



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Chapman, 2013
    ONCA 15

DATE: 20130114

DOCKET: C54697

Weiler, Blair and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mark Chapman

Appellant

Timothy E. Breen, for the appellant

Marcella Henschel, for the respondent

Heard and released orally: January 8, 2013

On appeal from the sentence imposed on July 21, 2011 by
    Justice Richard G. Byers of the Superior Court of Justice, sitting without a
    jury.

ENDORSEMENT

[1]

The appellant pled guilty to manslaughter and received a global sentence
    of nine years and a net sentence of seven years taking into account 22 months
    time served in pre-trial custody.  He appeals his sentence and raises three
    grounds of appeal: (1) whether the sentencing judge erred by giving less weight
    to the mitigating effects of the appellants intoxication and limited
    intellectual capacity because those factors had already served to reduce the
    charge of murder to manslaughter; (2) whether the sentencing judge erred in
    giving less than 2:1 credit for pre-trial custody;
[1]
and (3) whether the sentence imposed is unfit.  He asks for a sentence of seven
    years less 2:1 credit for time served.  Alternatively, he asks that the
    nine-year sentence reflect credit for time served on a 2:1 basis.

A.

Circumstances of the Offence

[2]

Steffany Gardiner was killed on September 18, 2009.  At the time of her
    death she was 26 years old and was the mother of a 7-month-old child.  During
    the summer of 2009 she had been involved in a relationship with the appellant. 
    The relationship ended several days before her death because of purported
    infidelity on the part of the appellant.

[3]

On the night of her death, Ms. Gardiner, Kevin Ruttan, and the appellant
    had been travelling around in a van visiting various friends and making various
    purchases of beer and marijuana.  All three of them had been drinking and using
    drugs throughout the night.  At around 1:00 a.m. the group stopped at Papineau
    Beach, in Hastings Highland.  Ms. Gardiner had engaged in sexual contact with
    both men while en route to the beach and after arriving at the beach that
    night.  However, at some point after arriving at the beach Ms. Gardiner became
    upset with Ruttan.  As a result of that, Ruttan asked the appellant to wait in
    the van while he took a walk down the beach with Ms. Gardiner.

[4]

A struggle ensued and Ruttan stabbed Ms. Gardiner twice with a knife.  The
    appellant, who had been in the van for an estimated 20 to 25 minutes, came looking
    for Ms. Gardiner and Ruttan.  He found Ruttan on top of Ms. Gardiner with his
    forearm pressing down across her throat.  She was still struggling.  Ruttan
    called out to the appellant and told him to come and hold Ms. Gardiner down. 
    The appellant did not know what was going on, but he proceeded to hold down Ms.
    Gardiners arms while Ruttan continued to apply pressure to her throat until
    she fell silent.  At Ruttans request, the appellant then went to the van to
    retrieve a baseball bat.  Ruttan told the appellant to strike Ms. Gardiner with
    the bat but the appellant replied, No, you do it.  Ruttan then struck Ms.
    Gardiner on the head four or five times while the appellant stood nearby and
    watched.  A post-mortem report concluded that Ms. Gardiner was still alive when
    she was struck on the head and that death was caused by blunt force trauma to her
    head.

[5]

Ruttan and the appellant fled Ontario but were arrested in Quebec on
    September 22, 2009.  Ruttan pled guilty to second degree murder and received a
    sentence of life imprisonment without eligibility for parole for 15 years.

B.

Circumstances of the Appellant

[6]

The appellant was 32 years of age at the time of the homicide. He is the
    youngest of two siblings and was raised in a stable and supportive home
    environment.  The appellant had known Ruttan for some time and had even invited
    Ruttan to live with him for a period of time, although the appellant reported
    that Ruttan was bossy towards him.

[7]

Psychological testing of the appellant revealed an IQ of 68, placing him
    within the classification of mild retardation.  The psychological testing and
    clinical evaluation of the appellant indicated that he suffers from significant
    impairment to his intellectual functioning and that he is a follower.  The
    appellants cognitive functioning would be further compromised when impaired by
    alcohol and/or drugs.

[8]

The appellant had a limited criminal record including one prior
    conviction for assault.

C.

Whether the sentencing judge gave appropriate consideration to the
    mitigating effects of the appellants intoxication and limited intellectual
    capacity

[9]

The crown and defence agreed that the proper range of sentence for
    aggravated manslaughter is seven to 12 years.  The Crown asked for a sentence
    of 12 years less credit for pre-trial custody, while counsel for the appellant
    sought a sentence of seven years less credit for pre-trial custody.

[10]

In
    submissions on sentencing, the Crown submitted that, at least part of the
    reason that the Crown agreed to accept a reduced plea to manslaughter and not
    second degree murder, was because of the appellants mental status and level of
    intoxication that night.  As such, the Crown argued that the appellants mental
    status and intoxication should not be used again as mitigating factors in
    sentencing the appellant for manslaughter  to do so would be provide a double
    benefit because these factors were already spent to reduce the charge from
    second degree murder.

[11]

In
    his reasons for sentence the sentencing judge responded to the Crowns
    submission as follows:

The Crown is right that at least part of the reason that the
    Crown agreed to accept a reduced plea to manslaughter and not second degree
    murder is because of some sense of all the players, including the Crown, that
    wouldnt be right.  It wouldnt be fair in these circumstances to [the
    appellant].  And so he doesnt go down for second degree murder, which is life.

And so the Crown says to me, thats it.  Thats all the credit
    he gets.  Thats it.  And there are some cases that say that.

The problem for me is the law says I am supposed to sentence
    the offender who stands before me, and the sentence should be fit for him and
    fit for what he did.

And so I think if I follow that law, which I understand to be
    the law of the land, I have to take into account, even on sentencing, to some
    degree at least, who he is, where he comes from, what his record is, the degree
    of his participation, the likelihood that he will be in trouble again.

[12]

The
    appellant focuses primarily on the words to some degree at least to argue
    that the sentencing judge accepted the Crowns argument.  The appellant points
    to
R. v. Stone
(1999), 134 C.C.C. (3d) 353 (S.C.C.) for the
    proposition that the weight of a mitigating factor should not be diminished
    even if that factor has already served to reduce the charge from murder to
    manslaughter.

[13]

We
    do not agree that the trial judge accepted the Crowns argument.  Taken in
    context, the trial judge was simply conveying that he rejected the Crowns
    submission and intended to consider all the relevant circumstances.  We see no
    error in principle in his comments and would dismiss this ground of appeal.

D.

whether the trial judge erred in giving less than 2:1 credit for
    pre-sentence custody and whether the   sentence is unfit.

[14]

The
    sentencing judge stated that in his opinion the appropriate global sentence was
    nine years.  While expressing an intention to allow approximately 44 months
    credit for pre-trial custody and endorsing the indictment to that effect, the sentencing
    judge in fact only allowed 24 months credit.  The appellant submits that by not
    giving 2:1 credit the sentencing judge erred in principle and that, as a
    result, the sentence is not entitled to deference.

[15]

A
    trial judge has the discretion to depart from the general practice of giving 2:1
    credit as long as he gives proper reasons for doing so.  The trial judge gave
    no reason for departing from his stated intention to give approximately 44
    months credit for pre-sentence custody.  There was either an error in principle
    or a mathematical error on his part.

[16]

Notwithstanding
    appellants counsels submissions that this offence should not be characterized
    as aggravated assault on account of the appellants limited intellectual
    capacity and other mitigating factors, we are of the opinion that, having
    regard to the appellants direct participation in the assault, the offence is
    rightly characterized as aggravated manslaughter as both counsel agreed at
    trial.  This was a brutal attack on a vulnerable victim.  A global sentence of
    seven years less credit for pre-trial custody on a 2:1 basis would not
    adequately denounce the appellants participation in this heinous crime.

[17]

We
    are of the opinion that effect ought to be given to the sentencing judges
    original stated intention to impose a nine year global sentence less
    approximately 2:1 credit for pre-trial custody.  Accordingly, leave to appeal
    sentence is granted, the appeal as to sentence is allowed and the sentence is
    varied to a net sentence of five and a half years taking into account pre-trial
    custody.

Karen M. Weiler J.A.

R.A. Blair J.A.

Paul Rouleau J.A.





[1]

The Crown concedes
    that the amendments to s. 719(3) of the
Criminal Code
do not apply in this
    case because appellant was charged in September 2009, prior to the coming into
    force of the
Truth in
    Sentencing Act
.



