R. v. Huth, 2019 ONCJ 138
CITATION: R. v. Huth, 2019 ONCJ 138
DATE: February 11, 2019
ONTARIO COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
RICHARD HUTH
R E A S O N S F O R S E N T E N C I N G
BEFORE THE HONOURABLE JUSTICE P. O'MARRA
on February 11, 2019, at BRAMPTON, Ontario
APPEARANCES:
R. Prihar
Counsel for the Crown
L. Gensy
Counsel for Richard Huth
MONDAY, FEBRUARY 11, 2019
MS GENSY: Your Honour, I think -- for the record it's Gensy, initial L., here on a Provincial matter along with my colleague, Ms Prihar. I understand Mr. Clerk has called the gentleman up from custody but, my guess, on a Monday morning it might take a little while. When he does come up there's a few matters I need to address with him briefly, as well. So I'm content if Your Honour wants to take a few minutes now to speak with my Federal colleague and my friend. I've got no issue there.
THE COURT: Okay. Well, let's do that. We'll step outside and, hopefully, you can find a vacant room. Just -- so we'll just, we'll break for now and -- I'm just concerned that we'll be out in the hallway somewhere and Mr. Huth shows up. Do you want to just see where, where he kind of sits right now in the priority?
CLERK REGISTRAR: He's on his way up, Your Honour.
THE COURT: Okay. So, we'll -- yeah, if you don't mind, we'll just hold, hold down the Lesneara(ph) matter and we'll just wait for Mr. Huth's arrival. Oh, he's coming right now.
MS PRIHAR: Good morning, Your Honour.
THE COURT: Yes, good morning, Ms Prihar.
MR. QUAYAT: Your Honour, those conclude my matters for today. May I be excused, please?
THE COURT: Yes, thank you very much for attending.
MR. QUAYAT: Thank you very much.
THE COURT: Have a good afternoon.
MR. QUAYAT: You, as well, sir.
THE COURT: A good day, I should say.
MS GENSY: Yes, thank you, Your Honour. Mr. Huth is now before the court, if I may speak with him very briefly.
THE COURT: Yes and could his handcuffs be removed, please?
MS GENSY: Thank you.
...MS GENSY SPEAKS TO ACCUSED
MS GENSY: Thank you, Your Honour.
THE COURT: All right, good morning, Mr. Huth.
RICHARD HUTH: Good morning.
R E A S O N S F O R S E N T E N C E
O'MARRA, J. (Orally):
On Wednesday, February 6, this year, Mr. Huth pled guilty to one count of criminal harassment, contrary to s.264(2)(b) and one count of obstruct justice, contrary to s.139(2) of the Criminal Code. The Crown proceeded by way of indictment.
Today, Mr. Huth is before me for sentencing. I received extensive submissions from the Crown and the defence. The Crown provided me with six sentencing decisions, three decisions from the Ontario Court of Appeal that involved the offence of criminal harassment and three decisions involving the obstruction of justice, one of which was from the Court of Appeal and two from the Superior Court of Justice in Toronto.
Mr. Huth's criminal record was filed. I will review the contents of his record later in my reasons.
A victim impact statement was provided by Ms Barne. The defence submitted a letter from Mr. Huth's current employer.
Background and Facts:
By way of background, the complainant, Renee Barnes, resided at 15 Nanwood Drive, Unit 208 in the City of Brampton. Ms Barnes and Mr. Huth had been in an intimate relationship from January 2017 until August of 2018. Mr. Huth moved into Ms Barnes' residence in May 2017. They have no children. However, Ms Barnes has two daughters, Isabella age 11 and Taylor age 7. These two children are from a prior relationship. After the break-up, Mr. Huth continued to reside at the same address but lived in a different apartment unit.
The police first became involved in their relationship on July 29th and July 30th, when Ms Barnes called police after an argument and Mr. Huth refused to leave her home. Ms Barnes last kicked Mr. Huth out of her home on August 12th, 2018. On August 17, 2018, Ms Barnes called the police. She reported to the police that after she had kicked Mr. Huth out of her residence, he continued to call and text her, despite her requests that he should stop contacting her.
Ms Barnes reported to the police that between August 13 and August 15th, Mr. Huth had sent her over 1,000 text messages and called her 200 times. She further advised that on August 16th, between 4:00 a.m. and 10:45 p.m., Mr. Huth had sent her 456 text messages and called her 116 times. Ms Barnes repeatedly told Mr. Huth to stop contacting her.
During this period of time, Ms Barnes felt sufficiently afraid for her safety that she temporarily moved her children out of her home and gave away the family dog. She asked a friend to stay overnight at her home.
On August 18, 2018, Mr. Huth was arrested and charged with criminal harassment and breach of probation.
On March 8th, 2016, Mr. Huth was placed on a three-year period of probation by Mr. Justice Harpur for criminally harassing his former spouse, Susan Ramos, and breaching his probation.
At the time of these offences, he was still on probation.
On August 20, 2018, Mr. Huth was released on a recognizance of bail. His mother was his surety. He was subject to a condition not to have any contact, directly or indirectly, by any physical and electronic means with Ms Barnes.
Shortly after his release, Mr. Huth relocated, for employment purposes, to Calgary until November 8th, 2018. In early October 2018, Ms Barnes initiated contact with Mr. Huth for the purposes of discussing debt over outstanding household expenses that he owed Ms Barnes. The parties resumed contact by or via email.
During this period of time, Ms Barnes told Mr. Huth that she never wanted him to go to jail and that she felt guilty. All she wanted was Mr. Huth to leave her alone. She wanted the charges withdrawn. Ms Barnes drafted a letter to that effect, but never forwarded it to the police or the Brampton Crown Attorney's office. However, Mr. Huth drafted a three-page letter, recantation letter, which is marked as Exhibit Number 2. He emailed this to Ms Barnes. He wanted her to sign it and forward it to the Brampton Crown Attorney's office. The letter stated that she wanted the charges dismissed against Mr. Huth. She also stated that she regretted that she called the police, that Mr. Huth did not do anything wrong and she was not afraid of Mr. Huth.
Ms Barnes did not sign the recantation letter. Mr. Huth's emails to Ms Barnes became angrier and more persistent. He told Ms Barnes that if she did not sign the letter that he would tell everyone the truth regarding some of the details of their relationship.
On November 1st, 2018, Mr. Huth's mother and his surety withdrew or attended the courthouse and revoked her surety. On November 6th, 2018, Mr. Huth emailed Ms Barnes that he was back in Ontario and he wanted to meet. On November 7, 2018, Ms Barnes contacted the police to report that Mr. Huth had repeatedly contacted her by email. She also told the police that she believed that she had seen Mr. Huth that day, driving on the same street where her babysitter lived. Mr. Huth denied being in the vicinity of the babysitter and he was unaware of her address.
On November 7, 2018, an arrest warrant was issued for Mr. Huth. On November 15, 2018, he turned himself in and Mr. Huth was arrested for two counts of breach of his recognizance. He was subsequently also charged with obstruction of justice and intimidation of a justice system participant. After a s.524 application was granted on December 7, 2018, Mr. Huth was ordered detained on all charges.
Victim Impact:
The complainant provided a victim impact statement which speaks to the impact Mr. Huth's actions have had on, not just Ms Barnes but also her children, as well. Ms Barnes stated that while Mr. Huth was evading arrest her children suffered anxiety and needed to be escorted from class to class and also while walking home. Their grades have suffered due to the stress. Ms Barnes is so afraid of Mr. Huth that she would like to move away in order to have a fresh start.
Her children still ask if he will be getting out of jail and are concerned that he will show up at their home. She stated that she and her children live in a constant state of fear. Her anxiety is further heightened by the fact that he has done this before to another woman, and has no respect for herself, her children and the criminal justice system.
Mr. Huth’s Personal Circumstances:
Mr. Huth is 38-years-old. He was married for 14 years and he has no children. His father and mother live in the Kingston area. He has an aunt and uncle that live in this area. For the last year, he has worked at ICC Canada Contracting Incorporated, a racking installation company. The president of the company, John Curic(ph), wrote a letter on Mr. Huth's behalf. He stated that he is a valuable employee. Mr. Curic(ph) confirmed that once Mr. Huth is at liberty he would have no problem hiring him back again.
Mr. Huth advised the court that he does suffer from depression. Mr. Huth has a criminal record. Since 2014 he has sustained 11 convictions. Of particular interest is that his previous convictions of 2015 for criminal harassment and attempted obstruction of justice in which he was sentenced to two concurrent 90-day intermittent jail sentences. He's been convicted of breach of probation seven times and breach of recognizance twice. The breach of court orders have been mostly contact breaches involving his previous wife. In 2016 he was sentenced to a 40-day intermittent jail sentence concurrent for two counts of breaching his probation.
Mr. Huth has no regard for the criminal justice system nor court orders. He apologized for his actions and takes some responsibility. I noted that he blamed the victim in this matter for taking his money during this period of time. He also maintains that he wants to see her children and that he'll continue to nurture his new found relationship with the father of her children, Joey. He says, however, that he does not wish to see Ms Barnes again and is over her.
Legal Parameters:
With respect to the legal parameters, there are no minimum sentences for either of these convictions. The offence of criminal harassment carries a maximum sentence of 10 years. The offence of obstruction of justice carries a maximum of five years. There is a mandatory firearm prohibition, pursuant to s.109 of the Criminal Code.
Position of the Parties:
On behalf of the Crown, Ms Prihar requests a global sentence of 18 months’ incarceration be imposed, less the time spent in custody, namely, nine months for the criminal harassment and an additional nine months for the attempt of obstruct justice to run consecutively. She also asks for a period of probation of 18 months. She asks that during that period of time, Mr. Huth is not to have any contact with Ms Barnes, nor her children, and not attend any place that he may know where they are to be.
There should also be a reporting condition that will ensure that he takes the counselling for any psychiatric issues that he may have.
Ms Gensy takes the position that, in addition to the time that Mr. Huth has spent in custody, he should receive a further sentence in the intermittent range. She takes no issue with the probation order or its conditions.
Analysis and Legal Principles on Sentencing:
The fundamental purpose of sentencing is set out in s.718 in the Code. It is to ensure respect for the law and the maintenance of a just, peaceful and safe society. The imposition of a just sentence requires that I consider the sentencing objectives referred to in that section. The sentence that I impose should attempt to achieve those objectives. These are denunciation, general and specific deterrence, separation of offenders from society, when necessary, rehabilitation, reparation for harm done and the promotion of a sense of responsibility in the offender and acknowledgement of the harm which the criminal conduct brings to our community.
Furthermore, I must take into account the principle proportionality and the applicable aggravating and mitigating factors relating to the offences as set out in s.718.2.
Aggravating and Mitigating Factors:
In my view, these are the following aggravating factors:
This was an offence that involved the abuse of a partner and by statute, is deemed an aggravating circumstance.
This was an offence of repeated behaviour. His efforts to contact and harass Ms Barnes by text and telephone calls, was persistent and compulsive behaviour designed to make her miserable to instill fear. The emotional impact was devastating, has profoundly impacted her children who live in a constant state of fear.
A particularly aggravating factor is the related criminal record for a similar type of behaviour, including nine violations of court orders. He was on probation to keep the peace and be of good behaviour at the time. He was subject to a recognizance of a bail not to contact Ms Barnes.
His effort to undermine the prosecution and the primary witness strikes at the very heart and foundation of the criminal justice system. See R. v. Williamson, Ontario Court of Appeal.
I find that the mitigating circumstances are as follows:
Mr. Huth pled guilty. He has accepted responsibility for his actions, although he shifted some of the blame on Ms Barnes in his allocution. However, he did express remorse for his conduct.
He does have a supportive family.
He has employment with Mr. Curic's(ph) company upon release from imprisonment.
In terms of specific deterrence, there is some evidence before me that does demonstrate that Mr. Huth is likely to re-offend. He has constantly defied probationary orders by contacting the victim. Presently, he is being sentenced on the same repetitive and persistent behaviour. He is also being sentenced today for attempting to interfere with the proper administration of justice. What I find particularly troubling is that he threatened to expose details about their relationship to other people if Ms Barnes did not sign and forward the recantation letter. Similarly, I am told by the Crown that Mr. Huth threatened to continue the harassment of his former spouse, Ms Ramos, if she did not help him obstruct that prosecution.
The accused has been given a 90-day intermittent jail sentences on both obstruct and criminal harassment in November 2015. The last four contact breaches he has been given suspended sentences and a 40-day intermittent jail sentence.
The Crown has asked that I impose a global sentence of 18 months, which would be a significant jump in sentence since his last disposition.
The Crown relied on the Court of Appeal's endorsement in R. v. Blake [2016] O.J. No.3514, whereby the defence appeal was dismissed and found that the trial judge's sentence did not violate the jump principle and was not manifestly unfit. The accused was sentenced to two years less one day incarceration, less 361 days of pre-trial credit for time served and three years' probation. At the time the accused had a lengthy criminal record including five prior convictions for criminal harassment involving five different women and seven prior convictions for breach of court orders. His previous sentences were six, four and seven months. He was also waiting disposition at the time for assaulting a former female partner.
I agree that there are some similarities to the case here. In other words, Mr. Huth has demonstrated that he has not gotten the message.
In the endorsement in the Blake decision at paragraph seven, the court quoted the trial judge's words:
The conduct of the appellant has clearly demonstrated that he's still not gotten the message in terms of his criminal harassment of women that he has entered into relationships with.
Mr. Huth must understand that women are free to leave any relationship or break off a relationship and are entitled to live their lives and the lives of their children, normally and safely. They are entitled to live their lives free of harassment and fear by former lovers. The courts must step in and protect people in those circumstances. In my view, in those cases, and in the case here, the principles of general and specific deterrence must be the overriding considerations in the determination of a fit sentence. This calls for a heavy sentence to act as a general deterrent to other persons who cannot abide by the rejection by a person for whom they love. A sentence must act as a specific deterrence to Mr. Huth, who was not deterred by Ms Barnes' repeated requests to leave her alone, police involvement and a recognizant bail that required him to do so. See R. v. Bates 2000 CanLII 5759 (ON CA), [2000] O.J. No.2558 (C.A.) and R. v. Denkers 1994)1994 CanLII 2660 (ON CA), 69 OAC 391 at page 394.
The effort that Mr. Huth made to construct such a detailed lengthy and diabolical recantation letter must be condemned in the strongest terms. Judicial participants and complainants must be able to come to court and feel unrestrained in testifying. See R. v. M.Z. [1999] O.J. No.559, page 39. However, I do distinguish Mr. Huth's attempt to obstruct justice compared to the efforts made in the cases that were supplied by the Crown. Mr. Huth did not threaten Ms Barnes with harm and did not attempt to bribe her. However, he did put forward a veiled threat to expose Ms Barnes to some form of embarrassment if she did not co-operate. It seemed, as well, that Ms Barnes was somewhat willing to help Mr. Huth, initially, due to her guilty conscience.
Nevertheless, it is clear from the cases that the paramount consideration in sentencing an offender for attempt to obstruct justice is general deterrence and denunciation. I find that this may, however, be on the lower end of the spectrum. The letter was not signed and not sent. Although Ms Barnes may have been an unwilling witness even though her victim impact statement said otherwise, the Crown could still have proceeded with a KGB application, if necessary.
Moreover, and if I am wrong about that, I am sure that the Crown's case would not have entirely centred just on the complainant's KGB statement. I am certain that there was evidence of the constant messaging and the content of the texts that would have been extremely probative evidence.
I turn now to the fit and appropriate sentence. Clearly, denunciation in both general and specific deterrence, are paramount considerations in this case for each of these convictions. I am mindful of the totality principle in sentencing when considering consecutive sentences. These are two different crimes.
Dealing with the offence of criminal harassment:
Stand up, sir. I am not discounting the emotional impact that the constant harassment has had on her and her family, but it was over a three-day period in August. However, as a repeat offender who was on probation at the time and for the same offence, I concluded that the appropriate sentence of five months less time served of 92 days is appropriate. I will give him enhanced credit of 1.5 days for total of 138 days. He shall serve a further 12 days on this count.
For the offence of attempted obstruction of justice, as many have said before me, this strikes at the heart of the justice system and is of particular concern, considering the vulnerability of this victim, Ms Barnes, as a harassment victim. However, the letter was never signed or relied upon. Although no actual threats of violence were made by Mr. Huth, he did issue a veiled threat of some form of punishment if she did not participate.
Considering the aggravating and mitigating factors that I have identified, I have concluded that a sentence of five months incarceration is appropriate. This sentence must run consecutively to the other sentence to bring home to Mr. Huth and other like-minded individuals that this conduct will be treated seriously by the courts.
The global sentence, therefore, is 10 months, less 138 days of pre-trial custody and that will leave a remaining sentence of 162 days to serve.
After Mr. Huth serves his custodial sentence he shall be placed on probation for a period of 18 months. In addition to the three statutory conditions, he is to report in person to a probation officer within two working days of his release from custody, and after that at all times and places directed by the probation officer or any person authorized by a probation officer to assist in his supervision.
He is not to contact, in any way, either directly or indirectly, by any physical, electronic or other means, with Renee Barnes, Isabella Barnes and Taylor Barnes.
He is not to be within 500 metres of any place where he knows any of these persons to live, work, go to school, frequent or any place he knows them to be.
He is not to possess any weapons as defined by the Criminal Code. He is to attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of his probation officer, including but not limited to, a psychiatric assessment and healthy relationship counselling.
He is to sign all releases to permit his probation officer to monitor his attendance. There will also be a mandatory weapons prohibition order pursuant to s.109(1)(a) of the Criminal Code. Since this is not his first conviction, that order will be for life.
Finally, pursuant to s.742.2(1) of the Code, Mr. Huth shall not communicate directly or indirectly with Renee Barnes or her children while serving his custodial sentence.
THE COURT: All right.
MS PRIHAR: Thank you very much for your consideration, Your Honour. May I just ask, in terms of the Crown's request for a DNA order, is that something that Your Honour's considered?
THE COURT: I, I thought we confirmed he'd provide his DNA and you, you seemed -- I wasn't sure if you were content with that.
MS PRIHAR: There's no such confirmation on...
THE COURT: Okay.
MS PRIHAR: ...his CPIC record. I appreciate that's his position and if he has provided one...
THE COURT: No, that's fine.
MS PRIHAR: ...they won't take the sample again.
THE COURT: It's, it's a secondary classification.
MS PRIHAR: Yes, it is.
THE COURT: Well, I'm going to order his DNA be taken. You can have a seat, sir.
MS PRIHAR: I also understand, Your Honour, that the children's last names are Isabella...
THE COURT: Yeah.
MS PRIHAR: ...and Taylor....
THE COURT: I wanted to ask about that beforehand. What is the surnames?
MS PRIHAR: It's Medeiros. So it's...
THE COURT: Medeiros.
MS PRIHAR: ...M-E-D-I -- sorry, M-E-D-E-I-R-O-S.
THE COURT: Okay. Okay.
MS PRIHAR: Thank you.
THE COURT: Any questions?
MS GENSY: No, Your Honour, I believe there was a number of other charges on the Information.
MS PRIHAR: Oh, of course.
MS GENSY: It's my understanding those are to be marked withdrawn at this time.
MS PRIHAR: The remaining counts can be withdrawn please.
THE COURT: All right.
MS GENSY: Thank you, Your Honour.
THE COURT: Mr. Huth, finally, I hope you can turn things around. All right?
MS PRIHAR: Thank you again, Your Honour, for...
THE COURT: Yes.
MS PRIHAR: ...hearing this. I think my Federal colleague may just be outside speaking to his witnesses. I can go see if he's ready.
...WHEREUPON THIS PROCEEDING IS CONCLUDED