



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bennett, 2013 ONCA 471

DATE: 20130709

DOCKET: C54496

MacPherson, Cronk and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Horaine Bennett

Applicant/Appellant

Catriona Verner, for the applicant/appellant

Joan Barrett, for the respondent

Heard: July 4, 2013

On appeal from the sentence imposed by Justice John C. Murray
    of the Superior Court of Justice on March 10, 2011, with reasons reported at
    2011 ONSC 1413.

ENDORSEMENT

[1]

During an eight-day period, the appellant committed three home invasions
    at gunpoint. In the course of committing these robberies, he physically
    assaulted several of the residents and, in two of the home invasions, he forced
    the young adult daughters who were in the home to fellate him at gunpoint and
    within earshot   and in one case, in sight  of their parents. Following his
    conviction for these offences, he was declared a dangerous offender and the
    trial judge sentenced him to an indeterminate sentence.

[2]

The appellant appeals on the basis that the trial judge materially
    misapprehended the expert evidence as it related to his level of risk and his amenability
    to treatment. Absent these errors, the appellant argues, the trial judge would
    not have concluded that the appellant met the test for a dangerous offender
    designation and would not have imposed an indeterminate sentence.

[3]

The appellant further submits that the trial judge erred in sentencing
    him under the
Criminal Code
regime that existed prior to the July 2008
    amendments.

[4]

Finally, the appellant seeks to admit fresh evidence and argues that it
    supports his claim that he is a suitable candidate for a long-term offender
    designation.

[5]

We would not allow the appeal.

[6]

The trial judge did not, as the appellant alleges, misapprehend the
    evidence of the Crowns expert Dr. Hucker. In his summary of the evidence, the
    trial judge accurately noted that Dr. Huckers overall opinion was that the
    appellant posed a moderate to high risk of sexual or violent recidivism. The
    trial judge also correctly observed that the actuarial risk assessment
    instruments used by both Dr. Hucker and the appellants expert, Dr. Gojer, indicated
    that the appellant presented a high risk to reoffend violently and/or sexually.
    In fact, one of the risk assessment instruments, the SORAG, placed the
    appellant in a group where 100% of the individuals in the sample group reoffended
    violently within ten years.

[7]

The fact that, in some parts of his reasons, the trial judge refers to
    Dr. Hucker as having found that the appellant poses a high risk of reoffending
    is of no moment. When the reasons are read as a whole, it is apparent that the
    trial judge did not misapprehend Dr. Huckers evidence. On this record, there
    was ample basis for finding that the appellant was a dangerous offender.

[8]

We are also of the view that the trial judge did not misapprehend the
    evidence related to the appellants amenability to treatment. Although Dr.
    Gojer opined that the appellant showed potential to engage in and respond to
    treatment, this was, as found by the trial judge, no more than an indication of
    potential. The trial judge carefully considered whether there was a reasonable
    possibility of eventual control of the appellants risk in the community, as
    required for a long-term offender designation. His finding that the evidence fell
    far short of supporting this conclusion was well grounded, and his decision not
    to make a long-term offender order is entitled to deference.

[9]

The appellant then argues that the trial judge erred in sentencing him
    under the dangerous offender regime in place before July 2008. The appellant
    explains that, in the particular circumstances of this case, applying the new
    regime may have been beneficial to him, as it may have led the trial judge to use
    his discretion to impose a less severe sentence than an indeterminate term.

[10]

We
    disagree. The appellants trial counsel requested that he be sentenced under
    the former regime, as that regime was more beneficial. This is what the trial
    judge did. In any event, assuming without deciding that both regimes ought to
    have been considered and applied, the result would have been the same.

[11]

Although
    the tests are undoubtedly different, in the instant case, there is no
    meaningful distinction between the trial judges application of the test for
    finding that an offender is a long-term offender under the old regime (i.e.
    that there is a reasonable possibility of eventual control of the risk in the
    community) and the test for imposing a determinate sentence under the new
    dangerous offender regime (i.e. that there is a reasonable expectation that a
    lesser measure  will adequately protect the public against the commission by
    the offender of murder or a serious personal injury offence). The appellant
    meets neither standard, and the trial judge therefore correctly found that he
    was not entitled to a long-term offender designation; concomitantly, he is also
    not entitled to a determinate sentence. In the circumstances of this case,
    there is no meaningful distinction between the need to guard against the threat
    of harm in the old regime, as opposed to guarding against murder or a serious
    personal injury offence as per the new regime. This is because the trial judge
    found beyond a reasonable doubt that the appellant was likely to cause death
    or injury or severe psychological damage through failure in the future to
    restrain his behaviour. Given the seriousness of the predicate offences, the
    appellants history, and the expert evidence, there can be no doubt that there
    is both a reasonable expectation and a reasonable possibility of harm and that
    that harm falls within the broad definition of a serious personal injury offence.

[12]

We
    turn lastly to the fresh evidence. At best, that evidence suggests that Dr.
    Gojer believes that there exists a potential for treatment. In our view, the
    evidence does not go so far as to show that the appellant can be rehabilitated
    within a fixed period of time, let alone the period required for a long-term
    offender designation. As a result, even if the fresh evidence were admitted, it
    would not have affected the result.

[13]

For
    these reasons, the application for leave to file fresh evidence is denied and
    the appeal is dismissed.

J.C. MacPherson J.A.

E.A. Cronk J.A.

Paul Rouleau J.A.


