DATE: 20061010

DOCKET: C41658

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – CARY PATRICK CLEYNDERT (Appellant)

BEFORE:

CRONK, LANG AND MacFARLAND JJ.A.

COUNSEL:

Mara B. Greene

for the appellant

Riun Shandler

for the respondent

HEARD:

October 3, 2006

On appeal from the sentence imposed by Justice Robert A. Clark of the Superior Court of Justice, dated March 18, 2004.

E N D O R S E M E N T

[1] The appellant was charged with second degree murder. After a 21-day jury trial, he was convicted of manslaughter. The trial judge imposed a global sentence of twelve years imprisonment, less three and a half years pre-sentence detention, resulting in a sentence of eight and a half years imprisonment.

[2] The appellant seeks to appeal his sentence on three grounds. He claims that the trial judge erred: (i) in finding that the appellant was not remorseful; (ii) in characterizing the victim as “vulnerable”; and (iii) in imposing a sentence of twelve years, which the appellant argues falls outside the appropriate range of sentence.

(1) Background

[3] The appellant, the victim and others were attending a field party after a high school graduation. The appellant, who the trial judge found was “looking for trouble”, initiated two confrontations during the course of the party. One confrontation involved insulting and spitting on the victim’s girlfriend. In a fistfight that followed, during which the victim threw the first punch, the appellant stabbed the victim eight times in the torso, resulting in the victim’s death. The victim was unarmed and had no knowledge that the appellant carried a weapon. The weapon was a prohibited weapon, namely, a butterfly knife with a five-inch blade that the appellant had concealed on his person and that he had been ready to use in the earlier altercation at the party.

[4] Counsel referred to this as a case of “aggravated” manslaughter for which the usual range of sentence is eight to twelve years: R. v. Clarke, [2003] O.J. No. 1966 (C.A). The trial judge concluded that the verdict of manslaughter demonstrated a reasonable doubt on the question of intent; however, the appellant’s moral blameworthiness was very high and, in the trial judge’s view, the case was close to one of murder.

[5] In fashioning an appropriate sentence, the trial judge considered the appellant’s youth (nineteen at the time of the offence), his family support, his employment record, his prospects for rehabilitation, his pre-trial custody, and evidence of his good character while in pre-trial custody. He also found that the appellant’s purported remorse was not meaningful.

[6] As aggravating factors, the trial judge considered the vulnerability of the victim, the appellant’s youth record, including his convictions for assault and threatening, the impact of the crime on the victim and his family, the brutality of the attack and the appellant’s after-the-fact conduct in fleeing the scene.

(2) Issues

[7] The appellant’s appeal rests on the trial judge’s treatment of the evidence of the appellant’s remorse, his characterization of the victim as “vulnerable” and the global sentence imposed.

(3) Discussion

(a) Evidence of Remorse

[8] We are not persuaded that the trial judge misapprehended the evidence of remorse or made an error in principle in his assessment of this evidence.

[9] The evidence of remorse consisted of the following. The appellant’s psychiatrist testified that he considered the appellant to be remorseful because the appellant was sorrowful about the pain he caused the victim’s family and appreciated that he must bear the consequences for his conduct. A corrections officer testified about a mid-trial conversation with the appellant, in which the appellant expressed regret and remorse, including his wish that he had not had a knife with him during the evening in question. As well, at his sentencing hearing, the appellant told the court of his remorse for what had happened and the pain he had caused. However, he also maintained that he told the truth at trial in stating that he had acted in self-defence.

[10] The trial judge acknowledged the evidence about remorse, but concluded that the appellant’s expressions of remorse were not genuine. The trial judge was entitled to conclude that the appellant did not accept responsibility for his actions. This failure was sufficient to negative the appellant’s expressions of sorrow for the harm caused to the victim and the victim’s family. In these circumstances, we see no error in the trial judge’s finding that the appellant’s remorse was not “such that it could properly be considered a mitigating factor”.

(b) Characterization of the Victim as “Vulnerable”

[11] The trial judge referred to the “vulnerability” of the victim as an aggravating factor. In referring to the victim as “vulnerable”, he relied on R. v. Garrison, [1999] O.J. No. 3782 (C.A.) and R. v. Clarke, [2003] O.J. No. 1966 (C.A.) as supporting the need for denunciation of attacks on the vulnerable, specifically, the elderly and the frail. Although the trial judge noted that the victim in this case was young and healthy, he explained that the victim was “vulnerable as a consequence of being unarmed and unaware that Mr. Cleyndert was armed with a weapon that he was prepared to use”. The trial judge was clearly alive to the circumstances of this victim and, in our opinion, did not err in considering the appellant’s use of a concealed prohibited weapon in a fistfight with an unarmed man as an aggravating factor on sentencing.

(c) Sentence Imposed

[12] Finally, we do not accept the appellant’s argument that the sentence of twelve years imprisonment was outside the range for an “aggravated” manslaughter. Sentences for this offence have ranged from eight to twelve years depending on a number of factors. In Clarke, supra, a sentence of twelve years was imposed where the accused entered the deceased’s residence, attacked the frail victim and left him to die. A sentence of twelve years was also imposed in R. v. E.B., [2002] O.J. No. 5536 (S.C.J.), which involved a forcible confinement, prolonged beatings and leaving the victim in a remote cabin. Sentences at the low end of the range have been imposed in the presence of other mitigating factors, including a guilty plea.

[13] While the circumstances of this case differ from those in Clarke and E.B., each case must be decided on its own facts. In this case, the appellant inflicted multiple stab wounds in a cluster on a vulnerable part of the victim’s body (his torso). Several of those wounds were life threatening. Moreover, the fatal attack occurred in circumstances where the appellant was looking for a fight, was armed with a concealed prohibited weapon, was prepared from the outset to use that weapon, and in fact did use it repeatedly on an unarmed man who had approached the incident as a fistfight. In all these circumstances, we see no basis to interfere with the trial judge’s conclusion that the circumstances of this offence placed it at the high end of the appropriate range of sentence.

(4) Disposition

[14] Accordingly, while leave to appeal sentence is granted, the appeal is dismissed.

“E.A. Cronk J.A.”

“S.E. Lang J.A.”

“J. MacFarland J.A.”