Court File and Parties

Court File No.: 2811 998 12 25059 00 Date: 2012-10-04 Ontario Court of Justice

Between: Her Majesty the Queen — and — Robert E. White

Before: Justice M.T. Devlin

Heard on: September 5 and 10, 2012

Reasons for Sentence released on: October 4, 2012

Counsel:

• D. Slessor for the Crown
• P. Affleck for the accused R. White

DEVLIN J.:

INTRODUCTION

This is the sentencing decision in the case of Robert White. On September 5th, 2012 Mr. White pled guilty to one count of breaking and entering a dwelling house with intent to commit the indictable offence of forcible confinement. The charge stems from his multiple entries of an abandoned home where he built a prison cell in the basement.

ISSUE

The issue is what sentence is appropriate. The Crown is proposing a sentence of two years less a day (minus Mr. White's pre-trial custody), followed by probation. The Defence is proposing a seven to nine month sentence. As of today's date, Mr. White has been in custody for 235 days, almost the equivalent of 8 months.

FACTS

I will now address the facts. On November 29, 2011 the police were dispatched to 140 Pickering Concession Road 7 regarding a call from a contractor who located a room that looked like a prison cell in the basement of an abandoned home. The ensuing police investigation led to the arrest of Robert White on February 13, 2012.

During the investigation, the police determined that Mr. White had been entering the property since at least August 2010 when a Pickering City Commissionaire, who was on night patrol, reported that he saw Mr. White's car near the abandoned home at approximately 10:00 p.m.. The car was gone when the Commissionaire next checked the area at approximately 3:40 a.m.

When he was interviewed by the police, Mr. White admitted that he had constructed the room on his own with the intention of using it to confine a person whom he declined to identify. Further police investigation revealed that Mr. White's intended victim was Gwen Armstrong, a long-time friend of his ex-wife, Patricia Gallagher. Ms. Armstrong had provided emotional and financial support and accommodation to Ms. Gallagher when she separated from Mr. White in 2008.

Through further investigation, the police learned that Mr. White planned to abduct Ms. Armstrong, confine her in the room, and demand ransom money from her husband, Doug Armstrong.

ANALYSIS

I turn now to the legal analysis. I would like to thank counsel for their excellent submissions which have been most helpful.

Counsel advised me that sentences for first-time offenders convicted of Break and Enter range from non-custodial sentences to ten year penitentiary terms. In this case, both the Crown and the Defence are seeking a custodial sentence for Mr. White. The issue is the appropriate length of custody.

In determining the length of custody, I have to consider many factors to ensure that the sentence is fair and balanced. For example, the sentence must send a clear message to the community that building a prison cell as part of a plan to kidnap and confine a person is not tolerable conduct. The sentence must also send a clear message to Mr. White that his criminal behaviour was wrong and has caused considerable emotional distress to Gwen Armstrong and her family and to his ex-wife, Patricia Gallagher, and their two children. The sentence must also rehabilitate Mr. White by holding him accountable so that he can learn from his appalling error in judgment.

I will now address the relevant factors.

The Offender

Robert White is 45 years old. He has no prior criminal record. According to the July 11, 2012 Psychological Report prepared by Dr. Ilacqua, Mr. White is the eldest of 3 children and has a supportive and caring family. His childhood was stable and unremarkable. He attended college three times and obtained two diplomas, one from a General Arts and Science Program, the other from a Recording Engineering Program. For approximately 20 years, Mr. White ran his own contracting and audio/video installing business. In the last year, business was so slow that Mr. White was briefly on welfare. Shortly before he was charged, he obtained a full-time position as an audio-video installer with an established company.

Mr. White married Patricia Gallagher in 1997. The couple have two children ages 11 and 13. The couple separated in 2008 and were officially divorced in early 2012.

At the time of the separation, Ms. Gallagher and the children moved into Gwen Armstrong's home. The two women had been friends for many years even though Mr. White did not approve of the friendship. Since the separation, Mr. White has had limited contact with his children. He is very distressed by this situation and blames both Ms. Gallagher and Ms. Armstrong for the restricted access.

In 2008, Mr. White became involved with a woman named Dorothy and the two were married in March 2011. Mr. White has taken an active role in raising his second-wife's daughter, Ashleigh, who is now 12 years old. Due to ongoing difficulties in this relationship, Dorothy White moved out of the family home prior to Mr. White's arrest.

For 17 years Mr. White was an active member in the Church of Jesus Christ of Latter-day Saints, commonly referred to as the Mormon Church. He was expelled from the Church in 2010 because he ignored the Church's disciplinary action which was prompted by his commencement of a relationship with Dorothy prior to his official divorce from his ex-wife, Patricia.

The Psychological Report further states that at the time of the events leading up to the charges, Mr. White had been experiencing numerous life stressors including a recent separation from his second wife, ongoing issues regarding limited contact with his children, estrangement from his church, and financial difficulties.

Dr. Ilacqua conducted a dozen tests on Mr. White to assess the potential risk he poses to society, the probability of involvement in future criminal activity, and the need and motivation for rehabilitation. Dr. Ilacqua observed Mr. White to be cooperative, candid and forthright. In conclusion, Dr. Ilacqua states:

Based on the file review, clinical interview, observations and psychometric testing, including risk assessment measures, it appears that Mr. White presents with a low risk for involvement in future criminal activity. The risk in this case appears to be person specific rather than generalized. He acknowledges wrongdoing and is eager and motivated for treatment.

In Dr. Ilacqua's opinion, Mr. White meets the criteria for Borderline Personality Disorder.

At the Judicial Pre-Trial, the Defence provided the Court with three character reference letters for Mr. White. One was written by a former teacher, one was written by a former employer, and one was written by a friend. The authors of the letters have known Mr. White for 7, 10, and 27 years respectively. The letters describe Mr. White as friendly, polite, and kind; honourable, honest and trustworthy; hard-working and conscientious; and as a loving and patient father.

The Offences

Mr. White has pled guilty and been convicted of one count of breaking and entering a dwelling house. The charge itself is quite ordinary. What is extraordinary about this case is that Mr. White's multiple entries to the abandoned home were for the nefarious purpose of constructing a room to confine a specific person. Also, the construction of the room occurred over a lengthy period of time with considerable planning and horrifying attention to details such as the sealed shatter-proof windows, the cement walls with double layers of fibreglass insulation, and the heavily reinforced door which was secured from the outside by two large slide locks made out of tire irons.

The sinister nature of this room, which included a bench in the centre secured to the ceiling with chains and lag bolts, has had a devastating effect on the intended inhabitant, Gwen Armstrong, Ms. Armstrong's family, Patricia Gallagher, the couple's children, and Dorothy White.

According to the Victim Impact Statements, Ms. Armstrong describes feeling overwhelmed and fearful. She and her husband are plagued with nightmares and feel that their peace of mind has been shattered. Ms. Gallagher states that the couple's children have suffered emotionally and are now in therapy. She further states that her life has been forever changed because she now lives in fear and is experiencing difficulty eating and sleeping. She also feels a tremendous sense of guilt about the repercussions for her friend, Gwen Armstrong. Dorothy White describes feeling dysfunctional due to anxiety, nausea, and fear. She too is plagued by nightmares.

Aggravating and Mitigating Circumstances

I turn now to the mitigating and aggravating circumstances of this case. The mitigating circumstances are: Mr. White is a first-time offender who has been assessed as a low risk to re-offend. He has pled guilty and seems genuinely remorseful.

The aggravating circumstances are: Mr. White committed the offence as part of a greater plan to kidnap and confine a specific person and he never abandoned his plan. Rather the plan was thwarted when he was arrested before construction of the confinement room was completed.

SENTENCE

I have carefully considered the unique and unprecedented facts of this case, the aggravating and mitigating circumstances, and the submissions of counsel. I agree with the Crown that the overriding sentencing principles in this case are denunciation and deterrence.

I conclude that the appropriate sentence in this case is two years less a day, minus the pre-trial custody, for the following reasons:

1. This is a significant sentence for a first-time offender and therefore addresses the fundamental principle of sentencing which is the protection of society, and the paramount principles in this case of denunciation and deterrence.

2. A maximum reformatory sentence is proportionate to the extremely serious nature of the charge. The seriousness stems from:

   a. Mr. White's outrageous plan to kidnap and confine Ms. Armstrong based on his erroneous belief in perceived wrongs;

   b. the deliberate, methodical and persistent way in which Mr. White pursued this plan over a minimum 18 month period;

   c. the fact that Mr. White never relinquished his plan.

In my view, this sentence takes into consideration the results of the Dr. Ilacqua's Psychological Report, and the mitigating and aggravating circumstances, including the fact that the remorse accorded to the guilty plea must be tempered by the overwhelming strength of the Crown's case, and the fact that Mr. White's criminal behaviour has had a ruinous effect on the Armstrong family and members of his own family.

This sentence does not penalize Mr. White for what could have happened, a consideration that both Counsel properly submitted would be inappropriate. Instead, this sentence does penalize Mr. White for what did occur, with a focus on the reason for his repeated illegal entries to the property which were part of his disturbing plan to construct an impenetrable prison for the explicit purpose of kidnapping and imprisonment.

The custodial sentence will be followed by three years probation with strict terms, including counselling, no contact with Gwen and Doug Armstrong, Patricia Gallagher, and Dorothy White, and limited contact with the children.

Regarding the requested s. 109 Weapons Prohibition, I will make the Order for 10 years as requested by the Defence on the basis that Mr. White is a first-time offender. I will also make the Orders for Forfeiture and DNA, which were not contested.

Released: October 4, 2012

Signed: Justice Devlin