



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v.
    Doherty, 2012 ONCA 855

DATE: 20121205

DOCKET: C55608

OConnor A.C.J.O., MacPherson and Cronk JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Patrick James Doherty

Appellant

J. Sickinger for Jeffery Goldglass, for the appellant

Kim Crosbie, for the respondent

Heard: November 6, 2012

On appeal from the conviction entered on March 6, 2012 by
    Justice M.F. Woolcott of the Ontario Court of Justice and the sentences imposed
    on March 8, 2012.

OConnor A.C.J.O.:

[1]

The appellant was convicted of five
    offences:  criminal harassment; two counts of attempting to obstruct justice;
    and two counts of breaching a court order.  He pleaded guilty to the latter two
    charges, and was convicted of the first three.  Justice Woolcott, of the
    Ontario Court of Justice in Kitchener, sentenced the appellant to five and one
    half years in custody less two months credit for pretrial custody.  She broke
    the sentence down as follows:  four years for criminal harassment; one year
    each on the two counts of attempting to obstruct justice, consecutive to the four
    years, but concurrent to each other; and six months on each breach, consecutive
    to the other sentences, but concurrent to each other.  The appellant appeals these
    sentences.

[2]

In November 2011, the appellant met the
    victim, Agnieszka Mikulska, when he responded to an advertisement she had
    placed on an internet site seeking a roommate.  Ms. Mikulska and the appellant
    had some contact over a brief period of time.  However, Ms. Mikulska decided to
    accept someone else, a woman, as her new roommate.  The appellant, whose
    demeanour had previously been kind and polite, changed.  He became verbally
    abusive, called Ms. Mikulska repeatedly, insulted her, dropped in on her and
    slipped notes under her door.  He also made threats against her about what may
    happen to her when she was walking her dog.  He said he knew the vice-president
    of Hells Angels and she might be killed.

[3]

Ms. Mikulska told the appellant, on
    more than one occasion, to stop calling her and not to come and see her.  On
    December 11, 2011, Ms. Mikulska spoke with the police who indicated they would
    contact the appellant and advise him not to have further contact with her.  On
    December 13th, Ms. Mikulska called the police to complain of further telephone
    calls.  Officers spoke to the appellant and told him not to contact her anymore.

[4]

On December 14th, Ms. Mikulska contacted
    police at 3:00 a.m.  A police officer attended at her apartment, and she
    indicated the appellant had called her at 2:15 and again at 2:19 a.m.  She
    testified that the calls involved some heavy breathing and she knew they were
    coming from the appellant because of the call display.

[5]

The police arrested the appellant and
    charged him with criminal harassment.  On December 14th, a justice made an
    order pursuant to s. 516(2) of the
Criminal Code
that the appellant abstain from communicating directly or
    indirectly with Ms. Mikulska.  This order was continued on December 21, 2011,
    in the form of a s. 515(12) non-communication order.

[6]

Notwithstanding this court order, while
    detained in custody, the appellant wrote a letter to Ms. Mikulska.  The letter
    was threatening.  In the letter, the appellant also tried to convince her to
    change her statements about the events leading up to the charges against him on
    December 14.  The appellant sent a second letter  this one addressed using Ms.
    Mikulskas first name and his last name  Angie Doherty.  The suggestion that
    they were married frightened Ms. Mikulska as did the fact that despite a court
    order and being in jail, the appellant continued to contact her.  The appellant
    also wrote a letter to a friend of his suggesting that his friend should give
    certain evidence  set out in the letter  in the appellants defence.

[7]

Ms. Mikulska suffered greatly as a
    result of the harassment.  She was terrified of the appellant.

[8]

The appellant argues that the sentence
    of four years imprisonment for the charge of criminal harassment is outside the
    appropriate range and, therefore, unfit.  He also argues that the cumulative
    effect of the sentences of five and one half years imprisonment is excessive. 
    He contends that the trial judge overemphasized the principle of separating the
    offender from society and attached undue weight to his criminal record.

[9]

I do not accept these arguments.  While
    the sentence is certainly significant for these offences, in my view, it is not
    unjustifiably so, nor is it unfit.

[10]

There are a number of factors relating
    to the appellant and his offences that call for the imposition of a lengthy
    sentence.  The appellant, who was 53 years old at the time of sentencing, has a
    lengthy criminal record.  As the trial judge put it, his record is the
    defining feature of his adult life.  He has over 70 convictions from 1976 to
    the present.  Of those, 27 are for breaches of court orders, breaches of
    probation or failing to appear.  Frequently, he breached his probation orders
    shortly after they were imposed.

[11]

The appellant also has a record for
    related offences.  He has 18 convictions for uttering threats, 10 convictions
    for weapon offences and offences of violence, and three for criminal
    harassment.  Ms. Mikulska is the fourth woman he has subjected to abuse and
    harassment.  His record shows, as the trial judge put it, that he  is
    incapable of functioning appropriately in terms of his relationships with
    others.

[12]

The
    appellant persisted in his harassment of Ms. Mikulska after she, the police,
    and even the court ordered him to stop.  Indeed, he not only persisted in his
    behaviour, he escalated it.  He lacks insight into the wrongfulness of his
    actions and the impact those actions have had on Ms. Mikulska.  The trial judge
    said:

[T]he offender has no respect for
    the personal contact he had established with the victim.  He had no respect for
    the police who were attempting to assist the victim and he had an absolute
    disregard and contempt for the courts orders or for the system of justice
    whatsoever.

[13]

Ms.
    Mikulska suffered mentally and physically as a result of the appellants
    harassment.  She lost weight, lost sleep and was anxious and worried about what
    he may do to her.  The impact on her was magnified each time he ignored her
    pleas to stop, the police warnings and the court orders.

[14]

The
    trial judge had an opportunity to hear Ms. Mikulskas evidence and to observe
    her directly.  She described
Ms. Mikulska as follows
:

The victim was an identifiably fragile woman when she came into
    contact with the offender, and I have no doubt whatsoever that Mr. Doherty
    identified her as fragile.

Based on what I was able [to] observe from what I heard in her
    evidence in court she was a devastated person by the time this matter came to
    court on these charges and that was in large part because of the behaviour of
    Mr. Doherty.  In my view, she fell within that category of witness who was re-victimized
    by having to come to court and give evidence.

[15]

I
    agree with the respondent that the appellant is not entitled to mitigation on
    the basis that there were no physical assaults.  As the trial judge noted,
    submissions suggesting that the lack of physical violence makes this offence
    less serious, reflect a failure to appreciate that the primary impact of
    harassment is very often psychological  there is no requirement that there be
    physical harm to make out a very serious case of criminal harassment.

[16]

The
    sentences imposed by the trial judge are entitled to deference in this court. 
    It is worth noting that the trial judge conducted a four-day trial on the
    harassment and obstruction charges.  She heard from Ms. Mikulska firsthand
    about the fear and trauma she had experienced.  She was also able to observe
    the appellant throughout the proceedings and engaged him in discussion during
    the sentencing hearing.  She was in a good position to assess his attitude,
    demeanour and potential for rehabilitation.

[17]

As
    this court explained in
R. v Ramage
, 2010 ONCA 488, at para. 71:

A deferential standard of review on sentence appeals also
    recognizes that a trial judge has an advantage over the appellate court when it
    comes to balancing the competing interests that play in sentencing.  The trial
    judge gains an appreciation of the relevant events and an insight into the
    participants in those events  particularly the accused  that cannot be
    revealed by appellate review of a transcript.

[18]

The
    sentencing proceedings were comprehensive. The trial judges reasons covered 30
    pages.  She considered the relevant factors, including the appellants
    circumstances and his addictions, and the impact of his offences on Ms.
    Mikulska.  The trial judge recognized, properly, that the primary principles at
    play in sentencing this offender for these offences were deterrence and
    denunciation:  see
R. v. Bates
(2000)
, 146 C.C.C. (3d) 321 (Ont. C.A.).

[19]

It
    was also appropriate for the trial judge to consider the need to separate this
    offender from society in order to protect society from his criminal behaviour. 
    The appellant is an incorrigible offender.  As I have said, he has related
    convictions against three other women, as well as convictions for offences of
    violence and the use of weapons.  He repeatedly disregards court orders.  The
    trial judge quite correctly determined that it was important to ensure that the
    appellant was prevented, as far as possible, from continuing to harass Ms.
    Mikulska.  The trial judge was concerned that the appellant had been sentenced
    to two years imprisonment on three prior occasions and those sentences clearly
    did not deter him.

[20]

The
    appellant does not take serious issue with the sentences imposed for the two
    charges of obstruction of justice and the two charges of breaching a court
    order.  He argues, however, that the totality of the sentences  five and one
    half years imprisonment  is excessive.

[21]

In
    my view, given the factors outlined above, the sentences, while lengthy, do not
    fall outside what should be considered as an appropriate range for these
    offences and this offender.

[22]

Finally,
    I do not agree with the appellants argument that the trial judge imposed a
    sentence that was longer than what was, in effect, a joint submission at trial. 
    I do not agree that there was a joint submission.  Counsel submitted different
    ranges for these offences.  The trial judge informed both counsel that she was
    considering imposing a sentence above the ranges suggested by counsel, and she
    provided both counsel with an opportunity to respond with further submissions. 
    After hearing those submissions, the trial judge explained, in considerable
    detail, why she chose to impose the sentences she did.

[23]

The
    trial judge was entitled to impose a sentence above that which was originally
    suggested by Crown counsel.  She found that the range counsel submitted did not
    reflect the seriousness of the offences  committed by this particular
    offender.  While judges must consider the submissions of counsel, they must in
    the end impose sentences that they consider fit and just in the circumstances.

[24]

In
    the result, I would dismiss the appeal against these sentences.

RELEASED: DOC  DEC 05 2012

Dennis OConnor
    A.C.J.O.

I agree J.C.
    MacPherson J.A.

I agree E.A. Cronk
    J.A.




