



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Soriano, 2020 ONCA 276

DATE: 20200501

DOCKET: C67910

Doherty, Simmons and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Alann Soriano

Appellant

Jeffrey Fisher
, for the appellant

Michael Fawcett, for the respondent

Heard: in writing

On appeal from the sentence imposed on September
    19, 2019 by Justice Richard H. K. Schwarzl of the Ontario Court of Justice.

REASONS
    FOR DECISION

[1]

The appellant seeks leave to appeal from a sentence
    imposed for four counts of breach of probation. The Crown proceeded by
    indictment so that the maximum sentence available was four years for that
    offence. The sentencing judge imposed a global sentence of 23.5 months
    incarceration followed by probation for three years, after taking into account
    170 days of actual pretrial custody.

[2]

The appellant submits that the sentence was
    demonstrably unfit having regard to the nature of the offence and further that
    the sentencing judge violated the jump principle by imposing a sentence so
    substantially longer than previous sentences imposed on the appellant for
    similar offences.

Nature of the Offence

[3]

The appellant was bound by two probation orders
    prohibiting him from contacting or physically approaching his former spouse, the
    son he had with her, or her current partner. On March 10, 2019, the appellant
    called his former spouses phone approximately a dozen times over several
    minutes. He insisted he wanted to see his son. When the appellant was told he
    was not allowed to come over, he cursed and said that he did not care about the
    order and that he was coming to their home.

Criminal Record of the Appellant

[4]

The appellant was convicted of assault, assault
    with a weapon, and uttering a threat some 12 years before the present sentence
    was imposed. Most significantly, since 2015 he had been convicted 12 times for
    breach of probation for violating no-contact or physical distance orders in
    relation to these same persons.

Reasons of the Sentencing Judge

[5]

The defence position was that time served of 170
    days actual pretrial custody would be an appropriate sentence. The Crown sought
    a sentence of 18-24 months in addition to pretrial custody.

[6]

The sentencing judge noted that the appellant
    acknowledged that he had an alcohol problem but denied drug addiction or mental
    health difficulties, referred to in a psychiatric report. Because the report
    was contested, the sentencing judge indicated that he would not place much
    weight on it. He noted further that the offence itself was not particularly
    egregious in isolation, amounting to a series of phone calls made to his former
    spouses home. Most significant for the purposes of sentencing was his
    conclusion that the appellant was incorrigible, and that there was nothing that
    any court could do or say to stop him from violating the orders. He noted that
    the victims were living in a state of perpetual fear and terror, not knowing
    when and where Alann Soriano is going to show up and, if he does, what is he
    going to say and what is he going to do. He found that the appellant had no
    insight into his behaviour or the reasons for it, and that the risk of
    re-offence was extremely high. He concluded that the sentence had to focus on
    specific deterrence of the appellant, and denunciation of this effective
    terrorizing of your ex-wife and your son. He indicated that he was obligated
    to try and protect the people who have been subject to your non-stop harassment
    for the last four years and that all he could do was separate you from
    society as long as possible in an effort to try to give these people some
    relief for that period of time.

Analysis

[7]

This court will not vary a sentence unless it is
    demonstrably unfit or the sentencing judge made an error that affected the
    sentence imposed: see
R. v. Friesen
, 2020 SCC 9, at paras. 25-29.

[8]

A sentence that is demonstrably unfit is
    clearly excessive or clearly unreasonable. Given the appellants
    incorrigible behaviour, we cannot say that the sentence was clearly excessive.
    The psychiatric report says nothing to attenuate the trial judges conclusion
    that the risk of re-offence was extremely high. The longest previous
    sentence imposed on the appellant amounted to 312 days, including pretrial
    custody. That was not sufficient to deter the appellant. It was reasonable for
    the sentencing judge to conclude that the time had come for a significantly
    longer sentence to protect the victims and attempt to deter the appellant from
    reoffending: see
R. v. Blake
, 2016 ONCA 508;
R. v. Simeunovich
,
    2019 ONCA 856.

[9]

We see no basis to intervene. Leave to appeal
    sentence is granted but the appeal is dismissed.

Doherty
    J.A.

Janet
    Simmons J.A.

G.
    Pardu J.A.


