Editor's Note: Corrigendum released on September 5, 2012. Original judgment has been corrected with text of corrigendum appended.
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Prioriello, 2012 ONCA 63
DATE: 20120203
DOCKET: C52926
O’Connor A.C.J.O., MacPherson J.A. and O’Connor J. (ad hoc)
BETWEEN
Her Majesty the Queen
Respondent
and
Nicholas Prioriello
Appellant
Jonathan Dawe, for the appellant
Lorna Bolton, for the respondent
Heard: January 27, 2012
On appeal from the sentence imposed on December 18, 2009 by Justice K.L. Hawke of the Ontario Court of Justice.
O’Connor J. (ad hoc):
[1] The appellant, Nicholas Prioriello, appeals his sentences on 32 convictions to which he pled guilty.
Facts
[2] The total length of the sentences was just short of 8 years in prison. He was given credit for pre-trial custody of nearly 2 years, leaving 6 years apportioned as follows:
• Five years for each of the following offences, all to be served concurrently:
• Possession of property obtained by crime over $5,000 (x2)
• Failure to stop for a police officer
• Dangerous driving
• Impaired driving
• Drive while disqualified
• Breach of probation (x4)
• One year for each of the following offences to be served, concurrently to one another, but consecutively to the above charges:
• Break and enter and commit theft (non-dwelling house) (x19)
• Possession of burglary tools (x3)
[3] The offences occurred between October 17, 2008 and January 24, 2009. He broke into 24 commercial properties in Halton, Toronto, Peel and Durham. In excess of $55,000 was stolen and approximately $12,000 in damages caused. As part of his plea bargain arrangement, no convictions were registered on other counts. On January 23, 2009, he stole a van, drank a large quantity of alcohol and led police on a high speed chase on residential and commercial streets in West Toronto. During the chase, he drove into a police cruiser, causing an officer minor injuries and twice collided with snow banks. When the van broke down, he fled on foot. While being arrested he fought with police, resulting in an officer breaking his hand.
[4] The appellant has a lengthy criminal record, including over 120 previous convictions. At the time of his arrest, he was banned for life from driving and was subject to two probation orders.
[5] The Crown sought a total sentence of 5 to 6 years on the first group of offences and a consecutive 3 to 5 years on the second group, less the 2 year credit for pre-trial custody. The Crown’s range was therefore 8-11 years, less 2 years or 6 to 9 years.
[6] The defence argued for a net upper reformatory sentence for all offences. As noted, the sentencing judge imposed a total sentence between those suggested by the two counsel.
[7] The appellant argues the sentencing judge erred in arriving at the sentences imposed. She failed to give sufficient weight to his mental disorders, while overemphasizing specific deterrence and imposing a 5 year sentence for breach of probation which carries a maximum sentence of 2 years.
The Appellant’s Background
[8] The appellant was 42 years old when sentenced. He exhibited behavioural problems as a child and spent time at a secure training school for boys where he was physically and sexually abused. His sister was raped and murdered. As a young adult, he showed signs of schizophrenia, although it appears he has never been formally diagnosed. He became addicted to cocaine and began his extensive life of crime at an early age. His mental illnesses went untreated for many years until he began medication and psychological and psychiatric treatment programs in 2006. At the time of some of the offences, he had discontinued his medications, begun drinking alcohol and had deteriorated badly. As is often the case, the appellant did better when he adhered to his treatment programs.
Discussion
[9] The appellant argues that the sentences are excessive because the sentencing judge failed to take into account his mental illness. We do not accept this proposition.
[10] The appellant appears never to have been formally diagnosed with schizophrenia. He tendered no medical evidence to the court. For purposes of this discussion, however, we are prepared to accept that he suffered from some form of mental illness. The sentencing judge was clearly sensitive to his illness as is evident in the following remarks:
...What it really gets down to is that it is very difficult to punish someone with a harsh or at least a long sentence when one knows very well that there is an underlying mental illness. Being punished when you are ill is problematic. On the other hand, there are other considerations that have to be brought to bear and it is not as if his mental illness is not something that could not be managed, in fact was for a short period of time, and it is not as if his mental illness interfered with his basic cognitive abilities either.
Turning to the issue of mental illness, his longstanding association with a psychiatrist and other supports in the community are set out in the PSR. It appears that he is someone who suffers from schizophrenia and bi-polar disorder, and also has seizures. I am not sure what the basis of it is, but there is some suggestion of nerve damage, and ADHD...
[11] In order for a mental illness to be considered as a mitigating factor in sentencing, the offender must show a causal link between his illness and his criminal conduct, that is, the illness is an underlying reason for his aberrant conduct: R. v. Robinson, [1974] O.J. No. 585 (C.A.).
[12] Further, there must be evidence that a lengthy sentence would have a severe negative effect on the offender such that it should be reduced on compassionate grounds.
[13] The evidence before the sentencing judge did not support such a conclusion in this case. Some of his offences occurred before he discontinued his medications and some after. Neither of his psychologist or psychiatrist supported the theory of a causal link between his illness and his behaviour. Further, although his psychiatrist described him as “vulnerable”, there was no evidence that the negative impact of prison would reach the level required to warrant a reduced sentence.
[15] The sentencing judge was very concerned about the proper dispositions of this matter; she adjourned the sentencing hearing twice to think further and to carefully consider the appropriate sentence, taking into account the needs of the appellant and of her obligation to protect society.
[16] She said:
...To be frank, I have been over and over the materials a few times, have come to a situation where I actually don’t agree with either party in terms of their submission. Through that process, I have moments of difficulty, I would confess, even agreeing with myself. What it really gets down to is that it is very difficult to punish someone with a harsh or at least a long sentence when one knows very well that there is an underlying mental illness. Being punished when you are ill is problematic. On the other hand, there are other considerations that have to be brought to bear and it is not as if his mental illness is not something that could not be managed, in fact was for a short period of time, and it is not as if his mental illness interfered with his basic cognitive abilities either.
[17] The global sentence of 6 years, after the credit of 2 years, is a fit sentence in the circumstances of this case. The sentencing judge did not err in law.
[18] We considered the fresh evidence that the appellant wished to tender about his current psychological condition and observe that it would not affect our decision.
[19] The appeal is dismissed.
RELEASED: “DOC” “FEB 03 2012”
“O’Connor J. (ad hoc)”
“I agree D. O’Connor A.C.J.O.”
“I agree J.C. MacPherson J.A.”
COURT OF APPEAL FOR ONTARIO
DATE: 20120905
DOCKET: C52926
O’Connor A.C.J.O., MacPherson J.A. and O’Connor J. (ad hoc)
BETWEEN
Her Majesty the Queen
Respondent
and
Nicholas Prioriello
Appellant
Jonathan Dawe, for the appellant
Lorna Bolton, for the respondent
Heard: January 27, 2012
On appeal from the sentence imposed on December 18, 2009 by Justice K.L. Hawke of the Ontario Court of Justice.
O’Connor J. (ad hoc):
[1] With respect to the judgment released on February 3, 2012, paragraph 14 of the reasons is deleted. The trial judge sentenced the appellant to 1 year concurrent on each of the breach of probation charges. Thus, there is no reason to alter the sentences with respect to those charges.
RELEASED: “DOC” “SEP 05 2012”
“O’Connor J. (ad hoc)
“I agree D. O’Connor A.C.J.O.”
“I agree J.C. MacPherson J.A.”