


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Prioriello, 2012
    ONCA 63

DATE: 20120203

DOCKET: C52926

OConnor A.C.J.O., MacPherson J.A. and OConnor
    J. (
ad hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Nicholas Prioriello

Appellant

Jonathan Dawe, for the appellant

Lorna Bolton, for the respondent

Heard:  January 27, 2012

On appeal from the sentence imposed on December 18, 2009
    by Justice K.L. Hawke of the Ontario Court of Justice.

OConnor J. (
ad hoc
):


[1]

The appellant, Nicholas Prioriello, appeals his sentences on 32
    convictions to which he pled guilty.

Facts

[2]

The total length of the sentences was just short of 8 years in
    prison.  He was given credit for pre-trial custody of nearly 2 years, leaving 6
    years apportioned as follows:


·

Five years for each of the following offences, all to be served
      concurrently:



·

Possession of property obtained by crime over $5,000 (x2)

·

Failure to stop for a police officer

·

Dangerous driving

·

Impaired driving

·

Drive while disqualified

·

Breach of probation (x4)



·

One year for each of the following offences to be served,
      concurrently to one another, but consecutively to the above charges:



·

Break and enter and commit theft (non-dwelling house) (x19)

·

Possession of burglary tools (x3)




[3]

The offences occurred between October 17, 2008 and January 24,
    2009.  He broke into 24 commercial properties in Halton, Toronto, Peel and
    Durham.  In excess of $55,000 was stolen and approximately $12,000 in damages
    caused.  As part of his plea bargain arrangement, no convictions were registered
    on other counts.  On January 23, 2009, he stole a van, drank a large quantity
    of alcohol and led police on a high speed chase on residential and commercial
    streets in West Toronto.  During the chase, he drove into a police cruiser,
    causing an officer minor injuries and twice collided with snow banks.  When the
    van broke down, he fled on foot.  While being arrested he fought with police,
    resulting in an officer breaking his hand.

[4]

The appellant has a lengthy criminal record, including over 120
    previous convictions.  At the time of his arrest, he was banned for life from
    driving and was subject to two probation orders.

[5]

The Crown sought a total sentence of 5 to 6 years on the first
    group of offences and a consecutive 3 to 5 years on the second group, less the
    2 year credit for pre-trial custody.  The Crowns range was therefore 8-11
    years, less 2 years or 6 to 9 years.

[6]

The defence argued for a net upper reformatory sentence for all
    offences.  As noted, the sentencing judge imposed a total sentence between
    those suggested by the two counsel.

[7]

The appellant argues the sentencing judge erred in arriving at the
    sentences imposed.  She failed to give sufficient weight to his mental
    disorders, while overemphasizing specific deterrence and imposing a 5 year
    sentence for breach of probation which carries a maximum sentence of 2 years.

The Appellants Background

[8]

The appellant was 42 years old when sentenced.  He exhibited
    behavioural problems as a child and spent time at a secure training school for
    boys where he was physically and sexually abused.  His sister was raped and
    murdered.  As a young adult, he showed signs of schizophrenia, although it
    appears he has never been formally diagnosed.  He became addicted to cocaine
    and began his extensive life of crime at an early age.  His mental illnesses
    went untreated for many years until he began medication and psychological and
    psychiatric treatment programs in 2006.  At the time of some of the offences,
    he had discontinued his medications, begun drinking alcohol and had
    deteriorated badly.  As is often the case, the appellant did better when he
    adhered to his treatment programs.

Discussion

[9]

The appellant argues that the sentences are excessive because the
    sentencing judge failed to take into account his mental illness.  We do not
    accept this proposition.

[10]

The appellant appears never to have been formally diagnosed with
    schizophrenia.  He tendered no medical evidence to the court.  For purposes of
    this discussion, however, we are prepared to accept that he suffered from some
    form of mental illness.  The sentencing judge was clearly sensitive to his
    illness as is evident in the following remarks:


...What it really gets down to is that it is very difficult to
      punish someone with a harsh or at least a long sentence when one knows very
      well that there is an underlying mental illness.  Being punished when you are
      ill is problematic.  On the other hand, there are other considerations that
      have to be brought to bear and it is not as if his mental illness is not
      something that could not be managed, in fact was for a short period of time,
      and it is not as if his mental illness interfered with his basic cognitive
      abilities either.

...

Turning to the issue of mental illness, his longstanding
      association with a psychiatrist and other supports in the community are set out
      in the PSR.  It appears that he is someone who suffers from schizophrenia and
      bi-polar disorder, and also has seizures.  I am not sure what the basis of it
      is, but there is some suggestion of nerve damage, and ADHD...


[11]

In order for a mental illness to be considered as a mitigating
    factor in sentencing, the offender must show a causal link between his illness
    and his criminal conduct, that is, the illness is an underlying reason for his
    aberrant conduct:
R. v. Robinson
, [1974] O.J. No. 585 (C.A.).

[12]

Further, there must be evidence that a lengthy sentence would
    have a severe negative effect on the offender such that it should be reduced on
    compassionate grounds.

[13]

The evidence before the sentencing judge did not support such a
    conclusion in this case.  Some of his offences occurred before he discontinued
    his medications and some after.  Neither of his psychologist or psychiatrist
    supported the theory of a causal link between his illness and his behaviour. 
    Further, although his psychiatrist described him as vulnerable, there was no
    evidence that the negative impact of prison would reach the level required to
    warrant a reduced sentence.

[14]

The sentencing judge was very concerned about the proper
    dispositions of this matter; she adjourned the sentencing hearing twice to
    think further and to carefully consider the appropriate sentence, taking into
  account the needs of the appellant and of her obligation to protect society.

[15]

She said:


...To be frank, I have been over and over the materials a few
      times, have come to a situation where I actually dont agree with either party
      in terms of their submission.  Through that process, I have moments of
      difficulty, I would confess, even agreeing with myself.  What it really gets
      down to is that it is very difficult to punish someone with a harsh or at least
      a long sentence when one knows very well that there is an underlying mental
      illness.  Being punished when you are ill is problematic.  On the other hand,
      there are other considerations that have to be brought to bear and it is not as
      if his mental illness is not something that could not be managed, in fact was
      for a short period of time, and it is not as if his mental illness interfered
      with his basic cognitive abilities either.


[16]

The global sentence of 6 years, after the credit of 2 years, is a
    fit sentence in the circumstances of this case.  The sentencing judge did not
    err in law.

[17]

We considered the fresh evidence that the appellant wished to
    tender about his current psychological condition and observe that it would not
    affect our decision.

[18]

The appeal is dismissed.

RELEASED:  DOC   FEB 03 2012

OConnor J. (
ad hoc
)

I agree D. OConnor
    A.C.J.O.

I agree J.C.
    MacPherson J.A.


