CITATION: R. v. Gallagher, 2017 ONSC 6250
COURT FILE NO.: CR-14-748
DATE: October 30, 2017
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Dallas Mack and Brian Holowka for Her Majesty the Queen
- and -
DERRICK GALLAGHER
Jason H. Gilbert, for the Accused
Accused
HEARD: August 8, 9, 10, 11, 14, 15 and 16, 2017
REASONS FOR DECISION
James, J.
Introduction
[1] On July 8, 2016 Derek Gallagher pleaded guilty to 6 counts of sexual assault and 3 counts of voyeurism in relation to 9 victims.
[2] Following the pleas of guilt, Crown counsel applied for and received the consent of the Attorney General for Ontario to request a finding that Mr. Gallagher be designated as a long-term offender within the meaning of s. 753.1 of the Criminal Code.
[3] By order dated November 1, 2016 Mr. Gallagher underwent a psychiatric assessment pursuant to section 752.1 of the Criminal Code by Dr. Philip Klassen, a specialist in the field of forensic psychiatry. Dr. Klassen’s report is dated February 13, 2017.
[4] These reasons for decision contain three sections. Firstly, I will deal with what an appropriate sentence should be for these crimes. Secondly, I will deal with the Crown application for a long term offender designation. The third section will contain my disposition including the sentence for the offences Mr. Gallagher pleaded guilty to, my determination respecting the request for a long term offender designation and the court’s rulings on ancillary matters such as the requested weapons prohibition, a DNA order etc.
The Offender
[5] The offender in this case is 35 years old. By way of background, his parents separated when he was approximately 8 years old. His mother was an alcoholic. He lived with her initially following his parents’ separation. She raised him as a Jehovah’s Witness. Later he lived with his father in New Brunswick. He has an older brother and half-brother and a younger stepbrother.
[6] After leaving secondary school he worked in factory jobs from age 19 to 23. He joined the Canadian Forces in 2005, rising to the rank of Corporal. He did a tour in Afghanistan and generally enjoyed his time in the military. Prior to the offences involved here, he did not have a criminal record.
[7] He has been in custody since he was arrested at the end of March, 2014. He reported to Dr. Klassen that he was first suicidal at 14 years of age following what he described as a nervous breakdown and has been suicidal on several occasions since that time. He attempted suicide while at the Ottawa Carleton Detention Centre (O.C.D.C.) and was transferred to Brockville General Hospital. After returning to Ottawa and more suicide attempts, he was transferred to the St. Lawrence Valley Treatment Centre (“S.L.V. Treatment Centre”) where he was remanded pending sentencing. As will be detailed later, Mr. Gallagher has undergone several treatment and therapy sessions while awaiting sentencing.
[8] He believes that he suffers from Post-Traumatic Stress Disorder (P.T.S.D.) as a result of a combination of negative events including his childhood with a dysfunctional mother, his service in Afghanistan as a front-line soldier and from what he reports as his mistreatment and medical neglect at the O.C.D.C.
The Offences
[9] As for the offences involved in this case, the earliest crimes date back to 2007 and 2008 when Mr. Gallagher made several surreptitious video recordings of his then girlfriend, J.A. This is count 11 of the indictment, voyeurism. J.A. is depicted unclothed. In one of the videos the offender is seen touching her vagina and left breast while J.A. is asleep. In another they are having consensual sex but J.A. was unaware that the events are being recorded.
[10] The next victim was H.V. The timeframe was between March and September, 2008. This is count 9, sexual assault. During the time they were in a relationship Mr. Gallagher took numerous videos of H.V. that depict intercourse, digital penetration and touching. She was not aware that she was being recorded. In some of the recordings she is asleep.
[11] In April 2010 Mr. Gallagher met A.H. and began a relationship with her. This is count 1-sexual assault). A.H. did not consent to Mr. Gallagher taking pictures of her either naked or in sexual poses. He also took surreptitious videos of A.H., sometimes while she was naked and sleeping. One of the videos depicts digital penetration of her vagina.
[12] Between June 2010 and June 2011 Mr. Gallagher met A.D. online. This is count 27-voyeurism. She eventually went to his apartment. The police obtained a video of Mr. Gallagher massaging A.D.’s buttocks and other parts of her body which was consensual. She did not know and did not consent to being video-recorded.
[13] In March 2011 Mr. Gallagher met A.T. online. This is count 4-sexual assault. Unbeknownst to A.T., Mr. Gallagher made recordings of her and sexually assaulted her while she was asleep, including digital penetration of her vagina. A.T. thought that her friendship with Mr. Gallagher was platonic only. She did not consent to sexual activity or to being photographed.
[14] In April, 2011 Mr. Gallagher met C.M. This is count 7-sexual assault. They lived in the same apartment building. They were not intimate to her knowledge. Sometimes he would give her a massage. The police obtained videos of C.M. while asleep in which her breasts are exposed and in another her pants are pulled down and her vagina is exposed.
[15] In April, 2011 Mr. Gallagher also met N.M., the sister of C.M. During the course of their relationship they had consensual sex. Their relationship ended in May 2012. This is count 15-sexual assault. N.M. was not aware that Mr. Gallagher took photos and videos of her while engaged in sexual activity. Also there were instances of digital penetration of her vagina and intercourse that she did not consent to.
[16] In March, 2013 Mr. Gallagher met J.J. online. They spent two nights together in a hotel in Ottawa. This is count 14-voyeurism. The first night they visited some bars. J.J. doesn’t remember the end of the evening. The police obtained photos of a sleeping J.J. with her breasts exposed and in others Mr. Gallagher is depicted touching her vagina. The second night they went to a party which was the purpose of the trip. There are photos of J.J. lying on a bed wearing a black dress.
[17] In June, 2013 Mr. Gallagher met V.B. online. They had a relationship that lasted about a month. This is count 17-sexual assault. They engaged in consensual sex. The police obtained a video of Mr. Gallagher putting his finger in her vagina while V.B. appears to be naked and asleep. There were also photos of V.B. lying on a bed while asleep.
[18] There is other uncharged but admitted activity involving one, S.R. in 2009. During their relationship Mr. Gallagher took videos of S.R. exposing her breasts and vagina while they were chatting online. She did not know that she was being recorded.
[19] In 2011 Mr. Gallagher entered an apartment in his building. A.S., a babysitter, was in the apartment caring for the son of an acquaintance of Mr. Gallagher. A.S. was asleep. He took surreptitious photos of her while she was sleeping on a sofa.
[20] In 2012, Mr. Gallagher chatted with C.A. online while C.A. posed in sexual positions and touched herself. She did not know she was being recorded.
Sentencing Parameters
[21] When the Crown proceeds by way of indictment, the offence of sexual assault is punishable by up to 10 years imprisonment and voyeurism by a maximum of 5 years imprisonment. There is no minimum penalty in the circumstances of this case.
[22] With regard to the requested long term offender designation, if the court finds an offender to be a long term offender, the court shall impose a minimum sentence for the predicate offences of at least 2 years imprisonment followed by a term of supervision for a period that does not exceed 10 years.
The Position of Crown Counsel
[23] Crown counsel seeks a term of imprisonment of 12 years and 10 months less pre-sentence custody. Both Crown and defence agree that pre-sentence custody since April, 2014, credited at 1.5 to 1, is equivalent to 1965 days or 5 years and 4.5 months. This translates to a request for a custodial sentence of 7.45 years.
[24] In addition, the Crown submits that a long-term offender designation would be appropriate and requests a 10 year supervision order.
The Position of Defense Counsel
[25] Defense counsel submits that at the low end of the range a sentence of time served ranging upwards to at most a two year sentence would be appropriate. This would be equivalent to a global sentence at the high end of almost 7 ½ years.
[26] In addition, the defense argues that a long-term offender designation is unwarranted and instead a 3 year period of supervised probation would be appropriate.
Case Law
[27] Crown counsel referred to several cases where sentences of 2 to 3 years were imposed on offenders who engaged in surreptitious touching, sometimes including intercourse, and video-taping of unconscious victims. In the R. v. Berry, 2015 BCCA 210, the B.C. Court of Appeal said that sexual touching, even without intercourse, was highly invasive. The court approved a consecutive sentence for sexual assault and voyeurism, 2 years and 9 months respectively.
[28] Other cases tendered by Crown counsel refer to similar conduct as constituting substantial and gross violations of the sexual integrity of the victims.
[29] Where the offences do not constitute a single criminal transaction, but rather are distinct and separate incidents, consecutive sentences, subject to the totality principle, are appropriate (See Wozny, 2010 MBCA 9 at paras. 45-49, 54-66).
[30] The total consecutive sentence sought by Crown counsel for the various offences is 19 years, 3 months with a 1/3 reduction to account for the totality principle which results in a global sentence of 12 years and 10 months.
[31] Defence counsel referred to R. v. Scinocco, 2017 ONCJ 359 in support of his contention that cases involving a sleeping or incapacitated victim range from 9 months to 3 years. In Scinocco an intoxicated victim was stranded at the home of the offender who removed her underwear, touched her vagina then briefly tried to penetrate her with his penis while she was asleep. A sentence of 12 months incarceration and 2 years’ probation was imposed.
[32] While the defence appears to accept the Crown contention that the sentences should be imposed consecutively, the defence position is that a global sentence, adjusted to account for the totality principle, should amount to 5 years and 4 months.
Aggravating and Mitigating Factors
[33] An aggravating factor is one which tends to increase an otherwise appropriate sentence.
[34] The fact that there are 9 victims in this case and the evidence included references to 3 other women is an aggravating factor.
[35] This was far from an isolated case. Instead what we see is a pattern of befriending a succession of women then systematically abusing and assaulting them when they were in a state of complete vulnerability.
[36] The Criminal Code provides specifically that evidence of a significant impact on a victim can be an aggravating factor. It is common knowledge that victims of sexual abuse in whatever form it takes often have serious long-lasting effects. We do not need victim impact statements to know this to be the case. Here, however, four victim impact statements have been filed which underscore the devastating consequences of this offender’s sexual deviancy. The following passages are taken from those statements:
• I have severe trust issues
• I have isolated myself
• I have experienced anxiety and depression
• I have issues communicating and being alone with men
• I had to take time off school due to anxiety
• I feel like I’m not myself
• I am struggling to recover the person I was
• I have trouble sleeping
• Relating to my family is difficult
• I feel broken
• I feel anger, humiliation and self-doubt
• I am in and out of counselling
• I can’t control my emotions
[37] The victim impact statements are a stark reminder that victims carry emotional and psychological scars that may take years to recover from. One may ask rhetorically, “How long will their sentences last?”
[38] There are also mitigating factors present here as well. A mitigating factor is one which tends to reduce what an otherwise appropriate sentence would be.
[39] Mr. Gallagher pleaded guilty to his crimes. In doing so he saved the victims from having to testify at a trial, an important consideration.
[40] He does not have a previous criminal record.
[41] He is remorseful.
[42] The evidence suggests he had a very difficult childhood, having been raised by an alcoholic and dysfunctional mother. Self-harming behaviour started as a teenager.
[43] His crimes were not accompanied by gratuitous violence.
[44] His 9 years of military service appear to have been relatively good and included a tour of duty in Afghanistan.
[45] He has participated in, and successfully completed, treatment programs at the SLV Treatment Centre. Personnel there report that Mr. Gallagher’s stated desire to overcome his disorders appears sincere.
Principles of Sentencing
[46] The primary sentencing principles applicable in this case are the need to denounce the reprehensible nature of these crimes and to deter both Mr. Gallagher and any like-minded individuals from such behavior in the future. An appropriate sentence in the circumstances of this case is one that demonstrates to those who would prey upon vulnerable women that they will pay a heavy price for their crimes.
[47] Another consideration is that where consecutive sentences are imposed, the combined sentence must not be unduly long or harsh.
[48] An appropriate sentence is also one that recognizes that Mr. Gallagher will eventually be released back into the community. Rehabilitation has to be considered. A sentence that crushes an offender’s hope to be better in the future does not serve the public interest. Rehabilitation in the context of this case includes appropriate structure, supervision and treatment. The early signs from S.L.V. Treatment Centre indicate there is reason to be hopeful in this regard.
[49] Also, all available sanctions, other than imprisonment, that are reasonable in the circumstances and are consistent with the harm done to victims or the community should be considered for all offenders.
[50] And finally, when sentencing an offender for multiple convictions, the sentencing judge should find the appropriate sentence for each offence in isolation before proceeding to ensure that the aggregate sentence is just and appropriate. Excessive sentences that result from an accumulation of consecutive sentences should be modified by the consideration that care must be taken not to exceed the overall culpability of the offender.
The Request for a Long term Offender Designation
[51] Crown counsel has requested a finding that Mr. Gallagher is a long term offender. To meet the requirements of such a designation, s. 753.1 of the Criminal Code provides that there are three elements which need to be present. Firstly, the offences for which the offender is being sentenced should warrant a term of imprisonment of at least 2 years. Secondly, there must be a substantial risk that the offender will re-offend and thirdly, there has to be a reasonable possibility of eventual control of the risk in the community.
[52] The Criminal Code provides guidance as to what constitutes a “substantial risk”. It is a two part test. The first part is satisfied because Mr. Gallagher has been convicted of one of the listed offences, which in this case is sexual assault. The second part of the test has two elements but only one of them needs to be present. They are as follows:
a. The offender has shown a pattern of repetitive behavior that shows a likelihood of the offender’s causing death or injury to other persons or inflicting severe psychological damage, or
b. By conduct in any sexual matter, the offender has shown a likelihood of causing injury, pain or other evil to other persons in the future through a similar offence or offences.
[53] I am satisfied that both the multiplicity of victims in this case and the lengthy period of time (about 6 years) over which the offences were committed, show a pattern of repetitive, injury-causing behaviour that, without continuing treatment and supervision, meets the requirements of the Code respecting what constitutes a substantial risk.
[54] In coming to the conclusion that Mr. Gallagher qualifies as a long term offender, I note that Mr. Gallagher has already undergone intensive treatment at the S.L.V. Treatment Centre which is unusual for an offender in pre-trial or pre-sentence detention. I am not prepared to conclude, however, that the course of treatment already completed has completely or sufficiently ameliorated the risk of future harm to others.
[55] What I can say about the treatment to date is that there is evidence that it has generally gone well and this demonstrates that there is a reasonable possibility of eventual control of the risk Mr. Gallagher poses.
[56] Having heard the evidence of both provincial and federal representatives of the respective correctional systems, I am not persuaded that the resources available provincially, especially following release from custody, are sufficient to meet the requirement that there be a reasonable possibility of eventual control of the risk in the community in relation to this particular offender.
[57] I have also considered the evidence of Drs. Klassen and Booth (about whom I will have more to say later) respecting the results of testing which predict Mr. Gallagher’s risk of re-offending.
[58] Taken together, the factors I have identified justify and support a finding that Mr. Gallagher is a long term offender.
[59] The question then becomes a matter of considering the duration of the period of supervision in the community when Mr. Gallagher has finished serving the custodial portion of his sentence.
[60] To assist with this task, I have the benefit of both written reports and the oral testimony from two highly-qualified forensic psychiatrists, Dr. Philip Klassen and Dr. Brad Booth who have performed psychiatric assessments of Mr. Gallagher.
[61] I will refer to Dr. Klassen’s assessment first because he was appointed pursuant to s. 752.1 specifically for the purpose of an inquiry under Part XXIV of the Criminal Code, dealing with Dangerous and Long Term Offenders.
Dr. Klassen’s Assessment
[62] Dr. Philip Klassen specializes in Forensic Psychiatry having been a qualified psychiatrist since 1992. He is the Vice-President, Medical Affairs at the Ontario Shores Centre for Mental Health Sciences in Toronto, Ontario. He is an assistant professor in the Departments of Psychiatry and Medicine at the University of Toronto. He has written numerous scientific articles and collaborated on many others.
[63] As previously mentioned, Dr. Klassen’s report is dated February 13, 2017. He had access to an extensive documentary record respecting this offender and met with him on two occasions for a total of about six hours.
[64] Dr. Klassen determined that Mr. Gallagher suffers from multiple paraphilic disorders. They are voyeurism, that is, a sexual interest in covertly observing others engaging in private activities and toucheurism, that is, an interest in non-consenting sexual touching of women who are not awake.
[65] Dr. Klassen was unsure whether Mr. Gallagher also suffers from a personality disorder or disorders in the nature of cluster B personality traits such as narcissistic and borderline traits. Features of a narcissistic personality include arrogance, entitlement and a willingness to exploit others. Features of a borderline personality include relationship instability, sensitivity to loss, identity disturbance, self-damaging impulsivity and self-harm behavior. Dr. Klassen said he concurred with comments by S.L.V. Treatment Centre staff that Mr. Gallagher exhibited some of these characteristics.
[66] Dr. Klassen was skeptical that Mr. Gallagher suffered from P.T.S.D. because there was little or no evidence of the hyper arousal that generally accompanies P.T.S.D.
[67] Dr. Klassen indicated that alcohol consumption played a role in Mr. Gallagher’s sexual difficulties but said it was not clear whether the offender should be diagnosed with an alcohol use disorder.
[68] In terms of risk assessment, Dr. Klassen gave Mr. Gallagher a score of 3 or moderate on the Static-99R test and a SORAG score of 13, also in the moderate range. In Dr. Klassen’s opinion, similar scoring individuals had a 40-45% risk of sexual recidivism over a long term of 7 to 10 years.
[69] He said Mr. Gallagher’s risk profile tends to the sexual rather than to violent misbehavior. Dr. Klassen observed that despite a large number of victims there was no known escalation of his behavior and he did not respond to significant sexual violence on the phallometric testing. Dr. Klassen’s view was that from a purely psychiatric perspective, this offender “did not present with a likelihood of sexual re-offence.”
[70] Dr. Klassen had some recommendations in terms of risk management:
a) Mr. Gallagher should continue to receive sex offender treatment;
b) intimate partners should be advised about his history; and
c) upon release to the community, he should lead as structured a lifestyle as possible including full time employment and structured leisure activities.
[71] Dr. Klassen was not convinced that an alcohol prohibition was warranted because it wasn’t clear to him that alcohol was a significant driver of Mr. Gallagher’s offending behavior. Also, he was not sure whether there was meaningful benefit to be obtained by the use of sex-drive reducing pharmacotherapy.
Dr. Booth’s Assessment
[72] Dr. Brad Booth provided a psychiatric risk assessment of Mr. Gallagher pursuant to an evaluation order made on or about August 27, 2014 by Justice Selkirk of the Ontario Court of Justice. His report is dated December 14, 2014. Dr. Booth also prepared an update on August 9, 2017.
[73] Like Dr. Klassen, Dr. Booth is an imminently-qualified forensic psychiatrist. He is the Clinical Director of Forensic Inpatient and Integration Services with the Integrated Forensic Program of the Royal Ottawa Healthcare Group. He is also an assistant professor in the Department of Psychiatry at the University of Ottawa.
[74] Dr. Booth’s initial assessment occurred when Mr. Gallagher was 32 years old. At the time, Mr. Gallagher was in detention at the OCDC. Subsequent to this assessment, Mr. Gallagher entered pleas of guilt to nine offences involving nine victims.
[75] Dr. Booth diagnosed Mr. Gallagher with a voyeuristic disorder which he described as being applicable to an individual who, for at least 6 months, has recurrent and intense sexual arousal from observing an unsuspecting victim who is naked, in the process of disrobing or engaging in sexual activity. The disorder manifests itself by fantasies, urges or behaviours. An individual with this disorder has either acted on these urges with a non-consenting partner or the urges are causing the individual some form of distress.
[76] The course of the disorder changes with age.
[77] The manual of mental disorders, referred to as the DSM, 5th edition, allows for an individual to go into remission if there has been no acting out in 5 years in an uncontrolled environment.
[78] He noted that Mr. Gallagher can also get aroused by non-deviant, non-voyeuristic sexual situations. This can be a favourable prognostic factor as motivated individuals will often be able to direct their sexual desires to non-deviant outlets.
[79] Dr. Booth also believes that Mr. Gallagher appears to have somnophilia, a condition characterized by sexual arousal by observing sleeping or unconscious individuals.
[80] He also diagnosed Mr. Gallagher with a condition he referred to as hypersexuality. Apparently this is a controversial diagnosis that is not listed in the DSM-5. It describes a biological condition in which an individual has a higher sex drive than others and this sexual preoccupation is considered a risk factor for sexual recidivism.
[81] In terms of risk assessment, Dr. Booth found that Mr. Gallagher was in the moderate-high risk category on the Static 99-R test. He said the Static 2002-R test uses a different mathematical model that provides a useful second estimate of risk.
[82] The risk changes with age. Mr. Gallagher’s age of 32 in 2014 placed him in the low-moderate category on the Static 2002-R test with a score of 4. At age 35 his score would drop to 3 which would place him in the low risk category. At age 40 his score would drop again to 2. It is clear from Dr. Booth’s evidence that he believes that risk reduces as an individual gets older.
[83] It is important to appreciate that these risk assessment tools are actuarial in nature. They do not purport to rate the risk of particular individuals who may or may not conform to the averages or trends that can be ascribed to the large sex offender populations from which the data are derived.
[84] Dr. Booth does not believe that Mr. Gallagher has a psychopathic personality. He said that Mr. Gallagher appeared motivated for treatment and had good interpersonal skills. In addition, he appeared to be intelligent, fairly high-functioning and did not display anti-social tendencies. He was optimistic that Mr. Gallagher would do well in treatment. This prediction appears to have been borne out in the positive comments about Mr. Gallagher by personnel at the S.L.V. Treatment Centre.
[85] In terms of risk management, Dr. Booth’s recommendations were similar to those of Dr. Klassen. They included the following:
a. Mr. Gallagher’s release into the community should be gradual, such as a 24 hour supervised halfway house;
b. initially, a curfew should be considered;
c. unlike Dr. Klassen, Dr. Booth felt that abstention from alcohol was appropriate because of the potential disinhibiting effect on behaviour. For the same reason, Dr. Booth indicated that treatment for drug and alcohol abuse was appropriate;
d. there should be follow-up in the community with treatment providers experienced in dealing with sex offenders;
e. when released, steady employment would be an important stabilizing factor and would assist in providing the structure that will help Mr. Gallagher control his urges; and,
f. he should be required to report his relationships to his supervisor.
[86] In commenting on Dr. Booth’s clinical observations, Dr. Klassen testified that he agreed with Dr. Booth and said that the evidence he has seen supports Dr. Booth’s opinion that Mr. Gallagher would and has done well in treatment.
[87] Both doctors agreed that, given Mr. Gallagher’s psychological make-up and dynamic factors, with age and appropriate treatment Mr. Gallagher will likely be able to control his sexual impulses in the future.
Disposition
[88] There is a substantial difference between the Crown and defence positions regarding an appropriate determinate sentence for the crimes in respect of which Mr. Gallagher has pled guilty.
[89] Crown counsel has indicated their position as to appropriate sentences for each count both before and after adjusting for the overall sentence. Defence counsel indicated his position as to appropriate sentences for each count after adjustment.
[90] In my view the applicable range for the sexual assault offences in this case is 1 to 3 years. The applicable range for the voyeurism offences on the facts here is from 2 months to 1 year. The sentences should be consecutive. As for the individual counts, before adjusting to account for the totality of the sentence, I would indicate as follows:
a. Count 11, s. 162(1), J.A. 9 months
b. Count 9, s. 271, H.V. 3 years
c. Count 1, s. 271, A.H. 2 years
d. Count 27 s. 162(1), A.D. 2 months
e. Count 4, s. 271, A.T. 1.5 years
f. Count 7, s. 271, C.M. 1 year
g. Count 15, s. 271, N.M. 3 years
h. Count 14, s. 162(1), J.J. 9 months
i. Count 17, s. 271, V.B. 1.5 years
Total 13.66 years or 164 months
[91] At bottom, however, one of the challenges in this case is to determine an aggregate sentence that is just and appropriate. I do not accept the suggestion that a global sentence of nearly 13 years meets this requirement. I would reduce the total in the preceding paragraph by 35% to arrive at an aggregate sentence of 8.879 years (106.5 months) less the credit for time served of 5 years and 4.5 months or 64.5 months leaving a net sentence today of 42 months.
[92] Mr. Gallagher’s situation is unusual, if not unique, because of the course of treatment he has already been exposed to prior to sentencing. It is worth noting that one of the main reasons for this situation was that Mr. Gallagher was in a very fragile state of mind at O.C.D.C. as evidenced by several serious, not feigned, suicide attempts. Obviously, the correctional authorities considered that a placement at the S.L.V. Treatment Centre was warranted.
[93] The evidence suggests to me that incarceration will be abnormally difficult for Mr. Gallagher.
[94] I note the evidence of federal correctional personnel respecting the programming available in the penitentiary system and in particular that it takes about a year to provide a series of programs that may be suitable for Mr. Gallagher In my view Mr. Gallagher will benefit from the federal programs available both during and after the custodial portion of his sentence, including maintenance programs that will serve to reinforce the insights and coping mechanisms that Mr. Gallagher appears to have already begun to acquire.
[95] I note as well that both psychiatrists commented that in their opinion, Mr. Gallagher is unlikely to re-offend. This optimistic prognosis, however, is only one factor among many. Dr. Klassen in particular emphasized the importance of a gradual and controlled re-integration into the community. The need for structure in Mr. Gallagher’s work and leisure time will be facilitated by supervision. In my view a long period of supervision following the custodial portion of the sentence is necessary. On this point I am not persuaded that the provincial probation system can provide the support, assistance, structure and supervision that is required here.
[96] Mr. Gallagher, will you please stand up.
[97] I sentence you to a period of imprisonment calculated from today of 42 months or 3.5 years which equals a global sentence of 8.9 years after allowing for pretrial custody.
[98] Following your release from custody you will be subject to a long term supervision order of 6 years.
[99] In coming to this duration I have attempted to balance the need for careful supervision and maintenance programming after your return to the community with the evidence of the psychiatrists that your risk factors will reduce as you get older.
[100] As for ancillary orders, you will be required to provide a sample of your DNA
[101] There will be a weapons prohibition for life.
[102] You will be registered under the Sex Offender Information Registration Act for life
[103] Normally a victim surcharge would apply. Defence counsel noted that at the time of these offences the surcharge was not mandatory and the proper amount would be $900, not the $1,800 initially proposed by Crown counsel. Mr. Gallagher has been in custody for over three years. He does not have trade. He will continue in custody for another period of time. In my view this is an appropriate case for a lengthy period pay and accordingly, while I am not prepared to waive the surcharge, Mr. Gallagher shall have 4 years to pay the sum of $900.
Mr. Justice Martin James
DATE RELEASED: October 30, 2017
CITATION: R. v. Gallagher, 2017 ONSC 6250
COURT FILE NO.: CR-14-748
DATE: October 30, 2017
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
DERRICK GALLAGHER
REASONS FOR DECISION
Mr. Justice Martin James
DATE RELEASED: October 30, 2017