COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Soriano, 2020 ONCA 276

DATE: 20200501

DOCKET: C67910

Before: Doherty, Simmons and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Alann Soriano

Appellant

Counsel:

Jeffrey Fisher, for the appellant

Michael Fawcett, for the respondent

Heard: in writing

On appeal from the sentence imposed on September 19, 2019 by Justice Richard H. K. Schwarzl of the Ontario Court of Justice.

REASONS FOR DECISION

[1] The appellant seeks leave to appeal from a sentence imposed for four counts of breach of probation. The Crown proceeded by indictment so that the maximum sentence available was four years for that offence. The sentencing judge imposed a global sentence of 23.5 months’ incarceration followed by probation for three years, after taking into account 170 days of actual pretrial custody.

[2] The appellant submits that the sentence was demonstrably unfit having regard to the nature of the offence and further that the sentencing judge violated the “jump” principle by imposing a sentence so substantially longer than previous sentences imposed on the appellant for similar offences.

Nature of the Offence

[3] The appellant was bound by two probation orders prohibiting him from contacting or physically approaching his former spouse, the son he had with her, or her current partner. On March 10, 2019, the appellant called his former spouse’s phone approximately a dozen times over several minutes. He insisted he wanted to see his son. When the appellant was told he was not allowed to come over, he cursed and said that he did not care about the order and that he was coming to their home.

Criminal Record of the Appellant

[4] The appellant was convicted of assault, assault with a weapon, and uttering a threat some 12 years before the present sentence was imposed. Most significantly, since 2015 he had been convicted 12 times for breach of probation for violating no-contact or physical distance orders in relation to these same persons.

Reasons of the Sentencing Judge

[5] The defence position was that time served of 170 days actual pretrial custody would be an appropriate sentence. The Crown sought a sentence of 18-24 months in addition to pretrial custody.

[6] The sentencing judge noted that the appellant acknowledged that he had an alcohol problem but denied drug addiction or mental health difficulties, referred to in a psychiatric report. Because the report was contested, the sentencing judge indicated that he would not place much weight on it. He noted further that the offence itself was not particularly egregious in isolation, amounting to a series of phone calls made to his former spouse’s home. Most significant for the purposes of sentencing was his conclusion that the appellant was incorrigible, and that there was nothing that any court could do or say to stop him from violating the orders. He noted that the victims were living in a state of “perpetual fear and terror, not knowing when and where Alann Soriano is going to show up and, if he does, what is he going to say and what is he going to do.” He found that the appellant had no insight into his behaviour or the reasons for it, and that the risk of re-offence was extremely high. He concluded that the sentence had to focus on specific deterrence of the appellant, and “denunciation of this effective terrorizing of your ex-wife and your son.” He indicated that he was “obligated to try and protect the people who have been subject to your non-stop harassment for the last four years” and that all he could do was “separate you from society as long as possible in an effort to try to give these people some relief for that period of time.”

Analysis

[7] This court will not vary a sentence unless it is demonstrably unfit or the sentencing judge made an error that affected the sentence imposed: see R. v. Friesen, 2020 SCC 9, at paras. 25-29.

[8] A sentence that is demonstrably unfit is “clearly excessive” or “clearly unreasonable”. Given the appellant’s incorrigible behaviour, we cannot say that the sentence was clearly excessive. The psychiatric report says nothing to attenuate the trial judge’s conclusion that the risk of re-offence was extremely high. The longest previous sentence imposed on the appellant amounted to 312 days, including pretrial custody. That was not sufficient to deter the appellant. It was reasonable for the sentencing judge to conclude that the time had come for a significantly longer sentence to protect the victims and attempt to deter the appellant from reoffending: see R. v. Blake, 2016 ONCA 508; R. v. Simeunovich, 2019 ONCA 856.

[9] We see no basis to intervene. Leave to appeal sentence is granted but the appeal is dismissed.

“Doherty J.A.”

“Janet Simmons J.A.”

“G. Pardu J.A.”