COURT FILE NO.: 13-110
DATE: 20140606
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty The Queen
Michael Martin, for the Crown
- and -
W.L.
Brian D. Barrie, for W.L.
HEARD: February 10, 11, 12 and 13, 2014
REASONS FOR SENTENCE
Conlan J.
INTRODUCTION
[1] W.L. was tried before me, without a jury, in Owen Sound on February 10, 11, 12 and 13, 2014.
[2] After reserving my decision, in written reasons for Judgment, I found W.L. guilty of the one criminal charge that he faced – breaking and entering with intent.
[3] A presentence report was ordered. The sentencing was adjourned to May 30, 2014.
[4] On that date, I received filings, heard submissions and reserved my decision.
THE FACTS
[5] THE FACTS
[6] I found that W.L. broke and entered the victim’s home. They were friends at the time, however, W.L. had no permission to be inside the home on the date in question.
[7] I found that, at the time that he broke and entered the home of his female friend, W.L. intended to commit an indictable offence therein, namely, theft.
[8] What W.L. did inside the victim’s bedroom was captured on a security camera. The photographs of W.L.’s actions were filed as an Exhibit at trial.
[9] W.L. rummaged through dresser drawers, the armoire and the closet. He manhandled the victim’s private and personal effects, including her bras and underwear. He did not steal anything.
THE OFFENDER
[10] THE OFFENDER
[11] W.L. is currently 55 years old. As a result of his arrest, W.L. is separated from his wife. Divorce proceedings have been commenced by the wife. They have two adult children.
[12] The presentence report indicates that W.L. has two very old but related convictions on his criminal record – a 1982 conviction for break, enter and commit theft (probation and restitution was the sentence), and a 1987 conviction for theft under $1000.00 (a fine was the penalty).
[13] A close friend of W.L. who was interviewed for the presentence report is of the opinion that W.L. has “lost everything” as a result of the offence, including his marriage, his job and, to some extent, his financial security.
[14] W.L. had solid and steady employment as a tradesman prior to his arrest, however, the offence brought that to an end.
[15] According to the presentence report, W.L. has been very depressed since his arrest. He has seen counsellors at the Canadian Mental Health Association, his family doctor and a psychiatrist. The latter confirmed a diagnosis of depression. Medication has been prescribed.
[16] W.L.’s depression is confirmed in the report of Dr. Green, psychologist, dated November 9, 2012, filed by the Defence at the sentencing hearing.
[17] In the opinion of the author of the presentence report, W.L. has accepted responsibility for the offence and would be a suitable candidate for some form of community supervision.
[18] At the sentencing hearing, the Defence filed numerous letters in support of W.L. Those letters are authored by friends of W.L., W.L.’s wife, customers of W.L. and the former employer of W.L. The letters describe the offender as a “loyal friend”, a “good father”, someone who can be trusted, a “polite and considerate” man with good character and a solid reputation, a person who has contributed valuably to our community, an honest and caring person, a proud family man, and a “great employee”.
THE POSITIONS OF THE PARTIES
[19] THE POSITIONS OF THE PARTIES
[20] The Crown requests the following sentence: 12 to 18 months’ imprisonment; two years’ probation, a primary DNA Order, and a section 109 CCC firearms and weapons prohibition Order for ten years.
[21] The Crown focusses on the significant breach of trust in this case. The Crown emphasizes the sentencing principles of denunciation, deterrence and the need to promote a sense of responsibility in offenders.
[22] The Crown opposes the Defence requests for probation or an intermittent jail sentence or a conditional sentence Order.
[23] The Defence requests the following sentence: probation for three years, or a 90-day intermittent jail sentence to be served on weekends, or a conditional sentence Order. The latter two options would be followed by probation.
[24] The Defence does not oppose the primary DNA and section 109 CCC Orders.
[25] The Defence focusses on the fact that W.L. has lost a great deal already. He is a good person who does not need to go to jail for a significant period of time. The Defence emphasizes the need for rehabilitation.
ANALYSIS
[26] ANALYSIS
[27] I find the conduct of W.L. to be deplorable.
[28] The seriousness of criminal behaviour is not always measured by bruises and blood.
[29] W.L. betrayed his friendship with the victim. He invaded her personal space. He took it upon himself to peer at, hold up and fondle the victim’s undergarments.
[30] I can understand the shock and dismay of the victim when she saw what W.L. had done to her. Her testimony at trial included evidence as to the adverse consequences that this gross violation of her home and her bedroom has had on her.
[31] According to both the presentence report and the victim impact statement, the offence still bothers the victim, every day. As a result of the offence, the victim has experienced sleeping problems, trust issues and paranoia.
[32] The gross breach of trust committed by W.L. is a serious aggravating factor on sentencing. This offence was perpetrated by a long-time friend and tradesman.
[33] In mitigation, although I place no weight on the alleged risk assessment opined under the “Conclusions” section of Dr. Green’s report, I accept that W.L. is a hardworking man of general good character. He is depressed and has already suffered some consequences as a result of his criminal wrongdoing, including the loss of his marriage and the end of his employment.
[34] In my view, the primary principles of sentencing at play in this case are denunciation, deterrence and rehabilitation.
[35] Having considered the seriousness of the offence, punishable by life imprisonment, the facts, the circumstances of the offender and the aggravating and mitigating factors, I am of the opinion that a custodial sentence is required.
[36] Probation, although certainly available for persons who are found guilty of this offence (as illustrated by the jurisprudence filed by the Defence), is simply too lenient on these facts.
[37] Regarding the possibility of a conditional sentence Order, everyone agrees that it is statutorily available in this case. Further, referring to the wording of section 742.1 CCC, I am satisfied that “service of the sentence in the community would not endanger the safety of the community”.
[38] I am not satisfied, however, that a conditional sentence Order “would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2”.
[39] Referring to the preamble of section 718 CCC, on the facts before me, a conditional sentence Order would not be a just sanction which will contribute in any way to respect for the law and the maintenance of a just, peaceful and safe society.
[40] Further, although the Defence is absolutely correct that conditional sentence Orders can be punitive and can, in some cases and even for serious offences, achieve the objectives of sentencing, this is not one of those cases.
[41] The aggravating features of this case make it one where, in my view, denunciation and general deterrence cannot be adequately addressed through the imposition of a conditional sentence Order.
[42] That leaves to be determined the appropriate range of imprisonment in this case. In particular, could the appropriate range be as low as 90 days so as to allow the offender to serve his jail sentence on weekends?
[43] This is a difficult call to make. The range of sentencing for this type of offence is very elastic. And I have to be careful not to obsess on the seriousness of the facts before me while ignoring the principle of rehabilitation and the mitigating factors that exist.
[44] I think that the range of sentencing for W.L. could be anywhere from 90 days in jail to 12 months’ imprisonment.
[45] I will accede to the request of the Defence and impose a jail sentence of 90 days, to be served at the Central North Correctional Centre on an intermittent basis. The sentence shall commence at 9:00 a.m. on Saturday, June 7, 2014.
[46] W.L. shall report to the jail at that time, in a sober condition. W.L. shall be released from the jail at 7:00 p.m. on Sunday, June 8, 2014. That shall count as two days’ served. That schedule shall continue each and every consecutive weekend until the sentence has been fully served.
[47] While serving the intermittent jail sentence, W.L. shall be bound by a probation Order. All of the statutory terms apply. In addition, (i) W.L. shall not consume or be in possession of any alcohol or non-prescription narcotics; (ii) he shall not attend at any place whose primary business it is to sell alcohol; (iii) he shall not reside where alcohol is present; (iv) he shall have no contact, directly or indirectly, by any means with D.W., J.K. and D.W.’s two children, except through legal counsel; (v) he shall not attend at any residence, place of employment or place of education of any of those named persons, except for pre-scheduled appointments and emergencies which necessitate attendance at the Hospital in Owen Sound; (vi) he shall attend, actively participate in and complete counselling or therapy as directed by the probation officer; (vii) he shall sign any releases requested by the probation officer to monitor his compliance with the counselling or therapy; (viii) he shall reside where directed by the probation officer and not change that residence without the prior written approval of the officer; (ix) he shall report to a probation officer as directed; (x) he shall maintain a curfew by remaining in his residence between midnight and 6:00 a.m., except when at the jail; (xi) he shall not be in possession of any firearm or weapon as defined in the CCC; (xii) he shall report to the jail on time and in a sober condition; and (xiii) he shall drive or be driven directly to and from the jail.
[48] Upon completion of the intermittent jail sentence, W.L. shall be bound by a probation Order for three years. All of the statutory terms apply. In addition, (i) W.L. shall have no contact, directly or indirectly, by any means with D.W., J.K. and D.W.’s two children, except through legal counsel; (ii) he shall not attend at any residence, place of employment or place of education of any of those named persons, except for pre-scheduled appointments and emergencies which necessitate attendance at the Hospital in Owen Sound; (iii) he shall attend, actively participate in and complete counselling or therapy as directed by the probation officer; (iv) he shall sign any releases requested by the probation officer to monitor his compliance with the counselling or therapy; (v) he shall reside where directed by the probation officer and not change that residence without the prior written approval of the officer; and (vi) he shall report to a probation officer as directed.
CONCLUSION
[49] CONCLUSION
[50] I am convinced that this decision achieves the sentencing objectives of denunciation, deterrence and rehabilitation. It will allow W.L. to continue his counselling and get back to work, for his sake and that of his family. But it also puts W.L. behind real bars, in a jail cell, and curtails his liberty for a lengthy period of time.
[51] The sentence of the Court is as follows.
[52] First, a conviction is registered.
[53] Second, a primary DNA Order is issued.
[54] Third, a section 109 CCC Order is issued for ten years and life, as per the two subsections.
[55] Fourth, W.L. is sentenced to 90 days’ imprisonment. That shall be served intermittently on weekends as per the above directions. W.L. is on probation during the currency of the intermittent jail sentence.
[56] The intermittent jail sentence shall be followed by probation for three years.
[57] This was not an easy sentencing decision. W.L. could have gone to jail for a longer period of time. The Crown cannot be faulted for asking for a longer sentence. The victim, D.W., did not deserve this criminal invasion of her privacy. I hope that she, J.K. and her children can return to a sense of peace and tranquility, in due time.
[58] I should warn W.L. that these probation Orders are fairly restrictive, much more so than his Recognizances of Bail, and long in duration. Any violation of the first probation Order will almost certainly result in a further criminal charge and the serious risk that the weekend jail sentence will be collapsed and served straight time. Any violation of the three-year probation Order will almost certainly result in a further criminal charge and another jail sentence, if found guilty.
[59] A final word to the community at large. Tradespersons are entrusted with the confidence of those who open their doors to them. Any violation of that trust will be dealt with swiftly and harshly by the Court. A jail sentence is likely for those who are found guilty, even sympathetic offenders. Liberty will be restricted.
[60] I thank counsel for their helpful submissions on sentence.
June 6, 2014 The Honourable Mr. Justice C.J. Conlan
___________________________
Conlan J.
Released: June 6, 2014
COURT FILE NO.: 13-110
DATE: 20140606
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
R.
- and -
W.L.
REASONS FOR SENTENCE
Conlan J.
Released: June 6, 2014