CITATION: R. v. Dextras, 2008 ONCA 666
DATE: 20081001
DOCKET: C48995
COURT OF APPEAL FOR ONTARIO
Weiler, Gillese and Armstrong JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
and
Gary Roberts Dextras
Appellant
Irwin Koziebrocki, for the appellant
Linda A. Shin, for the respondent
Heard: September 29, 2008
On appeal from the sentence imposed by Justice R. Jennis of the Ontario Court of Justice on May 2, 2008.
ENDORSEMENT
[1] The appellant pleaded guilty to criminal harassment, contrary to s. 246(3) of the Criminal Code. He was given an effective sentence of 17 months incarceration, comprised of 75 days of pre-sentence custody credited on a 2:1 basis and a further 12 months in jail. In addition, he was sentenced to 3 years of probation.
[2] The sole issue raised on appeal is whether the sentence is excessive.
Facts
[3] The appellant and Rita Dextras were married for approximately 15 years. They had been separated for 3 years prior to the incident in question. They had a daughter and a son, Robert. Robert had multiple disabilities including a seizure disorder; he died in March 2008 while the appellant was in pre-sentence custody. Ms. Dextras has another daughter from a previous marriage.
[4] The appellant had been convicted of two previous assaults against Ms. Dextras prior to the incident giving rise to his harassment conviction. One of these incidents occurred in 1992 and the other in 2005. During the 2005 assault, he held Ms. Dextras to the ground with a hatchet over her head. He pleaded guilty to the offence of assault and served 14 days of pre-sentence custody and a further 4 days in jail for this offence. One month later, he failed to comply with the conditions of release and was arrested again and given a suspended sentence.
[5] On November 30, 2007, the appellant went to Ms. Dextras’ home where she lived with the children. Ms. Dextras called the police and they warned him to not contact his wife or children. Despite that warning, the appellant called Ms. Dextras on a number of occasions. On one occasion she took the call and told the appellant he was not to call.
[6] On February 17, 2008, the appellant appeared at Ms. Dextras’ front door. He knocked and said he wanted to see the children. When she saw who it was, Ms. Dextras locked the door and called the police. She was terrified and so too were her children. All three children and her eldest daughter’s boyfriend cowered in the home, armed themselves and called 911. They took Robert to the basement.
[7] Ms. Dextras and the children were extremely fearful and unsure of what the appellant would do.
[8] When the police arrived, the appellant was on the street. He was agitated, saying he wanted to see the children. Police warned the appellant to not go back to the house whereupon he went straight back to the front door of Ms. Dextras’ home. He was then arrested and charged with criminal harassment.
ANALYSIS
[9] It is trite law that this court owes considerable deference to the sentence as imposed by the sentencing judge. It is not to be interfered with unless the sentencing judge has committed an error in principle, failed to consider a relevant factor, placed an inappropriate emphasis on a factor or where it is demonstrably unfit. In our view, the sentencing judge committed no such error.
[10] The sentencing judge considered the totality of the circumstances and his reasons for sentence reflect a considered and balanced approach. He took into account the mitigating factors which include the guilty plea, the death of the appellant’s son, the appellant’s successful completion of two previous probation periods and the appellant’s medical issues.
[11] The sentencing judge set out a number of aggravating factors which include a significant history of abuse and two prior convictions for assault of the same victim. He noted that on the second assault conviction, the Crown advised the court without objection by the defence, that the victim had been held down and threatened with a hatchet. The sentencing judge explicitly recognised that the appellant had already been sentenced and punished for that prior assault but explained that it went to the victim’s fear on the date of the incident in question.
[12] As well, the sentencing judge noted the history of abuse to the children and that they were terrified of the appellant to the point they armed themselves when he appeared at the door of their home. The sentencing judge concluded that although the appellant had successfully completed two previous periods of probation and a men’s anti-violence course, he appeared to have learned nothing. This conclusion was justified on the record.
[13] Other aggravating factors include a previous firearms offence, albeit dated, and the fact that the complainant was the appellant’s spouse.
[14] There is no basis on which to interfere with the sentence. Accordingly, leave to appeal sentence is granted but the appeal is dismissed.
“K.M. Weiler J.A.”
“E.E. Gillese J.A.”
“Robert P. Armstrong J.A.”