CITATION: R. v. Whyte, 2016 ONSC 518
COURT FILE NO.: CR/14/300001240000
DATE: 20160204
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
tassandra whyte
S. Hickey and K. Motyl, for the Crown M. Bornfreund, for Tassandra Whyte
HEARD: January 15, 2016
M. Forestell J.
REASONS FOR SENTENCING
Offences
[1] Ms. Whyte was found guilty by a jury of the offence of being an accessory after the fact to murder. On January 15, 2016, I heard submissions on sentencing and reserved my decision on sentencing until today.
Circumstances of the Offence
[2] On September 21, 2010 Ms. Whyte’s then boyfriend, Mark Moore, murdered Jahmeel Spence. At the time of the murder, Mr. Moore was driving a blue Honda. Ms. Whyte was the registered owner of the car. Sometime after the murder someone – likely Mr. Moore ‑ changed the colour of the car. About one year after the murder police publicly expressed an interest in a blue Honda in relation to the murder. Ms. Whyte, at the urging of Mr. Moore, then attended the Ministry of Transportation and changed the registration of the car to reflect the new colour.
Pre-trial Custody
[3] Ms. Whyte was arrested and charged with this offence on November 10, 2011. She was not released from custody until April 4, 2014. She has served 876 days of pre-trial custody. With credit at 1.5:1 days, Ms. Whyte has served the equivalent of 1,314 days in custody or 3 years and 7 months.
Positions of the Parties
[4] The Crown submits that a sentence of one day in jail with credit for pre-trial custody is adequate to address the sentencing objectives of denunciation and deterrence, but that an additional lengthy period of probation should be imposed to address the objective of rehabilitation.
[5] Counsel for Ms. Whyte submits that no further period of probation is necessary and that I should suspend the passing of sentence. Mr. Bornfreund’s submissions were unclear as to how a suspended sentence would be appropriate without also imposing a period of probation. I assume that he intended to suggest a short nominal period of probation.
Victim Impact
[6] The spouse and mother-in-law of Jahmeel Spence filed Victim Impact Statements. It is clear from the Victim Impact Statements that the murder of Mr. Spence has had a devastating effect on his family.
Circumstances of Ms. Whyte
[7] Ms. Whyte is 30 years-old. She was 25 years-old at the time of the offence. She is a first offender. She was on probation at the time of the offence, but had received a conditional discharge.
[8] Ms. Whyte completed high school in 2007. She was attending Seneca College to study early childhood education at the time of her arrest on this charge. She has not completed her course because of her arrest and because the conviction for this offence will prevent her from working as an early childhood educator.
[9] After Ms. Whyte was released from custody in April 2014 she obtained employment in a hair salon and worked in that position until shortly before she gave birth to her child who is now about 6 months old. Ms. Whyte is now in a stable relationship with her new partner. She has remained at home to care for her child since August of 2015. Ms. Whyte’s mother and her partner attended court regularly to support Ms. Whyte.
The appropriate sentence to be imposed given the circumstances of this offender and this offence
[10] In considering the appropriate sentence to be imposed on Ms. Whyte, I have the benefit of the reasons of the Court of Appeal for releasing Ms. Whyte on bail. In those reasons, Tulloch J.A. observed that if Ms. Whyte had pleaded guilty at the time of the hearing in February 2014, she would most likely have been released with a sentence of time served because the appropriate sentence would be three years.[^1] The reference to a three-year sentence was in the context of a guilty plea. Ms. Whyte has served the equivalent of three and one-half years’ imprisonment. The absence of the mitigating factor of a guilty plea would result in a somewhat longer sentence than the three years mentioned by the Court of Appeal, but the absence of a guilty plea does not take this case beyond the length of imprisonment that has already been served by Ms. Whyte.
[11] I therefore do not intend to review the cases addressing the appropriate sentence for this type of offence. I note that there are some aggravating factors present in this case, including the fact that the actions of Ms. Whyte were not impulsive but well thought out over a period of time and the fact that Ms. Whyte was on probation at the time of the offence. Mitigating factors are that Ms. Whyte was quite young at the time of this offence, she is a first offender and she has also shown an ability to rehabilitate herself during her time on bail. Considering the circumstances of the offence and the offender in this case, a sentence of 3 and one-half years’ imprisonment is the sentence that I would have imposed before credit for pre-trial custody.
[12] The Crown has argued that, in addition to the time served by Ms. Whyte, a period of probation is necessary to address the sentencing objective of rehabilitation. I have concluded that Ms. Whyte should not be placed on probation. She has spent a year and a half on bail. During that time she has been required to report frequently to the Bail Programme and to the police. She has maintained employment. I find that the objective of rehabilitation has been addressed by the circumstances of Ms. Whyte’s release on bail.
[13] I have also concluded that a suspended sentence is not appropriate. Ms. Whyte’s record should reflect the seriousness of the offence and the sentence that has been served. A sentence of one day in jail and credit for pre-trial custody more accurately reflects the seriousness of the offence.
Conclusion
[14] I therefore impose a sentence of one day in jail in addition to pre-trial custody of 876 days credited as 1,314 days.
Ancillary orders
[15] There will be a prohibition order under s. 110 of the Criminal Code, R.S.C., 1985, c. C-46 for 10 years.
[16] The offence of being an accessory after the fact to murder is a secondary designated offence under the Criminal Code. Although Ms. Whyte is a first offender, the seriousness of this offence and the circumstances in which it was committed weigh in favour of a DNA order. The impact on the privacy and security of Ms. Whyte is minimal. I therefore make the order that Ms. Whyte is required to provide such number of samples of bodily substances that are reasonably required for the purpose of forensic DNA analysis.
M. Forestell J.
Released: February 4, 2016
CITATION: R. v. Whyte, 2016 ONSC 518
COURT FILE NO.: CR/14/300001240000
DATE: 20160204
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
tassandra whyte
REASONS FOR SENTENCING
M. Forestell J.
Released: February 4, 2016
[^1]: [2014] O.J. No. 1663 at paragraph 41 (C.A.)