Court of Appeal for Ontario

CITATION: R. v. Hagen, 2011 ONCA 749

DATE: 20111130

DOCKET: C53287

BETWEEN

Her Majesty the Queen

Respondent

and

David Hagen

Appellant

COUNSEL:

Robin Parker, duty counsel

Susan Ficek, for the respondent

Heard and released orally: November 16, 2011

On appeal from the sentence imposed by Justice Frederic M. Campling of the Ontario Court of Justice on June 16, 2010.

ENDORSEMENT

[1] The appellant committed a group of extremely serious offences on September 13, 2009. He was on his way to commit arson with two glass bottles containing flammable liquid, also with a stolen sawed-off shotgun and ammunition. When stopped by police, he struck one of the officers, attacked him with a shotgun, then pointed the shotgun and threatened to kill the officer. In response, the officer shot the appellant, injuring him.

[2] The shotgun was illegally sawed-off. The appellant was on probation and was in breach of conditions not to possess firearms, to keep the peace and to be of good behaviour. He was also in breach of a weapons prohibition under s. 110.

[3] The appellant pled guilty to assault police, assault causing bodily harm, pointing a firearm, possession of a prohibited weapon with accessible ammunition, possession of a stolen firearm, possession of an incendiary device for the purpose of arson and two counts of breaching court orders.

[4] The trial judge imposed a global sentence of 8 years 9 months less credit for pre-trial custody counted as 2:1, leaving a net sentence of 7 years 3 months. Duty counsel on behalf of the appellant submitted to this court that although the offence calls for a penitentiary sentence, the one imposed by the trial judge was too harsh for this offender. He has a significant record but his longest previous sentence was 2 years in the penitentiary. Furthermore, the trial judge “jumped” the Crown submission of 6 years less 1 year of credit for pre-trial custody for a net sentence of 5 years.

[5] In our view, where the trial judge intends to jump the Crown on sentence, particularly by a significant amount, as here, the judge should advise counsel and give them the opportunity to make submissions and provide further authorities, if so advised.

[6] Although that was not done in this case, however, in our view, the significant sentence that the trial judge imposed was warranted in the circumstances. The seriousness of an attack with a weapon on a police officer while on the way to commit arson cannot be minimized. The fact that the appellant was breaching court orders at the time is also a significant aggravating factor. In addition, the appellant has an unenviable record including prior convictions for forcible confinement and assault on his wife.

[7] The trial judge reduced the sentence he intended to give to reflect counsels’ submissions and some mitigating factors. However, we share his view of the seriousness of the offences and the need for a significant deterrent sentence.

[8] In the result, leave to appeal sentence is granted but the appeal against sentence is dismissed.

Signed: “K. Feldman J.A.” “Janet Simmons J.A.” “David Watt J.A.”