COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Chapman, 2013 ONCA 15

DATE: 20130114

DOCKET: C54697

Weiler, Blair and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mark Chapman

Appellant

Timothy E. Breen, for the appellant

Marcella Henschel, for the respondent

Heard and released orally: January 8, 2013

On appeal from the sentence imposed on July 21, 2011 by Justice Richard G. Byers of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant pled guilty to manslaughter and received a global sentence of nine years and a net sentence of seven years taking into account 22 months time served in pre-trial custody. He appeals his sentence and raises three grounds of appeal: (1) whether the sentencing judge erred by giving less weight to the mitigating effects of the appellant’s intoxication and limited intellectual capacity because those factors had already served to reduce the charge of murder to manslaughter; (2) whether the sentencing judge erred in giving less than 2:1 credit for pre-trial custody;[^1] and (3) whether the sentence imposed is unfit. He asks for a sentence of seven years less 2:1 credit for time served. Alternatively, he asks that the nine-year sentence reflect credit for time served on a 2:1 basis.

A. Circumstances of the Offence

[2] Steffany Gardiner was killed on September 18, 2009. At the time of her death she was 26 years old and was the mother of a 7-month-old child. During the summer of 2009 she had been involved in a relationship with the appellant. The relationship ended several days before her death because of purported infidelity on the part of the appellant.

[3] On the night of her death, Ms. Gardiner, Kevin Ruttan, and the appellant had been travelling around in a van visiting various friends and making various purchases of beer and marijuana. All three of them had been drinking and using drugs throughout the night. At around 1:00 a.m. the group stopped at Papineau Beach, in Hastings Highland. Ms. Gardiner had engaged in sexual contact with both men while en route to the beach and after arriving at the beach that night. However, at some point after arriving at the beach Ms. Gardiner became upset with Ruttan. As a result of that, Ruttan asked the appellant to wait in the van while he took a walk down the beach with Ms. Gardiner.

[4] A struggle ensued and Ruttan stabbed Ms. Gardiner twice with a knife. The appellant, who had been in the van for an estimated 20 to 25 minutes, came looking for Ms. Gardiner and Ruttan. He found Ruttan on top of Ms. Gardiner with his forearm pressing down across her throat. She was still struggling. Ruttan called out to the appellant and told him to come and hold Ms. Gardiner down. The appellant did not know what was going on, but he proceeded to hold down Ms. Gardiner’s arms while Ruttan continued to apply pressure to her throat until she fell silent. At Ruttan’s request, the appellant then went to the van to retrieve a baseball bat. Ruttan told the appellant to strike Ms. Gardiner with the bat but the appellant replied, “No, you do it.” Ruttan then struck Ms. Gardiner on the head four or five times while the appellant stood nearby and watched. A post-mortem report concluded that Ms. Gardiner was still alive when she was struck on the head and that death was caused by blunt force trauma to her head.

[5] Ruttan and the appellant fled Ontario but were arrested in Quebec on September 22, 2009. Ruttan pled guilty to second degree murder and received a sentence of life imprisonment without eligibility for parole for 15 years.

B. Circumstances of the Appellant

[6] The appellant was 32 years of age at the time of the homicide. He is the youngest of two siblings and was raised in a stable and supportive home environment. The appellant had known Ruttan for some time and had even invited Ruttan to live with him for a period of time, although the appellant reported that Ruttan was “bossy” towards him.

[7] Psychological testing of the appellant revealed an IQ of 68, placing him within the classification of “mild retardation.” The psychological testing and clinical evaluation of the appellant indicated that he suffers from significant impairment to his intellectual functioning and that he is a “follower.” The appellant’s cognitive functioning would be further compromised when impaired by alcohol and/or drugs.

[8] The appellant had a limited criminal record including one prior conviction for assault.

C. Whether the sentencing judge gave appropriate consideration to the mitigating effects of the appellant’s intoxication and limited intellectual capacity

[9] The crown and defence agreed that the proper range of sentence for “aggravated” manslaughter is seven to 12 years. The Crown asked for a sentence of 12 years less credit for pre-trial custody, while counsel for the appellant sought a sentence of seven years less credit for pre-trial custody.

[10] In submissions on sentencing, the Crown submitted that, at least part of the reason that the Crown agreed to accept a reduced plea to manslaughter and not second degree murder, was because of the appellant’s mental status and level of intoxication that night. As such, the Crown argued that the appellant’s mental status and intoxication should not be used again as mitigating factors in sentencing the appellant for manslaughter – to do so would be provide a “double benefit” because these factors were already spent to reduce the charge from second degree murder.

[11] In his reasons for sentence the sentencing judge responded to the Crown’s submission as follows:

The Crown is right that at least part of the reason that the Crown agreed to accept a reduced plea to manslaughter and not second degree murder is because of some sense of all the players, including the Crown, that wouldn’t be right. It wouldn’t be fair in these circumstances to [the appellant]. And so he doesn’t go down for second degree murder, which is life.

And so the Crown says to me, that’s it. That’s all the credit he gets. That’s it. And there are some cases that say that.

The problem for me is the law says I am supposed to sentence the offender who stands before me, and the sentence should be fit for him and fit for what he did.

And so I think if I follow that law, which I understand to be the law of the land, I have to take into account, even on sentencing, to some degree at least, who he is, where he comes from, what his record is, the degree of his participation, the likelihood that he will be in trouble again.

[12] The appellant focuses primarily on the words “to some degree at least” to argue that the sentencing judge accepted the Crown’s argument. The appellant points to R. v. Stone (1999), 1999 CanLII 688 (SCC), 134 C.C.C. (3d) 353 (S.C.C.) for the proposition that the weight of a mitigating factor should not be diminished even if that factor has already served to reduce the charge from murder to manslaughter.

[13] We do not agree that the trial judge accepted the Crown’s argument. Taken in context, the trial judge was simply conveying that he rejected the Crown’s submission and intended to consider all the relevant circumstances. We see no error in principle in his comments and would dismiss this ground of appeal.

D. whether the trial judge erred in giving less than 2:1 credit for pre-sentence custody and whether the sentence is unfit.

[14] The sentencing judge stated that in his opinion the appropriate global sentence was nine years. While expressing an intention to allow approximately 44 months credit for pre-trial custody and endorsing the indictment to that effect, the sentencing judge in fact only allowed 24 months credit. The appellant submits that by not giving 2:1 credit the sentencing judge erred in principle and that, as a result, the sentence is not entitled to deference.

[15] A trial judge has the discretion to depart from the general practice of giving 2:1 credit as long as he gives proper reasons for doing so. The trial judge gave no reason for departing from his stated intention to give approximately 44 months credit for pre-sentence custody. There was either an error in principle or a mathematical error on his part.

[16] Notwithstanding appellant’s counsel’s submissions that this offence should not be characterized as “aggravated assault” on account of the appellant’s limited intellectual capacity and other mitigating factors, we are of the opinion that, having regard to the appellant’s direct participation in the assault, the offence is rightly characterized as aggravated manslaughter as both counsel agreed at trial. This was a brutal attack on a vulnerable victim. A global sentence of seven years less credit for pre-trial custody on a 2:1 basis would not adequately denounce the appellant’s participation in this heinous crime.

[17] We are of the opinion that effect ought to be given to the sentencing judge’s original stated intention to impose a nine year global sentence less approximately 2:1 credit for pre-trial custody. Accordingly, leave to appeal sentence is granted, the appeal as to sentence is allowed and the sentence is varied to a net sentence of five and a half years taking into account pre-trial custody.

“Karen M. Weiler J.A.”

“R.A. Blair J.A.”

“Paul Rouleau J.A.”

[^1]: The Crown concedes that the amendments to s. 719(3) of the Criminal Code do not apply in this case because appellant was charged in September 2009, prior to the coming into force of the Truth in Sentencing Act.