Court of Appeal for Ontario

Citation: R. v. Hason, 2011 ONCA 396

Date: 2011-04-27

Docket: C52726

Between:

Her Majesty The Queen Respondent

and

Richard Hason Appellant

Heard: In Writing

By The Court:

[1] The appellant appeals in writing from the sentence imposed by Bourque J. on August 17, 2010 of six months imprisonment, less three months credit for pre-trial custody, plus two years probation for the offence of failure to comply with the terms of a probation order. The appellant submits that the sentence was harsh and excessive, and failed to take into account the fact that the appellant pleaded guilty. For the following reasons, the appeal from sentence is dismissed.

[2] On January 17, 2010, the police received information from the York Children’s Aid Services with respect to a young woman in their custody as a ward. Her foster mother had reported that she had received telephone calls from a person that the foster mother believed was the appellant. The police interviewed the young woman and she acknowledged that she had been having ongoing contact with the appellant by telephone. At the time that this telephone contact occurred, the appellant was under a probation order the terms of which included that he was to have no contact with the young woman in question. He had previously been found guilty of assaulting the young woman.

[3] The appellant entered a plea of guilty of failure to comply with the terms of a probation order. The trial judge conducted the plea inquiry as required by s. 606(1.1) of the Criminal Code, R.S.C. 1985 c. C-46. This included asking the appellant whether or not he understood that whatever Crown and defence counsels’ submissions on sentencing, the final disposition was up to the judge. The appellant indicated that he understood this and still wanted to enter a guilty plea.

[4] There was no agreement with respect to joint submissions on sentence. Crown counsel submitted that an appropriate sentence would be 90 days incarceration in addition to the 57 days the appellant had spent in pre-trial custody. Crown counsel also submitted that a further two year probation order would be appropriate. Defence counsel accepted the Crown’s position with respect to the probation order, but argued that 45 days incarceration in addition to pre-trial custody would be appropriate.

[5] At the time of sentencing, the appellant was 23 years old. The appellant had the support of his siblings, especially his sister with whom he was very close. His older brother owned a landscaping business where the appellant had worked in the past and could get work again in the future. The appellant had a somewhat difficult upbringing due to behavioural issues as a result of Attention Deficit and Hyperactive Disorder. Prior to his death when the appellant was in his early teens, the appellant’s father acted as the disciplinarian in the family. The appellant reported that that discipline often included physical discipline. It was around the time of his father’s death that the appellant first came into contact with the police. Despite his young age, the appellant had a lengthy criminal record, including convictions for assault and various property offences. His criminal record also included eight convictions for failing to comply with previous probation orders and undertakings.

[6] In determining the sentence, the sentencing judge considered the sentencing principles in ss. 718 to 718.2 of the Criminal Code. The sentencing judge considered the mitigating factors, including the fact that the appellant had entered a guilty plea and the appellant’s young age. He also considered the aggravating factors: the age of the complainant, the brazen nature of the breach, and the appellant’s lengthy criminal record.

[7] The sentencing judge considered the appropriate factors at length. He properly emphasised the importance of the principle of specific deterrence in this case, noting that a significant period of incarceration was necessary to bring to the appellant’s attention the gravity of his conduct. However, the sentencing judge also recognized the importance of the principle of totality, finding that it was appropriate to give the appellant credit for his pre-trial custody on an enhanced basis of 1.5 to 1. The sentence was fit and there was no error in principle. Accordingly, the appeal is dismissed.

Signed: "M. Rosenberg J.A." "R. G. Juriansz J.A." "J. MacFarland J.A."

RELEASED: "MR" April 27, 2011