Court File and Parties
COURT FILE NO.: 18-55-00AP DATE: 20190423 CORRECTED DATE: 20190424 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – KRISTOPHER CICCONE Appellant
Counsel: K. Hull, for the Respondent Crown B. Cugelman, for the Appellant
HEARD: April 1, 2019
Corrected Decision: The text of the original Decision was corrected on April 24, 2019 and the description of the correction is appended.
On Appeal from the Sentencing Decision of The Hon. Mr. Justice R. Gattrell dated May 4, 2018
CASULLO J.:
[1] Mr. Ciccone was convicted of driving while disqualified. He appeals the 30-day intermittent sentence imposed upon him.
Background
[2] In 2013, the appellant was involved in a serious collision. In 2015, he was convicted of impaired driving causing bodily harm, attracting a nine-month jail term and a three-year driving prohibition.
[3] The appellant sustained catastrophic injuries in that collision. His injuries were so extensive that he was released from jail after serving only one-and-a-half months, as the correctional facility could not look after him adequately.
[4] The appellant was six months from completing his three-year driving prohibition when he made an unfortunate decision to test drive a car he was repairing for his girlfriend. An officer noted the temporary licence plates, pulled the appellant over and discovered the driving prohibition.
[5] At trial, the Crown sought a custodial sentence of between 60 – 90 days, and a one year driving prohibition. The appellant sought either a fine, a suspended sentence with probation, or a conditional sentence.
Parties’ Positions
[6] The appellant submits that the trial judge:
- erred in law in treating the offence of drive disqualified as belonging in a special category which demands a deterrent custodial sentence in most, or virtually all, cases. In so doing, the specific facts and circumstances pertaining to both the offence and the offender are not given proper consideration;
- failed to properly take into consideration the unique, exceptional, and extreme difficulties that incarceration poses, and failing to weigh these difficulties proportionally, along with all of the circumstances in the case, including the gravity of the offence, the absence of aggravating circumstances, and the presence of a number of mitigating factors; and
- failed to properly take into consideration that other forms of punishment were available which could satisfy the principles of sentencing and meet the ends of justice.
[7] The Crown submits that the trial judge took into account the relevant sentencing principles, and it was open to him to impose the sentence he did.
Discussion
[8] The Criminal Code at s. 687 provides that where an appeal is taken against sentence, the Court of Appeal shall consider the fitness of the sentence appealed against. If the sentence appears unfit, the appeal court may vary the sentence.
[9] The Supreme Court of Canada has held on many occasions that appellate courts are not to intervene lightly when hearing sentencing appeals. A trial judge is bestowed with broad discretion to impose the sentence she deems fit, and that decision is entitled to considerable deference: see R. v. Shropshire, [1995] 4 S.C.R. 227.
[10] This makes imminent sense, given the trial judge’s lived experience with the matter, particularly the opportunity to see and hear the witnesses during the trial. But that deference is not an absolute bar to appellate review. An appellate court can vary a sentence in circumstances where the trial judge makes an error of law or an error in principle that has an impact on the sentence: see R. v. Lacasse, 2015 SCC 64, [2015] S.C.J. No. 64.
[11] As Lamer C.J. held in R. v. M. (C.A.):
Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. [Emphasis added.]
R. v. M. (C.A.), [1996] 1 S.C.R. 500, para. 90.
[12] The trial judge did consider aggravating and mitigating circumstances, including the appellant’s medical challenges. However, he placed too great an emphasis on general deterrence, which then became the overriding factor.
[13] As he reasoned, driving while prohibited goes unnoticed unless one is caught. Given this, it was important to send a message to the public that serious consequences will follow if one decides to drive when restricted from doing so.
[14] This factor, however, should not have overweighed the accused’s personal circumstances and potential for rehabilitation. Mr. Ciccone has difficulty sleeping, standing, walking and sitting. That he is physically compromised was readily apparent during the appeal. Many of the assistive devices which allow him some measure of comfort (for example, his custom bed) would not be available to him while incarcerated.
[15] As Harris J. explains, while general deterrence has a part to play in criminal sentencing, it should not be the most important consideration:
The pertinent sentencing principles are denunciation, general deterrence and individual deterrence. General deterrence ought not to be ascendant, despite the seriousness of the offence. If liberty is to be taken away for utilitarian reasons, some rigor should be brought to bear in the assessment of its efficacy.
R. v. Croft, 2018 ONSC 4405, at para. 51.
Conclusion
[16] The trial judge emphasized general deterrence when sentencing the appellant. However, I find that denunciation and specific deterrence hold greater sway over general deterrence. These goals will best be achieved by imposing a 30-day conditional sentence rather than incarceration.
[17] I pause to note that conditional sentences do not represent a windfall – they are more onerous than probation, and include punitive conditions restricting an offender’s liberty.
[18] Accordingly, I will allow the appeal, set aside the 30-day intermittent sentence and substitute a 30-day conditional sentence.
[19] In addition to the mandatory conditions set out in s. 742.3(1) of the Criminal Code, the appellant shall be confined to his residence under house arrest 24 hours a day for 30 days. This sentence shall commence within 48 hours after this decision is released to counsel.
[20] The only times the appellant may be absent from his residence are as follows:
- reporting to his supervisor;
- being at work;
- dealing with a medical emergency or attending necessary medical appointments;
- attending to shopping and other essentials during a four-hour period each week on a day to be determined by his supervisor;
- travelling directly to or from any of these activities; and
- otherwise only with the prior written permission of his supervisor.
[21] I am not interfering with the trial judge’s imposition of the additional one-year driving prohibition.
[22] The victim fine surcharge is vacated pursuant to R. v. Boudreault, 2018 SCC 58.
CASULLO J. Released: April 24, 2019
Corrections
April 24, 2019 – Corrections:
- Para. 21 is amended to read: “I am not interfering with the trial judge’s imposition of the additional one-year driving prohibition.”
- A further paragraph has been added (para. 22): “The victim fine surcharge is vacated pursuant to R. v. Boudreault, 2018 SCC 58.”