R. v. Dewey, 2010 ONCJ 154

Citation: R. v. Dewey , 2010 ONCJ 154 ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) Ms. D. Kellway ) for the Crown ) — AND — ) ) ) Jeffrey Dewey ) Ms. L. Walker ) for the accused ) ) ) ) lipson J.: REASONS FOR SENTENCE [ 1 ] On March23, 2010, the accused, Jeffrey Dewey, was convicted of four counts of breach of probation and one count of theft under $5000. Justice Omatsu of the Ontario Court placed Mr.

Dewey on probation on June 29, 2009 with terms that he keep the peace and be of good behaviour, not to communicate directly or indirectly with any person under 16 or initiate contact with any person under 16, not to attend any place where persons under 16 are and not to attend a public swimming area or community centre unless accompanied by an adult over 18 years. [ 2 ] On September 4, 2009 Mr. Dewey breached each of these terms. He attended the McGregor Community Centre and Pool. He was alone. He was intoxicated and drinking alcohol on the pool deck.

He attempted to play with a number of young people who were in the pool. He went into the family change room and urinated on the shower walls, and he trespassed in the staff area and stole popsicles from the staff refrigerator. [ 3 ] Mr. Dewey was on probation for assault that had occurred on March 30, 2009. According to a synopsis of that charge entered as exhibit 1 at the sentencing hearing, the accused engaged an eleven year old boy at a bus stop in conversation. He was overheard by an off duty police offer to being telling the boy to “check out” a certain cement wall” away from the bus stop.

The synopsis relates the following: “The accused kept trying to engage the child in conversation, but the child was not responding and kept trying to move away from the male. The male kept telling the child about bullies at the nearby school and was using profanity. The child kept trying to put distance between himself and the accused. The accused stated “We’re okay, right?” and held out his fist for an acknowledging fist tap from the child. The child moved even further away from the accused.

The accused came closer to the child and yet again tried to engage him in conversation and while doing this, reached out and touched the child on the jacket several times. The child tried to back further away each time. [ 4 ] The off duty police officer summoned other officers. When the accused saw uniform officers approaching he began to walk away from the bus stop. Moments later he was investigated and arrested. [ 5 ] Mr. Dewey is a 48 year old repeat offender. He resides with his common law partner and has had past employment in marketing.

The accused’s criminal record date back to 1978 and contains convictions for offences against the person, property and the administration of justice. Since 2000 he has two convictions for fail to comply with probation. Of particular concern is his record for sexual offences. In 1994 he was convicted of sexual assault. In 1998 he was convicted for sexual interference. In 2006 he was convicted of sexual assault and was sentenced to 5 months and probation for one year after serving 93 days of pre-sentence custody. The victim of that offence was the niece of his common law partner.

On the assault for which the accused breached his probation order on September 4, 2009, Mr. Dewey received a suspended sentence after serving 46 days of pre-sentence custody. [ 6 ] The presentence report that was prepared for Justice Omatsu’s consideration was filed as exhibit 3. The writer points out that since 1977 the accused had been on probation no less than 16 times and has a history of reoffending while on probation. The accused has a severe drinking problem. He has in the past reported while under the influence to his probation officer and on occasion had with him an open container of alcohol. Mr.

Dewey’s behaviour is unpredictable and often aggressive when he has been drinking. [ 7 ] The pre-sentence report also outlines the failed attempts by Mr. Dewey to address his alcoholism. It is said that much of the accused’s criminal behaviour has occurred while he has been under the influence of alcohol. At this sentencing hearing Mr. Dewey again professed his desire to take treatment for his alcoholism.

While in custody he has applied to the “Turning Point” 28 day in-patient substance abuse program run by the Salvation Army and has attended Alcoholics Anonymous meetings in the detention centre. [ 8 ] Probation records indicate that Mr. Dewey was diagnosed at the Ontario Correctional Institute as “having a tendency

towards paedophilia with an attraction to pubescent boys and girls” There was an additional assessment that took place at the Royal Ottawa Hospital in 1998 that described the accused as having a “psychosexual disorder of heterosexual and homosexual paedophilia.” [ 9 ] The Crown proceeded by indictment and seeks the maximum sentence of two years custody and three years probation. Crown counsel stressed that the breaches in this case were serious violations of a court order made to protect children in the community. Mr. Dewey is a repeat sex offender.

He is an alcoholic and alcohol has played a significant role in his re-offending. Mr. Dewey has failed to rehabilitate himself and remains a danger to the community. The Crown also submits that Mr. Dewey should not be credited for pre- trial custody at the usual 2:1 ratio. [ 10 ] Defence counsel submits that Mr. Dewey should be credited for pre-trial custody on a 2:1 basis. He has served the equivalent of a 15 months sentence and counsel submits that this sufficiently addresses the denunciatory and deterrent objectives of sentencing. Ms. Walker argues that Mr.

Dewey is ashamed of his behaviour on September 4, 2009 when he breached his probation order and is determined to seek and maintain treatment for his alcoholism. In doing so, the accused will not be a danger to the public. [ 11 ] I would first deal with the issue of pre-sentence custody. Mr. Dewy has been detained in the Toronto East Detention Centre almost eight months since his arrest on September 4. It is recognized that this is a remand facility which offers very little in the way of rehabilitative programs. Still, Mr. Dewey advised the court that he can and does attend A.A. meetings.

It is not suggested, however, that more in the way of treatment programming is available to him. The new amendments to the Criminal Code regarding pre-sentence custody do not apply to this case. This court retains the discretion to credit Mr. Dewey for time spent in pre-sentence custody. Pre- sentence custody has been traditionally credited on a 2:1 basis because legislated parole eligibility and statutory release do not take pre- sentence custody into account and local detention centres ordinarily do not provide educational, retraining or rehabilitation programs.

In my view, these considerations are applicable here. In addition, this is not a situation where Mr. Dewey was deliberately accumulating “dead-time” for sentencing purposes. He pleaded not guilty and, after trial, was acquitted of several counts in the information. As set out in my reasons for judgment, there were obvious triable issues. For all of these reasons, I would exercise my discretion and credit Mr.

Dewey on a 2:1 basis for pre-sentence custody. [ 12 ] Unquestionably, the objectives of this sentence must to denounce the accused’s unlawful conduct, to deter him from committing further offences, to separate him from society and finally to assist in his rehabilitation. The sentence must be proportionate to the gravity of the offences and the degree of responsibility of the offender. Several aggravating factors are present. These breaches were committed less than three months into Justice Omatsu’s probation order. These were not “technical” breaches. Mr.

Dewey chose to attend a community centre and pool where young children and teenagers were present. He was intoxicated and consuming alcohol on the pool deck. He tried to engage in play with some of the young people who were in the pool. He behaved in a loutish and offensive manner, particularly when he urinated against a shower wall in the change room reserved for families. He trespassed in an area reserved for staff and helped himself to items from the staff refrigerator. Mr. Dewey’s behaviour was hardly subtle and, fortunately for the public, alert staff notified police in a timely manner.

The accused’s criminal record features convictions for sexual offences against young persons and breaches of court orders. It is true that the underlying offence for which the accused was on probation was not a sexual offence. However the circumstances of that assault clearly had sexual overtones. [ 13 ] I am satisfied that the sentence should be in the higher end of the range. Mr. Dewey has a history of sexual offending. He is attracted to young persons. He is also an alcoholic who usually commits his crimes when he is under the influence of alcohol. In short, the community needs to be protected from Mr. Dewey.

Denunciation of the accused’s conduct and deterrence to Mr. Dewey must be emphasized. Further incarceration is one component of a fit sentence. As well, I am satisfied that the maximum period of probation with strict supervision of Mr. Dewey in the community is also important. [ 14 ] Mr. Dewey is sentenced to a further six months. In addition, he is placed on probation for three years.

The terms of probation are as follows: • Keep the peace and be of good behaviour. • He is to report to a probation officer not less than twice per month in person. • He is to report to his probation officer in a sober condition. • He is to take such counselling for substance abuse as may be recommended by his probation officer. • He is to take such assessment and counselling for sexual disorders as may be recommended by his probation officer • He is to sign any releases necessary for his probation officer to monitor the accused’s attendance and participation in counselling • He is not to attend any public park, public swimming pool, daycare centre, school ground, playground or community centre where persons under the age of 16 are present or can reasonably be expected to be present. • Not to associate or contact or hold any communication directly or indirectly with any person under the age of 16 unless accompanied by an adult over 18 years of age. • Not to use a computer for communicating with any person under the age of 16 years. • Not to seek, obtain or continue any employment whether or not the employment is remunerated or become a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years.

Released: April 23, 2010 Justice T. Lipson