CITATION: R. v. Kimpe, 2010 ONCA 812
DATE: 20101201
DOCKET: C49370
COURT OF APPEAL FOR ONTARIO
Laskin, Armstrong and Juriansz JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Loranzo Kimpe
Applicant/Appellant
Robert Sheppard, for the applicant/appellant
Deborah Calderwood, for the respondent
Heard: October 28, 2010
On appeal from the sentence imposed by Justice H. Rady of the Superior Court of Justice, sitting with a jury, on April 16, 2008 after his convictions for manslaughter and arson.
ARMSTRONG J.A.:
I. INTRODUCTION
[1] The appellant was charged with arson and second degree murder. He pleaded guilty to the arson charge and not guilty to the charge of second degree murder. In a trial by jury, he advanced a defence of provocation to the murder charge. The jury found him not guilty of second degree murder but guilty of the included offence of manslaughter.
[2] The appellant was sentenced to a total of 10 years in the penitentiary for the manslaughter conviction with credit for 19 months of pre-sentence custody on a two for one basis. He was sentenced to 6 months imprisonment for the arson conviction to be served concurrently with the manslaughter sentence.
[3] The appellant appeals his manslaughter sentence on the ground that the trial judge erred in imposing a sentence in excess of the lower end of the range for this kind of offence. He also appeals the trial judge’s calculation of his credit for pre-sentence custody.
[4] The Crown concedes that the trial judge erred in the calculation of the pre-sentence custody credit.
II. THE FACTS
[5] The appellant and the victim, Deborah Devine, lived in a common-law relationship for 11 years. At the time of the incident giving rise to this case, they were living in London, Ontario. According to his statement to the police and his testimony at trial, the appellant said that on the evening of June 1, 2006 Ms. Devine and he were engaged in an argument in which she taunted him about his poor sexual performance and declared that she was going to bring home another man who could satisfy her sexual needs. She suggested that the appellant could listen to them having sex.
[6] The appellant said that he became enraged and grabbed Ms. Devine around the neck and choked her for about five minutes until he realized that she was unconscious and dropped her on the bed.
[7] The appellant panicked and poured cans of flammable fluid around the house from the basement to the main floor and set the house on fire. He jumped out of a second storey window and fled the scene. He walked towards nearby train tracks, with the thought of perhaps killing himself. However, he changed his mind and made his way by foot to the Victoria Hospital about one mile away. He was approached by a police officer near the hospital. He told the police officer, “I think that I just killed my wife, then set fire to my house.” The appellant was treated in the hospital for a broken foot and then taken to the police station.
[8] The body of Ms. Devine was badly burned in the fire. Her face was unrecognizable. Her dental records were used to identify her. The post-mortem examination suggested that she died before the start of the fire, as there was no soot in her lungs.
III. THE REASONS FOR SENTENCE OF THE TRIAL JUDGE
[9] The trial judge concluded that the jury accepted, as she did, that the appellant “was provoked during an altercation with Ms. Devine causing him to lose control; he strangled Ms. Devine with his hands.”
[10] In considering sentence, the trial judge observed that this was a difficult case because the appellant was a “gentle giant, and his actions that night were completely out of character.” She also recognized that Ms. Devine’s taunting words to the appellant were devastating “and went beyond a repudiation of their relationship.”
[11] The trial judge began by considering the need for general and specific deterrence and the need for the appellant’s rehabilitation in fixing the appropriate sentence.
[12] The trial judge then considered a number of aggravating factors in respect of the manslaughter conviction:
(i) this was a domestic homicide;
(ii) the act was one of extreme violence over a period of approximately 5 minutes;
(iii) the victim was particularly vulnerable due to her small stature, particularly in contrast to the size of the appellant; and,
(iv) the appellant disregarded the lifeless body of Ms. Devine as he set fire to the house.
[13] The trial judge also considered the following mitigating factors:
(i) the appellant had been a devoted partner of Ms. Devine;
(ii) the appellant expressed remorse, although based on the report of a psychiatrist, the trial judge was left with the impression that the appellant was somewhat lacking in insight and may have perceived himself as a victim;
(iii) the appellant is a “gentle giant”, as is indicated in the many letters attesting to his kind and gentle disposition;
(iv) the appellant is an extremely hard-worker and a valued employee;
(v) the appellant has a dated and irrelevant criminal record; and,
(vi) the appellant pleaded guilty to arson and prior to trial offered to plead guilty to manslaughter, although the offer was rejected by the Crown.
IV. THE APPEAL
[14] On the argument before us, both the appellant and the respondent agreed that the range of sentence for manslaughter with aggravating circumstances, such as exist here, is 7 to 12 years. The issue raised by the appellant is where on that scale the appellant stands.
[15] Counsel for the appellant submits that the circumstances, which would have called for a sentence in the upper end of the range, were not present in this case: there was no history of abuse by the appellant; there was no significant or relevant criminal record; the appellant clearly expressed his remorse and accepted full responsibility for his conduct; and, a report from a psychiatrist indicated that the appellant was at low risk to re-offend. Counsel further submits that the defence of provocation, which reduced the verdict from second degree murder to manslaughter is a significant mitigating factor in assessing the appellant’s moral blameworthiness and in determining an appropriate sentence. See R. v. Stone, [1999 688 (SCC)], [1999] 2 S.C.R. 290, at para. [237].
[16] Counsel for the appellant argues that, given the significant mitigating factors, the trial judge erred in imposing a sentence substantially in excess of the lower end of the 7 to 12 year range. Counsel submits that the appropriate sentence for the manslaughter conviction is 8 or 9 years.
[17] I agree with the trial judge’s observation that this is a difficult case to determine the appropriate sentence for the appellant. Obviously a delicate balancing of the relevant mitigating and aggravating factors is called for.
[18] Our task at the appellate level was succinctly described by Iacobucci J. in the often cited case of R. v. Shropshire, [1995 47 (SCC)], [1995] 4 S.C.R. 227, at para. [46]:
An appellate court should not be given free reign to modify a sentencing order simply because it feels that a different order ought to have been made. The formulation of a sentencing order is a profoundly subjective process; the trial judge has the advantage of having seen and heard all of the witnesses whereas the appellate court can only base itself upon a written record. A variation in the sentence should only be made if the court of appeal is convinced it is not fit. That is to say, that it has found the sentence to be clearly unreasonable.
[19] In respect of the 10 year sentence, and in spite of Mr. Sheppard’s able argument, I am not able to conclude that the sentence is clearly unreasonable. The trial judge considered all of the relevant factors, both for and against the appellant, as well as the need to pay heed to the principles of denunciation and deterrence in respect of crimes of domestic violence. The aggravating considerations (referred to at paragraph 12) justified the trial judge’s decision to impose a sentence in the middle of the range.
[20] I now turn to the calculation of the pre-sentence custody credit. Counsel for the Crown concedes that the trial judge erred in calculating the credit at 19 months. The trial judge failed to account for time spent in custody post-conviction and before sentence, which is an additional 3 ½ months.
V. DISPOSITION
[21] I would grant leave to appeal. I would allow the appeal only to the extent of granting a pre-sentence custody credit of 45 months (22 ½ months at 2 for 1) and thereby reducing the net sentence to 6 years and 3 months.
RELEASED:
“JL” “Robert P. Armstrong J.A.”
“DEC -1 2010” “I agree John Laskin J.A.”
“I agree Russell Juriansz J.A.”