COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Malcolm, 2013 ONCA 451

DATE: 20130628

DOCKET: C54724

Feldman, MacPherson, Cronk JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Densley Malcolm aka Densley Corrupt

Appellant

Appellant in person

Duty counsel: David Rose

Crown counsel: John Pearson

Heard: June 12, 2013

On appeal from the sentence imposed on April 30, 2007 by Justice D. Bellamy of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant was convicted of attempted murder, aggravated assault, assault with a weapon and possession of a weapon for a purpose dangerous to the public peace, following a knife attack on his roommate, Garvin Kerr. In accordance with the principle in R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729, two of the charges, aggravated assault and assault with a weapon, were stayed by the trial judge. The appellant was sentenced to life in prison for the attempt murder conviction. He appeals that sentence.

[2] The arrangement between the appellant and the victim was that the appellant contributed to the rent by supplying the victim with crack cocaine. The victim expressed an ongoing complaint that the appellant was overcharging him for the drugs. It was following such a complaint that the appellant proceeded to stab the victim with his large, Rambo-type knife, first in the back and continuing with approximately 14 knife stabs, only stopping when he, the appellant, had to catch his breath. The victim took that opportunity to escape from the apartment. The trial judge described the attack as extremely vicious and was satisfied from the nature of the attack that the appellant had the intent to kill. Following the attack the appellant did not get any help for the victim, but cleaned the knife, deliberately left it with another tenant in the building and tried to obtain another tenant’s identification.

[3] The appellant was 30 years old at the time of sentencing and had a significant record for crimes of violence. He also suffers from serious mental illness. His fitness to stand trial was the subject of a number of pre-trial inquiries before he was found to be fit. Following his convictions, the Crown sought to have the appellant found not criminally responsible and a post-conviction hearing was held by the trial judge. Based on the evidence of Dr. Pallandi, the trial judge denied the Crown’s motion.

[4] Dr. Pallandi diagnosed the appellant as a paranoid schizophrenic. He had no insight into his mental illness and despite being told by the doctor and others, he refused to acknowledge his mental illness or to take any treatment, including any medication. In his report, Dr. Pallandi offered the opinion that without treatment with antipsychotic medication as well as a high degree of supervision and support upon his release, the appellant “would likely be at an elevated, if not substantial, risk for subsequent similar behaviour.”

[5] The Crown sought a life sentence. The appellant submitted that 8 to 10 years imprisonment would be appropriate, given that he had served a substantial period in pre-sentence custody. The trial judge found the following factors to be significant: the seriousness of the crime, the criminal record of escalating acts of violence, the denial of a major mental illness for which the appellant had taken no treatment or medication, and the fact that “the prognosis is that he will continue to be a danger to the community and it is uncertain when or if he will ever be cured.”

[6] In considering a life sentence, the trial judge noted specifically that a court could not impose a sentence that was not warranted by the facts “simply because of an offender’s mental deficiencies,” and that “a life sentence should not be used as an alternative to other provisions in the Criminal Code which refer to preventative detention.”

[7] However, based on the serious, brutal crime, the continuing danger posed by the appellant, and his failure to appreciate the seriousness of the attack and therefore the need for the protection of society, the trial judge found that a life sentence was appropriate. She concluded: “There is nothing about this offence and this offender that would warrant anything less than a very substantial penitentiary term of imprisonment, and, in my view, that term is life.”

[8] Duty counsel on behalf of the appellant submitted that it was an error in principle for the trial judge to impose a life sentence without justifying why a lesser, but high definite sentence would not be sufficient to accomplish all the goals of sentencing.

[9] We do not accept this submission. The case of R. v. Simpson, 1981 CanLII 3188 (ON CA), [1981] O.J. No. 34, a decision of a five-judge panel of this court, authored by Martin J.A., addresses the issue of when a life sentence is appropriate in circumstances such as the present. That case also involved a vicious stabbing, in that case in the throat, where the victim miraculously escaped lasting injury. The appellant suffered from a severe personality disorder and the psychiatrists considered him to be a danger to the community. Martin J. A. explained that “the fundamental purpose of any sentence is the protection of society.” In upholding the life sentence imposed by the trial judge, Martin J.A. stated, at para. 14:

I consider that the sentence of life imprisonment imposed by the trial judge on the appellant in respect of the conviction of attempting to murder Beatrice Deline standing alone [a new trial had been ordered on appeal from a second conviction] was in all the circumstances a fit sentence, regard being had to the uncertainty as to when he may be cured, or cease to be dangerous, to the cruelty and callousness of his act in stabbing Mrs. Deline and the severity of his personality disorder, which, at the present time, makes him a continuing danger to the physical safety of others.

[10] Also in upholding the life sentence, the court recognized that it amounts effectively, to an indefinite sentence where it will be up to the parole board to determine, with the assistance of psychiatric examination, when it is appropriate to release the appellant into the community.

[11] The Supreme Court of Canada clarified the law on life sentences in 2004 in its decision in R. v. Cheddisingh, 2004 SCC 16, [2004] 1 S.C.R. 433, where the court removed the concepts of “stark horror” and “worst offence, worst offender” as prerequisites for imposing a life sentence. However, the court emphasized that a maximum sentence is to be imposed only rarely, “and is only appropriate if the offence is of sufficient gravity and the offender displays sufficient blameworthiness. As is always the case with sentencing, the inquiry must proceed on a case-by-case basis.”

[12] Recently, in R. v. Anderson, 2012 ONCA 373, [2012] O.J. No. 2473, this court also upheld a life sentence where the crime was horrific, and there was evidence that the appellant continued to be a danger to the community. In that case, the Crown initially sought a dangerous offender designation, but withdrew the application when the appellant refused to participate in a forensic psychiatric assessment. The trial judge was nevertheless entitled to impose a life sentence where the circumstances warranted it.

[13] The appeal from sentence is therefore dismissed.

“K. Feldman JA.”

“J.C. MacPherson JA.”

“E.A. Cronk JA.”