



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Myles, 2017 ONCA 375

DATE: 20170508

DOCKET: C62457

Gillese, Huscroft and Trotter JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Daniel Myles

Appellant

Eva Tache-Green for the appellant

Kathleen Farrell for the respondent

Heard: May 2, 2017

On appeal from the sentence imposed on June 14, 2016 by
    Justice T. Culver of the Ontario Court of Justice, sitting without
    a jury.

REASONS FOR DECISION

[1]

The appellant pleaded guilty and was convicted of criminal harassment
    arising out of his actions in surreptitiously downloading the victims cell
    phone onto his computer. The appellant threatened to send intimate photographs
    taken from the phone to the victims friends, co-workers, and son, and followed
    through on this threat by sending photos of the victims genitals to her son.

[2]

The appellant was sentenced to a term of imprisonment of three years,
    less presentence custody. He seeks leave to appeal his sentence.

[3]

The appellant argues that the trial judge erred in rejecting a joint
    sentence submission. We disagree.

[4]

On April 28, 2016, the trial judge gave the parties notice that the
    joint submission they proposed  six to nine months  was inadequate, and that
    a sentence in the range of three years was more appropriate. He adjourned the
    matter to allow the parties to return to make argument on the matter. The
    matter was adjourned a second time, on May 19, 2016, to allow the appellant to withdraw
    his plea. In the event, the appellant chose not to withdraw his plea and
    sentencing proceeded on June 14, 2016.

[5]

At that time, the Crown and defence made a joint submission for a
    sentence of 9-12 months. The appellant submits that this submission was an increase
    on the original joint submission of 6-9 months, but it appears that the
    original agreement was for 9-12 months; defence counsel erred when he
    previously advised the trial judge of the joint submission. The trial judge
    rejected the joint submission and imposed a sentence of three years, less
    credit for presentence custody.

[6]

The trial judge did not have the advantage of the Supreme Courts
    decision in
R. v. Anthony-Cook
, 2016 SCC 43 when he made his decision,
    but in our view his decision is consistent with the procedure for rejecting a
    joint submission set out in that case. The trial judge gave the parties clear
    notice of his concerns about the adequacy of their joint submission; invited them
    to make submissions on the matter; and afforded the appellant an opportunity to
    withdraw his guilty plea. Nothing more was required.

[7]

The trial judge was entitled to conclude that the 9-12 month range
    proposed by the joint submission was wholly inadequate and contrary to the
    public interest. The appellant has an extensive criminal record  36
    convictions including convictions for harassment and uttering threats, theft of
    telecommunications, and assault with a weapon. Moreover, the appellants
    pre-sentence report indicated extensive domestic violence, substance abuse, and
    a continuing pattern of threatening and abusive behavior toward partners as
    well as individuals in the community. There was no evidence that the appellant
    had been treated for any of these issues.

[8]

In these circumstances, the trial judge aptly described the appellant as
    someone who is predatory, lacks empathy for his victims, lacks insight into
    his offending behaviour and has been unaffected to date by interventions and
    dispositions in the criminal justice system.

[9]

It was reasonable for the trial judge to emphasize specific deterrence,
    public denunciation and separation from society, and to conclude that a
    penitentiary term was required. Three years was within the range that this
    court has identified for serial harassers:
R. v. OConnor
2008 ONCA
    206.

[10]

Accordingly, leave to appeal sentence is
    granted, but the appeal is dismissed.

E.E.
    Gillese J.A.

Grant
    Huscroft J.A.

G.T.
    Trotter J.A.


