Between
Her Majesty the Queen, (respondent), and
Bradley Theodore John, (appellant)
[1999] O.J. No. 175
Docket No C26874
Ontario Court of Appeal
Toronto, Ontario
Osborne, Abella and Moldaver JJ.A.
Heard: January 19, 1999.
Judgment: January 25, 1999.
(4 pp.)
Criminal law - Punishments (sentence) - Conditional sentence - When available or appropriate - Considerations on imposing sentence - Deterrence.
Appeal by the accused from a sentence of 18 months imprisonment for conspiracy to smuggle contraband liquor and cigarettes into Canada. The accused had no criminal record and was a devoted husband and father. The accused's request for a conditional sentence was rejected because, even though the accused posed no risk to the community, such a sentence would deliver the wrong message and would undermine the necessary objective of general deterrence.
HELD: Appeal allowed and sentence varied to an 18-month conditional sentence. In refusing to impose a conditional sentence, the trial judge erred in principle by placing undue emphasis on the principle of general deterrence. The accused was a first offender and played a relatively minor role in the conspiracy. Apart from his involvement in the conspiracy, he was an otherwise decent, law-abiding and productive citizen, who posed no risk to the community. He was genuinely remorseful and was a devoted husband and father. A conditional sentence would adequately achieve the objectives of general deterrence.
Counsel:
Lorne Sabsay, for the appellant.
Lisa Futerman, for the respondent.
The following judgment was delivered by
1 THE COURT (endorsement):- The appellant was sentenced to 18 months' imprisonment for the offence of conspiracy to smuggle contraband liquor and cigarettes into Canada. He appeals against that sentence and seeks to convert it to a conditional sentence.
2 The trial judge found that the appellant's role in the conspiracy was a relatively minor one for which he gained little profit. He also found that as a first offender with an unblemished background and history, the appellant posed no danger to the safety of the community and that individual deterrence was not required.
3 Having regard to the magnitude of the smuggling operation and its impact on the community at large, the trial judge concluded, correctly in our view, that the principle of general deterrence took precedence over the other recognized principles of sentencing and that despite the appellant's exemplary background and degree of complicity, a custodial sentence was called for.
4 The trial judge then considered and rejected the appellant's request for a conditional sentence. Relying on this court's decision in R. v. Pierce (1977), 114 C.C.C. (3d) 23, he found that even though the appellant posed no risk to the community, a conditional sentence was not appropriate because "[this] would deliver entirely the wrong message and would undermine the necessary objective of general deterrence."
5 Unfortunately, at the time of sentencing, the trial judge did not have the benefit of this court's subsequent decision in R. v. Wismayer (1997), 115 C.C.C. (3d) 18 in which Rosenberg J.A., on behalf of the court, engaged in a detailed analysis of the principle of general deterrence and its application to the conditional sentencing regime.
6 Apposite to this case, at p. 38, Rosenberg J.A. rejected the notion that conditional sentences should never or even rarely be available in cases of large scale well-planned frauds committed by persons in positions of trust. Rather, in his opinion each case fell to be determined on its own merits. At p. 39, Rosenberg J.A. referred specifically to R. v. Pierce as follows:
I do not read R. v. Pierce as laying down an inflexible rule that a conditional sentence should never or rarely be imposed in fraud cases involving a breach of trust or that the community can only be safeguarded in such cases by incarcerating the offender. In my view, general deterrence is neither inconsistent with a conditional sentence order nor is it a basis for reserving the conditional sentence for rare or exceptional cases. To the contrary, the objective of general deterrence can be achieved through the conditional sentence of imprisonment.
7 In light of Wismayer, we are of the view that in refusing to impose a conditional sentence, the trial judge erred in principle by placing undue emphasis on the principle of general deterrence. Had Wismayer been available to him, we believe that the trial judge would have taken a more benign approach to the issue of whether, in the particular circumstances of this case, a conditional sentence would adequately achieve the objectives of general deterrence.
8 In view of this error in principle, deference need not be shown to the sentence imposed and we are free to substitute a fit sentence.
9 In all of the circumstances, we are satisfied that this is an appropriate case for a conditional sentence. The appellant was a first offender with an unblemished background and history. His role in the conspiracy was a relatively minor one and he gained little profit from it. He chose to become involved at a time when he was out of work and unable to support his family. Following his apprehension, he obtained gainful employment and he is described as a valued, trustworthy and conscientious employee.
10 The appellant is a devoted husband and caring father. As well, he has, for many years, actively engaged in charitable and volunteer work on behalf of his native community. He is genuinely remorseful and, as the record reveals, he would have entered a plea of guilty at an early opportunity had the Crown been willing to withdraw the charges against his spouse and not proceed against him on the breach of trust charge. Significantly, both of these matters resulted in directed verdicts at trial.
11 In short, apart from his involvement in the conspiracy, the appellant is an otherwise decent, law-abiding, productive citizen who poses no risk to the community.
12 For these reasons, we are satisfied that the appellant is entitled to a conditional sentence. Accordingly, leave to appeal sentence is granted, the appeal is allowed and the sentence is varied to an 18-month conditional sentence upon terms and conditions agreed upon by the parties and approved by the court.
OSBORNE J.A.
ABELLA J.A.
MOLDAVER J.A.
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