COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bennett, 2013 ONCA 471

DATE: 20130709

DOCKET: C54496

MacPherson, Cronk and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Horaine Bennett

Applicant/Appellant

Catriona Verner, for the applicant/appellant

Joan Barrett, for the respondent

Heard: July 4, 2013

On appeal from the sentence imposed by Justice John C. Murray of the Superior Court of Justice on March 10, 2011, with reasons reported at 2011 ONSC 1413.

ENDORSEMENT

[1] During an eight-day period, the appellant committed three home invasions at gunpoint. In the course of committing these robberies, he physically assaulted several of the residents and, in two of the home invasions, he forced the young adult daughters who were in the home to fellate him at gunpoint and within earshot – and in one case, in sight – of their parents. Following his conviction for these offences, he was declared a dangerous offender and the trial judge sentenced him to an indeterminate sentence.

[2] The appellant appeals on the basis that the trial judge materially misapprehended the expert evidence as it related to his level of risk and his amenability to treatment. Absent these errors, the appellant argues, the trial judge would not have concluded that the appellant met the test for a dangerous offender designation and would not have imposed an indeterminate sentence.

[3] The appellant further submits that the trial judge erred in sentencing him under the Criminal Code regime that existed prior to the July 2008 amendments.

[4] Finally, the appellant seeks to admit fresh evidence and argues that it supports his claim that he is a suitable candidate for a long-term offender designation.

[5] We would not allow the appeal.

[6] The trial judge did not, as the appellant alleges, misapprehend the evidence of the Crown’s expert Dr. Hucker. In his summary of the evidence, the trial judge accurately noted that Dr. Hucker’s overall opinion was that the appellant posed a “moderate to high risk of sexual or violent recidivism”. The trial judge also correctly observed that the actuarial risk assessment instruments used by both Dr. Hucker and the appellant’s expert, Dr. Gojer, indicated that the appellant presented a high risk to reoffend violently and/or sexually. In fact, one of the risk assessment instruments, the SORAG, placed the appellant in a group where 100% of the individuals in the sample group reoffended violently within ten years.

[7] The fact that, in some parts of his reasons, the trial judge refers to Dr. Hucker as having found that the appellant poses a high risk of reoffending is of no moment. When the reasons are read as a whole, it is apparent that the trial judge did not misapprehend Dr. Hucker’s evidence. On this record, there was ample basis for finding that the appellant was a dangerous offender.

[8] We are also of the view that the trial judge did not misapprehend the evidence related to the appellant’s amenability to treatment. Although Dr. Gojer opined that the appellant showed potential to engage in and respond to treatment, this was, as found by the trial judge, no more than an indication of potential. The trial judge carefully considered whether there was a reasonable possibility of eventual control of the appellant’s risk in the community, as required for a long-term offender designation. His finding that the evidence fell far short of supporting this conclusion was well grounded, and his decision not to make a long-term offender order is entitled to deference.

[9] The appellant then argues that the trial judge erred in sentencing him under the dangerous offender regime in place before July 2008. The appellant explains that, in the particular circumstances of this case, applying the new regime may have been beneficial to him, as it may have led the trial judge to use his discretion to impose a less severe sentence than an indeterminate term.

[10] We disagree. The appellant’s trial counsel requested that he be sentenced under the former regime, as that regime was more beneficial. This is what the trial judge did. In any event, assuming without deciding that both regimes ought to have been considered and applied, the result would have been the same.

[11] Although the tests are undoubtedly different, in the instant case, there is no meaningful distinction between the trial judge’s application of the test for finding that an offender is a long-term offender under the old regime (i.e. that there is a “reasonable possibility of eventual control of the risk in the community”) and the test for imposing a determinate sentence under the new dangerous offender regime (i.e. that there is a “reasonable expectation that a lesser measure … will adequately protect the public against the commission by the offender of murder or a serious personal injury offence”). The appellant meets neither standard, and the trial judge therefore correctly found that he was not entitled to a long-term offender designation; concomitantly, he is also not entitled to a determinate sentence. In the circumstances of this case, there is no meaningful distinction between the need to guard against the threat of harm in the old regime, as opposed to guarding against “murder or a serious personal injury offence” as per the new regime. This is because the trial judge found beyond a reasonable doubt that the appellant was likely to cause “death or injury or severe psychological damage through failure in the future to restrain his behaviour”. Given the seriousness of the predicate offences, the appellant’s history, and the expert evidence, there can be no doubt that there is both a reasonable expectation and a reasonable possibility of harm and that that harm falls within the broad definition of a serious personal injury offence.

[12] We turn lastly to the fresh evidence. At best, that evidence suggests that Dr. Gojer believes that there exists a potential for treatment. In our view, the evidence does not go so far as to show that the appellant can be rehabilitated within a fixed period of time, let alone the period required for a long-term offender designation. As a result, even if the fresh evidence were admitted, it would not have affected the result.

[13] For these reasons, the application for leave to file fresh evidence is denied and the appeal is dismissed.

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”

“Paul Rouleau J.A.”