Court of Appeal for Ontario
CITATION: R. v. Atherley, 2009 ONCA 195
DATE: 20090303
DOCKET: C44460 & C44856
BETWEEN:
Her Majesty The Queen
Respondent
and
Darren Atherley and Carl Michael Avis
Appellants
COUNSEL:
Jennifer Myers, for Darren Atherley Leslie Maunder for Carl Michael Avis
James K. Stewart for the respondent
Heard & released orally: February 27, 2009
On appeal from the sentence imposed by Justice C. Raymond Harris of the Superior Court of Justice dated September 9, 2005
ENDORSEMENT
[1] The appellants seek leave to appeal their sentences of fifteen years, less credit for pre-sentence time served, for manslaughter. They submit that the trial judge erred:
by failing to give adequate weight to their guilty pleas and expressions of remorse;
by not recognizing that the death of the victim was not a foreseeable consequence of their assault on him; and
by imposing an unreasonable sentence outside the range.
[2] The trial judge explicitly referred to the guilty pleas and to the expressions of remorse at the beginning of his reasons. The expressions of remorse were one sentence apologies given as the appellants were about to be sentenced. We are not persuaded that the trial judge failed to give adequate weight to these factors.
[3] The trial judge aptly described the crime as a “robbery gone bad”. In our view, his reasons do not indicate any misapprehension of the evidence or failure to recognize that death was not a foreseeable consequence of the appellants’ actions.
[4] The trial judge’s reference to relevant case law and submissions of defence counsel in his reasons satisfy us that he was mindful of the 8 to 12 year range for a brutal manslaughter described in R. v. Clarke (2003), 2003 28199 (ON CA), 172 O.A.C. 133. As was held in R. v. Devaney (2006), 2006 33666 (ON CA), 213 C.C.C. (3d) 264 at para. 14, a trial judge may depart from that starting point or range and impose a sentence that adequately reflects the significance of the particular facts of the case because the specifics of the victim, the nature of the crime itself, or the history or current circumstances of the offender.
[5] In this case, there were a number of serious aggravating factors that, in our view, justified the trial judge in imposing a sentence that reflected the need to protect society.
[6] As the trial judge observed, both appellants have very lengthy criminal records for robbery and crimes of violence. Both appellants were on parole when they committed this offence. Their records and their behaviour indicate that significant sentences have not deterred them from continuing to engage in violent criminal conduct. They failed to modify their behaviour despite being granted the benefit of parole. The victim was a vulnerable individual, targeted by the appellants in a home-invasion style robbery. They inflicted gratuitous and inherently dangerous violence on him. They left him gagged and bound in his apartment. Given the brutality of their actions and the records of both appellants, we do not agree that the trial judge erred in law by imposing a sentence that was manifestly unfit.
[7] Accordingly, we grant leave to appeal the sentences but dismiss the appeals.
“Robert J. Sharpe J.A.”
“R.G. Juriansz J.A.”
“H.S. LaForme J.A.”