DATE: 20061006
DOCKET: C41869
COURT OF APPEAL FOR ONTARIO ROSENBERG, GOUDGE and FELDMAN JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Shawn Porter
for the appellant
Appellant
- and -
PETER DEVANEY
Christopher Hicks and
Catriona Verner
Respondent
for the respondent
Heard: April 5, 2006
On appeal from the sentence imposed by Justice Arthur M. Gans of the Superior Court of Justice on April 30, 2004, reported at [2004] O.J. No. 915, following the respondent’s conviction by a jury for manslaughter on December 3, 2003.
FELDMAN J.A.:
INTRODUCTION
[1] The respondent was convicted by a jury of manslaughter in the death of his landlady, Ms. Gillian Fleming. The killing was particularly vicious. The victim, a woman in her early 60s, was stabbed 107 times all over her body and also sustained a blunt force injury to her head. She had twenty-five defensive wounds, indicating a significant struggle. The respondent killed her shortly after she told him that he had to move out so that another tenant, who was able to pay the rent, could move in.
[2] The jury’s verdict of manslaughter rather than murder indicates that they accepted or had a reasonable doubt that the respondent committed the offence while under the influence of alcohol and was sufficiently intoxicated to lack the requisite intent for murder.
[3] The respondent was sentenced to a total of 11 years. He was credited with 6.5 years for the 2 years and 8 months he served in pre-trial custody, somewhat more than the standard two-for-one credit because of the Toronto jail conditions during that time. His net sentence was therefore 4.5 years. The Crown says that the sentence imposed is manifestly unfit and seeks a total sentence of 18 to 20 years imprisonment.
BACKGROUND
[4] The respondent was in his early 40s when he committed the offence. He had been married twice and had three children, but by 2001 his second wife had left him, he had sustained an injury that prevented him from working, he had financial difficulties and he had a significant alcohol problem. It was after the breakdown of his second marriage that he became a tenant in the home of the victim, a widow who, because of financial difficulties of her own, was obliged to take tenants into her home following the death of her husband. The evidence suggested that the two people had become friends, although she had told him that she was evicting him because she needed a tenant who could pay the rent.
[5] The sentencing judge described the victim and the offence in the following manner:
From all accounts, Gillian Fleming, a recent pensioner at the time of her death, was a kind and gentle soul. This description of her, provided me by her brother and sister-in-law during their court presented victim impact statements, was underscored by the evidence seen and heard at trial and during the sentencing hearing. She was obviously very trusting and motherly to all who came within her sphere of influence. She had regrettably fallen on hard times after her husband’s death, which tragically compelled her to take tenants into her home.
Her ultimate demise, as is evident from the photographs of the scene of her murder and as was described to me by the pathologist, Dr. Toby Rose, was, to say the least, horrific. She sustained no fewer than 107 sharp-force wounds to her head, face, torso and arms, and legs, the most medically significant of which were to her chest, and back, which caused damage to her lungs, diaphragm and liver. In addition, and as if the knife wounds would not have been sufficient to lead to her death, she sustained a blunt force injury to her head, which caused bruising to the area of her brain. Finally, she sustained multiple defensive-type wounds to her hands and arms, indicating that while she was under attack, she was futilely attempting to protect herself.
I was told that a combination of some or all of the sharp and blunt force wounds could have caused Ms. Fleming’s death. Dr. Rose could not tell me how long the attack lasted, in total, but agreed in cross-examination, that the whole assault could have been over a brief period of time, at the end of which she believes that Ms. Fleming must have, mercifully, lost consciousness. Dr. Rose was further of the view that Ms. Fleming would have survived for a few minutes thereafter before expiring.
[6] The respondent was drinking heavily on the day of the offence. He could not remember anything except finding himself early the next morning sitting in the victim’s bedroom beside her badly beaten and stabbed body. He initially believed he must have killed the victim and eventually he called the police and confessed to the crime. However, he later took the position, which he maintained at trial, that he did not kill her but merely found her dead in her room. Although the jury did not have a reasonable doubt about the respondent’s responsibility for the death, they returned a verdict not of murder but of manslaughter, based on the defence of intoxication.
[7] The respondent had no criminal record. However, the Crown initially took the position that he should be found to be a dangerous offender. The trial judge issued an order under s. 752.1 of the Criminal Code requiring the respondent to undergo a psychiatric assessment. When this assessment did not support the dangerous offender application, Crown counsel brought a long-term offender application and asked the trial judge to order additional s. 752.1 assessments. The trial judge refused these requests, concluding that the evidence was insufficient for there to be a reasonable possibility of success on the long-term offender application. Although there was some evidence suggesting that the respondent had a history of behaving violently toward one of his former spouses while intoxicated, the evidence was not sufficiently cogent for the Court to make any of the necessary findings beyond a reasonable doubt.
[8] At the sentencing hearing, the Crown took the position that the appropriate sentence was life imprisonment. The defence submission was 7 to 10 years. There was also an issue of the credit to be given for the 2 years and 8 months the respondent had spent in pre-trial custody because the conditions had been particularly onerous during the SARS crisis in Toronto. The trial judge imposed a sentence of 11 years before deducting 6.5 years for time served, leaving a net sentence of 4.5 years.
ISSUES
[9] The Crown seeks leave to appeal the respondent’s sentence on two grounds. First, the Crown submits that the sentence imposed by the trial judge is so low as to be manifestly unfit. Second, the Crown argues that, as a result of the trial judge’s misunderstanding of the trial Crown’s position on sentence and incorrect categorization of the offence as one of “aggravated manslaughter”, he wrongly limited the available range of sentence to 8 to 12 years. As a result of this error, he failed to give sufficient weight to the horrific nature of the crime.
[10] The Crown says that the trial judge erred by treating this Court’s decision in R. v. Clarke, 2003 ONCA 28199, [2003] O.J. No. 1966 as setting an immutable range of sentence that must be applied when the circumstances characterize the crime as “aggravated manslaughter”, except in very rare cases where a life sentence is justified. The Crown argues that in so doing, the trial judge excluded the intermediate range between 12 years and life imprisonment that was appropriate in this case because of the nature of the victim and the horror of the offence. Essentially, the Crown says that the blunt force head trauma and 107 stab wounds inflicted on a trusting, sleeping, elderly woman render the facts of this case more horrific than those in Clarke. It was incumbent on the trial judge to sentence based on the unique circumstances of this case, not to pigeon-hole the facts into a defined category.
[11] The issues of law that are raised in this case are: (1) is it correct to use a label of “aggravated manslaughter” to describe a subcategory of offence to which a range of sentence must be applied in every case? and, (2) was the trial judge bound to treat 12 years as the highest sentence available if the facts and circumstances were viewed as similar to those in Clarke? The issue of mixed fact and law is whether the trial judge did bind himself and thereby err.
ANALYSIS
[12] The role of the sentencing judge is to impose a sentence that is fit. Significant deference is accorded to trial judges who have the greatest familiarity with all the relevant circumstances in respect of the sentences they impose. See R. v. Shropshire (1995), 1995 SCC 47, 102 C.C.C. (3d) 193 at 209-10 (S.C.C.) and R. v. M.(C.A.) (1996), 1996 SCC 230, 105 C.C.C. (3d) 327 at 375 (S.C.C.). The principle of deference recognizes that for any case, there is no one correct, fit sentence.
[13] The Supreme Court of Canada has made it clear in cases such as R. v. McDonnell (1997), 1997 SCC 389, 114 C.C.C. (3d) 436 at 458, R. v. Stone (1999), 1999 SCC 688, 134 C.C.C. (3d) 353 at para. 244, and R. v. Proulx (2000), 2000 SCC 5, 140 C.C.C. (3d) 449 at paras. 86-89 that it is appropriate for trial judges to consider a starting point or range of sentence for a particular offence committed in particular circumstances. This approach accords with the principle that like crimes will attract like sentences. In many if not most cases, after considering all the relevant factors that affect sentence, a trial judge will impose a sentence that is within the developed range.
[14] However, a trial judge is entitled to deviate from that starting point or range after considering the particular facts of the case including the circumstances of the victim, the particulars of the crime, and the history and circumstances of the offender. Where there are facts or circumstances that distinguish the situation significantly from other cases where sentences were imposed within the range, whether because of the victim, the nature of the crime itself, or the history or current circumstances of the offender, the trial judge is entitled to impose a sentence that adequately reflects the significance of those facts. In R. v. Cheddesingh (2004), 2004 SCC 16, 182 C.C.C. (3d) 37 at 38, the Supreme Court repeated: “As is always the case with sentencing, the inquiry must proceed on a case-by-case basis.”
[15] The role of an appellate court is to determine whether the sentence appealed from was demonstrably unfit. One factor for the reviewing court to consider is whether the sentence imposed was outside the “normal range”, and therefore was demonstrably unfit because of its inconsistency with sentences imposed in similar circumstances. See McDonnell, supra at 458. But where the trial judge has given reasons that point to specifics of the victim, the crime, or the offender that warrant a sentence outside the normal range, it is unlikely that such a sentence will be found to be demonstrably unfit for that reason.
[16] Sometimes ranges of sentence have been applied to named subcategories of offences. In R. v. Bernier (2003), 2003 BCCA 134, 177 C.C.C. (3d) 137, the British Columbia Court of Appeal pointed out that one danger of this approach is that a defined or named subcategory can be too broadly described to be useful as a device for setting a range.
[17] In this case, the trial judge and all counsel agreed that this was a case of “aggravated manslaughter”, as recently described by this Court in the case of Clarke, supra. In that case, the Court agreed with counsel that the accepted range for aggravated manslaughter is 8 to 12 years. Although Crown counsel in the case at bar acquiesced in characterizing the offence as aggravated manslaughter, he submitted that this case called for a sentence of life in prison because its egregious circumstances were much worse than those in Clarke. I think it is fair to say, however, that when pressed by the trial judge, Crown counsel was not able to point to cases where a sentence between 12 years and life in prison was imposed for circumstances that amounted to aggravated manslaughter, whatever the nomenclature. It is also fair to say that Crown counsel at trial was not seeking such a sentence but was asking for the maximum possible penalty of life imprisonment provided by s. 236 of the Criminal Code.
[18] The question for this Court is whether the trial judge circumscribed his own discretion, or felt bound by Clarke to categorize the offence as “aggravated manslaughter” and to impose a sentence within the range of 8 to 12 years, when a proper consideration of all the relevant factors would have called for a sentence in excess of 12 years.
THE TRIAL JUDGE’S REASONS FOR SENTENCE
[19] The trial judge began by explaining why the verdict was manslaughter and not murder and that it now fell on him to sentence for manslaughter,
taking into consideration, as I must, the statutory principles of sentencing, as interpreted by the case law, having regard to all the circumstances, which include but are not limited to, the character and characteristics of Mr. Devaney, his moral blameworthiness and the manner in which Ms. Fleming came to her untimely, tragic and brutal death.
[20] The trial judge then examined in detail Mr. Devaney’s background including the evidence that had been compiled to prepare the psychiatric report in aid of the dangerous offender application. Although there was some suggestion of a history of assaultive domestic conduct, it was equivocal. Mr. Devaney had no criminal record. He acknowledged his severe drinking problem, but while in pre-trial and pre-sentence custody, he had not had a drink. He advised the Court that he was amenable to taking substance abuse and anger management programs in the penitentiary.
[21] The trial judge then discussed with empathy the character and circumstances of the victim and the details of the crime, which have been referred to earlier in these reasons.
[22] The trial judge set out the positions of the Crown and defence, then recited s. 718 of the Code which prescribes the fundamental purpose and objectives of sentencing. He noted that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender, and that it must be similar to sentences imposed on similar offenders for similar offences in similar circumstances.
[23] The trial judge then turned to the case law and observed that although life imprisonment is available for manslaughter, it is reserved for the rarest of circumstances where there is a likelihood that the offender will commit another similar offence, the offender has a relevant criminal record, or the case has the type of appalling circumstances as in Cheddesingh, supra, that engage collective societal outrage and call for a life sentence.[^1]
[24] The trial judge found that the range described in Clarke was appropriate because, although the jury effectively concluded that the respondent did not have the intent for murder, the circumstances of the victim’s death “elevate this matter to the level of ‘aggravated manslaughter.’”
[25] The trial judge then went on to compare the circumstances of this case with those in Clarke where Clarke, 29, attacked his friend Cousins, a 47-year-old frail and emaciated alcoholic. The victim owned a rooming house where Clarke had a room. The attack took place in their home while the victim was very inebriated. The victim was brutally stabbed seven times. Some of the wounds were inflicted with sufficient force for the knife to go through the breastbone and pericardial sac, into the pulmonary artery. Clarke first tried to divert suspicion away from himself, then eventually admitted that he had caused the death. Although the evidence of his alcohol impairment was minimal, the jury convicted Clarke only of manslaughter, not murder, based either on the defence of provocation or a rolled up defence of lack of intent based on provocation and some consumption of alcohol.
[26] Clarke was sentenced to 14 years less pre-trial custody. Both trial counsel had essentially agreed that the range of sentence for “aggravated manslaughter” was 8 to 12 years. On the appeal, defence counsel argued that the case was not one of “aggravated manslaughter”. In an oral endorsement, the Court listed the aggravating factors in the case, then concluded that in light of those factors, the appropriate range in that case was 8 to 12 years imprisonment.
[27] The factors identified by the court, in paraphrase, were: the defenselessness of the victim; the attack in his home; the abuse of relationship; the use of a knife; the brutality of the attack; the attempt to divert suspicion by hiding the knife and by sending the police searching for the perpetrator; the delay in calling 911 until after the victim had died; Clarke’s overreaction of rage in response to mild provocation; and, the devastating impact on the victim’s family.
[28] In this case, the trial judge listed the factors that he believed made this case directly comparable to Clarke: the attack was on the victim in her bed in her home; the relationship was one of friendship; the attack was with a knife and another blunt force object; the attack was brutal and horrific; the knife was never found and there were efforts to remove evidence of the attack; the appellant did not attempt to get help for the victim even after the effects of his alcohol consumption had worn off; the violence of the attack indicated that the attacker was in a state of rage; and, the impact on the victim’s family was devastating.
[29] The trial judge then specifically rejected the submission that the accused should receive a reduction in his sentence because of his intoxication as an analogy to receiving such a reduction for provocation, as in R. v. Stone, supra at 447.
[30] Finally, the trial judge discussed the sentencing objectives that he concluded applied in this case: denunciation to express society’s revulsion for the sheer violence; specific deterrence to Mr. Devaney in terms of the urgent need to control his alcoholism and its consequences; general deterrence to those who believe they are less responsible because they allow themselves to get drunk, then lose control; and rehabilitation. On the last issue, the trial judge expressed some concern about Mr. Devaney’s genuine desire to deal with his dependency, but expressed confidence that programs offered in the penitentiary have some value. Based on the psychiatric evidence presented earlier, the trial judge rejected the need for a life sentence and the allegation that Mr. Devaney was at risk to re-offend. Finally, the trial judge dealt with the credit to be given for pre-trial custody, a matter which is not the subject of this appeal.
[31] After imposing the sentence of 11 years minus the pre-trial custody, the trial judge stated:
And the effect of it is I am imposing the high end of the range on an aggravated manslaughter of 11 years and not 12. I have gone beyond what Mr. Giourgas asked for in the 7 to 10 range and I’ve got to give him credit for the time served.
DID THE TRIAL JUDGE ERR?
[32] The Crown on appeal emphasizes three aspects of this crime that it says particularly distinguish this case from Clarke and call for a sentence of 18 to 20 years. First, the brutal attack on the victim was extremely horrific and involved 107 stab wounds, not seven as in the Clarke case, as well as an assault on the head with a blunt object. The fact that there were twenty-five defensive wounds showed that the victim suffered greatly, trying to defend herself. One can only imagine her terror. The second aspect is the nature of this victim who was not only a vulnerable elderly woman, but who also, although she was in a financially perilous situation, was a good Samaritan who reached out to the respondent, allowing him to stay in her home as a tenant for as long as she could, even when he was unable to pay the rent. He referred to her as his best friend. The fact that the respondent callously betrayed this relationship is a serious aggravating factor. The third difference is that in Clarke, there was some evidence of provocation, which is a factor that can be taken into account both on conviction and on sentence. See Stone, supra at paras. 41 and 246-8.
[33] The first question is whether it is appropriate to label a subcategory of manslaughter as “aggravated manslaughter” for the purpose of sentencing. In my view, it is not useful to attach a label to a subcategory of the offence, then to try to pigeonhole the facts of any case into the label. Adding a descriptive label to a set of facts within the defined offence adds a level of complexity to the sentencing exercise that is both unnecessary and potentially diverting for the court and could lead to errors. Nor do I read this court’s decision in Clarke as adopting that approach. In that case, after considering all of the aggravating factors, the court concluded:
In light of these aggravating factors, we agree that the proper range for this offence and this offender is 8 to 12 years imprisonment.
[34] The exercise in each case is to impose a sentence that fits the facts and circumstances of the particular case and the particular offender. Part of that exercise is to impose similar sentences for similar offences and offenders. However, I would reject the concept of naming subcategories of manslaughter for the purpose of comparing cases and imposing similar sentences, and instead compare the circumstances of each situation on a case- by- case basis.
[35] There is no doubt that this case required a very significant penalty. In my view, the trial judge could well have concluded that this was a case that called for a sentence outside the range established in the Clarke decision, for the reasons suggested by the Crown. Although the attacks in both cases were horrendous in their violence and callousness, an attack by 107 knife stabs where the victim remained conscious for most of the struggle may be seen as more egregious than an attack of seven knife stabs that killed the victim more quickly.
[36] Furthermore, a fair reading of the colloquy between the trial judge and counsel during the sentencing submissions suggests that the trial judge may have believed that if he did not consider this a case for life imprisonment, his discretion was circumscribed by the range of 8 to 12 years if he considered this to be a case of “aggravated manslaughter”.
[37] However, when one reviews the thorough and comprehensive reasons for sentence of the trial judge, it is clear that he considered every relevant factor and that he imposed the sentence that he believed was fit and appropriate in all the circumstances of this case. He imposed a sentence of 11 years. It is telling that he deliberately chose a sentence that was not at the top of the Clarke range. Had he wanted to go above the range but felt constrained from doing so, it is likely that he would have imposed the maximum of 12 years that he believed he could.
CONCLUSION
[38] I conclude that the trial judge did not err in law by imposing a lower sentence than he otherwise would have because he believed he was constrained by the range of 8 to 12 years set in Clarke for the offence of manslaughter with significant aggravating circumstances. Had he done so, that would have amounted to an error in law. However, it is clear from his reasons that the trial judge imposed the sentence that he believed was appropriate for this offender and this offence in all the circumstances. He did not impose a sentence that was manifestly unfit, and his decision is therefore entitled to deference.
[39] I would grant leave to appeal sentence but dismiss the appeal.
Signed: “K. Feldman J.A.”
“I agree M. Rosenberg J.A.”
“I agree S.T.Goudge J.A.”
RELEASED: “STG” October 6, 2006
[^1]: The 20-year-old offender in Cheddesingh broke into the victim’s apartment in a senior citizens’ complex, where he remained for three hours, torturing her by violently raping and sodomizing her while threatening to kill her. She deteriorated rapidly in hospital both physically and mentally and one month later she died in hospital from cirrhosis associated with vaginal trauma.