COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Rockey, 2016 ONCA 891
DATE: 20161125
DOCKET: C62023
Watt, Pepall and Tulloch JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
David Willmore Rockey
Appellant
David Rockey, in person
Erika Chozik, duty counsel
Jennifer Mannen, for the respondent
Heard: July 12, 2016
On appeal from the sentence imposed on March 22, 2016 by Justice Richard T. Knott of the Ontario Court of Justice.
Pepall J.A.:
A. Overview
[1] On September 24, 2015, the appellant was convicted of driving while disqualified. He was sentenced to 18 months’ imprisonment with no probation. He seeks leave to appeal his sentence.
[2] The facts relating to the appeal are as follows.
[3] On February 7, 2015, the appellant, who was 34 years old, was driving a van in Brockville. At the time, he was subject to two lifetime driving prohibitions. He was stopped by police, co-operated, and was subsequently arrested.
[4] The appellant has an extensive criminal record: approximately 80 convictions in total, of which 14 are for driving while disqualified and 30 are for failure to comply. One is a historical dangerous driving conviction. There was no suggestion that any of his convictions related to driving while impaired.
[5] The appellant’s last two convictions were for driving while disqualified on October 15 and 18, 2010. When he was convicted on October 15, 2010, he was sentenced to 12 months’ imprisonment, in addition to 60 days of pre-sentence custody, and then on October 18, 2010, he was sentenced to an additional 150 days on top of 81 days of pre-sentence custody. The appellant reports that he spent the time for these two convictions, as well as his jail time on the current conviction, in segregation for his own safety.
[6] The appellant had no criminal convictions between his release from prison on January 19, 2012 and his conviction on September 24, 2015, but he admitted to driving on several occasions during that time and had one conviction on June 20, 2014, under the Highway Traffic Act, R.S.O. 1990, c. H. 8, for driving without a licence.
[7] The appellant had a traumatic childhood, which included being physically assaulted by his father and sexually assaulted by his grandfather. He became a Crown ward at age 10 and had difficulties in foster care.
[8] The appellant has had two admissions to the St. Lawrence Valley Correctional and Treatment Centre, where he was diagnosed with anxiety disorder (not otherwise specified); sub-syndromal post-traumatic stress disorder; social anxiety disorder; learning disabilities; anti-social personality disorder; dysthymia; and pathological gambling.
[9] The appellant has been in a stable common-law relationship with Amy Theobald since 2009. They have five children. At the date of his sentencing, they were ages 13, 10, 6, 5 and 16 months.
[10] He and his family have been supported financially by the Ontario Disability Support Program (ODSP) since 2009, but when the appellant is incarcerated, these benefits are much reduced.
B. Sentencing Hearing
[11] At the sentencing hearing, the appellant requested a 12- to 15-month conditional sentence. His counsel argued that the appellant is the father of five children, and his offences, while serious, were victimless and at the lower end of the spectrum. His counsel argued that the appellant may not have a full-fledged addiction to driving, but manifested many physiological indicators that supported such a description.
[12] The Crown requested a three-year penitentiary sentence. The Crown submitted that the appellant had a very poor record of compliance, and the court ought to be imposing lengthier sentences in a “stepwise fashion”. Moreover, the Crown argued that the appellant’s mental health and addiction issues could be addressed while in jail.
[13] Two medical reports were filed before the sentencing judge. Dr. Adam Newman, the author of one of the reports, testified at the sentencing hearing. The appellant was referred to Dr. Newman by his family doctor. Dr. Newman is also a family doctor, but has training in addiction medicine from the Centre for Addiction and Mental Health, in Toronto. Though not identified in Canada as a separate specialty, Dr. Newman has focused on addictions medicine for 14 or 15 years. He testified that while not a recognized behavioural addiction, the appellant’s driving met the four criteria for an addiction: compulsive engagement in the behaviour; continued engagement, despite negative consequences; continued and escalating engagement; and a craving obsession.
[14] In his testimony, Dr. Newman explained that addicts are sentenced to prison on the rationale that if put in prison and taken away from their addictive behaviour or substance, they will be cured and will not engage in their addiction anymore. However, he testified that they will reliably revert or relapse to their addictive behaviour or substance as soon as they are released, because their forcible isolation has simply deferred them from the behavior that was providing relief. That is to be contrasted with a respite from behaviour that comes about because somebody is seeking behavioural change and participating in therapy.
[15] Dr. Newman also addressed programs that are available at correctional facilities:
[F]rom my point of view as a physician in the community, prison is always an expensive way of making bad people worse and everybody who I have seen who has had an addiction [and who] has wound up in prison has wound up worse off as a result. I’ve never seen anybody recover from their addiction because they were imprisoned.
[16] A report from Dr. Helen Ward, a forensic psychiatrist, was also filed before the sentencing judge.
[17] In her report, Dr. Ward outlined the appellant’s troubled history:
This is a 35 year old male with a history of documented and confirmed severe abuse and deprivation as a child. He was apprehended by CAS and went on to have a difficult course in their care, as well. As a result, he developed significant anxiety symptoms as well as high levels of mistrust of others. He has been diagnosed with sub-syndromal Post Traumatic Stress Disorder (PTSD) symptoms, which essentially means that he has some symptoms of PTSD but not enough to make the full diagnosis.
[18] Dr. Ward’s diagnoses of the appellant were: generalized anxiety disorder; social anxiety disorder; learning disabilities; and anti-social personality disorder.
[19] Dr. Ward went on to write:
Mr. Rockey claims an “addiction” to driving, but the concept of behavioural addiction in the DSM-5 applies only to Gambling disorders. In order to be a potential behavioural addiction, driving would have to produce a “high” similar to the effects of addictive substances on the dopamine-mediated pleasure centres of the brain. This is not the type of effect Mr. Rockey describes.
Instead I would classify Mr. Rockey’s driving behaviour as a maladaptive coping mechanism that he uses to cope with his severe anxiety. Note that this is not a diagnosis, but simply a description. My hypothesis would be that for Mr. Rockey, driving a vehicle is psychologically a “safe place” that he retreats to when overwhelmed. There is also likely an unconscious connection for him to feelings of freedom and power.
[20] Dr. Ward noted that in the early 2000s, the appellant witnessed a murder while incarcerated. The appellant was a Crown witness in the case, which resulted in a conviction. This has led to him being unable to be in the general population when incarcerated, and he is “constantly” afraid and looking over his shoulder while in jail. The appellant reported to Dr. Ward that he had received “numerous threats from the perpetrators”.
C. Reasons of the Sentencing Judge
[21] The sentencing judge commenced his reasons by commenting adversely on the appellant’s lack of remorse, at para. 57:
That an accused chose to make the Crown prove its case beyond a reasonable doubt is his constitutional right, but, to my mind, it does show a lack of remorse. It forces the Crown to spend resources on a trial, when this accused knew he was driving a motor vehicle subject to multiple lifetime driving prohibitions.
[22] The sentencing judge referred to the reports of Dr. Newman and Dr. Ward, but was not prepared to call the appellant’s behaviour an addiction. The sentencing judge stated that the appellant’s driving reflected a personal choice, and he observed that Dr. Ward’s report spoke of the appellant driving his children to school. The sentencing judge noted that the appellant’s driving seemed closer to a maladaptive coping mechanism, rather than a craving obsession consistent with an addiction.
[23] The sentencing judge also referred to the appellant’s extensive criminal record, which included two conditional sentences, one in 1999 and one in 2002. Without submissions or clear evidence on this point, he deduced that the appellant had breached the 2002 conditional sentence.
[24] The sentencing judge refused to consider a conditional sentence in this case, because the appellant had “two more pages of convictions after his last conditional sentence order”. He took the view that general and specific deterrence were the primary applicable sentencing principles in the circumstances.
[25] The sentencing judge noted that the sentence had to be significant to reflect the appellant’s bad record, but added that in this case, the driving itself had not been bad. The appellant co-operated with the officer and did not flee the scene. He was also of the view that the appellant should receive another chance at treatment, so as to address all the issues identified in the materials filed with the court, which confirmed that the appellant was accessing treatment services.
D. Positions of the Parties on Appeal
[26] With the assistance of duty counsel, the appellant submits that the sentencing judge made three errors that resulted in an unfit sentence. First, he erred by considering absence of remorse as an aggravating factor. Second, he ignored the mental health issues underlying the appellant’s behaviour. Third, there was no evidence to support the sentencing judge’s conclusion that the appellant breached his 2002 conditional sentence.
[27] The appellant seeks the substitution of an 18-month conditional sentence for his 18-month custodial sentence. He submits that his most recent conditional sentence was 13 years ago, and much has changed since then. He has been on bail pending appeal for seven months, during which time he has actively sought and received treatment and has refrained from driving. He would like to continue with that treatment. Since late December 2015, he has been taking the medication naltrexone and, according to Dr. Newman, the appellant has noticed a decrease in his compulsion to drive.
[28] Prior to receiving bail pending appeal, the appellant served almost three months in custody and was placed in segregation. During those months, he received no treatment.
[29] The Crown responds by arguing that the appellant is a scofflaw and a conditional sentence is inappropriate, as the appellant has over 80 convictions and has already been subject to two conditional sentences. The Crown argues that the sentencing judge did not use the absence of remorse as a rationale for his sentencing decision. As for the breach of the 2002 conditional sentence, the Crown submits that the issue was not that the conditional sentence was breached, but that the appellant had incurred so many additional convictions after the imposition of the conditional sentence.
E. Analysis
[30] I agree with the appellant that the sentencing judge erred in his sentencing decision.
[31] First, the sentencing judge erred in principle by considering the appellant’s lack of remorse as an aggravating factor. See R. v. Valentini (1999), 1999 1885 (ON CA), 43 O.R. (3d) 178 (C.A.), at paras. 80-85. While he does not expressly identify it as such, there was no need to mention lack of remorse if it was to have no impact on the sentence.
[32] Second, there was no evidence that the appellant breached the 2002 conditional sentence, and the sentencing judge erred in concluding that a breach had occurred.
[33] The sentencing judge’s reasons reveal that the principal factors in his decision were the appellant’s lack of remorse; his breach of the 2002 conditional sentence; his extensive criminal record; and the need for general and specific deterrence and denunciation. Given that the sentencing judge erred with respect to two of these principal factors, it is fair to conclude that these errors had an impact on the sentence imposed.
[34] In light of these errors and their impact on the sentence, it falls to this court to determine a sentence that is fit: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 43-44. In the unique circumstances of this case, I would accede to the appellant’s request for an 18-month conditional sentence. I do so for the following reasons.
[35] While compulsive driving is not classified as an addiction per se, the appellant does have significant mental health concerns and requires treatment. Since being on bail pending appeal for at least seven months, he has complied with all conditions and has been receiving treatment and counselling. He has not reoffended.
[36] The appellant has been attending community treatment services with Addictions and Mental Health Services of Hastings – Prince Edward and also attends Gamblers Anonymous meetings both in Belleville and in Kingston. Dr. Newman reports that the appellant takes the prescribed drug naltrexone and has done so since December, 2015. Dr. Newman states that this drug has been demonstrated to diminish cravings in behavioural and substance addictions. The appellant has attended a Men’s Modified Phase One survivor group, which provides information and strategies to cope with the effects of sexual violence and has also been attending at The Sexual Assault Centre for Quinte & District for weekly one-on-one counselling.
[37] In February, 2016 (in advance of the sentencing hearing), Dr. Newman outlined the appellant’s progress in overcoming his challenges and dealing with his compulsive tendencies:
Mr. Rockey’s use of naltrexone and his attendance at [Gamblers Anonymous] meetings are relatively recent additions to his treatment plan, which also includes meetings with Mr. Batchelor as well as a counsellor at Quinte Sexual Assault Centre. In the treatment of any addiction, it generally requires at least six months of abstinence or dramatic decrease in the addictive substance or behaviour before one is able to see the beginnings of lasting change in an affected individual. Having said that, it is well-known that the vulnerability to relapsing [in]to the addictive behaviour or substance is chronic and incurable, and requires a lifelong regime of therapy and support. Punishment in the form of incarceration is notoriously ineffective in deterring a relapse to addictive behaviours.
[38] This was the appellant’s first Criminal Code conviction since 2010. His last conditional sentence was in 2002. He has significant mental health difficulties, but is now surrounded by many supports including his family. He is actively accessing mental health services and has shown improvement in that there have been no breaches in the over seven months that he has been on bail. He is also on a new medication, naltrexone, which seems to be decreasing his compulsion to drive.
[39] As in R. v. Fergus (2006), 2006 37565 (ON CA), 217 O.A.C. 32, and R. v. Collette, 2005 Carswell Ont 6881 (C.A.), the appellant has made much progress while on bail pending appeal. While I accept the sentencing judge’s finding that the appellant’s repeated driving does not amount to an addiction, his positive progress should not be interrupted by a term of incarceration. Further, the appellant self-reported that he is unable to be in the general population when incarcerated and has been in segregation during his previous sentences. Such an existence does not contribute to his rehabilitative needs.
[40] Lastly, there was extensive evidence on the hardship that would accrue to the appellant’s large family should he be incarcerated. This includes a reduction in ODSP payments and a significant strain on the appellant’s partner and five children.
[41] Although served in the community, in certain circumstances a conditional sentence can be sufficiently punitive and can further the principles of sentencing, including denunciation and deterrence: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 22. In my view, these circumstances are present in this case. Significantly, rehabilitation would be enhanced by a conditional sentence, rather than impeded by a sentence of incarceration.
[42] Considering the particular facts of this case, including the apparent need for the appellant to be in segregation while incarcerated, I am of the view that an 18-month conditional sentence is fit.
[43] Accordingly, the appellant is sentenced to a conditional sentence of imprisonment of 18 months, followed by a term of probation of 12 months. This sentence is less the two months and 24 days already served.
[44] The terms of the conditional sentence are the statutory terms that the appellant:
• keep the peace and be of good behaviour;
• appear before the court when he is required to do so by the court;
• report to his supervisor within four days of this order and thereafter report when required by the supervisor and in the manner directed by the supervisor;
• remain within the Province of Ontario unless written permission to go outside the province is obtained from the court or the supervisor; and
• notify the supervisor in advance of any change of name or address and promptly notify the supervisor of any change in employment or occupation.
[45] In addition, the appellant will:
• abstain from the purchase, possession or consumption of drugs, except in accordance with a medical prescription;
• reside at 1-301 McGill Street, P.O. Box 553, Marmora, Ontario, or at another residence approved by the supervisor;
• obey a curfew. The appellant will be in his place of residence between the hours of 8:00 p.m. each evening and 5:00 a.m. the following morning, unless he has written permission to be outside the residence during his curfew hours obtained from his supervisor or a designate, or unless he is required to be outside of his residence during curfew hours for the purposes of employment, or for medical reasons, or for the purposes of schooling, or for the purposes of attending any counselling required pursuant to the terms of this order. As well, this order allows him to be outside of the residence when he is in the company of Amy Theobald;
• not have the care or control of a motor vehicle during the course of the conditional sentence order;
• attend and take part in any counselling that may be recommended by his supervisor for any area identified by his supervisor and provide proof of participation in any such counselling to his supervisor, if requested;
• perform 100 hours of community service work, completed at a time and at a rate to be agreed upon with his supervisor, but which will be completed during the first 12 months of the conditional sentence; and
• at all times while serving the conditional sentence, be required to carry a copy of the conditional sentence order on his person and, if required by a peace officer to provide proof of identification, he will, in addition to whatever other identification may be required, provide a copy of this conditional sentence order together with the name of his supervisor and a telephone number where his supervisor can be reached.
[46] The terms of the probation order are that the appellant:
• keep the peace and be of good behaviour;
• appear before the court when he is required to do so by the court;
• report to his probation officer within two days of the end of the conditional sentence order and thereafter report when required by the probation officer and in the manner directed by the probation officer;
• remain within the Province of Ontario unless written permission to go outside the province is obtained from the court or the probation officer;
• notify the probation officer in advance of any change of name or address and promptly notify the probation officer of any change in employment or occupation;
• abstain from the purchase, possession or consumption of drugs, except in accordance with a medical prescription; and
• not have the care or control of a motor vehicle during the course of the probation order.
[47] The appellant has not had an easy life. He has made many mistakes, some of which are likely linked directly or indirectly to his troubled childhood. It appears that the appellant is now on a path of rehabilitation, and I commend him for the very positive steps he has taken to get better, and to do better. I remind the appellant that the sentence imposed is called a “conditional” sentence for a reason: if he fails to comply with any of the terms of this court’s order, he could be required to serve the remainder of his sentence in prison. For his own sake, and for the sake of his family, he should make every effort to succeed.
F. Disposition
[48] In conclusion, I would grant leave to appeal the sentence, allow the appeal, set aside the original sentence and, in its place, substitute a conditional sentence of 18 months less 2 months and 24 days already served followed by probation of 12 months.
Released:
“NOV 25 2016” “S.E. Pepall J.A.”
“DW” “I agree David Watt J.A.”
“I agree M. Tulloch J.A.”