Ontario Superior Court of Justice

COURT FILE NO.: 14-AP-7-68

DATE: 20141217

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

GEORGE SCHWARTZ

Appellant

Luke Schwalm, for the Crown/Respondent

Brent Kettles, for the Appellant

HEARD: December 9, 2014

JUDGMENT ON SUMMARY CONVICTION APPEAL

B. P. O’MARRA, J.

INTRODUCTION:

[1] The appellant pleaded guilty on March 26, 2014 in the Ontario Court of Justice to the following offences:

1. Criminal harassment

2. Mischief under $5,000 x 6

3. Fail to comply with a recognizance x 2

4. Possession of a prohibited weapon

5. Assault with intent to resist arrest

[2] On April 25, 2014 the Honourable Justice J. Moore imposed a ten-month conditional sentence, plus three years’ probation. The appellant had served 4.5 months in custody before being sentenced. There were also orders for a DNA sample, a weapons prohibition and restitution to the victims.

[3] This appeal is restricted to the length of probation. The appellant seeks to reduce the term from three years to one year. The Crown opposes the appeal.

THE FACTS:

[4] It is agreed that the facts admitted by the appellant in support of the guilty pleas were bizarre and disturbing.

[5] The victims on the counts of damage to property and criminal harassment were a doctor and his wife. The appellant had been previously married to a cousin of the doctor. The appellant held a festering resentment of the doctor related to a professional consultation that apparently left the appellant with eye damage.

[6] From July 15 through September 16 of 2013, the appellant made a series of visits to the victims’ residential property and caused damage to their three cars. On two occasions, he entered the garage to damage vehicles. The damage included scratching obscene and threatening words on the cars.

[7] In addition to the damage to the victims’ vehicles, the appellant threw garbage across the lawn, left a serrated knife, put glue on the vehicles and locks of the home, defecated on the walkway and threw a boxed sex doll through a window at the residence.

[8] The appellant caused $23,600 damage to the victims’ cars and $3,416 damage to their home. As a result of these crimes, the victims installed a home security system at a cost of $2,600.

[9] The police executed a search warrant at the appellant’s home and recovered the following:

− pepper spray (a prohibited weapon)

− balaclavas

− a knife

− several latex gloves

[10] The appellant was on a recognizance as of the date of the search and was bound by a specific provision not to possess pepper spray.

[11] On September 17, 2013, the appellant was arrested by a loss prevention officer at Walmart related to shop lifting. The appellant assaulted the officer before he was apprehended and detained.

[12] On October 10, 2013, the appellant was found by police driving a car when he was subject to a term of recognizance that he not operate a car.

[13] On December 23, 2013, a search of the appellant’s residence related to his arrest revealed a can of pepper spray. At the time, he was subject to a term of recognizance that he not possess pepper spray.

POSITIONS OF THE PARTIES ON SENTENCE IN THE ONTARIO COURT

[14] The Crown sought four months in jail on top of time served (4.5 months) plus three years’ probation. Ancillary orders related to a weapons prohibition and providing a DNA sample were not opposed.

[15] The defence sought an order for time served or in the alternative a short conditional sentence no longer than two months.

ANTECEDENTS OF THE APPELLANT

[16] On the sentencing date, the appellant was 65 years old and had no prior criminal record. He was a chartered accountant by occupation.

VICTIM IMPACT

[17] The victims described the appellant’s acts as “personal terrorism.” They lived in fear and believed they could be in personal danger.

POSITION OF THE APPELLANT

[18] The appellant claims the sentencing judge erred in failing to consider certain relevant and/or mitigating factors including:

− early pleas of guilty

− pretrial custody of 4.5 months

− prospects for rehabilitation

[19] He further submits that the sentence imposed was demonstrably unfit and the reasons are insufficient.

THE FITNESS OF THE SENTENCE IMPOSED - STANDARD OF APPELLATE REVIEW

[20] Sentences imposed by trial judges are entitled to great deference.

R v. M. (C.A.) 1996 230 (SCC), [1996] 1 S.C.R. 500 at para 91.

[21] In the absence of some error in principle, a failure to consider a relevant factor, or an over-emphasis of appropriate factors, the sentence imposed by a trial judge should not be interfered with on appeal. The reviewing Court should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit.

R. v. Shropshire 1995 47 (SCC), [1995]4 S.C.R. 227 at paras 46-48 R. v. M. (C.A.) at para 90.

[22] Sentencing judges have a broad discretion to craft a sentence that is tailored to the nature of the offence and the circumstances of the offender. The determination of a “fit” sentence is, subject to some specific statutory rules, an individualized process that requires the judge to weigh the objectives of sentencing in a manner that reflects the circumstances of the case. No one sentencing objective trumps the others and it falls to the sentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case. The relative importance of any mitigating or aggravating factors will then push the sentence up or down the scale of appropriate sentences for similar offences. The judge’s discretion to decide on the particular blend of sentencing goals and the relevant aggravating or mitigating factors ensures that each case is decided on its facts, subject to the overarching guidelines and principles in the Code and the case law.

R. v. Nasogaluak 2010 SCC 6 at para 43.

ANALYSIS

[23] The bizarre and disturbing nature of the mischief and criminal harassment counts led the trial judge to be most concerned about deterrence of further criminal acts by the appellant against the victims. He determined that the best way to reflect the seriousness of the offences and prevent further crimes was a combination of a conditional sentence plus the maximum period of probation. His concern about compliance with Court orders was justified by the blatant breaches of recognizance that were admitted.

[24] The trial judge specifically referred to the following:

− the pleas of guilty

− the appellant had served 4.5 months of pretrial custody

− the appellant was 65 years old and had no criminal record

− the fear and anxiety engendered towards the victims

[25] He emphasized that the most important aspect of the whole process was to put conditions in place that would prevent further offences and assist the appellant in his rehabilitation. The length and terms of probation were reasonable and appropriate to achieve those goals. The mitigating factors were considered. It cannot be said that the sentence imposed was demonstrably unfit.

RESULT

Appeal dismissed.

B. P. O’Marra, J

Released: December 17, 2014