DATE: 20060306

DOCKET: C40540

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – WILLIAM DAVID HERBERT (Appellant)

BEFORE:

ROSENBERG, SIMMONS and LAFORME JJ.A.

COUNSEL:

Paul K. Burstein

for the appellant

C. Jane Arnup

for the respondent

HEARD & RELEASED ORALLY:

February 23, 2006

On appeal from sentence imposed by Justice Stephen J. Hunter of the Ontario Court of Justice dated March 24, 2003.

E N D O R S E M E N T

[1] Following his plea of guilty to several offences, including assault causing bodily harm and aggravated assault, the appellant was found to be a dangerous offender and sentenced to indeterminate detention. He appeals that finding and argues that the trial judge made errors that require a new hearing in which the issue of whether or not he should be found to be a long-term offender will be determined.

[2] There are admittedly some unusual features of this case. First, the predicate offences relate to events that occurred in 1993, but were not reported to the authorities until 1999. However, in those intervening years the appellant committed a series of violent offences. In 1994, he kicked his companion with steel-toed boots and pointed his loaded shotgun at her. Around the same time, the appellant confronted the boyfriend of one of his daughters and held a knife to his throat and demanded money. While in penitentiary serving his sentence for these offences, the appellant was transferred to maximum security for threatening staff and a fellow inmate. While still in penitentiary, he persuaded his spouse to smuggle drugs into the penitentiary. The appellant was released from custody and a short time later became involved with another woman. While attempting to gain entry into her apartment, he kicked a neighbour who was investigating the noise down some stairs. In May 1997, while on bail for this offence, the appellant severely beat his new companion in front of his eight-year-old daughter. The appellant was again sentenced to penitentiary. On this occasion, while in the penitentiary, he told the authorities he should have killed his victims. In 1998, he wrote to his young daughter suggesting that when released he would kill her mother.

[3] In 1999, within a month of being released from penitentiary, the appellant severely assaulted his new companion and threatened passers-by who attempted to intervene.

[4] The appellant also committed a number of serious acts prior to 1993 such as assault, sexual assault and assault causing bodily harm, extortion, threatening, assaulting police and several weapons offences.

[5] Another unusual feature of this case and one which was pressed by Mr. Burstein in oral argument is that the appellant, although diagnosed as a psychopath, is now forty-seven years of age and Mr. Burstein argues that the appellant is approaching an age when he will no longer be a threat to the community for committing violent offences.

[6] On the other hand, the evidence shows the appellant routinely uses violence to deal with other people. In particular, he attempts to provoke incidents with others to give himself an excuse to use extreme violence. Even minor provocations result in violent, wholly disproportionate responses from the appellant. He has made only modest gains in attempting to control his use of violence. There is evidence that the appellant has only the most superficial involvement in treatment and uses it merely as a means of convincing the authorities to release him. He remains at high risk of re-offending. There is at present no viable mode of treatment for the appellant. His feelings of superiority, entitlement and extreme hatred of women suggest that any interactions with the community would be problematic for a long time to come.

[7] The appellant alleges two errors by the trial judge which he says should require a new hearing. First, the trial judge failed to consider imposition of a lengthy fixed sentence in addition to a long-term supervision order. Second, that the trial judge erred in holding that the opinion of the defence psychiatrist, Dr. Federoff, that the appellant could be controlled within the community, was speculative.

(1) The Burnout Theory

[8] The appellant submits that given the appellant’s age it was likely that if he were given a lengthy fixed sentence before being placed on a long-term supervision order, he would likely no longer be a threat to the community. However, on the evidence, burnout was merely a possibility and it was the evidence of Dr. Hucker that even a long-term supervision order following a long fixed sentence would not have been sufficient to protect the public. “Burnout” on this record was speculative for the foreseeable future. In our view, the trial judge did deal with this possibility and properly rejected it when he said at page 78 of his reasons:

Mr. Herbert presents and will continue to present in the assessment of this court for an indefinite period an acute danger of violence and serious personal injury particularly to women in domestic relationships.

[9] We agree with the trial judge’s view that there was not a reasonable possibility of eventual control of the appellant’s risk within the community and that the burnout theory was speculative.

(2) Dr. Federoff’s Assessment

[10] Dr. Federoff’s opinion was dependent on several variables including the following: (1) that there be support within the community, (2) there would be a well-structured programme in place, and (3) the appellant was motivated to change. In our view, it was open to the trial judge to conclude that some or all of these pre-conditions were absent. The evidence suggests that the place where it was proposed the appellant would reside has not successfully dealt with high-risk offenders. The appellant’s motivation was highly suspect, as we have said, given his long history of using violence and committing other illegal acts even within highly structured settings. It was open to the trial judge to accept the opinion of Dr. Hucker for the reasons that he gave that the appellant does lack motivation to change. Finally, even Dr. Federoff conceded that the appellant should be subject to indefinite supervision, which is not available on the long-term offender designation. There was a firm basis for the trial judge’s conclusion that Dr. Federoff’s opinion was speculative.

[11] Accordingly, the appeal is dismissed.

Signed: “M. Rosenberg J.A.”

“Janet Simmons J.A.”

“H.S. LaForme J.A.”