



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Malcolm, 2013 ONCA 451

DATE: 20130628

DOCKET: C54724

Feldman, MacPherson, Cronk JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Densley Malcolm aka Densley Corrupt

Appellant

Appellant in person

Duty counsel: David Rose

Crown counsel: John Pearson

Heard: June 12, 2013

On appeal from the sentence imposed on April 30, 2007 by
    Justice D. Bellamy of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant was convicted of attempted murder, aggravated assault,
    assault with a weapon and possession of a weapon for a purpose dangerous to the
    public peace, following a knife attack on his roommate, Garvin Kerr. In
    accordance with the principle in
R. v. Kienapple
, [1975] 1 S.C.R. 729,
    two of the charges, aggravated assault and assault with a weapon, were stayed
    by the trial judge. The appellant was sentenced to life in prison for the attempt
    murder conviction. He appeals that sentence.

[2]

The arrangement between the appellant and the victim was that the
    appellant contributed to the rent by supplying the victim with crack cocaine.
    The victim expressed an ongoing complaint that the appellant was overcharging
    him for the drugs. It was following such a complaint that the appellant
    proceeded to stab the victim with his large, Rambo-type knife, first in the
    back and continuing with approximately 14 knife stabs, only stopping when he,
    the appellant, had to catch his breath. The victim took that opportunity to
    escape from the apartment. The trial judge described the attack as extremely vicious
    and was satisfied from the nature of the attack that the appellant had the
    intent to kill. Following the attack the appellant did not get any help for the
    victim, but cleaned the knife, deliberately left it with another tenant in the
    building and tried to obtain another tenants identification.

[3]

The appellant was 30 years old at the time of sentencing and had a
    significant record for crimes of violence. He also suffers from serious mental
    illness. His fitness to stand trial was the subject of a number of pre-trial
    inquiries before he was found to be fit. Following his convictions, the Crown
    sought to have the appellant found not criminally responsible and a
    post-conviction hearing was held by the trial judge. Based on the evidence of
    Dr. Pallandi, the trial judge denied the Crowns motion.

[4]

Dr. Pallandi diagnosed the appellant as a paranoid schizophrenic. He had
    no insight into his mental illness and despite being told by the doctor and
    others, he refused to acknowledge his mental illness or to take any treatment,
    including any medication. In his report, Dr. Pallandi offered the opinion that
    without treatment with antipsychotic medication as well as a high degree of
    supervision and support upon his release, the appellant would likely be at an
    elevated, if not substantial, risk for subsequent similar behaviour.

[5]

The Crown sought a life sentence. The appellant submitted that 8 to 10
    years imprisonment would be appropriate, given that he had served a substantial
    period in pre-sentence custody. The trial judge found the following factors to
    be significant: the seriousness of the crime, the criminal record of escalating
    acts of violence, the denial of a major mental illness for which the appellant
    had taken no treatment or medication, and the fact that the prognosis is that
    he will continue to be a danger to the community and it is uncertain when or if
    he will ever be cured.

[6]

In considering a life sentence, the trial judge noted specifically that
    a court could not impose a sentence that was not warranted by the facts simply
    because of an offenders mental deficiencies, and that a life sentence should
    not be used as an alternative to other provisions in the
Criminal Code
which refer to preventative detention.

[7]

However, based on the serious, brutal crime, the continuing danger posed
    by the appellant, and his failure to appreciate the seriousness of the attack
    and therefore the need for the protection of society, the trial judge found
    that a life sentence was appropriate. She concluded: There is nothing about
    this offence and this offender that would warrant anything less than a very
    substantial penitentiary term of imprisonment, and, in my view, that term is
    life.

[8]

Duty counsel on behalf of the appellant submitted that it was an error
    in principle for the trial judge to impose a life sentence without justifying
    why a lesser, but high definite sentence would not be sufficient to accomplish
    all the goals of sentencing.

[9]

We do not accept this submission. The case of
R. v. Simpson,
[1981] O.J. No. 34, a decision of a five-judge panel of this court, authored by
    Martin J.A., addresses the issue of when a life sentence is appropriate in
    circumstances such as the present. That case also involved a vicious stabbing,
    in that case in the throat, where the victim miraculously escaped lasting
    injury. The appellant suffered from a severe personality disorder and the
    psychiatrists considered him to be a danger to the community. Martin J. A.
    explained that the fundamental purpose of any sentence is the protection of
    society. In upholding the life sentence imposed by the trial judge, Martin
    J.A. stated, at para. 14:

I consider that the sentence of life imprisonment imposed by
    the trial judge on the appellant in respect of the conviction of attempting to
    murder Beatrice Deline standing alone [a new trial had been ordered on appeal
    from a second conviction] was in all the circumstances a fit sentence, regard
    being had to the uncertainty as to when he may be cured, or cease to be
    dangerous, to the cruelty and callousness of his act in stabbing Mrs. Deline
    and the severity of his personality disorder, which, at the present time, makes
    him a continuing danger to the physical safety of others.

[10]

Also
    in upholding the life sentence, the court recognized that it amounts
    effectively, to an indefinite sentence where it will be up to the parole board
    to determine, with the assistance of psychiatric examination, when it is
    appropriate to release the appellant into the community.

[11]

The
    Supreme Court of Canada clarified the law on life sentences in 2004 in its
    decision in
R. v. Cheddisingh
, 2004 SCC 16, [2004] 1 S.C.R. 433, where
    the court removed the concepts of stark horror and worst offence, worst
    offender as prerequisites for imposing a life sentence. However, the court
    emphasized that a maximum sentence is to be imposed only rarely, and is only
    appropriate if the offence is of sufficient gravity and the offender displays
    sufficient blameworthiness. As is always the case with sentencing, the inquiry
    must proceed on a case-by-case basis.

[12]

Recently,
    in
R. v. Anderson
, 2012 ONCA 373, [2012] O.J. No. 2473, this court
    also upheld a life sentence where the crime was horrific, and there was
    evidence that the appellant continued to be a danger to the community. In that
    case, the Crown initially sought a dangerous offender designation, but withdrew
    the application when the appellant refused to participate in a forensic
    psychiatric assessment. The trial judge was nevertheless entitled to impose a
    life sentence where the circumstances warranted it.

[13]

The
    appeal from sentence is therefore dismissed.

K. Feldman JA.

J.C. MacPherson
    JA.

E.A. Cronk JA.


