Her Majesty The Queen v. Constantinos Kyriacopolous

CITATION: R. v. Kyriacopolous, 2015 ONSC 4177

COURT FILE NO.: 157/14

DATE: 2015-06-29

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Her Majesty The Queen v. Constantinos Kyriacopolous

BEFORE: K.L. Campbell J.

COUNSEL: Ted Ofiara, for the Crown, respondent Christian Pearce, for the accused, appellant

HEARD: June 9, 2015

ENDORSEMENT

[Summary Conviction Appeal]

A. Overview

[1] On this summary conviction appeal, the appellant challenges the fitness of the 14 month custodial sentence, imposed by the trial judge, following the appellant’s 4½ months of pre-sentence custody, on charges of assault and breach of probation. The mature 48 year old offender has a relatively minor criminal record, and his longest previous sentence is 90 days imprisonment. However, the appellant has quickly and repeatedly breached court orders preventing him from having any contact with his parents and, in so doing, has repeatedly assaulted his mother. The issue on this appeal is whether, in seeking to convey the necessary element of specific deterrence to the appellant, and in trying to properly protect the appellant’s parents against further violence, the trial judge imposed an excessive custodial sentence.

B. The Relevant Factual Background

[2] On November 17, 2014 the appellant, Constantinos Kyriacopolous, appeared before the Honorable Mr. Justice H. Brownstone of the Ontario Court of Justice and pled guilty to two offences, namely, an assault on his mother, and breaching his probation by failing to abide by a term requiring him to abstain from any contact or communication with his parents, except with their prior written consent. Both offences were alleged to have been committed on July 9, 2014. As I have indicated, this was not the first time the appellant had engaged in precisely such criminal conduct.

[3] In outlining the relevant factual allegations in support of the guilty pleas, which were accepted by the appellant as substantially correct, the Crown advised the trial judge of the following facts:

• The appellant’s father is 83 years old, and his mother is 75 years of age. The appellant himself is 48 years of age. Until earlier in the year, the appellant still lived at home with his parents.
• In June of 2014, the appellant was found guilty of two assaults on his mother, and was found guilty of failing to comply with a condition of his recognizance (i.e. failing to report to the bail program as required). These were the appellant’s first criminal convictions. The appellant was sentenced to 90 days imprisonment and a period of probation, a term of which prohibited the appellant from having any contact with his mother without her consent.
• The day the appellant was released from custody, he went directly to his parent’s residence, despite the terms of his probation order, and attempted to gain entry to their home. His parents blocked the door and called 911. The appellant was arrested and pled guilty to failing to comply with his probation order. The appellant was sentenced to 20 days in jail. During the course of these proceedings, the appellant repeatedly promised the trial judge that he would not go back to his parent’s home.
• The day after he was released from custody in relation to those charges, the appellant committed the current offences. After spending a night on the streets, the appellant returned again to his parent’s residence, despite the terms of his probation order (and his promises to the trial judge), and gained entry to the premises. At that time, the home was empty. When his parents returned home, the appellant’s mother went upstairs to the bedroom. The appellant came running down the hallway toward her, grabbed her by the hair, and threw her over the bed. She landed on the floor. During this assault, the appellant was yelling at her, blaming her for how much time he had to spend in jail, and telling her that he needed money. Then he went downstairs and yelled at his father. The appellant demanded that they write him a letter granting him permission to contact them. The appellant eventually left the premises after they gave him the extorted “permission letter” and some money. He was arrested again a short time later.

[4] The matter was then adjourned for the speedy preparation of a “stand-down” pre-sentence report. This report was completed by the next court appearance on November 28, 2014.

[5] The appellant had been in custody on these charges since his arrest on July 10, 2014. Accordingly, by the time of his sentencing hearing on November 28, 2014, the appellant had already served more than 4½ months in jail. The parties agreed that, after giving the accused the appropriate enhanced credit, pursuant to s. 719(3.1) of the Criminal Code, R.S.C. 1985, c. C-46, the appellant should be credited with having already served the equivalent of a seven month jail sentence.

C. The Positions of the Parties at Trial

[6] At trial, the Crown sought the imposition of a total effective sentence of one year imprisonment. After giving the appellant the agreed credit for his pre-sentence custody, the Crown sought the imposition of a five month term of further imprisonment. Defence counsel sought the imposition of a global effective sentence of nine months imprisonment. After giving the appellant the agreed credit for his pre-sentence custody, defence counsel sought the imposition of a two month term of further imprisonment. The parties agreed that the appellant should also be placed on probation for a period of two years, and that some ancillary sentencing orders were required. When asked if he wanted to say anything on his own behalf, the appellant apologized to his parents and to the court, and indicated that he wanted nothing more to do with his parents.

D. The Sentence Imposed by the Trial Judge

[7] While the parties were seeking the imposition of a custodial sentence of between two months (the defence position) and five months (the Crown position), the trial judge imposed a total sentence of 14 months imprisonment on the appellant. More specifically, the trial judge sentenced the appellant to 11 months imprisonment for the breach of probation offence, and three consecutive months imprisonment for the assault offence.

[8] As expressed in his reasons for sentence, the trial judge sought to impose a total effective sentence of 21 months imprisonment, by effectively sentencing the appellant to an 18 month term of imprisonment on the breach of probation charge (i.e. the statutory maximum sentence), and a consecutive three month term of imprisonment for the assault offence. The trial judge imposed the actual sentence he did after giving the appellant the agreed enhanced credit of seven months imprisonment for his pre-sentence custody.

[9] The trial judge also imposed a three year term of probation on strict terms. The trial judge also made the two requested ancillary sentencing orders, namely, a DNA databank order and a firearms prohibition order.

E. Analysis

[10] The appellant has been in custody since the imposition of his sentence on November 28, 2014. Accordingly, he has now been imprisoned for seven months, in addition to the 4½ months of pre-sentence custody (which was credited as seven months imprisonment). In the result, the appellant has already served an effective custodial sentence significantly longer than the sentences sought by either the Crown or defence counsel. The appellant contends that his custodial sentences should now be reduced to “time served.” For the reasons that follow, I agree.

[11] The law is clear that sentences imposed by trial judges are entitled to great deference. 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. Indeed, trial sentences should only be altered on appeal when they are “clearly unreasonable,” “demonstrably unfit” or a “substantial and marked departure from sentences customarily imposed for similar offenders committing similar crimes.” See R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227, at paras. 46-50; R. v. M.(C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at paras. 89-94; R. v. T.(K.) (2008), 2008 ONCA 91, 89 O.R. (3d) 99 (C.A.), at paras. 30-31; R. v. Ramage, 2010, ONCA 488, 257 C.C.C. (3d) 261, at paras. 69-73; R. v. S.(H.), 2014 ONCA 323, at para. 23.

[12] The offences committed by the appellant were clearly serious ones. The appellant violently assaulted his own mother. Fortunately, she was not injured as a result of the assault. Further, in again attending at his parent’s home, the appellant again violated the terms of his probation order, after promising the trial judge he would not re-attend at their home. These offences clearly required the imposition of a custodial sentence beyond the period of pre-sentence custody that the appellant had already served. Specific deterrence was the paramount sentencing consideration in this case, and a further custodial sentence was required in order to make it clear to the appellant that he was obliged to abide by the conditions of his probation order, and that there would be increasingly serious consequences for his repeated failures to abide by that court order. In addition, the sentence imposed for the assault offence needed to proportionally reflect the gravity of that crime, denounce its commission, and effectively deter the appellant from the repetition of such violent misconduct. The appellant’s parents needed to be adequately protected from their son.

[13] As I have indicated, at trial, the positions advanced by the parties, viewed collectively, suggested that they believed that a further period of incarceration of between two and five months imprisonment (beyond the pre-sentence custody already served by the appellant) would be appropriate to accomplish all of these important sentencing objectives. In my view, in sentencing the appellant to a further custodial sentence of 14 months imprisonment, the trial judge erred in principle in imposing a custodial sentence that was an inordinate and unjustified “jump” above the duration of custodial sentences previously served by the appellant.

[14] As a matter of principle, sentences imposed upon repeat offenders, at least offenders with relatively minimal criminal records and with significant prospects for rehabilitation, should increase incrementally and gradually, rather than dramatically by great leaps and bounds. In other words, in the interests of rehabilitation, the duration of custodial sentences should progressively “step” up as further offences are committed, rather than “jump” up in the degree of their severity. See C.C. Ruby, Sentencing (2012, 8th ed.) at §§ 8.91-8.95; R. v. Robitaille, 1993 CanLII 2561 (BC CA), [1993] B.C.J. No. 1404, 31 B.C.A.C. 7, at paras. 8-9; R. v. Hall, [2001] O.J. No. 3704 (C.A.), at para. 4; R. v. E.O, 2003 CanLII 2017 (ON CA), [2003] O.J. No. 563, 169 O.A.C. 110 (C.A.), at para. 15; R. v. J.G., [2005] O.J. No. 4599 (S.C.J.) at paras. 44-45; R. v. Ferrigon, 2007 CanLII 16828 (ON SC), [2007] O.J. No. 1883 (S.C.J.) at paras. 8-12; R. v. Reid, 2013 ONSC 2342, [2013] O.J. No. 5929, at paras. 67-81.

[15] The longest previous sentence that has been served by the appellant, in June of 2014, prior to these current offences, is just 90 days imprisonment. He served that sentence as a result of his conviction for two offences of assault against his mother, and one offence of failing to comply with his recognizance. Accordingly, even the further custodial sentence proposed by the Crown would have resulted in an effective sentence four times as long as that longest previous sentence. However, the effective sentence of 21 months imprisonment sought to be imposed upon the appellant by the trial judge was seven times the duration of the appellant’s longest previous sentence. Defence counsel argued that this was not a progressive and incremental “step” up, but rather was a “gigantic leap” in the severity of the sentences imposed upon the appellant. Regardless of how this increase in the sentences imposed upon the appellant might be characterized, I am satisfied that it was too great, and that the resulting sentence imposed by the trial judge was excessive in all of the circumstances in this case. Moreover, in my opinion, the sentence of imprisonment that has already been served by the appellant is long enough to properly accomplish all of the relevant sentencing objectives.

F. Conclusion

[16] For these reasons, the appellant’s appeal against sentence is allowed, and the custodial portion of his sentence is reduced to “time served.” The three year term of probation on the terms prescribed by the trial judge will stand, and the appellant shall immediately begin to strictly adhere to all of the terms of that order. The ancillary sentencing orders made by the trial judge will also remain in effect. An order shall issue accordingly.

Kenneth L. Campbell J.

Released: June 29, 2015