





CITATION:
R. v. Lalumiere, 2011
          ONCA 826



DATE: 20111223



DOCKET: C53389



COURT OF APPEAL FOR ONTARIO



Feldman, Simmons and Watt JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Danny Lalumiere



Appellant



Brian Snell, for the appellant



Randy Schwartz, for the respondent



Heard: November 15, 2011



On appeal from the sentences imposed by Justice Peter Hambly
          of the Superior Court of Justice on August 27, 2010.



Simmons J.A.:



[1]

The appellant appeals from the concurrent sentences of life imprisonment
    imposed in relation to two convictions for counselling to commit murder. The appellants
    primary argument is that a life sentence is disproportionate and outside the
    range of sentences imposed on similar offenders for similar offences.

[2]

For the reasons that follow, I would accept this submission.

Background

[3]

Following a jury trial, the appellant was convicted of two counts of
    counselling to commit murder. The intended victims were the appellants ex-wife
    and her boyfriend.

[4]

The appellant and his ex-wife married in 1970, separated in 1990 and
    divorced in 1992. Between 1990 and 1999, the police were called on several occasions
    to investigate complaints about the appellants behaviour towards his ex-wife
    and their children. Charges were laid on one occasion but they were withdrawn
    when the appellant entered into a peace bond for one year.

[5]

In September 2002, the appellants ex-wife began a new relationship.
    Soon after, the appellant undertook a campaign of stalking and harassing his
    ex-wife and her new partner. Between late 2002 and early 2007, the appellant
    accumulated some 23 convictions for offences involving his ex-wife and her
    boyfriend ranging from breach of probation and breach of recognizance to
    assault, uttering threats and criminal harassment.

[6]

In 2003, Detective Sergeant Steve Smedhurst of the Threat Assessment
    Unit of the Ontario Provincial Police completed an assessment of the
    appellants risk of violence towards his ex-wife. He placed the appellant in
    the worst 1% of domestic violent offenders and concluded that the appellant had
    a 70% likelihood of assaulting his ex-wife at least once in the next five
    years. A second risk assessment completed in 2006 concluded that the threat
    level remained the same as in the earlier report.

[7]

On April 30, 2007, a confidential informant told police that the
    appellant wanted to hire someone to kill his ex-wife and her boyfriend. The
    appellant was in jail at the time, serving a sentence for offences involving
    his ex-wife. On June 14, 2007 a police officer posing as a member of the Hells
    Angels met the appellant in the visitors area of the institution where the
    appellant was incarcerated and told the appellant he understood the appellant
    wanted two people to disappear. The appellant agreed but said he could not pay
    until after his release in December. The undercover officer gave the appellant
    his telephone number and told him to call.

[8]

When the appellant did not call during the ensuing two weeks, the
    undercover officer returned to the institution on June 27, 2007 and again raised
    the subject of having two people killed. The appellant agreed to pay the
    undercover officer $5000 and telephoned him that evening to provide details
    about the habits, vehicles and locations of the victims. The undercover officer
    cautioned the appellant that once he agreed to proceed, there would be no
    turning back. The appellant agreed to proceed.

[9]

At trial, the appellant testified and claimed that he knew the
    undercover officer was not genuine. He said it was impossible someone would
    kill in the hope of later payment. According to the appellant, he was leading
    the undercover officer on and planned to report him to the authorities. Based
    on the jurys verdicts, it is apparent the appellants explanation failed to
    raise a reasonable doubt.

The Crowns Position on Sentence at Trial

[10]

At trial, the Crown sought the maximum sentence available for these
    offences, a sentence of life imprisonment. In the alternative, the Crown requested
    a long-term offender designation, seeking a substantial penitentiary sentence to
    be followed by a long-term supervision order.

[11]

On the sentencing hearing, the Crown called Dr. Pallandi, a
    psychiatrist, to give evidence concerning the appellants psychiatric profile,
    his risk of reoffending, and his prognosis for change.

[12]

Evidence on the sentencing hearing indicated that the appellant had a
    longstanding and significant problem with alcohol that marred both his
    relationship with his wife and children during marriage and his subsequent
    dealings with his ex-wife.

[13]

Dr. Pallandi diagnosed the appellant as suffering from alcohol
    abuse/dependence. Although in remission while the appellant is incarcerated, Dr.
    Pallandi described this as a lifelong condition with a strong potential for
    relapses and remissions.

[14]

In his meetings with Dr. Pallandi, other than perhaps obliquely on one
    or two occasions, the appellant did not acknowledge any of the criminal
    conduct that had led to his past convictions. Rather, he engage[d] in
    discussions about how he has been the target of his vengeful ex-spouse or the
    target of unnecessary attention and policing. Further, the appellant
    portrayed a reality in which there had been a conscious effort on the part of
    his family, police and the judiciary to separate him from his wife with whom he
    described a generally benign and friendly relationship.

[15]

Although Dr. Pallandi did not diagnose the appellant as having an active
    mental disorder, he opined that the appellant was pathologically jealous and
    possessed inadequate internal defense and coping mechanisms to resolve the end
    of a marital relationship. He concluded that the offence of counselling to
    commit murder arose from the pathological process of obsessive
    following/stalking and that the appellants inability to deal with the end of
    his marriage likely fuelled the offence.

[16]

Dr. Pallandi indicated there is no pharmacological way to address the
    appellants problem and psychotherapies do not seem to work. Moreover, the
    longer a person engages in following/stalking behaviour, the more difficult it
    becomes to change that behaviour.

[17]

Dr. Pallandi described the appellants ongoing risk to his ex-wife and
    those romantically involved with her as persistently high. Although he
    described the ongoing management of the appellant as a formidable task, he
    opined that, given available resources, the appellants risk could eventually
    be controlled in the community, if subject to highly specific and intrusive
    conditions.

[18]

In the light of this opinion, the Crown conceded during oral argument
    that it could not have succeeded with a dangerous offender application.

The Trial Judges Reasons

[19]

The trial judge gave lengthy reasons for sentence in which he reviewed:
    the history of complaints about the appellants pattern of abusive behaviour
    towards his ex-wife and children between 1990 and 1999; the appellants
    criminal convictions between 2002 and 2007; the facts of the offences; the
    appellants background; Dr. Pallandis evidence; and the legal principles
    relevant to sentencing for these offences  including  whether a life sentence
    is available based on dangerousness where the Crown does not bring a dangerous
    offender application.

[20]

In his review of the law, the trial judge adverted to a number of decisions
    that have held that a life sentence should not be imposed on the grounds of
    dangerousness where the Crown has not brought a dangerous offender application.
    However, the trial judge highlighted the decision in
R. v. Edwards
(2001), 54 O.R. (3d) 737 (C.A.), which he described as holding that a life
    sentence could still be imposed [even though the Crown has not brought a
    dangerous offender application], where it would not offend the proportionality
    principle and there was expert evidence that the accused would commit further
    serious violent offences.

[21]

The analysis section of the trial judges reasons consisted of five paragraphs.
    He summarized the history of the appellants convictions, the appellants
    obsession with his ex-wife, the futility of previous sentences in their efforts
    to control the appellants behaviour, and the expert evidence concerning risk.

[22]

The trial judge noted that the authorities presented to him disclosed sentences
    of up to 12 years imprisonment for the offence of counselling to commit
    murder. However, he distinguished those authorities on their facts: some
    involved guilty pleas; none involved continuing risk, and none involved an
    attempt to hire someone to kill a spouse while in custody.

[23]

After stating that the fact of the attempt to hire someone to kill a
    spouse while in custody was the most frightening aspect of this case, the
    trial judge found that a life sentence was proportionate to the gravity of the
    offences. He said:

If this is not the worst case of its kind with the
    worst offender it is very close to it. In all the circumstances, in my view, a
    life sentence is proportionate to the gravity of the offence. The sentencing
    principles that must have priority in this case are general and specific
    deterrence, denunciation and most importantly separation from society for the
    protection as Dr. Pallandi euphemistically expressed it in his oral evidence
    the victim pool. As Southey J. stated in
Chase
There is no more
    despicable act, and nothing more dangerous to the fabric of our society, than
    killing for hire. [The appellant] has lost his right to live in a civilized
    society.

Discussion

[24]

In
R. v. Goyette
, 2003 CarswellOnt 1824 (C.A.), this court
    reduced an effective sentence of 20.5 years imprisonment to 16 years
    imprisonment less credit for pre-sentence custody for two counts of counselling
    to commit murder involving circumstances markedly similar to the circumstances
    of this case.

[25]

Although I acknowledge that no two cases are identical, in my view,
Goyette
demonstrates that a sentence of life imprisonment for this offender and these
    offences is disproportionate to the gravity of the offences and the moral
    culpability of the appellant and outside the range of sentences imposed on
    similar offenders for similar offences. In fairness to the trial judge, it does
    not appear that
Goyette
was brought to his attention.

[26]

As I have said, the circumstances of the offences in
Goyette
are
    markedly similar to the circumstances of the offences in this case. While in
    custody for assault and uttering threats against his ex-wife, Goyette enlisted
    a fellow inmate to put out a contract to kill her and her boyfriend.
    Fortunately, the contract killer was an undercover police officer. Moreover, like
    the appellant, Goyette had a long history of assaults, criminal harassment and
    uttering threats against his ex-wife along with numerous breaches of probation
    and recognizance.

[27]

In reducing the 20.5 year effective sentence imposed at trial, this
    court held that that sentence was simply outside the range:

The offences were extremely serious and given the
    appellant's background and history, the trial judge was on solid ground in
    concluding that a very substantial penitentiary sentence was called for. We
    are, however, of the view that the sentence imposed (effectively one of 20.5
    years) was outside the range of sentences imposed for like offenders in like
    circumstances. In our view, the appellant deserved a sentence of 16 years
    imprisonment less time served (2.5 years). That, we believe, constitutes a fit
    and just sentence in the circumstances.

[28]

Unlike the appellant, Goyette pleaded guilty. However, he did so only
    after the trial had begun and the victims had testified. The sentencing judge
    held that the guilty pleas were worthy of minimal mitigating effect in the
    circumstances.

[29]

Importantly, also unlike the appellant, in addition to his record of
    offences against the intended victims, Goyette had a serious record for
    robberies, weapons, other assaults and offences of dishonesty. While the
    appellant does have three convictions for impaired driving between 1986 and
    1993, his unrelated record in no way approaches Goyettes far more serious
    record.

[30]

I note as well, that prior to his campaign against his ex-wife and her
    new boyfriend, and despite his longstanding alcohol problems, the appellant in
    this case had a lengthy history of gainful employment.

[31]

On appeal, the Crown argues that the uncontradicted evidence concerning
    the appellants future dangerousness together with Goyettes guilty plea
    distinguish this case from
Goyette
and justify the sentence of life
    imprisonment.

[32]

I disagree. As I have said,
Goyette
involved a very late guilty
    plea, which the trial judge held was entitled to minimal mitigating effect.
    Moreover, as in this case, Goyettes past behaviour towards his wife raised the
    prospect of future offences.

[33]

That said, I see no indication in
Goyette
that expert evidence
    regarding the accuseds future dangerousness was adduced at the sentencing
    hearing. In this case, the evidence of the appellants future dangerousness was
    uncontradicted. However, while that distinction may justify a long-term
    offender designation, in my view, it does not rise to the level of justifying a
    sentence of life imprisonment.

[34]

The appellant argued that a long-term offender designation is not available
    in this case because s. 753.1(1)(b) of the
Criminal Code
stipulates
    there must be a substantial risk that the offender will reoffend before a
    long-term offender designation can be made. The appellant says the substantial
    risk of re-offence criterion in s. 753.1(1)(b) does not refer to just any
    criminal offence; rather, it must mean a serious personal injury offence. He
    contends that, apart from the offences that are the subject of this appeal,
    there is nothing on his record that qualifies as a serious personal injury
    offence and that the risk of him committing such an offence in the future is
    therefore not substantial.

[35]

I would not accept this submission. Even assuming s. 753.1 requires a
    substantial risk that the offender will commit a serious personal injury
    offence, the appellants convictions for criminally harassing and threatening
    his ex-wife fall within the definition of serious personal injury offences. Her
    victim impact statement filed on the sentencing hearing clearly illustrates the
    psychological harm she has suffered because of the appellants criminal conduct.
[1]


[36]

In my opinion, particularly when coupled with the predicate offences, the
    appellants intractable history of offences against his ex-wife, the threat
    assessments, and Dr. Pallandis evidence amply demonstrate the need for a
    long-term offender designation. In the event it becomes apparent that the
    appellant is no longer a danger to his ex-wife and any romantic partner, the
    appellant can apply for an order reducing the period of long-term supervision under
    s. 753.2(3) of the
Criminal Code
.

[37]

I see no reason to depart from the usual practice of granting two for
    one credit for pre-sentence custody that was in place when the appellant was
    sentenced.

[38]

Accordingly, I would allow the appeal and set aside the sentence of life
    imprisonment. In its place, I would designate the appellant a long-term
    offender and impose a determinate sentence of sixteen years imprisonment, less
    credit for time served of 5 years and six months, and order that the appellant
    be subject to long-term supervision for 10 years.

[39]

The appellant asked that we vary the terms of the ancillary order made
    by the trial judge under s. 743.21 of the
Criminal Code
prohibiting him
    from communicating either


directly or indirectly with his children. Fresh evidence
    materials filed by the appellant indicate that his adult daughter, C.A., has
    made efforts to contact her father. The appellant asks for a variation of the
    ancillary order so that it permits contact between him and his adult children
    on their filing a written but revocable consent with the appropriate
    authorities.

[40]

Given that there is some evidence that the appellants daughter may wish
    to be in touch with her father, I would vary the ancillary order so that it
    prohibits the appellant from communicating with his daughter directly or
    indirectly subject to the following exception: in the event the appellants
    daughter files a written consent with the appropriate authorities the appellant
    may respond to communications initiated by his daughter so long as her consent
    remains in full force and effect. I would allow the appellants daughter to
    revoke her written consent in writing at any time. I would direct that all
    other terms of the trial judges order made under s. 743.21 of the
Criminal
    Code
remain in full force and effect.

Signed:           Janet Simmons J.A.

I agree K. Feldman
    J.A.

I agree David Watt
    J.A.

RELEASED:  KF DECEMBER 23, 2011





[1]
Serious personal injury offence, as defined by s. 752 of the
Criminal
    Code
, includes
the use or attempted use of violence against another
    person or
conduct endangering or likely to endanger the
    life or safety of another person or inflicting or likely to inflict severe
    psychological damage upon another person
,


for which the offender may be sentenced to imprisonment for ten
    years or more.


