DATE: 20060728

DOCKET: C43675

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN – (Respondent) – and – ADAM KENNETH LOCK (Appellant)

BEFORE:

SIMMONS, ARMSTRONG and ROULEAU JJ.A.

COUNSEL:

Adam Kenneth Lock

in person (by videoconference)

Roger A. Pinnock

for the respondent

HEARD & RELEASED ORALLY:

July 27, 2006

On appeal from the conviction entered and the sentence imposed by Justice Clair Marchand of the Superior Court of Justice on May 18, 2005.

E N D O R S E M E N T

[1] The appellant was convicted by a judge and jury on one count of extortion contrary to s. 346(1.1)(b) of the Criminal Code. He initially appealed his conviction and sentence. He has now abandoned his conviction appeal.

[2] The allegation was that the appellant had left a voice mail message demanding that Mr. M.E., a defence lawyer who had earlier refused to act for the appellant, pay him $1,000 on threat of death to Mr. M.E. and his family. The message left was as follows: “M.E., this is Adam Lock. I am in Kingston Penitentiary. I want you to send me $1,000. If you don’t, I will have someone kill you and hurt your family.”

[3] The appellant was sentenced to six years imprisonment and a lifetime firearms prohibition.

[4] The principal issue at trial was identity. At trial, the Crown adduced similar act evidence in the form of two previous acts of extortion committed by the appellant in respect of two different lawyers who had represented him in the past. The appellant pleaded guilty to those offences and was sentenced to one-year imprisonment on each offence to run concurrently. The Crown also adduced other evidence including evidence identifying the voice on the message as that of the appellant.

[5] The appellant argues that his sentence is outside the appropriate range of sentences for this offence and this offender. Despite the fact that the appellant had two previous convictions for extortion against lawyers, the nature of the threat and the case law would suggest a substantially lower sentence than the six years imposed. He also argues that the trial judge improperly considered s. 423.1 of the Criminal Code in sentencing despite the fact that he was not charged under that section. Further, the requirement in that section that the defendant intend to impede the victim in the performance of his duties was never an issue at trial. The appellant submits that on these facts the appropriate range for the offence is two to four years.

[6] The Crown submits that the appellant has a long and unenviable record and that the present offence was committed while he was serving a sentence for similar extortion offences and the sentence imposed is appropriate.

[7] In our view, the sentence imposed was outside of the appropriate range. A number of cases relied on by the trial judge as being relevant to the length of sentence were really quite different from the instant offence as they involved counselling murder.

[8] The present case involves one event where the appellant sought to extort $1,000 on threat of death to the victim and his family. Without minimizing the seriousness of the offence and the significance of the appellant’s record including convictions for similar conduct, when the circumstances of this case are considered an appropriate sentence is four years.

[9] In conclusion, the conviction appeal is dismissed as abandoned, leave to appeal sentence is granted, the sentence appeal is allowed and the sentence is varied from six years to four years. The lifetime firearms prohibition remains.

[10] For the sake of clarity, we note that there is no indication in the trial judge’s endorsement and reasons to the effect that this sentence was to be served consecutively to sentences the appellant was already serving. Absent any such indication, the sentence is deemed to run concurrently.

“Janet Simmons J.A.”

“R.P. Armstrong J.A.”

“Paul S. Rouleau J.A.”