COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Hawley, 2016 ONCA 143
DATE: 20160222
DOCKET: C58928
Doherty, Cronk and LaForme JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Jerry Hawley
Appellant
Sam Scratch, for the appellant
Karen Papadopoulos, for the respondent
Heard and released orally: February 17, 2016
On appeal from the sentence imposed by Justice L. Ratushny, of the Superior Court of Justice, dated August 30, 2013.
ENDORSEMENT
[1] The appellant was charged with the second degree murder of his older brother. The victim was severely disabled and functioned at the mental age of a five to seven year old. He was completely dependent on his brother for all facets of his care and wellbeing. The jury convicted the appellant of manslaughter. He appeals the 20-year sentence imposed by the trial judge.
[2] The facts of the case are horrific. The trial judge referred to them at some length in her reasons for sentence. No summary could do the facts justice. An appreciation of the heinousness of this crime and the suffering of the victim can be gained by a review of the trial judge’s reasons. We adopt her description of the relevant evidence.
[3] There are three alleged errors:
- Did the trial judge improperly treat the absence of remorse as an aggravating factor?
[4] The trial judge rejected the appellant’s protestations of remorse. In the course of considering the aggravating factors on sentence, she said:
I do not assess the expressions of remorse from the accused as genuine and neither do I assess him as having any insight into the gravity of his actions against Jamie;
Because of the accused’s lack of insight into the gravity of his actions, I am unable to access the level of risk he poses to the safety of the community as being other than high. The accused was able to act with inhumanity and cruelty towards his incapacitated brother so as to have an extra thousand dollars a month. Even if this kind of situation is one unlikely to ever be available to the accused again, the evidence of his indifference to Jamie’s obvious suffering for the pursuit of his own financial gain is an attitude that risks the safety of the community and particularly so when he has so little insight into his actions;
[5] Counsel for the appellant submits that in para. 19, the trial judge used the lack of remorse as an aggravating factor. In our view, the two paragraphs must be read together. Read together, they indicate that the trial judge regarded the appellant’s lack of insight into the seriousness of his crime, as evinced by the absence of remorse, as an aggravating factor because of its impact on the appellant’s potential danger to the community. We see no error in this analysis.
- Did the trial judge err in imposing a sentence that was well beyond the established range?
[6] Counsel for the appellant submits that the appropriate range for this kind of manslaughter is between 7 and 16 years. He does not suggest that this case should not be placed at the upper end of the range. He does, however, skillfully and forcefully argue that as egregious as the facts of this case are, they do not warrant a sentence that is four years beyond the range.
[7] Thankfully, there are relatively few manslaughter cases that involve the ongoing horrendous and fatal abuse of persons by individuals responsible for their care. The cases have attracted a wide variety of sentences, including, in one case, a sentence of 16 years. In that sense, it is fair to say that 16 years is the upper end of any established range.
[8] Parity in the sentencing of similar offenders who have committed similar offences is a recognized principle of sentencing: Criminal Code s. 718.2(b). Over time, the operation of the parity principle gives rise to ranges of sentences for similar offences committed by similar offenders. In R. v. Lacasse, 2015 SCC 64, at para. 58, the court explained the relationship between parity as a principle of sentencing and the fitness of a specific sentence that is beyond the existing range:
There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender’s degree of responsibility and the specific circumstances of each case.
[9] In our view, the aggravating circumstances of this case clearly called for a sentence outside of the existing range.
[10] It is difficult to know where to start when describing the aggravating features of this case. The trial judge’s reasons provide a full and powerful catalogue of them. We would stress the following:
• The appellant sought out and took the victim from a setting in which he was happy and well cared for and loved by the staff at Kingston Community Living (“KCL”). The appellant removed him to circumstances in which the victim received no care, no love and was treated in an appallingly inhumane and abusive manner. The appellant’s motive was simple. He wanted to get his hands on the victim’s monthly disability cheque. To the appellant, the victim was a paycheque and nothing more;
• The neglect and abuse of the victim began as soon as the appellant removed him from the care of KCL. That abuse and neglect continued for eight years until the victim finally died from the combined effect of starvation, pneumonia and over 30 infected massive bedsores, some of which had gone right to the victim’s bones;
• The victim, who was 41 when he died, weighed 57 pounds. The Crown expert testified that it would be hard to find a worse case of malnutrition;
• The appellant had such total disregard for his brother’s wellbeing that he could not even be bothered to access resources that were available to him free of charge which could have provided things that would have significantly improved the victim’s quality of life; and
• The victim endured month after month of ever-increasing pain and isolation as a result of the appellant’s conduct. He must have suffered a great deal before he finally succumbed.
[11] Having determined that a proper sentence called for a prison term beyond the current range of sentencing for this kind of offence, we cannot say that the sentence arrived at by the trial judge was too far beyond that range. The sentence was long, but it was not clearly unreasonable.
- Credit for pre-sentence custody
[12] The parties agree that in light of the decision in R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, released after the trial judge’s reasons, the trial judge should have given the appellant 1.5 days’ credit for each day he was in custody prior to sentencing. On that calculation, he is entitled to an additional 619 days and a total credit for presentence custody of five years, one month.
Disposition
[13] In our view, the 20-year sentence imposed by the trial judge was appropriate. Having regard to credit for presentence custody, that should be reduced by five years and one month, yielding a sentence of 14 years and 11 months. The appeal is allowed and the sentence is varied to that extent.
“Doherty J.A.”
“E.A. Cronk J.A.”
“H.S. LaForme J.A.”