Court of Appeal for Ontario

Citation: R. v. MacFarlane, 2012 ONCA 82

Date: 2012-02-06

Docket: C54032

Before: Feldman, Watt JJ.A., and Dambrot J. (ad hoc)

Between:

Her Majesty the Queen

Respondent

and

Gary MacFarlane

Appellant

Counsel:

Richard Litkowski, for the appellant

Catherine Mullaly, for the respondent

Heard and released orally: January 23, 2012

On appeal from the sentence imposed on March 30, 2011 by Justice Bernd E. Zabel of the Ontario Court of Justice.

Endorsement

[1] The appellant seeks leave to appeal and if leave is granted, appeals from a sentence of two years less one day, followed by two years of probation imposed on him by Zabel J. of the Ontario Court of Justice on March 30, 2011, in Hamilton upon his guilty plea to a charge of manslaughter.

[2] On August 10, 2009, after being released from custody earlier that day, and while on probation for a number of criminal offences, the appellant attended a house party and consumed a quantity of alcohol. After leaving the party with his friend Matthew Pepping, the appellant encountered the deceased who was in the company of another person on a bicycle. The appellant recognized the person on the bicycle as someone who had stolen a bicycle from him in the past. The appellant and Pepping chased the bicyclist who was able to escape. The appellant and Pepping then turned on the deceased, and beat him with their fists. Ultimately, Pepping stabbed the deceased in the heart causing his death. The appellant was aware that Pepping was carrying a knife. They later returned to the party.

[3] The appellant was subsequently arrested for this offence, and served 599 days of pre-sentence custody. While he was in custody, the appellant told Pepping that he was going to plead guilty. He did in fact plead guilty on January 17, 2011. On his return to jail after entering his guilty plea, he was housed in a cell with Pepping, where he was assaulted by, or at the direction of Pepping eight different times before being placed in segregation for his safety.

[4] At his sentencing hearing, counsel for the defence and Crown counsel agreed that a global sentence of four years, less pre-sentence custody was appropriate. However, defence counsel suggested that two-for-one credit would be appropriate for his pre-sentence custody, while Crown counsel suggested that he should be credited for 24 months, which amounts to approximately 1.2 for one credit.

[5] Ultimately the trial judge sentenced the appellant to two years less a day, and two years of probation in addition to the pre-sentence custody, almost exactly the sentence that Crown counsel had sought. The trial judge did not explain the basis for his calculation of pre-trial custody.

[6] On this appeal, counsel for the appellant argues that the trial judge erred in principle by failing to give reasons for departing from the usual two for one credit for pre-trial custody, and in the circumstances argues that the sentence should be reduced to eight months imprisonment. Crown counsel concedes that the trial judge erred in this respect, and that there was no reason to depart from two for one credit. But he submits that the sentence imposed is a fit sentence and should stand.

[7] We agree with both counsel that the trial judge erred in the manner that he dealt with pre-trial custody. The appellant was charged prior to the coming into force of the Truth in Sentencing Act, and so that Act does not apply to him. Under the former law, trial judges customarily gave two for one credit for pre-trial custody. Although trial judges were entitled to depart from the practice of two for one credit for pre-trial custody, they were obliged to give reasons for doing so (see: R. v. Francis, 2006 CanLII 10203 (ON CA), [2006] 207 C.C.C. (3d) 536 (Ont. C.A.)). Giving less than two for one credit without giving reasons was an error in principle. The trial judge made that error, and as a result, his determination of the appropriate sentence does not attract the usual deference on appeal. Our responsibility is to determine whether or not we consider the sentence ultimately imposed on the appellant, nonetheless, to be fit (see: R. v. Lang-Watt, 2007 ONCA 642, 228 O.A.C. 394 and R. v. Situ, 2010 ONCA 683, O.J. No. 4427). In our view, it was.

[8] Sentencing in manslaughter cases varies widely, but as a general rule, sentences are imposed proportionate to the gravity of the particular offence of manslaughter. Ordinarily a lengthy sentence is imposed for the offence of manslaughter to reflect society’s concern for the sanctity of life. The offence committed by the appellant was a very serious manslaughter offence, calling for a significant penitentiary term. The appellant had just been released from custody and was on probation; he had been drinking; he knew his co-accused had a knife; the attack consisted of a two-on-one beating of an unarmed 18-year-old whom the appellant did not know; and the deceased was left bleeding in the street.

[9] At the same time there are some mitigating factors. The appellant was 21 at the time; he had no prior convictions for violent crime; he did not stab the victim; he pleaded guilty and expressed remorse; he fully cooperated with the police; and he was beaten in jail as a consequence of pleading guilty.

[10] In this case, taking into account the aggravating and mitigating factors, including the pre-trial custody, we are of the view that the ultimate sentence of two years less one day sought by the trial Crown, and imposed by the trial judge, was fit.

[11] While leave to appeal is granted, the appeal is dismissed.

"K. Feldman J.A."

"David Watt J.A."

"M. Dambrot J. (ad hoc)"