Court of Appeal for Ontario

Date: 2017-05-08 Docket: C62457

Judges: Gillese, Huscroft and Trotter JJ.A.

Between

Her Majesty The Queen Respondent

and

Daniel Myles Appellant

Counsel

Eva Tache-Green for the appellant Kathleen Farrell for the respondent

Heard: May 2, 2017

On appeal from the sentence imposed on June 14, 2016 by Justice T. Culver of the Ontario Court of Justice, sitting without a jury.

Reasons for Decision

[1] The appellant pleaded guilty and was convicted of criminal harassment arising out of his actions in surreptitiously downloading the victim's cell phone onto his computer. The appellant threatened to send intimate photographs taken from the phone to the victim's friends, co-workers, and son, and followed through on this threat by sending photos of the victim's genitals to her son.

[2] The appellant was sentenced to a term of imprisonment of three years, less presentence custody. He seeks leave to appeal his sentence.

[3] The appellant argues that the trial judge erred in rejecting a joint sentence submission. We disagree.

[4] On April 28, 2016, the trial judge gave the parties notice that the joint submission they proposed – six to nine months – was inadequate, and that a sentence in the range of three years was more appropriate. He adjourned the matter to allow the parties to return to make argument on the matter. The matter was adjourned a second time, on May 19, 2016, to allow the appellant to withdraw his plea. In the event, the appellant chose not to withdraw his plea and sentencing proceeded on June 14, 2016.

[5] At that time, the Crown and defence made a joint submission for a sentence of 9-12 months. The appellant submits that this submission was an increase on the original joint submission of 6-9 months, but it appears that the original agreement was for 9-12 months; defence counsel erred when he previously advised the trial judge of the joint submission. The trial judge rejected the joint submission and imposed a sentence of three years, less credit for presentence custody.

[6] The trial judge did not have the advantage of the Supreme Court's decision in R. v. Anthony-Cook, 2016 SCC 43 when he made his decision, but in our view his decision is consistent with the procedure for rejecting a joint submission set out in that case. The trial judge gave the parties clear notice of his concerns about the adequacy of their joint submission; invited them to make submissions on the matter; and afforded the appellant an opportunity to withdraw his guilty plea. Nothing more was required.

[7] The trial judge was entitled to conclude that the 9-12 month range proposed by the joint submission was wholly inadequate and contrary to the public interest. The appellant has an extensive criminal record – 36 convictions including convictions for harassment and uttering threats, theft of telecommunications, and assault with a weapon. Moreover, the appellant's pre-sentence report indicated extensive domestic violence, substance abuse, and a continuing pattern of threatening and abusive behavior toward partners as well as individuals in the community. There was no evidence that the appellant had been treated for any of these issues.

[8] In these circumstances, the trial judge aptly described the appellant as someone who is "predatory, lacks empathy for his victims, lacks insight into his offending behaviour and has been unaffected to date by interventions and dispositions in the criminal justice system".

[9] It was reasonable for the trial judge to emphasize specific deterrence, public denunciation and separation from society, and to conclude that a penitentiary term was required. Three years was within the range that this court has identified for serial harassers: R. v. O'Connor, 2008 ONCA 206.

[10] Accordingly, leave to appeal sentence is granted, but the appeal is dismissed.

E.E. Gillese J.A. Grant Huscroft J.A. G.T. Trotter J.A.