DATE: 20030625
DOCKET: C39344
COURT OF APPEAL FOR ONTARIO
LASKIN, MACPHERSON and GILLESE JJ.A.
B E T W E E N:
HER MAJESTY THE QUEEN
Irwin Koziebrocki for the appellant
Respondent
- and -
LAWRENCE WHITE
Kelly Slate for the respondent
Appellant
Heard: May 23, 2003
On appeal from the sentence imposed by Justice Timothy C. Whetung, of the Ontario Court of Justice, dated December 12, 2002.
GILLESE J.A.:
[1] Lawrence White pled guilty to, and was convicted of, criminal harassment, five counts of breach of probation and breach of recognizance. All of the offences occurred as a result of Mr. White’s attempts to reconcile with his family after his marriage ended.
[2] Mr. White served approximately eighty days in pre-hearing custody, for which he was credited 160 days. In addition, he was sentenced to eighteen months imprisonment followed by three years probation. He appealed from sentence, asking that he be permitted to serve the sentence in the community or, alternatively, that the period of incarceration be reduced. At the hearing of the appeal, he abandoned his request that he be permitted to serve his sentence in the community. The sentence appeal was argued on the basis that it was excessive.
[3] For the following reasons, I am of the view that the sentence imposed reveals an error in principle. I would reduce the sentence to time served, all other conditions remaining unchanged, for an effective sentence of 12 months.
Background
[4] In the summer of 2001, Lawrence White was forty-eight years old. He had never had any interaction with the criminal justice system. He had been married for fifteen years to Janice White and they had two sons, Patrick and Andrew, who were aged 12 and 9 respectively.
[5] At that time, Mr. White, a labourer with the Lakefield Public Works department, operated heavy machinery. He was a good employee and had held his position with the municipality for twelve and a half years.
[6] In the fall of 2000, the White family decided to relocate from Lakefield to Peterborough. The family moved into its second choice of home, one that required interior work. Mr. White commuted to Lakefield on a daily basis in order to continue his employment. Although the move had been agreed upon between Lawrence White and his wife, he began to find the situation very stressful.
[7] Mr. White started to experience severe anxiety that developed into palpitations, nervousness and tremors. He suffered from loss of sleep and lack of appetite and developed a pessimistic outlook on life. His behaviour took a toll on his marriage and, after his admission into the Peterborough Regional Health Centre for the first of many psychological assessments, he and his wife separated.
[8] In the summer of 2001, the appellant hoped to reconcile with his family and began to engage in the behaviour that brought him before the criminal justice system. It is helpful to consider his behaviour in September and October of 2002, which led to the current convictions, separately from his behaviour that began in the summer of 2001 and continued until the late spring of 2002.
The Current Conviction Offences
[9] On September 2, 2002, Janice White was building a deck on the back of her house when she observed the appellant drive by at least twelve times. At the time, the appellant was on three separate probation orders; a term of all three orders was that he not have contact with Janice White. She did not contact the police at the time.
[10] On September 6, 2002, following a scheduled visitation with his two sons, the appellant approached Janice, Patrick, and Andrew White at a sports store. He asked Janice White if he could have his hunting knife. She refused. He told her that he could pick it up at the house, since it was dark and no one would see, but Janice White told him not to go to her home. Approximately an hour later, at 10:00 p.m., the appellant went to Janice White’s residence and rang the doorbell. At first, Ms. White was unable to see anyone outside because the appellant stood flat against the side of the house. When she saw the appellant, she shook her head to indicate “no” and he left. Ms. White reported this incident to the police.
[11] Over the course of the following three days, the police looked for the appellant at his home and place of work, without success. On September 10, 2002, he turned himself in to the police. On September 18, 2002, the appellant was released on bail on his own recognizance.
[12] On October 2, 2002, the appellant approached Janice, Patrick and Andrew in the parking lot of the Kinsmen arena. He handed Janice a card and a fishing rod. The card read “Sending you love and hoping things are better soon, with love to you all –XOXOXO – I miss everything”. He then handed each of his sons a chocolate bar and a loonie. Ms. White contacted the police on October 3, 2002.
Convictions in 2001-2002
[13] On August 7, 2001, the appellant was convicted of criminal harassment against Janice White and breach of recognizance. He received a fifty-eight day intermittent sentence followed by two years probation. By a term of probation, he was to have no contact with Janice, Patrick or Andrew, except through a family court order.
[14] The appellant was arrested and convicted of breach of probation on October 2, 2001 and given a three-month conditional sentence.
[15] On October 22, 2001, Mr. White was arrested again for contacting his wife and children. He was held in custody until November 2, 2001, at which time his conditional sentence was terminated. He served the remainder of the sentence in custody. He was released from custody on December 11, 2001.
[16] The following day, December 12, 2001, Mr. White approached his children at their school and was arrested for breach of probation. He received a sentence of thirty days intermittent followed by two years probation. A term of probation was that he have no contact with Janice, Patrick, or Andrew, except through a family court order.
[17] On April 23, 2002, he was convicted of criminal harassment and sentenced to two years probation. He had served seventy-eight days of pre-sentence custody. A term of the probation order was that he have no contact with Janice, Patrick, or Andrew.
The Sentence under Appeal
[18] The sentencing judge concluded (at p. 19) that general and specific deterrence were the dominant considerations, as prior sentences that focussed on rehabilitation had proven ineffective:
In my opinion at this time he requires a sentence directed towards specific deterrence and the community requires a sentence directed towards general deterrence. The rehabilitative aspects will be attempted to be addressed but they are matters, in my opinion, which are subordinate to specific and general deterrence at this time.
In my opinion, the conduct of Mr. White, based upon the history of his involvement with the courts and the history of his involvement with these complainants is so serious that, absent the mitigation to be attached to a plea of guilty and his acceptance of responsibility in these matters, a penitentiary sentence would not be inappropriate. But, having said that, I am obliged to attach mitigation to his acceptance of responsibility in the circumstances in which it occurred…
[19] The judge rejected the possibility of a conditional sentence because he had no confidence that the appellant would abide by any conditions that the court might impose.
Fitness of Sentence
[20] No objection can be taken to the trial judge’s imposition of a period of imprisonment. In accordance with this court’s jurisprudence (see, for example, R. v. Bates (2000), 2000 ONCA 5759, 146 C.C.C. (3d) 321 (Ont. C.A.)) and in light of the appellant’s continued refusal to abide by court orders, a period of incarceration was required in order to denounce his conduct, provide specific and general deterrence and meet the complainant’s safety needs.
[21] However, having regard to the circumstances of these offences and of this appellant, in my view the period of incarceration is excessive. The following factors lead to this conclusion: a) the absence of violence in the offences; b) the appellant’s lack of a criminal record prior to the break up of his family; c) the significant increase in sentence; d) the appellant’s emotional and psychological problems; and, e) the fact that the appellant had taken steps to receive counselling.
[22] The appellant’s actions do not bear the aggravating factors that warrant a sentence in the upper reformatory range. In Bates, supra, the accused pled guilty to one charge of criminal harassment, three charges of assault and six charges of failure to comply. He was found guilty, after trial, of uttering a death threat. Over a three-month period, the accused engaged in an escalating pattern of harassment of a former girlfriend and her friends and repeatedly breached judicial release orders.
[23] The offences in Bates began in September 1998 when, during an argument, the accused used profanity and called the complainant names. He slapped her across the face, knocking her to the floor. He then picked her up and threw her against a cupboard where she struck her head. She suffered bruising to her face and hip. The complainant ended their relationship but he continued to telephone her and attend at her home and workplace. He assaulted her again a month later. As a result of the second assault, he was arrested and released on a promise not to communicate with the complainant or her friends. Five days later the accused returned to the complainant’s home, looking for her. He entered her home while the family was out.
[24] On other occasions, he used threats involving profanity; followed and harassed her friends to the point they considered moving, changing their phone and licence numbers out of fear for their lives; accosted the complainant at her place of work and when she refused to go with him, showed her a gun and two bullets, saying one was for her and the other for him. He took the complainant’s purse and went through her diary. He told her she deserved to die. The victim impact statement showed that the complainant feared for her life. He avoided arrest for a lengthy period. The medical evidence was that he did not suffer from any disorder; he was immature. He had a lengthy criminal record. On appeal, this court sentenced the accused to thirty months, inclusive of pre-trial custody.
[25] In R. v. Thomas, [2001] O.J. No. 2220 (C.A.), after referring to Bates, this court stated that a sentence of three years was “at the upper end of the range”. The accused in Thomas was convicted of criminal harassment, had a lengthy criminal record, had been convicted of assaulting the victim twice before, had shown no regard for court orders, and was in breach of three probation orders at the time of the offences.
[26] The gravity of the appellant’s offences is materially different from those in Bates and Thomas. There were no assaults, profanity, threats or home invasions. There was no violence and no threatened violence against the complainant. Indeed, there was no history of violence nor were there allegations that Mr. White was abusive or violent during the marriage. He had no record prior to the break up of his family. He did not harass the complainant’s friends and family. The appellant took responsibility for the offences, turning himself in to the police and pleading guilty to all of the offences.
[27] While a term of imprisonment was warranted, given his prior convictions for criminal harassment and breach of probation, the increase was excessive. His prior sentences were for short periods of incarceration (58 days and 30 days), both of which were to be served intermittently, and a conditional sentence.
[28] Several medical and psychiatric opinion letters were filed as exhibits at sentencing. All of the physicians agreed that the appellant was having difficulty coping with his personal situation. While there was a divergence of medical opinion as to the root of the appellant’s behaviour, two physicians were of the opinion that he suffered from obsessive/compulsive disorder. Three others were of the view that he suffered from depression. The consensus was that further treatment, either through continued medication, counselling, or both, should be implemented. The opportunity for rehabilitation through such treatment is hampered by incarceration.
[29] The appellant has a “mild disposition”. When addressing the court at the time of sentencing, the appellant spoke of the effect that the pre-hearing custody had had upon him and stated that he was going to a separation and divorce group. He spoke also of the stresses he faced in prison as a person without a criminal background. He acknowledged the need to recognize that his relationship with his wife was over and his need to seriously pursue treatment and counselling.
[30] The appellant’s time in pre-hearing custody impressed upon him the need for rehabilitation and his further incarceration for seven months will have reinforced that need.
[31] In light of these considerations, a sentence of 23 months was excessive.
Disposition
[32] Accordingly, I would grant leave to appeal from sentence, allow the appeal and vary the sentence to one of time served. I would leave the term of three years probation, and attached conditions, unchanged.
“E.E. Gillese J.A.”
“I agree John I. Laskin J.A.”
MACPHERSON J.A. (Dissenting):
[33] I have had the opportunity to read the draft reasons prepared by my colleague, Gillese J.A. With respect and regret, I do not agree with her proposed disposition of the appeal. In my view, the sentence imposed by Whetung J. was not based on an error in principle; nor was it excessive. Hence, I would dismiss the appeal. Because my colleague has set out the factual background in a clear and comprehensive fashion, I can state my reasons in relatively brief compass. My reasons essentially boil down to two points.
[34] First, in a long line of recent cases the Supreme Court of Canada has sent a crystal clear message to appellate courts reviewing sentences imposed by trial judges. As expressed by Lamer C.J.C. in the latest of this line of cases, R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61 at 124, “this court has repeatedly stated that the sentence imposed by a trial court is entitled to considerable deference from appellate courts”. The reasons for this standard of review of “considerable deference” were vividly explained by Lamer C.J.C. in R. v. M. (C.A.), 1996 SCC 230, [1996] 1 S.C.R. 500 at 565-66:
This deferential standard of review has profound functional justifications. As Iacobucci J. explained in Shropshire [R. v. Shropshire, 1995 SCC 47, [1995] 4 S.C.R. 227] at para. 46, where the sentencing judge has had the benefit of presiding over the trial of the offender, he or she will have had the comparative advantage of having seen and heard the witnesses to the crime. But in the absence of a full trial, where the offender has pleaded guilty to an offence and the sentencing judge has only enjoyed the benefit of oral and written sentencing submissions (as was the case in both Shropshire and this instance), the argument in favour of deference remains compelling. A sentencing judge still enjoys a position of advantage over an appellate judge in being able to directly assess the sentencing submissions of both the Crown and the offender. A sentencing judge also possesses the unique qualifications of experience and judgment from having served on the front lines of our criminal justice system. Perhaps most importantly, the sentencing judge will normally preside near or within the community which has suffered the consequences of the offender's crime. As such, the sentencing judge will have a strong sense of the particular blend of sentencing goals that will be “just and appropriate” for the protection of that community. The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community. The discretion of a sentencing judge should thus not be interfered with lightly.
[35] In the present case, the sentencing judge’s reasons are 22 pages in length. He delivered his reasons after receiving a good deal of relevant information and material (from the appellant, the complainant, doctors, the police and a probation officer) and after hearing full submissions from counsel. The sentencing process was comprehensive and deliberate, not hurried. The sentencing judge’s reasons were detailed, lucid and balanced, not cursory, muddled or unfair. Accordingly, the standard of review enunciated in Proulx – “considerable deference” – is especially appropriate in this appeal.
[36] Second, this court has taken a strong stand in recent years against domestic violence and harassment. Spouses (usually women) and children deserve protection from abusive spouses and parents. The safety of vulnerable family members must dwarf all other considerations. This court has recognized and given voice to this message in consistent and forceful language. The leading case, in my view, is R. v. Bates (2000), 2000 ONCA 5759, 146 C.C.C. (3d) 321. After a full canvass of the relevant facts, Criminal Code provisions, case law and sentencing principles, Moldaver and Feldman JJ.A. set out a clear and compelling summary, at p. 334:
The number of recent cases continuing to reach this court emphasizes the extent of the problem of 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.
[37] In the present case, the appellant was convicted of criminal harassment against his estranged wife. Accordingly, the above passage from Bates, the leading case dealing with sentencing principles for the offence of criminal harassment in a domestic setting, must govern this appeal.
[38] In my view, the sentencing judge’s reasons are entirely and explicitly consistent with the ratio from Bates. After reviewing the appellant’s conduct over an 18-month period and the sentences he had received for previous offences, the sentencing judge said:
This conduct on the part of Mr. White must stop and sentences imposed by the court in the past have clearly accommodated his personal expressed position that he requires rehabilitation. In my opinion at this time he requires a sentence directed towards specific deterrence and the community requires a sentence directed towards general deterrence. The rehabilitative aspects will be attempted to be addressed but they are matters, in my opinion, which are subordinate to specific and general deterrence at this time.
[39] It is true that there are factual differences between this case and Bates. The most important is the absence of physical violence in this case and the serious violence in Bates. However, the sentencing objective of specific deterrence is directed at preventing future crimes. On the record in this case, the risk of the appellant’s harassing behaviour potentially turning to violence is all too apparent.
[40] For example, Detective Sergeant Joey Gauthier of the Threat Assessment Unit of the Ontario Provincial Police prepared a six-page report about the appellant. His conclusion was that “Mr. White presents a moderate risk for potential violence.”
[41] The complainant also dealt with the question of violence in her victim impact statement:
Several Officers have commented and also Marty Murphy the fact that in the past Mr. White has not been violent. However, my answer is no but he also has never acted this strangely before either. What is a person to think when he stalks me and finds me at a store at 9:00 p.m. and wants to come by the house to pick up his hunting knife?
[42] The sentencing judge attached weight, as he was entitled to do, to the opinions of the complainant and Detective Sergeant Gauthier. He said:
The crux of this matter is, I think, summed up by Sergeant Gauthier: “Any approached behaviours on his part at this time may be cause for concern.” It is not my role to judge with nicety the nuances of Mr. White’s intentions or potential intentions. What he is doing is causing fear. What he is doing appears to be escalating from the standpoint of the perception created in the mind of the complainant and I cannot disagree [with] that, when he begins to talk about things like coming to the house to get a knife because it is dark and no one can see him or words to that effect, that this would be a matter of concern, especially to a complainant in the circumstances of which Mrs. White finds herself where nothing done to this point seems to work. [Emphasis added.]
[43] In addition, this court has made it clear that the principles from Bates apply to criminal harassment convictions where the harassment was not joined to physical violence. In R. v. Finnessey (2000), 2000 ONCA 16862, 135 O.A.C. 396, the court (Osborne A.C.J.O. and Doherty and Charron JJ.A.) set out the ratio from Bates, as quoted above, and continued, at p. 399:
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.
[44] In her draft reasons, my colleague identifies five factors which lead her to conclude that the appellant’s incarceration is excessive: a) the absence of violence; b) the appellant’s lack of a criminal record prior to the break up of his family; c) the significant increase in sentence; d) the appellant’s emotional and psychological problems; and e) the fact that the appellant had taken steps to receive counselling. I have already commented on the violence factor. I should comment, briefly, on the other four factors.
[45] The appellant’s lack of a criminal record prior to the break up of his family is, with respect, irrelevant. The problem is a rapidly expanding, bordering on continuous, pattern of criminal conduct since the break up that is directed at his family.
[46] It is true that a sentence of 23 months was a significant “step up” from the three previous sentences. However, the sentencing judge’s candid reasons for the escalation are, in my view, supportable.
[47] The appellant’s emotional and psychological problems are sad and deserving of sympathy. However, at this juncture the sentencing judge was entitled to conclude that specific deterrence of the appellant and the safety of his family must take priority.
[48] The appellant’s commitment to counselling is, in my view, doubtful. Tamara Look was the appellant’s probation officer for a year. In a report to the Crown attorney in September 2002, she stated:
Dr. Moher advised that Lawrence had missed his last two appointments and had only recently contacted him seeking support for unsupervised visits with his children.
Discussed his continual stopping and starting medication, which doesn’t help his mental health in the least. Also wants a new psychiatrist as Dr. Moher challenges everything he says.
Despite repeated and continual reminders of the conditions of his probation order, Lawrence continues to violate these conditions, with little regard for the impact of his behaviour on his victims, which is his own family.
Lawrence has done little to help himself in this regard and has attempted to deceive all members of the various community agencies that he is involved with, portraying himself as the victim in this situation.
[49] In summary, I cannot conclude that the sentence imposed reveals an error in principle or is excessive. I would dismiss the appeal.
“J.C. MacPherson J.A.”