



COURT OF APPEAL FOR ONTARIO

CITATION:  R. v.
    Hawley, 2016 ONCA 143

DATE: 20160222

DOCKET: C58928

Doherty, Cronk and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jerry Hawley

Appellant

Sam Scratch, for the appellant

Karen Papadopoulos, for the respondent

Heard and released orally:  February 17, 2016

On appeal from the sentence imposed by Justice L.
    Ratushny, of the Superior Court of Justice, dated August 30, 2013.

ENDORSEMENT

[1]

The appellant was charged with the second degree murder of his older
    brother.  The victim was severely disabled and functioned at the mental age of a
    five to seven year old.  He was completely dependent on his brother for all
    facets of his care and wellbeing.  The jury convicted the appellant of
    manslaughter.  He appeals the 20-year sentence imposed by the trial judge.

[2]

The facts of the case are horrific.  The trial judge referred to them at
    some length in her reasons for sentence.  No summary could do the facts
    justice.  An appreciation of the heinousness of this crime and the suffering of
    the victim can be gained by a review of the trial judges reasons.  We adopt
    her description of the relevant evidence.

[3]

There are three alleged errors:

1.

Did the trial
    judge improperly treat the absence of remorse as an aggravating factor?

[4]

The trial judge rejected the appellants protestations of remorse.  In
    the course of considering the aggravating factors on sentence, she said:

19) I do not assess the expressions of remorse from the accused
    as genuine and neither do I assess him as having any insight into the gravity
    of his actions against Jamie;

20) Because of the accuseds lack of insight into the gravity
    of his actions, I am unable to access the level of risk he poses to the safety
    of the community as being other than high.  The accused was able to act with
    inhumanity and cruelty towards his incapacitated brother so as to have an extra
    thousand dollars a month.  Even if this kind of situation is one unlikely to
    ever be available to the accused again, the evidence of his indifference to
    Jamies obvious suffering for the pursuit of his own financial gain is an
    attitude that risks the safety of the community and particularly so when he has
    so little insight into his actions;

[5]

Counsel for the appellant submits that in para. 19, the trial judge used
    the lack of remorse as an aggravating factor.  In our view, the two paragraphs
    must be read together.  Read together, they indicate that the trial judge
    regarded the appellants lack of insight into the seriousness of his crime, as
    evinced by the absence of remorse, as an aggravating factor because of its
    impact on the appellants potential danger to the community.  We see no error
    in this analysis.

2.

Did the trial
    judge err in imposing a sentence that was well beyond the established range?

[6]

Counsel for the appellant submits that the appropriate range for this
    kind of manslaughter is between 7 and 16 years.  He does not suggest that this
    case should not be placed at the upper end of the range. He does, however, skillfully
    and forcefully argue that as egregious as the facts of this case are, they do
    not warrant a sentence that is four years beyond the range.

[7]

Thankfully, there are relatively few manslaughter cases that involve the
    ongoing horrendous and fatal abuse of persons by individuals responsible for
    their care.  The cases have attracted a wide variety of sentences, including,
    in one case, a sentence of 16 years.  In that sense, it is fair to say that 16
    years is the upper end of any established range.

[8]

Parity in the sentencing of similar offenders who have committed similar
    offences is a recognized principle of sentencing:
Criminal Code
s.
    718.2(b).  Over time, the operation of the parity principle gives rise to ranges
    of sentences for similar offences committed by similar offenders.  In
R. v.
    Lacasse
, 2015 SCC 64, at para. 58, the court explained the relationship
    between parity as a principle of sentencing and the fitness of a specific
    sentence that is beyond the existing range:

There will always be situations that call for a sentence
    outside a particular range:  although ensuring parity in sentencing is in
    itself a desirable objective, the fact that each crime is committed in unique
    circumstances by an offender with a unique profile cannot be disregarded.  The
    determination of a just and appropriate sentence is a highly individualized
    exercise that goes beyond a purely mathematical calculation.  It involves a
    variety of factors that are difficult to define with precision.  This is why it
    may happen that a sentence that, on its face, falls outside a particular range,
    and that may never have been imposed in the past for a similar crime, is not
    demonstrably unfit.  Once again, everything depends on the gravity of the
    offence, the offenders degree of responsibility and the specific circumstances
    of each case.

[9]

In our view, the aggravating circumstances of this case clearly called
    for a sentence outside of the existing range.

[10]

It
    is difficult to know where to start when describing the aggravating features of
    this case.  The trial judges reasons provide a full and powerful catalogue of
    them.  We would stress the following:

·

The appellant sought out and took the victim from a setting in
    which he was happy and well cared for and loved by the staff at Kingston
    Community Living (KCL). The appellant removed him to circumstances in which
    the victim received no care, no love and was treated in an appallingly inhumane
    and abusive manner.  The appellants motive was simple.  He wanted to get his
    hands on the victims monthly disability cheque.  To the appellant, the victim
    was a paycheque and nothing more;

·

The neglect and abuse of the victim began as soon as the
    appellant removed him from the care of KCL.  That abuse and neglect continued
    for eight years until the victim finally died from the combined effect of
    starvation, pneumonia and over 30 infected massive bedsores, some of which had
    gone right to the victims bones;

·

The victim, who was 41 when he died, weighed 57 pounds.  The
    Crown expert testified that it would be hard to find a worse case of
    malnutrition;

·

The appellant had such total disregard for his brothers
    wellbeing that he could not even be bothered to access resources that were
    available to him free of charge which could have provided things that would
    have significantly improved the victims quality of life; and

·

The victim endured month after month of ever-increasing pain and
    isolation as a result of the appellants conduct.  He must have suffered a
    great deal before he finally succumbed.

[11]

Having
    determined that a proper sentence called for a prison term beyond the current
    range of sentencing for this kind of offence, we cannot say that the sentence
    arrived at by the trial judge was too far beyond that range.  The sentence was
    long, but it was not clearly unreasonable.

3.

Credit for
    pre-sentence custody

[12]

The
    parties agree that in light of the decision in
R. v. Summers
, 2014 SCC
    26, [2014] 1 S.C.R. 575, released after the trial judges reasons, the trial
    judge should have given the appellant 1.5 days credit for each day he was in
    custody prior to sentencing.  On that calculation, he is entitled to an
    additional 619 days and a total credit for presentence custody of five years,
    one month.

Disposition

[13]

In
    our view, the 20-year sentence imposed by the trial judge was appropriate. 
    Having regard to credit for presentence custody, that should be reduced by five
    years and one month, yielding a sentence of 14 years and 11 months.  The appeal
    is allowed and the sentence is varied to that extent.

Doherty J.A.

E.A. Cronk J.A.

H.S.
    LaForme J.A.


