. v. Bates. In some ways, Bates’ conduct was more serious, but in other ways the respondent’s conduct was more egregious. The respondent’s extensive criminal record, involving numerous convictions for similar offences, is much more serious than Bates’ relatively minor unrelated criminal record.

[15] The trial judge did not have the benefit of this court’s reasons in R. v. Bates. Had they been available to him, we have no doubt that he would have concluded that a substantial penitentiary term was essential to adequately reflect the applicable principles of sentencing.

[16] Those principles apply with full force even where there is no physical violence. The absence of physical violence is not a mitigating factor on a conviction for harassment. The psychological violence done to the complainant and her friends over a prolonged period by the respondent’s conduct is the very evil that Parliament sought to punish by creating the crime of harassment. The fact that the respondent did not commit additional crimes involving physical violence cannot mitigate his sentence on the harassment charge.

[17] At trial, the Crown sought a three-year penitentiary term. On appeal, the Crown requested a sentence of three to five years in its factum, and a sentence of three years during oral argument. We are reluctant to impose a longer sentence than that requested by Crown counsel in oral argument. However, the application of the applicable principles to the facts of this case and the respondent’s background demand a sentence beyond three years. We are satisfied that a sentence of four years is needed to adequately send the message of denunciation and general deterrence to the community and to adequately deter the respondent.

[18] The trial judge imposed a sentence of 18 months on the break and enter charge. That crime was a serious one involving an invasion of the complainant’s home in the dead of night and the terrorizing of the complainant for some time. We would not interfere with the sentence imposed by the trial judge.

[19] The trial judge imposed a sentence of 18 months concurrent on the harassment charge. That charge related to conduct which occurred over a 15-month period following the break and enter. In our view, the sentence should have been consecutive to the sentence imposed on the break and enter. Considering the nature of the harassment, the respondent’s prior record and the totality principle, we are satisfied that a sentence of two years, eight months would be appropriate. We would reduce that to two years, four months to give the respondent credit for the time spent in custody pending trial.

[20] The trial judge imposed total sentences of 60 days consecutive on the charges relating to the damage of the police vehicle and the threat to the police officer. We would not interfere with those sentences.

[21] The trial judge imposed concurrent sentences on the other charges to which the respondent plead guilty. We would not interfere with those sentences.

[22] Consequently, leave to appeal is granted, the appeal is allowed, the sentence imposed on the harassment charge is varied to one of two years, four months to be consecutive to the other sentences imposed by the trial judge. In the result, the respondent’s total sentence is varied to four years.

Released: Sept. 11, 2000 “DD”

“CA Osborne ACJO”

“Doherty J.A.”

“Louise Charron J.A.”