



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Thompson, 2013 ONCA 202

DATE: 20130403

DOCKET: C53009 and C52983

MacPherson, Blair and
    Juriansz JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dakota Thompson

Appellant

AND BETWEEN

Her Majesty the Queen

Respondent

and

Stanley Brown

Appellant

Brian Snell, for the appellant Dakota Thompson

Catriona Verner and Victor Giourgas, for the appellant Stanley
    Brown

Eric Siebenmorgen for the respondent in both appeals

Heard: March 25, 2013

On appeal from the
    sentence imposed by Justice F. Campling of the Ontario Court of Justice on June
    18, 2010.

BY THE COURT:

[1]

In separate but related appeals, Mr. Brown and Ms. Thompson seek to vary
    the sentences imposed on them by Justice F. Campling of the Ontario Court of
    Justice following guilty pleas to charges of aggravated assault and forcible
    confinement.

[2]

In the case of Mr. Brown, the Crown and defence made a joint submission
    proposing a sentence of 7 years and 2 months imprisonment (less 32 months
    credit for pre-trial custody). The sentencing judge imposed a sentence of 13
    years less credit for pre-trial custody. With respect to Ms. Thompson, there
    was no joint submission, but the Crown proposed a sentence of 4 years
    imprisonment in addition to 32 months credit for pre-trial custody, which
    would have amounted to a sentence of 6 years and 8 months less credit for
    pre-trial custody. The sentencing judge imposed 10 years less credit for
    pre-trial custody.

[3]

The principal ground of appeal is that the trial judge erred by
    jumping the joint submission made with respect to Mr. Brown and by jumping
    the Crowns proposal with respect to Ms. Thompson, without providing any
    reasons for doing so, without advising the Crown and defence that he was
    considering such a disposition, and without giving counsel an opportunity to
    make submissions or lead evidence in relation to his intention.

[4]

We agree, and for the reasons that follow, we allow the appeals.

Facts

[5]

All parties acknowledge that the circumstances of these offences were
    extraordinarily egregious.  The appellants and one other adult individual, Mr.
    Jug, lured the victim  a mentally delayed 22-year old man living on social
    assistance  to their apartment on the pretext that they could help him find
    his lost cell phone.  Once at the apartment, they  along with a fourth
    individual, a young offender  confined the victim using force, refusing to
    allow him to leave, and subjecting him to what can only be described as torture
    for a period of 17 consecutive days.  They threatened him.  They punched him,
    kicked him and hit him over the head with a pole.  They burned parts of his
    body with a hair straightener, including his penis and buttocks.  They forced
    him to eat feces and urine.  And when he tried to bathe to clean his wounds,
    they poured cayenne pepper into his bathwater.

[6]

Not content with this cruelty, the appellants and the other offenders
    also robbed the victim of his savings and income by stealing his bank card and
    forcing him to reveal his PIN number, which they then used to drain his account
    of all funds.  They used the monies to purchase marijuana and video games,
    which they consumed and played in front of him.  The victim was at least allowed
    to take his seizure medication.  On one occasion, he escaped, but was quickly caught
    and punished.

[7]

The ordeal only came to an end when, after 17 days, the offenders phoned
    the police because of a dispute with their downstairs neighbours.  When the
    police arrived and asked if anyone else was there, they eventually revealed the
    presence of the victim.

[8]

Somewhat miraculously, the victim has made a relatively full recovery
    from his physical injuries, although he was clearly terrified throughout and
    has permanent scars on his hands, arms, legs and on the top of his foot.

[9]

Turning to consider the offenders in the context of the nature of the
    offence, the appellants and their fellow participants all came from troubled
    backgrounds and suffered from cognitive difficulties themselves.  None worked.
    Mr. Brown, Ms. Thompson and their co-accused Mr. Jug shared the apartment and
    supported themselves on public funds.

[10]

Mr.
    Brown was 30 years old at the time of the offences.  He suffered from fetal
    alcohol and Aspergers syndromes and was clinically assessed to be of
    borderline intelligence.  He had a minor and mostly outdated criminal record
    that did not involve offences of violence.  Ms. Thompson was 21 at the time. 
    She and Mr. Brown were in a romantic relationship together.  She had had a
    difficult upbringing, had at one point been suicidal, and by the age of 19 had
    become an addicted drug user.  She had no criminal record.

[11]

Lastly,
    there seems to be no dispute that Mr. Brown and Mr. Jug were the primary
    perpetrators of these crimes  Mr. Jug received the maximum sentence of 14
    years imprisonment  and that Ms. Thompson was the least involved in
    inflicting the violence, although she was a knowing and active participant
    throughout the period of the victims captivity.

Analysis

[12]

The
    sentencing judge quite understandably  and correctly  viewed these offences
    as highly blameworthy.  He considered them worthy of consideration for the
    maximum sentence allowable.  He also correctly concluded that the principles of
    denunciation and deterrence were paramount in the circumstances, but that the
    prospects of rehabilitation required consideration as well.

[13]

Respectfully,
    however, he erred in our view in his decision to jump the joint submission
    (respecting Mr. Brown) and the Crowns submission (respecting Ms. Thompson) by a
    little less than double the amount proposed.  In doing so, he gave no
    meaningful reasons, save for his recognition of the general need to respect
    such submissions and his reference to maximum penalties.  In addition, he gave
    no advance warning to counsel and did not give them the opportunity to make
    submissions or lead further evidence on the issue.

[14]

While
    a sentencing judge is not bound by a joint submission, the jurisprudence is
    clear that he or she should not depart from such a submission unless satisfied
    that the recommended disposition would be contrary to the public interest and
    would bring the administration of justice into disrepute: see
R. v.
    Cerasuolo
(2001), 151 C.C.C. (3d) 445 (Ont. C.A.);
R. v. Tsicos
,
    [2006] O.A.C. 104 (C.A.); and
R. v. R.W.E.
, 2007 ONCA 461, 221 C.C.C.
    (3d) 244.  This is because the justice system depends upon judges rarely
    departing from sentences jointly recommended by counsel in order to operate
    effectively.  Finlayson J.A. explained it this way in
Cerasuolo
, at
    pp. 447-448:

This court has repeatedly held that trial judges should not
    reject joint submissions unless the joint submission is contrary to the public
    interest and the sentence would bring the administration of justice into
    disrepute:
e.g. R. v. Dorsey
(1999), 123 O.A.C. 342 at 345.  This is a
    high threshold and is intended to foster confidence in an accused, who has
    given up his right to a trial, that the joint submission he obtained in return
    for a plea of guilty will be respected by the sentencing judge.

The Crown and the defence bar have cooperated in fostering an
    atmosphere where the parties are encouraged to discuss the issues in a criminal
    trial with a view to shortening the trial process.  This includes bringing
    issues to a final resolution through plea bargaining.  This laudable initiative
    cannot succeed unless the accused has some assurance that the trial judge will
    in most instances honour agreements entered into by the Crown.  While we cannot
    overemphasize that these agreements are not to fetter the independent evaluation
    of the sentences proposed, there is no interference with the judicial
    independence of the sentencing judge in requiring him or her to explain in what
    way a particular joint submission is contrary to the public interest and would
    bring the administration of justice into disrepute.

[15]

To
    that, Weiler J.A. added the following in
R.W.E.
, at para. 33:

This courts recent decision in
R. v. Tsicos
mentions a
    number of factors that a sentencing judge should consider in rejecting a joint
    submission.  After explaining why the joint submission is contrary to the
    public interest or how it would bring the administration of justice into
    disrepute, it suggests that a court should acknowledge the high threshold for
    rejecting a joint submission; inform counsel that the court is disinclined to
    accept a joint submission and afford them the opportunity to make submissions
    on the matter; and, if imposing a different sentence, a court must fully
    consider the circumstances of these offences and this offender in determining a
    fit sentence.

[16]

As
    noted above, the sentencing judge conducted no such analysis in any meaningful
    way in his reasons, nor did he forewarn counsel of his intentions or provide
    them with an opportunity to respond.  He therefore erred in principle.

[17]

Because
    of these errors in principle, it is open to this Court to consider what the
    appropriate sentence should be.  For the reasons that follow, we think it
    appropriate to give effect to the joint submission.  As a result, it is
    necessary to reconsider the sentence imposed upon Ms. Thompson as well, given
    the somewhat different roles she and Mr. Brown played in perpetrating the
    crimes.

[18]

While
    in other circumstances, a range of sentence in the general area of that chosen
    by the sentencing judge might be reasonable (around 10 years for someone in the
    role of Ms. Thompson and around 13 years for a participant like Mr. Brown), we
    think the particular circumstances of these appellants operate to lower that
    range.  As one counsel noted, this was not a case of the strong preying on the
    weak, but one of the weak preying on the weak.

[19]

Left
    to our own devices, in the absence of the joint submission regarding Mr. Brown
    and the Crowns recommendation regarding Ms. Thompson, we might have arrived at
    a sentence somewhere between those positions and that adopted by the sentencing
    judge in the circumstances.  However, the guilty pleas were negotiated in the
    context of that joint submission and the Crowns stance regarding Ms.
    Thompson.

[20]

Weighing
    the circumstances of these offenders and notwithstanding the egregious nature
    of the crimes they committed, we cannot say that the joint submission could be
    considered to be contrary to the public interest or that giving effect to it would
    bring the administration of justice into disrepute.  Accordingly, we would give
    effect to it for the purposes of Mr. Browns sentence.

[21]

Ms.
    Thompsons sentence must therefore be re-adjusted as well.  In that regard, we
    think it significant that the Crown requested a sentence of 4 years (in
    addition to time spent in pre-trial custody) for Ms. Thompson.  Given the way
    in which these matters proceeded as a package, and in the context of the joint
    submission in relation to Mr. Brown, which we have now adopted, we cannot say
    that the Crowns proposal was unreasonable, and we would adopt that proposal
    for purposes of Ms. Thompsons sentence.

[22]

Both
    appellants raised an additional ground of appeal, asserting that the sentencing
    judge had not given adequate consideration to their guilty pleas.  In our view
    the sentencing judge did deal with the circumstances surrounding the guilty
    pleas in an adequate fashion.  That said, the fact that the appellants did
    plead guilty is an important factor to be taken into account in arriving at an
    appropriate disposition.

Disposition

[23]

For
    all of the foregoing reasons, we grant leave to the appellants to appeal their
    sentence and allow their appeals.  The sentence imposed by the sentencing judge
    will be varied to provide as follows:

For the appellant Brown  a sentence of 7 years and 2 months
    (less 32 months credit for pre-trial custody)

For the appellant Thompson  a sentence of 6 years and 8 months
    (less 32 months credit for pre-trial custody)

J.C. MacPherson J.A.

R.A. Blair J.A.

R.G. Juriansz J.A.

Released: April 03, 2013


