COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Thompson, 2013 ONCA 202

DATE: 20130403

DOCKET: C53009 and C52983

MacPherson, Blair and Juriansz JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dakota Thompson

Appellant

AND BETWEEN

Her Majesty the Queen

Respondent

and

Stanley Brown

Appellant

Brian Snell, for the appellant Dakota Thompson

Catriona Verner and Victor Giourgas, for the appellant Stanley Brown

Eric Siebenmorgen for the respondent in both appeals

Heard: March 25, 2013

On appeal from the sentence imposed by Justice F. Campling of the Ontario Court of Justice on June 18, 2010.

BY THE COURT:

[1] In separate but related appeals, Mr. Brown and Ms. Thompson seek to vary the sentences imposed on them by Justice F. Campling of the Ontario Court of Justice following guilty pleas to charges of aggravated assault and forcible confinement.

[2] In the case of Mr. Brown, the Crown and defence made a joint submission proposing a sentence of 7 years and 2 months’ imprisonment (less 32 months’ credit for pre-trial custody). The sentencing judge imposed a sentence of 13 years less credit for pre-trial custody. With respect to Ms. Thompson, there was no joint submission, but the Crown proposed a sentence of 4 years’ imprisonment in addition to 32 months’ credit for pre-trial custody, which would have amounted to a sentence of 6 years and 8 months less credit for pre-trial custody. The sentencing judge imposed 10 years less credit for pre-trial custody.

[3] The principal ground of appeal is that the trial judge erred by “jumping” the joint submission made with respect to Mr. Brown and by “jumping” the Crown’s proposal with respect to Ms. Thompson, without providing any reasons for doing so, without advising the Crown and defence that he was considering such a disposition, and without giving counsel an opportunity to make submissions or lead evidence in relation to his intention.

[4] We agree, and for the reasons that follow, we allow the appeals.

Facts

[5] All parties acknowledge that the circumstances of these offences were extraordinarily egregious. The appellants and one other adult individual, Mr. Jug, lured the victim – a mentally delayed 22-year old man living on social assistance – to their apartment on the pretext that they could help him find his lost cell phone. Once at the apartment, they – along with a fourth individual, a young offender – confined the victim using force, refusing to allow him to leave, and subjecting him to what can only be described as torture for a period of 17 consecutive days. They threatened him. They punched him, kicked him and hit him over the head with a pole. They burned parts of his body with a hair straightener, including his penis and buttocks. They forced him to eat feces and urine. And when he tried to bathe to clean his wounds, they poured cayenne pepper into his bathwater.

[6] Not content with this cruelty, the appellants and the other offenders also robbed the victim of his savings and income by stealing his bank card and forcing him to reveal his PIN number, which they then used to drain his account of all funds. They used the monies to purchase marijuana and video games, which they consumed and played in front of him. The victim was at least allowed to take his seizure medication. On one occasion, he escaped, but was quickly caught and punished.

[7] The ordeal only came to an end when, after 17 days, the offenders phoned the police because of a dispute with their downstairs neighbours. When the police arrived and asked if anyone else was there, they eventually revealed the presence of the victim.

[8] Somewhat miraculously, the victim has made a relatively full recovery from his physical injuries, although he was clearly terrified throughout and has permanent scars on his hands, arms, legs and on the top of his foot.

[9] Turning to consider the offenders in the context of the nature of the offence, the appellants and their fellow participants all came from troubled backgrounds and suffered from cognitive difficulties themselves. None worked. Mr. Brown, Ms. Thompson and their co-accused Mr. Jug shared the apartment and supported themselves on public funds.

[10] Mr. Brown was 30 years old at the time of the offences. He suffered from fetal alcohol and Asperger’s syndromes and was clinically assessed to be of borderline intelligence. He had a minor and mostly outdated criminal record that did not involve offences of violence. Ms. Thompson was 21 at the time. She and Mr. Brown were in a romantic relationship together. She had had a difficult upbringing, had at one point been suicidal, and by the age of 19 had become an addicted drug user. She had no criminal record.

[11] Lastly, there seems to be no dispute that Mr. Brown and Mr. Jug were the primary perpetrators of these crimes – Mr. Jug received the maximum sentence of 14 years’ imprisonment – and that Ms. Thompson was the least involved in inflicting the violence, although she was a knowing and active participant throughout the period of the victim’s captivity.

Analysis

[12] The sentencing judge quite understandably – and correctly – viewed these offences as highly blameworthy. He considered them worthy of consideration for the maximum sentence allowable. He also correctly concluded that the principles of denunciation and deterrence were paramount in the circumstances, but that the prospects of rehabilitation required consideration as well.

[13] Respectfully, however, he erred in our view in his decision to “jump” the joint submission (respecting Mr. Brown) and the Crown’s submission (respecting Ms. Thompson) by a little less than double the amount proposed. In doing so, he gave no meaningful reasons, save for his recognition of the general need to respect such submissions and his reference to maximum penalties. In addition, he gave no advance warning to counsel and did not give them the opportunity to make submissions or lead further evidence on the issue.

[14] While a sentencing judge is not bound by a joint submission, the jurisprudence is clear that he or she should not depart from such a submission unless satisfied that the recommended disposition would be contrary to the public interest and would bring the administration of justice into disrepute: see R. v. Cerasuolo (2001), 2001 CanLII 24172 (ON CA), 151 C.C.C. (3d) 445 (Ont. C.A.); R. v. Tsicos, [2006] O.A.C. 104 (C.A.); and R. v. R.W.E., 2007 ONCA 461, 221 C.C.C. (3d) 244. This is because the justice system depends upon judges rarely departing from sentences jointly recommended by counsel in order to operate effectively. Finlayson J.A. explained it this way in Cerasuolo, at pp. 447-448:

This court has repeatedly held that trial judges should not reject joint submissions unless the joint submission is contrary to the public interest and the sentence would bring the administration of justice into disrepute: e.g. R. v. Dorsey (1999), 1999 CanLII 3759 (ON CA), 123 O.A.C. 342 at 345. This is a high threshold and is intended to foster confidence in an accused, who has given up his right to a trial, that the joint submission he obtained in return for a plea of guilty will be respected by the sentencing judge.

The Crown and the defence bar have cooperated in fostering an atmosphere where the parties are encouraged to discuss the issues in a criminal trial with a view to shortening the trial process. This includes bringing issues to a final resolution through plea bargaining. This laudable initiative cannot succeed unless the accused has some assurance that the trial judge will in most instances honour agreements entered into by the Crown. While we cannot overemphasize that these agreements are not to fetter the independent evaluation of the sentences proposed, there is no interference with the judicial independence of the sentencing judge in requiring him or her to explain in what way a particular joint submission is contrary to the public interest and would bring the administration of justice into disrepute.

[15] To that, Weiler J.A. added the following in R.W.E., at para. 33:

This court’s recent decision in R. v. Tsicos… mentions a number of factors that a sentencing judge should consider in rejecting a joint submission. After explaining why the joint submission is contrary to the public interest or how it would bring the administration of justice into disrepute, it suggests that a court should acknowledge the high threshold for rejecting a joint submission; inform counsel that the court is disinclined to accept a joint submission and afford them the opportunity to make submissions on the matter; and, if imposing a different sentence, a court must fully consider the circumstances of these offences and this offender in determining a fit sentence.

[16] As noted above, the sentencing judge conducted no such analysis in any meaningful way in his reasons, nor did he forewarn counsel of his intentions or provide them with an opportunity to respond. He therefore erred in principle.

[17] Because of these errors in principle, it is open to this Court to consider what the appropriate sentence should be. For the reasons that follow, we think it appropriate to give effect to the joint submission. As a result, it is necessary to reconsider the sentence imposed upon Ms. Thompson as well, given the somewhat different roles she and Mr. Brown played in perpetrating the crimes.

[18] While in other circumstances, a range of sentence in the general area of that chosen by the sentencing judge might be reasonable (around 10 years for someone in the role of Ms. Thompson and around 13 years for a participant like Mr. Brown), we think the particular circumstances of these appellants operate to lower that range. As one counsel noted, this was not a case of the strong preying on the weak, but one of the weak preying on the weak.

[19] Left to our own devices, in the absence of the joint submission regarding Mr. Brown and the Crown’s recommendation regarding Ms. Thompson, we might have arrived at a sentence somewhere between those positions and that adopted by the sentencing judge in the circumstances. However, the guilty pleas were negotiated in the context of that joint submission and the Crown’s stance regarding Ms. Thompson.

[20] Weighing the circumstances of these offenders and notwithstanding the egregious nature of the crimes they committed, we cannot say that the joint submission could be considered to be contrary to the public interest or that giving effect to it would bring the administration of justice into disrepute. Accordingly, we would give effect to it for the purposes of Mr. Brown’s sentence.

[21] Ms. Thompson’s sentence must therefore be re-adjusted as well. In that regard, we think it significant that the Crown requested a sentence of 4 years (in addition to time spent in pre-trial custody) for Ms. Thompson. Given the way in which these matters proceeded as a package, and in the context of the joint submission in relation to Mr. Brown, which we have now adopted, we cannot say that the Crown’s proposal was unreasonable, and we would adopt that proposal for purposes of Ms. Thompson’s sentence.

[22] Both appellants raised an additional ground of appeal, asserting that the sentencing judge had not given adequate consideration to their guilty pleas. In our view the sentencing judge did deal with the circumstances surrounding the guilty pleas in an adequate fashion. That said, the fact that the appellants did plead guilty is an important factor to be taken into account in arriving at an appropriate disposition.

Disposition

[23] For all of the foregoing reasons, we grant leave to the appellants to appeal their sentence and allow their appeals. The sentence imposed by the sentencing judge will be varied to provide as follows:

For the appellant Brown – a sentence of 7 years and 2 months (less 32 months’ credit for pre-trial custody)

For the appellant Thompson – a sentence of 6 years and 8 months (less 32 months’ credit for pre-trial custody)

“J.C. MacPherson J.A.”

“R.A. Blair J.A.”

“R.G. Juriansz J.A.”

Released: April 03, 2013