DATE: 20021031 DOCKET: C38109
COURT OF APPEAL FOR ONTARIO
ROSENBERG, CRONK, GILLESE, JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Kenneth L. Campbell, for the respondent
Respondent
- and -
CRAIG BARTON
Richard Litowski, for the appellant
Appellant
Heard: September 25, 2002
On appeal from the sentence imposed by Justice I. M. Gordon on March 18, 2002.
CRONK J.A.:
[1] [1] The appellant was convicted of one count each of sexual assault, unlawful confinement and breach of recognizance of bail. He received a global sentence of 32 months imprisonment after credit of 40 months for time spent in pre-trial custody. He seeks leave to appeal and, if leave be granted, appeals against his sentence.
(1) BACKGROUND
[2] [2] The offences in this case arose from a night of drinking by the appellant with the complainant and her girl friend. Initially, the appellant and the two women attended at the appellant’s apartment in Sudbury. Sometime thereafter, the appellant left the apartment to obtain some beer for the group to drink. While he was gone, the complainant and her girl friend left the appellant’s apartment for a brief time during which the girl friend called her boy friend and asked him to join them. After he did so, all three individuals returned to the appellant’s apartment. The appellant arrived shortly thereafter, with a twelve pack of beer. The group then drank beer and watched a movie.
[3] [3] While watching the movie, the group shared a marijuana joint supplied by the appellant. Shortly after consuming the marijuana, the appellant began to act in an unusual manner. He accused the group of stealing his stash of marijuana. Efforts to calm the appellant were unsuccessful. The complainant’s girl friend and her boy friend prepared to leave the apartment. The appellant would not let them leave until he searched them and determined that they did not have his marijuana.
[4] [4] The complainant began to put on her shoes. The appellant grabbed her, and pushed her into his bedroom. When the complainant’s girl friend attempted to come to her aid, the appellant threatened the girl friend and her boy friend and ordered them to leave. They left, and ran to a nearby apartment to call for help, leaving the complainant alone with the appellant.
[5] [5] The appellant physically prevented the complainant from leaving his apartment, despite her crying and telling him that she wanted to go home. He then had sexual intercourse with the complainant, against her will. The assault terminated when the appellant heard a knock on the apartment door and observed the complainant’s girl friend at the door. The complainant then managed to escape. She collapsed at the bottom of the stairs outside the apartment. When the police arrived shortly thereafter, they discovered the complainant crouched on the stairs. She was crying and distraught. The appellant was then arrested. He was abusive and unco-operative during the arrest, protesting his innocence.
[6] [6] The complainant suffered various physical injuries including redness to her neck and left cheek, bruises to her left and right forearms, right upper arm and the back of her right arm, scratches to her left shoulder, and redness to her back and waist area.
[7] [7] At the time of the assault, the appellant was bound by a recognizance of bail that required him, among other matters, to refrain from consuming alcohol. Accordingly, by consuming beer on the evening in question, the appellant breached the terms of his bail.
[8] [8] The appellant entered guilty pleas to the charges of sexual assault, unlawful confinement and breach of recognizance of bail. Prior to his convictions, the appellant spent about 23 months in custody, in segregation.
(2) ISSUES
[9] [9] The appellant raises four grounds of appeal concerning his sentence:
(i)(i) the trial judge placed insufficient weight on the appellant’s prospects for rehabilitation. In particular, the trial judge’s reasons fail to reflect consideration of the fact that treatment for the appellant’s alcohol abuse problem could lead to his rehabilitation;
(ii)(ii) the trial judge imposed a sentence of imprisonment exceeding the sentence proposed by Crown counsel at trial;
(iii)(iii) the trial judge failed to assign any mitigation benefit to the fact that the appellant’s pre-trial custody was spent in segregation; and
(iv)(iv) the lengthy sentence of imprisonment imposed by the trial judge was excessive as it constituted a significant increase over the sentences previously imposed upon the appellant.
[10] [10] For the reasons that follow, I would grant leave to appeal the sentence, but dismiss the appeal.
(3) ANALYSIS
(i) Rehabilitation prospects
[11] [11] Contrary to the appellant’s submissions, the trial judge’s reasons indicate that he took into account the appellant’s prospects for rehabilitation and noted, in this case, that some counselling for alcohol or substance abuse would be necessary. He also stated that he took into account the appellant’s psychiatric evaluations which confirmed that the appellant abused alcohol “quite significantly” and that he admitted drinking “too much alcohol, consisting from 6 to 18 beers just about every day.” Those evaluations further stated that future abstinence from alcohol “will go a long way in improving the [appellant’s] risk of re-offending”. Accordingly, by considering the contents of those evaluations, the trial judge was alive to the fact that treatment of the appellant for his substance abuse problem could contribute to his rehabilitation. The weight to be assigned to that fact was a matter for the trial judge to decide.
(ii) Consideration of the Crown’s position regarding sentence
[12] [12] Crown counsel at trial argued that the appellant was a recidivist sex offender, with a lengthy criminal record, who showed a complete disregard for court orders and lacked insight into the offences of which he was convicted. She submitted that the appellant should receive a sentence of imprisonment in the range of 6 years, that is, 30 months in addition to credit for time served. The trial judge imposed a sentence of 6 years but gave the appellant credit for 40 months of pre-trial custody. That resulted in a sentence of 32 months, 2 months longer than the sentence proposed by the Crown.
[13] [13] The incident giving rise to the convictions here was serious. The assault was carried out in a frightening and threatening manner. Even after the assault, the appellant attempted to prevent the complainant from leaving his apartment. Her safety was secured only when she successfully escaped. Although no weapon was involved and the assault was not planned or pre-meditated, it was nevertheless a serious and violent offence, warranting a serious punishment.
[14] [14] Moreover, the appellant had previously been convicted on several occasions for failing to comply with probation orders and recognizances of bail. The circumstances surrounding the present incident involved a further knowing breach by the appellant of bail conditions. As well, less than two years prior to the current offences, he had been convicted of sexual assault, forcible confinement and failure to comply with his recognizance of bail.
[15] [15] This was not a joint submission. The sentencing judge is not bound by the submissions of counsel in determining an appropriate sentence. It is apparent that the judge gave careful consideration to the submissions of both counsel. The fact that he imposed a sentence slightly in excess of the range suggested by Crown counsel reflects no error in principle. I would not give effect to this ground of appeal.
(iii) Segregation
[16] [16] The trial judge declined to treat time spent in segregation as a discrete mitigating factor concerning sentence. In his view, a decision to place an accused in segregation is a decision made by the relevant correctional institution based on institutional considerations. However, the trial judge also stated that time spent in segregation could be considered “as part of time served awaiting trial.” It thus appears that, in determining the credit to be given to the appellant for pre-trial custody, the trial judge did take the nature of the appellant’s pre-trial custody into account, in addition to its duration. In our view, it was proper for the trial judge to do so. Segregation is a relevant factor to be considered in determining an appropriate credit for pre-trial custody. In this case, the appellant requested segregation, in the interests of his own safety. The trial judge afforded the appellant significant credit for pre-trial custody. In those circumstances, I would not give effect to this ground of appeal.
(iv) Length of sentence imposed
[17] [17] The appellant also argues that the sentence of imprisonment imposed by the trial judge is excessive because it is significantly longer than the sentences imposed for previous offences committed by the appellant. I disagree. The appellant has a lengthy prior record which includes a number of prior convictions for violent offences. He was also previously convicted in 1998 of the same offences for which the present convictions were entered. He reoffended in 1999 by uttering threats, committing an assault and resisting arrest. In the same year, he was again convicted of uttering threats and assault, in addition to obstructing a peace officer. He re-offended again in 2000 by assaulting, and unlawfully confining, the complainant. Moreover, that incident involved a breach of the appellant’s bail conditions. He has repeatedly breached conditions of probation and bail in the past. That conduct, as argued by Crown counsel at trial, demonstrates a complete disregard by the appellant for his undertakings to the court, and for court orders. As observed by the trial judge, the “circumstances in the case at hand were ugly and compelling, violent and disrespectful.” Accordingly, in my view, the sentence imposed by the trial judge was proper in the circumstances and amply supported by the evidence.
(4) DISPOSITION
[18] [18] For the reasons given, I would grant leave to appeal against sentence and dismiss the appeal.
RELEASED: “MR”
“OCT 31 2002” “E.A. Cronk J.A.”
“I agree M. Rosenberg J.A.”
“I agree E.E. Gillese J.A.”