DATE: 20030522

DOCKET: C39343

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) –and–

ALAN WILLIAM STEWART (Appellant)

BEFORE: LABROSSE, WEILER and CRONK JJ.A.

COUNSEL: Irwin A. Koziebrocki, for the appellant

Sarah Gray, for the respondent

HEARD: May 9, 2003

RELEASED ORALLY: May 9, 2003

On appeal from the sentence imposed by Justice L. Theodore G. Collins of the Ontario Court of Justice dated November 18, 2002.

E N D O R S E M E N T

[1] The appellant pleaded guilty to a charge of uttering a threat to cause bodily harm to Bonnie Stafford, his common-law partner. He told Ms. Stafford during the course of an argument that he would smash her face with a drawer. He was sentenced to 18 months’ imprisonment plus two years’ probation. He seeks leave to appeal against sentence and, if leave be granted, appeals his sentence.

[2] The transcript of the proceedings reveals that before the appellant pleaded guilty to the charge, a female voice was heard to say in open court:

I made a statement against Al only because I wanted a peace bond. I never wanted him arrested. He was never a threat to us and we were never afraid of him. All I wanted was for him to leave our home.

[3] The trial judge told her to be silent or he would have to put her out of the courtroom. The Crown then read into the record the circumstances that formed the basis of the charge. The complainant complained, on November 13, 2002, about an argument that had taken place that day with the appellant. However, the threat which is the subject-matter of this charge was made two weeks earlier, on October 29, 2002.

[4] The trial judge found the appellant guilty as charged and immediately proceeded to hear submissions on sentence from the Crown. As part of the submissions, the Crown indicated that the appellant and the complainant had been in a common-law relationship that was in the process of breaking up. He told the trial judge that the complainant was in court and that he was not sure what she would say about the events. The trial judge replied that he would not hear from her.

[5] On the record before us, it is unclear whether the person in attendance in the courtroom was the appellant’s common-law spouse or her sister, who had given a statement to the police. In either event, the person in attendance had information which she sought to provide to the court and which the Crown appeared to think would, and should, have been heard.

[6] The appellant acknowledged the particulars of his criminal record. The trial judge concluded on the basis of the record that the appellant was a dangerous person and, without further reasons, sentenced the appellant.

[7] As he was dealing with an unrepresented accused person, fairness required the trial judge to hear what the complainant – or her sister – had to say on the accused’s behalf or, at a minimum, he should have informed the accused that he had the right to call her evidence himself. The Crown seemed to think that she had something to say. The delay would have been minimal and providing the witness with the opportunity to speak would have ensured trial fairness.

[8] Offences related to spousal abuse are always a serious matter. However, there are different degrees of gravity in incidents of abuse and domestic violence. The statement, made in open court by the witness in attendance, was very telling. Had the trial judge listened to what was being said, and to the information that the witness sought to provide, it may have assisted him in assessing the seriousness of the offence in order to arrive at an appropriate penalty.

[9] The appellant had a substantial criminal record and it certainly was an aggravating factor that needed to be considered in imposing sentence. Without knowing what the trial judge thought of this offence, as he gave no reasons, he appears to have sentenced the appellant on his record, without consideration for the particulars of the offence. It must be remembered that the appellant had already paid the price for his earlier convictions.

[10] In our view, a sentence of 18 months’ imprisonment is out of proportion with the gravity of the offence. It is unreasonable. The appellant has served in excess of five and one-half months of his sentence. We would grant leave to appeal, allow the appeal and reduce the sentence to time served. The probation order will remain in place.

Signed: “J.-M. Labrosse J.A.”

“K.M. Weiler J.A.”

“E.A. Cronk J.A.”