Court of Appeal for Ontario

CITATION: R. v. O'Donnell, 2009 ONCA 587

DATE: 20090722

DOCKET: C50131

Simmons, Rouleau and Watt JJ.A.

BETWEEN:

Her Majesty the Queen

Respondent

And

Jeffrey O’Donnell

Appellant

Counsel: Seth P. Weinstein, for the appellant Gavin MacDonald, for the respondent

Heard and endorsed: July 20, 2009

On appeal from sentence imposed by Justice Robert Graydon of the Ontario Court of Justice dated February 11, 2009.

APPEAL BOOK ENDORSEMENT

[1] The appellant was convicted of criminal harassment and sentenced to 2 years' imprisonment plus three years' probation. He raises two issues on appeal.

[2] First, the appellant claims that the sentencing judge erred in concluding that the letter that formed the subject matter of the harassment was not sent for the purposes for which the appellant claimed it was sent and by failing to properly consider the recommendations of a prison social worker who opined that the appellant had made progress in recognizing his problems after sending the letter.

[3] We disagree. Although some portions of the letter support the appellant's contention that it was sent for closure, it was open to the sentencing judge, based on a reading of the letter as a whole, to conclude that the appellant remained obsessed with the victim. The sentencing judge's reasons indicate he was fully familiar with the circumstances of the offence and the social worker's opinion. The sentencing judge gave reasons for discounting the social worker's opinion. We see no basis to interfere with his conclusions.

[4] Second, the appellant claims that the imposition of a penitentiary sentence was harsh and excessive having regard to the fact that this offence consisted of an isolated incident and the totality of sentences imposed on the appellant for a pattern of ongoing harassment.

[5] We disagree. This offence was far from an isolated incident. The appellant has five prior convictions for criminal harassment of the same victim as well as several convictions for breach of recognizance. Although the letter in issue was written in a therapeutic context, the appellant had been instructed not to send it to the victim. Moreover, he sent the letter while incarcerated and took some pains to hide its true destination from prison authorities. The sentence imposed was designed to impress on the appellant that his conduct must stop. We so no basis to interfere with it.

[6] Leave to appeal is granted but the sentence appeal is dismissed.