R. v. Payne, 2012 NLCA 72

Date: 20121121 Docket: 11/58 Citation: R. v. Payne , 2012 NLCA 72 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : LEE MARVIN PAYNE APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Welsh, White and Harrington JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (G) 201001T2776 Appeal Heard: October 15, 2012 Judgment Rendered: November 21, 2012 Reasons for Judgment by Welsh J.A. Concurred in by White and Harrington JJ.A. Counsel for the Appellant: Derek Hogan Counsel for the Respondent: Robin Fowler

Welsh J.A.: [1] Lee Marvin Payne was convicted of sexual assault committed while he was under a long-term supervision order. At issue isthe sentence of three years imprisonment imposed upon his conviction for failure to comply with the conditions of the supervision order,and the manner in which credit was assigned for the time he was in custody prior to sentencing. BACKGROUND [2] Mr. Payne was convicted of sexual assault, contrary to

section 271 of the Criminal Code, based on an Agreed Statement ofFacts. In late summer 2009, the complainant, who was thirteen years of age, met Mr. Payne near a bus stop in downtown St. John’s. She asked him for a cigarette. During their conversation, Mr. Payne told her he was twenty-five years of age when, in fact, he was thirty-four. They agreed to go to Mr. Payne’s residence. While there, they had sexual intercourse. Before the complainant left, Mr. Paynegave her cigarettes and $20. Pursuant to the Agreed Statement of Facts, “There is no suggestion that any overt force or violence wasused.

Though her age precludes legal consent, it may be said that [the complainant] engaged willingly in the sexual act.” Thecomplainant returned of her own accord a few days later when they again had sexual intercourse and Mr. Payne gave her cigarettes and$25. When the complainant’s mother found out about what had happened, she reported the events to a child, youth and family servicesworker who, in turn, reported to the police. [3] At about the same time, Mr. Payne “contacted his parole officer to advise that he had been approached by a lady claiming thathe had assaulted her daughter.” Because Mr.

Payne was subject to a long-term supervision order, his parole was revoked and he wasreturned to custody. In a statement to police, Mr. Payne said: … he knew [the complainant] because she offered him sex for money. He admitted to there being two sexual encounters, bothproceeding to sexual intercourse. He said he paid her $20 and gave her some cigarettes after the first sexual encounter, and $25 after thesecond. … He admitted that he knew she was under the legal age of consent. … Mr.

Payne acknowledged that he did not use protection when they had sexual intercourse. [4] With respect to the long-term supervision order, the statement of facts provides: The long-term supervision order, which was set to the maximum term of 10 years, was imposed on January 12, 2001 by Mr. Justice Hillof the Ontario Superior Court. On that date, Mr. Payne was sentenced to 10 years imprisonment in relation to several sexual offences. Given time served in pre-trial custody, he had five and one half years imprisonment to serve. He was further designated a long-termoffender. Under the supervision order, Mr.

Payne was required to “obey the law” and “report all contact with females and the nature of thecontact”. (For convenience I will refer to a long-term supervision order as a “supervision order”.) [5] As a result of the incidents under consideration in this appeal, Mr. Payne pleaded guilty and was convicted of sexual assaultcontrary to

section 271 of the Criminal Code. In imposing a sentence of three years for this offence, the trial judge explained (2011NLTD 95 2011 NLTD(G) 95, 309 Nfld. & P.E.I.R. 189): [95] … Granted, as stated above, the circumstances differed somewhat from his previous sexual offences. Having said this,however, the circumstances of the offence do not detract from the fact that the offender is a convicted sex offender who committedsexual assault on an underaged female while he was on a long-term supervision order.

This underscores the need for denunciation,specific and general deterrence and protection of the public when sentencing the offender. [6] The trial judge also imposed a consecutive three year term of imprisonment for Mr. Payne’s breach of the supervision order. Applying the principle of totality, the resulting six year sentence was reduced to five years. Mr. Payne was also given credit of twenty-one months, on the basis of one day for each day served while in custody prior to sentencing.

ISSUES [7] At issue in this appeal is whether the trial judge erred: (1) in imposing a three year term of imprisonment for breach of theconditions of Mr. Payne’s supervision order, and (2) in granting credit of one day for each day served in custody prior to sentencing. ANALYSIS Sentence for Sexual Assault [8] A review of the case law leads to the conclusion that a three year term of imprisonment for sexual assault of a thirteen year oldgirl involving intercourse is at the low end of the range. Counsel for Mr. Payne conceded this and did not pursue the appeal on thispoint.

Sentence for Breach of Supervision Order Sentencing Principles to be Applied [9]

Section 753.1(1) of the Criminal Code provides authority for the court to designate a person as a long-term offender: The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find anoffender to be a long-term offender if it is satisfied that

(

a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted; (

b) there is a substantial risk that the offender will reoffend; and (

c) there is a reasonable possibility of eventual control of the risk in the community. [ 10 ] Where a long-term offender designation is made,

section 753.1(3) provides for a supervision order: If the court finds an offender to be a long-term offender, it shall (

a) impose a sentence for the offence for which the offender has been convicted, which must be a minimum punishment of imprisonment for a term of two years; and (

b) order that the offender be subject to long-term supervision for a period that does not exceed 10 years. [ 11 ] Where the offender is convicted of failure to comply with a supervision order,

section 753.3(1) provides: An offender who, without reasonable excuse, fails or refuses to comply with long-term supervision is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years. [ 12 ] In determining that a three year term of imprisonment was appropriate for breach of the supervision order in this case, the trial judge relied on the approach adopted in R. v. W. (H.P.) , 2003 ABCA 131 , 18 Alta. L.R. (4th) 20, which held that rehabilitation as a sentencing principle was to be given little, if any, effect.

After the trial judge rendered her decision, the Supreme Court of Canada rejected the W. (H.P.) approach as being incorrect ( R. v. Ipeelee , 2012 SCC 13 , [2012] 1 S.C.R. 433). In Ipeelee , the Court, in considering sentencing principles in the context of long-term supervision orders, indicated that rehabilitation was, in fact, a relevant factor. [ 13 ] In Ipeelee , LeBel J., for the majority, began with basic principles, the fundamental principle being that “the sentence must be proportionate to both the gravity of the offence and the degree of responsibility of the offender” (paragraph 36).

LeBel J. drew attention to the rehabilitative function of long-term supervision orders: [50] … The purpose of [a supervision order] is two-fold: to protect the public and to rehabilitate offenders and reintegrate them into the community. In fact, s. 100 of the [ Corrections and Conditional Release Act ] singles out rehabilitation and reintegration as the purpose of community supervision including [supervision orders]. As this Court indicated in L.M. [2008 SCC 31 , [2008] 2 S.C.R. 163], rehabilitation is the key feature of the long-term offender regime that distinguishes it from the dangerous offender regime.

To suggest, therefore, that rehabilitation has been determined to be impossible to achieve in the long-term offender context is simply wrong. Given this context, it would be contrary to reason to conclude that rehabilitation is not an appropriate sentencing objective and should therefore play “little or no role” (as stated in W.(H.P. ), at para. 50 ), in the sentencing process. (Italics in the original.) [ 14 ] LeBel J. went on to emphasize that it is the trial judge’s “duty” to apply all the sentencing principles set out in sections 718.1 and 718.2 of the Criminal Code (paragraph 51).

Each factor is to be given appropriate weight depending on all the circumstances. In

summary: [55] It is the sentencing judge’s duty to determine, within this open range of sentencing options [from no incarceration to the maximum ten years], which sentence will be proportionate to both the gravity of the offence and the degree of responsibility of the offender. The severity of a particular breach of [a supervision order] will depend, in large part, on the circumstances of the breach, the nature of the condition breached, and the role that condition plays in managing the offender’s risk of reoffence in the community. This requires a contextual analysis. As Smith J.A. states in R.v.

Deacon , 2004 BCCA 78 , 193 B.C.A.C. 228, at para. 51 , “the gravity of an offence under s. 753.3 must be measured with reference not only to the conduct that gave rise to the offence, but also with regard to what it portends in light of the offender’s entire history of criminal conduct”. Breach of [a supervision order] is not subject to a distinct sentencing regime or system.

In any given case, the best guides for determining a fit sentence are the well-established principles and objectives of sentencing set out in the Criminal Code . [ 15 ] In Ipeelee , LeBel J. concluded that the trial judge had erred in sentencing Mr. Ipeelee to imprisonment for three years for breach of the supervision order because the judge “reached the erroneous conclusion that protection of the public is the paramount objective when sentencing for breach of [a supervision order] and that rehabilitation plays only a small role” (paragraph 89).

Again, LeBel J. emphasized that, while protection of the public is important, the legislative purpose of a supervision order, which is a form of conditional release, includes rehabilitation and reintegration of the offender into society. In Ipeelee , the judge’s failure to consider and give effect to all the sentencing principles, including rehabilitation, constituted error justifying the Court’s intervention. [ 16 ] A similar error occurred in the case now before this Court.

The trial judge, who did not have the benefit of the decision in Ipeelee , applied the earlier jurisprudence which gave little, if any, consideration to the principle of rehabilitation. It follows that, the trial judge having erred in principle, this Court must determine an appropriate sentence. An Appropriate Sentence [ 17 ] The trial judge summarized the offences that led to the imposition of the supervision order. The first sexual assault, for which Mr. Payne was sentenced to two years imprisonment, occurred on March 11, 1997 when Mr.

Payne, who had been masturbating in public, followed two girls aged fifteen and sixteen and grabbed one between her legs. The second sexual assault, for which Mr. Payne was sentenced to two and one-half years imprisonment, to be served consecutively, occurred on April 25, 1998 when, after making lewd comments to a fifteen year old girl, Mr. Payne grabbed her by the throat. The trial judge summarized the third and most serious of the

offences: [12] The third sexual offence, sexual assault causing bodily harm, happened on April 26, 1998 in Mississauga. This involved a 17 year old female. The victim attempted to walk past the offender, who was masturbating. He pulled her into the bushes, pushed her to the ground, and punched her twice in the face. He digitally penetrated the victim’s vagina, performed oral sex and vaginal intercourse.

For this offence, Justice Hill sentenced the offender to five and a half years imprisonment, to be served consecutively. [13] Justice Hill stated that the sexual assault of April 26, 1998, breached the probation order which had been imposed for a robbery committed by the offender in 1997. For that breach of probation, the offender was sentenced to six months imprisonment, to be served concurrently.

Justice Hill’s global sentence of 10 years was reduced by a credit of four and a half years for time spent on remand. … [15] Justice Hill ultimately determined that the offender was not a dangerous offender; rather, he was to be subject to a long-term supervision order for a period of ten years from release. The order expires on July 10, 2016. [ 18 ] At the sentencing hearing in this case, the Crown called four witnesses: Dr. Ladha, a forensic psychiatrist, who conducted a psychiatric assessment during a court ordered sixty day detention at the Waterford hospital; Mr.

Payne’s parole supervisor; the complainant’s mother; and a social worker at the Janeway Family Centre who counseled the complainant. There was no pre-sentence report or victim impact statement. [ 19 ] Mr. Payne’s parole supervisor testified that Mr. Payne is monitored for any breaches of the supervision order, and that twice in 2007, as a result of incidents that were considered to elevate his risk to re-offend, the parole board required him to return to a halfway house for several months (

section 135.1 of the Corrections and Conditional Release Act , S.C. 1992, c. 20). In the first incident, Mr. Payne was reported by police to have followed a young female; in the second, while he was residing at a halfway house, he failed to report a relationship with a female as required under his supervision order. The parole supervisor also testified: [30] Mr. Thorne testified that, while in federal custody, the offender completed several programs including high intensity sex offender programs; moderate intensity sex offender programs and sex offender maintenance programs.

When he was on statutory release, the offender was psychologically counseled and he completed other programs such as programs for employment, substance abuse and programs with Turnings. Mr. Thorne testified that the psychological activity reports generated from counseling of the offender were all positive. [31] Mr. Thorne testified that the offender maintained employment after he was released from prison. He described the offender as a good worker who is self-motivated. [ 20 ] The trial judge referred to Dr. Ladha’s assessment of Mr.

Payne and compared his findings to those of Hill J. in respect of the supervision order that was imposed in 2001 and commenced running in 2006: [18] As a result of the assessment conducted in relation to the dangerous offender application in Ontario, the offender had previously been diagnosed with hebophilia [ sic ]. Dr. Ladha testified that hebophilia [ sic ] is a disorder consisting of attraction to post-pubescent adolescents. Dr. Lahda expressed the view that he would not have made the same diagnosis.

In his opinion, the offender was not a psychopath and did not exhibit symptoms of a person suffering from a deviancy. Further, Dr. Ladha did not consider the offender to be a sexual predator. [19] Dr. Ladha testified that, in his view, the sexual encounter with [the complainant] was serendipitous. He came to this conclusion despite the fact that, as pointed out to Dr. Ladha by the Crown, the offender used a fake name and had a second sexual encounter with [the complainant]. Dr.

Ladha further explained that, by definition, a person with hebophilia [ sic ] would actively seek out the young person; in this case, the offender did not compulsively do so. Rather, according to Dr. Ladha, the offender took advantage of an opportunity and exercised bad judgment. [ 21 ] The trial judge did not accept Dr. Ladha’s testimony that he saw no evidence of hebephilia, compulsive sexual behaviour or deviance. Rather, the judge concluded: [125] As stated, there has already been a judicial determination by Justice Hill that the offender presents a significant risk of re- offending (paragraph 118 of R. v.

Payne ) and that such is a “lifetime risk” (paragraph 109 of R. v. Payne ). I do not accept Dr. Ladha’s report and testimony as having the effect of detracting from Justice Hill’s finding that the offender is at substantial risk of re-offending; such a finding led to the imposition of the long-term supervision order. Unlike the evidence before Justice Hill, Dr. Ladha’s report and evidence in the present matter did not include any testing, assessment and determination as to the risk of re-offending. [126] Further, regardless of Dr. Ladha’s disagreement with Dr.

Hector’s diagnosis, the fact remains that he is of the view the offender exercised “bad judgment”. Dr. Ladha was not asked his views on whether the offender’s exercise of “bad judgment” could recur if similar circumstances arose in the future. However, Dr. Ladha agreed that he had concerns about the lack of judgment exhibited by the offender in this case. [127] Indeed, consistent with Justice Hill’s finding that the offender was at substantial risk of re-offending, the offender did re-offend by committing sexual assault. According to Dr.

Ladha, the offender knew [the complainant] was underaged; yet he chose to commit a sexual offence by having sexual intercourse with her on two occasions. The offender committed sexual assault despite his completing extensive programming, and despite the fact that he was on a long-term supervision order. I conclude that the public must be protected against the risk of recurrence of the offender’s “bad judgment”.

Deterrence, by way of a substantial term of imprisonment, is the means of addressing this risk. [ 22 ] In imposing the supervision order in 2001, Hill J. was satisfied that there were positive aspects to Mr. Payne’s circumstances:

[112] … The offender has demonstrated, at times of turmoil, a capability of involvement in a stable relationship and stableemployment. With respect to drugs, the [offender] has been presumptively abstinent during the [two and one-quarter] years ofpresentence custody. During the 60-day assessment, Mr. Payne displayed no inappropriate behaviour and followed the rules extremelywell. The offender recognizes that he will require lengthy and tight supervision in the community following release from custody. Mr.Payne was not diagnosed as suffering from a personality disorder.

It has not been suggested there is a certainty he will reoffend. Themedical experts identified signs that Mr. Payne would be a good supervision candidate.

The [offender’s] letters, and his exercise of theright of allocution under s. 726 of the Code, albeit not under oath and late in the day, do nevertheless express remorse, empathy for thevictims, and a willingness to secure treatment. [23] In determining an appropriate sentence for breach of a supervision order, the Court in Ipeelee cautioned that, while breach of asupervision order is viewed as more serious than breach of a probation order, the full range of sentence remains open to the sentencingjudge. In this case, Mr. Payne breached a central condition of the supervision order. This is a serious concern.

However, the breachmust be considered within the context of the initial imposition of the supervision order and the particular circumstances of this offence. Factors to be considered include: 1. While Hill J. concluded that Mr. Payne presents a lifetime risk to re-offend since there are “no cures for [his] disorders” (paragraph109), the judge recognized that Mr. Payne had not had the opportunity to access treatment or counseling programs at the time of theoffences; 2. Hill J. acknowledged that, “Both Dr. Hector and Dr.

Wright agreed that “the relatively low PCLR score and a certain degree ofcompliance with authority figures, point to … [Mr. Payne] … being a good supervision candidate” (paragraph 113); 3. While Mr. Payne failed in a serious way to comply with the conditions of the supervision order when he committed the offence againstthe complainant in 2009, subject to the two incidents in 2007 that raised concerns of a risk that he might re-offend, he had, for threeyears, been compliant with the conditions of the order; 4.

While the assault against the complainant was very serious, it did not involve the kind of predatory behaviour, such as following avictim, which led to imposition of the supervision order; 5. While commission of the offence against the complainant indicates that the treatment programs and counseling accessed by Mr. Paynehave not been entirely successful, his conduct otherwise since 2006 indicates progress towards his rehabilitation; 6.

At trial, the Crown requested a term of imprisonment of two years for failure to comply with the supervision order, consecutive to thethree year term for the sexual assault, while counsel for Mr. Payne suggested a term of six months to one year; and 7. Upon release, Mr. Payne will remain under strict supervision since the supervision order will be suspended during the period of hisimprisonment and will recommence running when he is released (section 753.4(1) of the Criminal Code). [24] The seriousness of the offence that resulted in a breach of the supervision order calls for a period of incarceration.

However,Mr. Payne’s history since the supervision order took effect in 2006 indicates potential for rehabilitation and reintegration into society.

The treatment programs and counseling he has accessed, his positive attitude to accepting help and supervision, his employment history,the absence of a diagnosed personality disorder or pathological condition, and the fact that, over approximately three years undersupervision, this was the first breach of the order, point to an offender who has not yet conquered the risk that he will re-offend, but whois making progress which will be further reinforced upon completion of his term of incarceration and recommencement of thesupervision order.

In the circumstances, a term of imprisonment of one year, to be served consecutively to the term imposed for thesexual assault conviction, is an appropriate sentence. [25] The total sentence of four years imprisonment is not unduly long or harsh or disproportionate to the gravity of the offences andMr. Payne’s degree of responsibility. In the circumstances set out above, the principle of totality is not engaged. Credit for Pre-Sentence Custody [26] The appeal included issues related to the credit of one day for each day served by Mr.

Payne from his arrest until he wassentenced, in total, approximately twenty-one months. This issue was not pursued by defence counsel at the hearing, on the assumptionthat the decision in R. v. English, 2012 NLCA 64, was determinative. However, since this issue has not previously been addressed bythis Court, and in light of the recent decision in English, it is appropriate to provide some comment. [27] At the time of Mr. Payne’s offence, prior to the amendment of

section 719 of the Criminal Code, generally an offender wouldhave received credit of two days for each day on remand. The trial judge explained her decision not to grant “two for one” on the basisthat, while in custody, Mr. Payne was receiving credit towards his long-term supervision order. That order was not suspended until Mr.Payne had been sentenced. This follows from the application of

section 753.4(1) of the Criminal Code, which provides: If an offender who is subject to long-term supervision commits one or more offences under this or any other Act and a court imposes asentence of imprisonment for the offence or offences, the long-term supervision is interrupted until the offender has finished serving allthe sentences, unless the court orders its termination. [28] The effect of this provision is discussed in R. v. Bourdon, 2012 ONCA 256, 110 O.R. (3d) 168.

Juriansz J.A., for the Court,wrote: [18] The issue [of credit for pre-sentence custody] has been considered by this court in one previous case, R. v. Ipeelee, 2009 ONCA892 , [2009] O.J. No. 5402 (Ont. C.A.) (appeal allowed on other grounds, 2012 SCC 13 , [2012] S.C.J. No. 13(S.C.C.)) where the court said this at para. 10: Did the sentencing judge err by refusing enhanced credit?

The sentencing judge refused to give the appellant enhanced credit for the six months he spent in pre-sentence custody. In the circumstance of this case, I see no error. As the sentencing judge noted, the time under the long-term supervision order continues to run while the offender is in pre-sentence custody for breach of a condition of the order.

Moreover, the lack of credit for time served towards early release, a factor usually cited as a reason for enhanced credit, is less relevant here as the appellant is unlikely to be granted early release. [19] One goal of [a supervision order is] to rehabilitate offenders and reintegrate them into the community by supervising them after they are released from imprisonment. If the offender is in custody awaiting trial on charges of breaching the [supervision order], nothing can be accomplished towards reintegrating the offender into the community.

Some rehabilitation is possible because long-term offenders, unlike other accused persons, can be transferred to a federal penitentiary with treatment programmes available while awaiting sentence ( s. 135(2) of the Corrections and Conditional Release Act , S.C. 1992, c. 20 as amended). The lack of access to such programs is considered a rationale for enhanced credit for time in pre-trial custody.

In this case, it is not clear why the appellant was not transferred to a federal penitentiary. [20] Here, the appellant has spent a total of 1337 days (664 days on his first breach and 673 days on the breaches in this case) in custody while his [supervision order] continued to run.

That period amounts to more than one half of the original 7 year period [to which the supervision order] was intended to apply. [21] … The considerations I have discussed point towards less credit for pre-trial custody while a [supervision order] is in effect than in other cases. [ 29 ] This analysis provides a helpful context within which a trial judge may determine the appropriate credit to be given when an individual is in custody while a supervision order continues to run.

It should be noted that this situation is somewhat different from what occurred in English where the offender was serving out a portion of a conditional sentence in prison. That time could not be said to count as time on remand for which credit may be granted by the sentencing judge. However, a supervision order is different in kind from a sentence of imprisonment such as Mr. English was serving. A supervision order, by its nature, is directed to supervising the offender while residing in the community.

It is intended, among other things, to assist in the offender’s rehabilitation by reducing the risk of re- offending. It is not a purely punitive measure comparable to a sentence of imprisonment. [ 30 ] Nonetheless, because the supervision order continues to run while the offender is in custody prior to sentencing, it is appropriate to take that factor into account when considering what credit should be granted in reducing the time to be served pursuant to the sentence. This is a matter of discretion to be exercised by the trial judge. [ 31 ] In this case, the trial judge credited Mr.

Payne at a rate of one day, rather than the two days that would ordinarily have applied, for each day served prior to sentencing. In the circumstances, there is no basis on which to interfere with the judge’s exercise of her discretion. I would add, in passing, that this decision should not be taken as indicating a method of calculating credit to be given for time in custody while a supervision order continues to run. Rather, each case must be assessed on its own merits as the trial judge determines the appropriate credit in the circumstances. [ 32 ] Accordingly, the appeal as to credit granted for the time Mr.

Payne was in custody prior to sentencing is dismissed.

SUMMARY AND DISPOSITION [ 33 ] In

summary:

(1) The appeal against the sentence imposed for sexual assault contrary to section 271(1) of the Criminal Code is dismissed.

(2) The appeal against the sentence of three years imprisonment for breach of conditions of Mr. Payne’s long-term supervision order, contrary to

section 753.3(1) of the Criminal Code , is allowed, and the sentence is varied to a term of imprisonment of one year to be served consecutive to the sentence imposed for the sexual assault conviction.

(3) The appeal against the granting of credit of one day for each day served in custody prior to sentencing is dismissed. ______________________________ B. G. Welsh J.A. I Concur: ___________________________ C. W. White J.A. I Concur: ___________________________ M. F. Harrington J.A.