DATE: 20060323

DOCKET: C43907

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Applicant/Appellant) v. HENRY SWIERSZCZ (Respondent)

BEFORE:

DOHERTY, MOLDAVER and LAFORME JJ.A.

COUNSEL:

Deborah Krick

for the applicant/appellant

David A. Harris

for the respondent

HEARD:

RELEASED ORALLY:

March 17, 2006

March 17, 2006

On appeal from the sentence imposed by Justice Langdon of the Superior Court of Justice dated June 27, 2005.

E N D O R S E M E N T

[1] The appellant was convicted on three counts of criminal harassment. The trial judge imposed a conditional discharge.

[2] The sentence imposed is manifestly inadequate. The respondent engaged in a long period of escalating harassment. Although it did not reach the level of personal violence, it did cause the kind of severe psychological havoc that almost inevitably occurs when someone is the victim of prolonged harassment. Not only did the harassment continue for a prolonged period of time, it extended to the victim’s friend, neighbour and her lawyer.

[3] The trial judge barely referred to the circumstances of the offences, but focused almost exclusively on the appellant’s personal problems and other mitigating factors. This court has repeatedly indicated that in criminal harassment cases, the principles of sentencing, that must be emphasized are general deterrence and denunciation. The trial judge made no reference to denunciation. He diminished the significance of general deterrence because the appellant had acted under “emotional strain”. It is almost inevitable that an accused who engages in the kind of conduct that this respondent did, will be under some kind of “emotional strain”. In our view, that is no basis upon which to remove general deterrence from the sentencing mix. General deterrence remains an important consideration in determining a fit sentence.

[4] We acknowledge that there was much to be said of this particular respondent, but the mitigating factors simply do not come close to justifying a conditional discharge. The real question at trial was whether the respondent should be incarcerated or should receive a conditional sentence. Without commenting on what would have been the appropriate sentence at trial, we are satisfied that at this time a conditional sentence is appropriate. We impose a 12 month sentence to be served conditionally on terms to be settled by the court after counsel have had a chance to discuss them. The conditional sentence will be followed by a period of probation for two years on the terms imposed by the trial judge.

[5] Before leaving this case, we want to comment on one further matter. The trial judge seemed moved to grant a conditional discharge largely because of the risk that the respondent, a lawyer, would be disbarred if a conviction was entered. The fact that a person may suffer professional consequences cannot justify the imposition of a sentence that is outside of the appropriate range. As indicated above, a conditional discharge was far outside of the range appropriate for this kind of criminal conduct. Consequently, the trial judge erred in imposing a conditional sentence so that the respondent could keep his licence to practise law.

[6] The appeal is allowed and the sentence is varied accordingly.

“Doherty J.A.”

“M.J. Moldaver J.A.”

“H.S. LaForme J.A.”