ONTARIO

SUPERIOR COURT OF JUSTICE

LINDSAY COURT FILE NO.: 52/08
DATE: 20120827

B E T W E E N:

Her Majesty the Queen

Lucas O’Neill, for the Respondent

Respondent

• and -

Gregory Sidsworth

Tina Kaye, for the Appellant

Appellant

HEARD: August 27, 2012

Gunsolus, J.

JUDGMENT

Nature of the Case

[ 1 ] The appellant, Gregory Sidsworth, was sentenced by the Honourable Justice Chester on the 14 th of May, 2009, to a period of 90 days intermittent custody, for the offences of ‘over 80’ and driving while his licence was suspended.

[ 2 ] Although the appellant filed a Notice of Appeal in this matter on the 14 th of June, 2009, he was unable to retain counsel until March 2011.

[ 3 ] Basically, the appellant submits that the trial judge erred in failing to grant a conditional sentence, and further feels that the trial judge had predetermined that a custodial sentence was required, irrespective of the offences upon which the appellant was convicted.

[ 4 ] A presentence report was ordered on May 12 th , 2009.

[ 5 ] Counsel for the appellant argued that a conditional sentence was an appropriate disposition on the basis that the PSR included the following recommendation:

In considering the above information, if the court is considering community supervision as a disposition or part thereof, the subject appears to be suitable. The following conditions may be beneficial:

1. To report to a supervisor as directed.

2. To take any counselling as deemed appropriate for substance abuse by supervisor

[ 6 ] In sentencing, the trial judge acknowledged sentencing to be the hardest part of a judge’s job:

...because I have to weigh and balance out the principles as set out in the Code, as Mr. O’Neill has referred to: specific deterrence, general deterrence and denunciation.

Appellant’s Position

[ 7 ] The appellant argues that the trial judge failed to consider the principle of rehabilitation and placed undue emphasis on deterrence and denunciation and suggests that this is an error in principle as articulated by Doherty, J. in R. v. Thurairajah, 2008 ONCA 91 and also by the Court of Appeal in R. v. McGregor, 2008 ONCA 831.

[ 8 ] Secondly, the appellant argues that the trial judge rejected a conditional sentence and gave inadequate reasons suggesting there is no evidentiary basis for concluding that a conditional sentence was inappropriate in this case.

[ 9 ] Finally, the appellant argues that the judge had pre-determined that a custodial sentence was required and that the trial judge overemphasised the need for deterrence and denunciation in this case.

Crown’s Position

[ 10 ] The Crown submits that the trial judge did not overemphasise general deterrence, but rather considered all appropriate principles and placed appropriate weight and consideration upon each principle of sentencing. The Crown further argued that the trial judge provided adequate reasons for rejecting a conditional sentence and that even if the trial judge erred in this regard, the sentence that he imposed was fit and cannot be said to be “demonstrably unfit” or “clearly unreasonable”. [3]

[ 11 ] The Crown further argues that the learned trial judge was required to impose the sentence that he did, given the substantial record of the appellant in relation to drinking and driving offences and his then more recent driving while suspended convictions.

[ 12 ] The Crown further argued that the trial judge did deal with the rehabilitative component in the probation order that he imposed, requiring that the appellant attend counselling, assessment and treatment for substance abuse, as directed by his probation officer.

Discussion

[ 13 ] I agree with the Crown that an appellate court must show great deference in reviewing decisions of trial judges where appeals against sentence are concerned. The court must be “convinced it is not fit”, in other words, “that the sentence is clearly unreasonable”. [4]

[ 14 ] Further, a court of appeal is not able to vary a sentence, unless it is able to find that the sentence was too lenient or too severe, in other words “clearly excessive or inadequate”, and therefore unfit. [5]

[ 15 ] The trial judge in this case was required to consider the appellant’s record that included three prior drinking and driving convictions (albeit a significant gap existed in relation to the last conviction and this matter). He was also required to consider the driving while suspended convictions, the most recent of which occurred in 2006 and 2008. It should also be noted that the appellant, for each of two of his prior drinking and driving offences, received what amounted to four months incarceration, more or less, and therefore the imposition of a sentence of six months may well have been appropriate in this case.

[ 16 ] The learned trial judge addressed the need for general and specific deterrence in this matter by recognizing he was dealing with an individual who was before him on his fourth drinking and driving offence.

[ 17 ] The trial judge further went on to indicate that as far as the principle of rehabilitation was concerned, he could, and in fact did, deal with that by way of a probation order.

[ 18 ] Against the backdrop of the appellant’s record, the trial judge further gave a clear and specific reason for rejecting the proposed conditional sentence, as he stated:

I do not think a conditional sentence, under these circumstances, would send the appropriate message to you, nor, in particular, to the general community by way of denunciation.

[ 19 ] A review of the reasons for sentence, dated May 14, 2009, demonstrates that the trial judge carefully reviewed all of the sentencing principles that he was required to consider, including but not limited to specific deterrence, general deterrence, denunciation and rehabilitation. Further, he reviewed carefully the aggravating factors as follows:

• The appellant was driving under suspension;

• He had three prior convictions for drinking and driving offences;

• He had a number of prior convictions for driving while under suspension.

All of this caused the court to consider that the appellant in this case was “incorrigible”.

[ 20 ] On the other hand, the court considered the following mitigating factors:

• The significant gap between the prior triumvirate of convictions involving drinking and driving;

• His sound employment record;

• His claim that he had not had a drop to drink since February 14 th , 2008;

[ 21 ] As the trial judge indicated, he could very well have imposed six months “straight time”, based upon the appellant’s record, but chose to impose the 90 day intermittent sentence, in order that the appellant would not lose his employment.

[ 22 ] It is also to be noted that throughout the reasons for sentencing, the trial judge dealt only with the drinking and driving offences and at the end confirmed that he was not dealing with other charges that had been withdrawn.

[ 23 ] I am satisfied that the trial judge’s sentence was well within the range of appropriate sentences for similar offences and similar offenders. The appellant did not argue the sentence was not within such range.

[ 24 ] For all the foregoing reasons, the appeal is dismissed.

[ 25 ] The appellant shall attend at the Central East Correctional Centre at 8:00 am, commencing Saturday, September 1 st , 2012, in order to serve the sentence as imposed by the trial judge in this matter on the 14 th of May, 2009.

“The Honourable D.S. Gunsolus”

DATE RELEASED: August 27, 2012

[1] See R. v. Thurairajah , (2008), 2008 ONCA 91 , 229 C.C.C. (3d) 331 (Ont. C.A.)

[2] See R. v. McGregor , (2008) 2008 ONCA 831 , 240 CCC (3d) 102 (Ont. C.A.)

[3] See R. v. L.(M.) 2008 SCC 31 , 2008 SCJ No. 31 (SCC)

[4] See R. v. L.(M.) , supra

[5] See R. v. L.(M.) , supra