Court of Appeal for Ontario

Date: 2023-05-23 Docket: COA-22-CR-0294

Before: Doherty, Gillese and Zarnett JJ.A.

Between: His Majesty the King, Respondent And: Jason Lusted, Appellant

Counsel: Delmar Doucette, for the appellant Gregory J. Tweney, for the respondent

Heard: May 19, 2023

On appeal from the sentence imposed by Justice Joseph A. De Filippis of the Ontario Court of Justice on September 22, 2022, with reasons reported at 2022 ONCJ 428.

Reasons for Decision

Overview

[1] Jason Lusted, the appellant, struck a man with his truck while he was attempting to steal a trailer from the man’s property. The man died and the appellant was charged with second-degree murder. He pleaded guilty to manslaughter and was sentenced to 18 years in custody.

[2] The appellant appeals against sentence. He submits that the sentencing judge erred by failing to treat, as mitigating factors: (1) his expression of remorse; and (2) his guilty plea.

[3] At the conclusion of the oral hearing of the appeal, we dismissed the appeal with reasons to follow. These are the promised reasons.

Background

[4] Very early on the morning of October 2, 2020, the appellant and his friend were in the appellant’s truck. The appellant was driving, despite the fact his driver’s licence was suspended. The two men arrived at the rural property belonging to Mr. and Mrs. Clapp where Mr. Clapp operated his business, Niagara Farm Metal Products. The appellant intended to steal an expensive utility trailer stored behind a locked fence on the property. He got out of his truck, cut the lock and chain on the gate to the property, re-entered his truck, and drove onto the property. He then got out of the truck again and used a grinder to cut the wheel chock lock from the truck.

[5] The noise awoke Mr. Clapp, who went outside to investigate. When the appellant’s friend saw Mr. Clapp, he alerted the appellant, who quickly got back into the truck and accelerated away. The appellant made a deliberate right turn and swerved into the area where Mr. Clapp was standing. He struck Mr. Clapp, pulling his body under the truck. Mr. Clapp was trapped under the appellant’s truck and dragged for nearly two kilometres before being dislodged. He suffered grievous injuries resulting in his death.

[6] The appellant was charged with second-degree murder. However, during the preliminary inquiry on that charge, he agreed to plead guilty to manslaughter.

[7] At the sentencing hearing, the Crown sought a sentence of 15 to 18 years’ imprisonment and the defence sought a sentence of 10 to 12 years.

[8] Before sentence was imposed the appellant offered a tearful apology. The sentencing judge acknowledged that his apology was sincere and he accepted it, saying “I will take it into account”.

[9] The appellant was sentenced to 18 years in prison. After giving Duncan and Summers credit, he was ordered to serve an additional 14 years in custody.

Analysis

The Appellant’s Expression of Remorse

[10] The appellant submits that the sentencing judge refused to treat his expression of remorse as a mitigating factor, despite having found he was genuinely remorseful. He bases this submission on para. 26 of the reasons, in which the sentencing judge wrote:

I accept the sincerity of the defendant’s apology. But it comes too late to materially affect my decision on sentence; like the defendant’s mitigating personal circumstances, it carries less weight given his life of crime. Moreover, there is nothing in the record before me that inspires confidence in the prospect of rehabilitation; indeed, the defendant’s background suggests it will be neither quick nor easy.

[11] We do not accept the appellant’s submission. In saying that the apology came “too late”, the sentencing judge was not rejecting it on the basis that it came too late in the process. Rather, while he accepted the sincerity of the appellant’s apology, he gave it less weight because of the appellant’s extensive criminal history. That is what the judge meant when he said that the appellant’s expression of remorse “carries less weight given his life of crime”.

[12] The weight to be given the appellant’s apology was a matter within the exercise of the sentencing judge’s discretion. We see no basis for interference with that matter.

The Guilty Plea

[13] We acknowledge that the sentencing judge did not expressly mention the appellant’s guilty plea as a mitigating factor in his reasons for sentence. However, the failure to explicitly mention a mitigating factor does not automatically lead to the conclusion that it was not considered: R. v. Navarathinam, 2022 ONCA 377, at para. 7. In our view, when the reasons are read within the context of the record as a whole, it is clear that the sentencing judge was alive to the appellant’s guilty plea and its mitigating value in fashioning a fit sentence.

[14] The fact of the appellant’s guilty plea featured prominently in the sentencing hearing. During sentencing submissions, Crown counsel identified the appellant’s guilty plea as the primary mitigating circumstance in this case. Crown counsel also directed the sentencing judge to caselaw that highlighted the importance of giving a person credit for his guilty plea. Defence counsel, too, made submissions on the mitigating value of the appellant’s guilty plea. Further, the sentencing judge began his reasons by referring to the appellant’s guilty plea. And, later in his reasons, he expressly acknowledged the role that the “strong advocacy” of counsel for the Crown and defence played in informing his decision.

[15] Considered in context, we are satisfied that the sentencing judge took into consideration the mitigating value of the appellant’s guilty plea in fashioning a fit sentence.

Conclusion

[16] As the sentencing judge stated, having regard to this offence and this offender, his focus had to be on denunciation and deterrence; previous sentences had failed to deter the appellant and assist in his rehabilitation.

[17] The circumstances of the offence were horrific. Mr. Clapp, a 74-year-old man asleep in his bed on his own property, had risen to investigate a noise outside his home. He was struck by the appellant’s truck, trapped under it, and dragged for nearly two kilometres. He suffered grievous bodily harm before dying from his injuries. Even after his body was dislodged from the vehicle, the appellant and his friend did not remain at the scene. The offence had a devastating impact on Mr. Clapp’s family and members of the small rural community where the deceased had lived, as attested to by the numerous victim impact statements.

[18] The appellant’s circumstances showed that, by age 50, he had an extensive criminal record spanning his entire adult life: he had amassed 59 separate criminal convictions. His multiple driving-related infractions included five convictions for dangerous driving, six convictions for driving while disqualified, and three convictions for flight from police. At the time of this offence, his driver’s licence was suspended. He had received penitentiary sentences on seven prior occasions, including a global 9‑year sentence for accessory after the fact, dangerous driving, and flight from the police.

[19] In light of the gravity of the offence and the circumstances of the offender, the sentence imposed was fit and appellate intervention is not warranted.

Disposition

[20] For these reasons, leave to appeal sentence is granted but the sentence appeal is dismissed.

“Doherty J.A.”

“E.E. Gillese J.A.”

“B. Zarnett J.A.”