CITATION: R. v. O'Connor, 2008 ONCA 206
DATE: 20080328
DOCKET: C46156
COURT OF APPEAL FOR ONTARIO
LASKIN, FELDMAN and SIMMONS JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
And
MICHAEL O’CONNOR
Appellant
Irwin Koziebrocki for the appellant
Jamie Klukach for the respondent
Heard: March 3, 2008
On appeal from the convictions entered by Justice Lorne E. Chester of the Ontario Court of Justice on December 22, 2005 and from the sentence imposed on April 20, 2006.
SIMMONS J.A.:
[1] Following a trial before Chester J., the appellant was convicted of criminal harassment, assault, and breach of a probation order. In addition to credit of 414 days for pre-sentence custody, the appellant was sentenced to five years’ imprisonment for criminal harassment; to three years’ imprisonment to be served concurrently for assault; and to one year of imprisonment to be served consecutively for breach of probation. In addition, under s. 743.6 of the Criminal Code, the trial judge ordered that the appellant not be entitled to parole until he has served one half of his sentence. The appellant appeals from the convictions and seeks leave to appeal sentence.
The Conviction Appeal
[2] The appellant raises two main issues on his conviction appeal. First, the appellant says that the trial judge erred in holding that the elements of criminal harassment were proven. He relies primarily on the fact that the charge arose from a single incident and says that the evidence did not establish the necessary ongoing aspect of criminal harassment. The appellant also points out that the trial judge failed to make findings concerning all of the elements of the offence. I would reject this ground of appeal.
[3] In R. v. Kosikar (1999), 1999 3775 (ON CA), 138 C.C.C. (3d) 217 at paras. 15 and 25, this court held that a single incident of threatening conduct can found a conviction for criminal harassment if, in the circumstances, “the consequence is that the complainant is being harassed.” Goudge J.A., writing for the court, said, “while being in a harassed state involves a sense of being subject to ongoing torment, a single incident in the right context can surely cause this feeling.”
[4] In Kosikar, evidence of prior contact between the accused and the complainant was used to show that as the consequence of a letter the complainant felt harassed. However, Goudge J.A. also stated, “it is possible to imagine a case where the complainant’s feeling harassed would be proven … by evidence of a single incident that carried the real future prospect of the continuing tormenting of the complainant.”
[5] On the facts of this case, in my view, it was open to the trial judge to find that the complainant was harassed both because the appellant's behaviour during the incident was persistent and because the incident occurred while the appellant was subject to a probation order requiring that he have no contact with the complainant.
[6] The evidence at trial indicated that the complainant’s twelve-year-old son became frightened while alone in the basement of the complainant’s home when he noticed the appellant tapping on the basement window. After being told at the front door of the home that the complainant did not want to speak to him, the appellant tried to break into the house. When the complainant left the house with her son, the appellant pursued them. After catching up with the complainant, the appellant blocked her way by circling around her. When the complainant tried to call 9-1-1, the appellant grabbed the telephone from her hands and punched her in the arm. When the complainant followed her son to a variety store, the appellant followed after them.
[7] Although the complainant allowed the appellant to live with her during a period shortly before the incident, the appellant was, nonetheless, subject to a probation order requiring that he have no contact with her.
[8] I agree that it would have been preferable had the trial judge made explicit findings concerning whether the complainant was harassed and concerning whether the appellant knew the complainant was harassed. However, the trial judge’s reasons appear to be a response to the issues raised by defence counsel at trial (not Mr. Koziebrocki) and he made a specific finding that the appellant's conduct “was such as to cause [the complainant] to fear for her safety.”
[9] The finding that the complainant feared for her safety was available on the evidence, as was the trial judge’s implicit conclusion that the complainant’s fear was reasonable. In the light of this finding and the circumstances of the incident, in my opinion, the trial judge made no error in concluding that all of the elements of the offence were proven. Particularly given the appellant’s persistence in the face of the probation order, the complainant’s fears would relate naturally to the prospect of ongoing torment, a fact that must have been obvious to the appellant.
[10] Second, the appellant claims that the trial judge erred in admitting the complainant’s out-of-court statement to the police officer as past recollection recorded and in relying on that evidence as the sole basis for a conviction on the assault charge. I would not accept these submissions. The trial judge provided careful reasons for holding that each of the elements of the test for admissibility of this evidence was satisfied. Having admitted the evidence, it was open to the trial judge to rely on it. I see no basis to interfere with the trial judge's decisions.
[11] I would therefore dismiss the conviction appeal.
The Sentence Appeal
[12] In my opinion, the sentence appeal must be allowed. Taking account of pre-sentence custody, the appellant received an effective sentence of six years and forty-nine days imprisonment for the criminal harassment and assault charges, plus one year of imprisonment for the breach of probation charge. The total effective sentence is therefore seven years and forty-nine days. In my view, this sentence is both disproportionate to the conduct underlying these offences and outside the range of what is appropriate in the circumstances.
[13] The trial judge gave cogent reasons for imposing a heavy sentence on the appellant. In particular, I agree with the trial judge’s conclusions that the appellant’s lengthy criminal record demonstrates both that he is an incorrigible offender who flouts court orders and that “he has evolved into a ... predator of needy women”.
[14] The appellant's criminal record includes forty-seven convictions for what the trial judge described as crimes against the administration of justice: e.g. breaches of court orders and recognizances, failing to appear, obstruct justice, and driving while disqualified. In addition, the appellant’s criminal record, which includes a conviction for criminal harassment, and the pre-sentence report fully support the trial judge’s conclusions that the appellant has a history of preying on vulnerable women and of committing crimes against women.
[15] Given these circumstances, protection of the public, denunciation and general deterrence were the paramount sentencing goals and they demanded a significant sentence.
[16] However, at trial, the Crown proposed a sentencing range of five to eight years in the penitentiary for the criminal harassment charge. The main authorities on which the Crown relied to justify this range were R. v. Bates, (2000), 2000 5759 (ON CA), 146 C.C.C. (3d) 321 (Ont. C.A.) and R. v. Finnessey (2000), 2000 16862 (ON CA), 135 O.A.C. 396 (Ont. C.A.). In my view, neither of these decisions supports a sentencing range of five to eight years’ imprisonment for the criminal harassment count in this case. Further, no additional authorities have been provided on appeal that would support such a range.
[17] In Bates, on a Crown appeal, this court imposed an effective sentence of thirty months’ imprisonment for eleven offences, including criminal harassment, uttering a death threat, and multiple counts of assault and failing to comply. Although the accused in Bates pleaded guilty to most of the charges and had only a relatively minor and unrelated record, the aggravating factors included an escalating pattern of harassment over more than three months and breaches of recognizance during that period. As noted, the thirty month sentence encompassed multiple offences.
[18] In Finnessey, on a Crown appeal, this court imposed an effective sentence of four years’ imprisonment for various offences, including break and enter, criminal harassment and threatening a police officer. Although the accused pleaded guilty and his conduct did not involve any physical violence, the pattern of harassment continued for fifteen months following the initial break-in of the complainant's home. It included death threats and subsequent break-ins when the complainant was not home. Moreover, the accused had a significant criminal record involving thirty-six prior convictions.
[19] Taking account of the sentences imposed in Bates and Finnessey, the circumstances of this case, and the principles of sentencing, including totality, I consider that a fit sentence would be thirty months’ imprisonment in addition to 414 days’ credit for pre-sentence custody on the criminal harassment charge; twelve months’ imprisonment concurrent on the assault charge; and twelve months’ imprisonment consecutive on the breach of probation charge. This amounts to a total effective sentence in excess of four and a half years’ imprisonment.
[20] The sentence imposed on the criminal harassment charge should not be viewed as establishing an outer limit of three and a half years’ imprisonment for serial harassers. Although the circumstances of this case are serious and the appellant has a lengthy criminal record, the facts underlying the criminal harassment charge arise from a single incident. Moreover, the appellant had never been sentenced previously to the penitentiary.
[21] In the light of the reduction in the appellant’s sentence and the fact that, in addition to pre-sentence custody, he has served a little over 22 months’ imprisonment, I need not deal with his appeal relating to the order made under s. 743.6 of the Criminal Code.
[22] Accordingly, I would grant leave to appeal sentence, set aside the sentence imposed by the trial judge, and impose a sentence as provided in these reasons.
RELEASED: March 28, 2008 “KF J.A.”
“J. Simmons J.A.”
“I agree John Laskin J.A.”
“I agree K. Feldman J.A.”