Verbatim copy of judgement


 

CITATION: R. v. Ryczak, 2009 ONCA 311

DATE: 20090415

DOCKET: C48923

COURT OF APPEAL FOR ONTARIO

Rosenberg, Simmons and Cronk JJ.A.

BETWEEN

Her Majesty the Queen {Applicant/Appellant}

and

Wayne Ryczak {Respondent}

 

John Patton, for the appellant

Michael J. Shea and Geoffrey G. Hadfield, for the respondent

Heard: January 22, 2009

On appeal from the sentence imposed by Regional Senior Justice C.S. Glithero of the Superior Court of Justice dated May 15, 2008.

Cronk J.A.:
[1]
The respondent, Wayne Ryczak, was charged with the second degree murder of Stephine Beck. He pleaded guilty to the lesser and included offence of manslaughter and was sentenced to 30 months imprisonment. After credit on slightly more than a two for one basis, for 14 months and 10 days pre-trial custody, the net effective sentence imposed was one day imprisonment, to be followed by three years probation.
Page: 2
[2]
The Crown seeks leave to appeal the sentence, arguing that it is unfit as it is allegedly outside the established range of sentences for similar manslaughter cases. The Crown contends that an unfit sentence was imposed as a result of the following three errors by the sentencing judge: (i) the misapprehension by him of the respondent’s evidence of the unlawful act; (ii) his failure to appreciate the loss of sexual dignity arising from the condition in which the respondent left Ms. Beck’s body; and (iii) his failure to consider the impact of the crime given that Ms. Beck was 14 weeks pregnant at the time of her death.
[3]
For the reasons that follow, I do not agree that the sentence imposed is unfit or that the sentencing judge erred as asserted by the Crown. Accordingly, I would grant leave to appeal sentence and dismiss the appeal.
I. Background
(1) Circumstances of the Offence
[4]
In the early morning hours of March 4, 2007, the respondent left his house to pick up his son at work. When he returned at about 3:30 a.m., he discovered Ms. Beck in his home, engaged in what appeared to be an attempted robbery.
[5]
The respondent testified at his sentencing hearing. He said that immediately on entering his house, he was hit over the head with a lamp by Ms. Beck. The sentencing judge accepted the respondent’s account of ensuing events, describing them as follows in his reasons for sentence:
After hitting, or after being hit over the head with the lamp, Mr. Ryczak then was struck over the head by a glass or with a glass by Ms. Beck. The glass broke. Mr. Ryczak was successful in pushing the victim away and verbally tried to ascertain from her that she would calm down and not seek to perpetrate any further violence towards him.
But I accept his evidence to the effect that despite such assurance she then came at him with a piece of the broken glass in her hand. He then put his hands around her throat, holding her in that fashion and directed her over to the area of a couch. She stopped breathing. Mr. Ryczak tried to ascertain whether she was dead by ascertaining whether there appeared to be any breath coming out of her nose, which there was not.
[6]
One of Mr. Ryczak’s neighbours later observed him outside of his home, loading a body into his car. It is undisputed that Mr. Ryczak then drove Ms. Beck to a rural area
Page: 3
and left her body in the snow. When Ms. Beck’s body was discovered shortly thereafter, the clothing on the upper half of her body was raised up and the clothing on the lower half of her body was pulled down. The sentencing judge accepted the respondent’s claim that the dislocation of Ms. Beck’s clothing was the result of his struggle to load and then unload her body from his car.
[7]
While there was no direct evidence that the respondent and Ms. Beck knew each other, the respondent acknowledged that they may have met before and that Ms. Beck may have been at his house on a previous occasion in the company of someone else. There was no evidence of any prior relationship or of any animus between the respondent and Ms. Beck. The sentencing judge found that Ms. Beck was in the respondent’s home on the night in question without the respondent’s prior knowledge or consent.
(2) The Victim
[8]
Ms. Beck was 29 years old at the time of her death. She was a sex trade worker who had a criminal record for offences that included assault and assault with a weapon.
[9]
An autopsy was conducted on Ms. Beck’s body. It revealed that she had sustained injuries to her neck, eyes and face as a result of the fatal altercation with the respondent. The immediate cause of death was thought to be manual strangulation. However, Ms. Beck also had a potentially lethal level of cocaine in her body at the time of her death. In the opinion of the examining pathologist: (i) the cocaine ingested by Ms. Beck could, but need not, have proved fatal without any intervention by the respondent; (ii) the cocaine may have made Ms. Beck’s death by manual strangulation with the degree of force applied by the respondent more likely; and (iii) the degree of force utilized by the respondent would not necessarily cause death.
(3) The Offender
[10]
At the time of sentencing, the respondent was a 55-year-old father and grandfather. He had no prior criminal record and had been steadily employed for virtually his entire adult life. He was well-regarded by his employer as a senior estimator with supervisory responsibilities in a construction firm. He had also contributed to the community by serving as a member of a municipal Committee of Adjustments, was a Cub Scout leader for many years, and coached a minor league lacrosse team.
[11]
There was also evidence that the respondent had what his trial counsel termed “a shadow side” to his life. He habitually associated with sex trade workers and admittedly had used non-prescription drugs on occasion and to excess. But there was no evidence nor any suggestion that he had ever engaged Ms. Beck’s services as a prostitute, or that the offence charged involved sexual activity or drugs of any kind.
Page: 4
[12]
While the respondent was in custody, he was the victim of a serious assault at the hands of other inmates. As a result of the assault, he lost four teeth and was placed in segregation. He was subsequently transferred to another institution in another city, which prevented him from having frequent family contact while in custody.
[13]
The respondent also suffers from testicular cancer, which requires bi-yearly monitoring. His dental problems, caused by the assault during his detention, continue.
II. Issues
[14]
The main issue on appeal is whether the sentence imposed is unfit since it allegedly falls outside the applicable range of sentences for manslaughter involving manual strangulation and the deliberate disposal of the victim’s body. As I have said, the Crown submits that the sentencing judge erred in his sentencing analysis by: (i) mis-apprehending the respondent’s evidence of the altercation with Ms. Beck; (ii) failing to appreciate the loss of sexual dignity arising from the condition in which the respondent left Ms. Beck’s body; and (iii) failing to consider the impact of the crime given Ms. Beck’s pregnancy at the time of her death. These errors, the Crown maintains, led to the imposition of a demonstrably unfit sentence.
III. Analysis
(1) Applicable Range of Sentences
[15]
For several reasons, I would not accede to the Crown’s submission that the sentence received by the respondent is unfit on the ground that it falls outside the range of sentences applicable in a case of this kind.
[16]
First, the sentence imposed was a penitentiary sentence. The sentencing judge, as he was entitled to do, credited the respondent with 30 months for 14 months and 10 days pre-trial custody. In so doing, he properly took account of the duration and conditions of the respondent’s pre-trial custody, including the assaultive incident and consequent segregation of the respondent. The sentencing judge’s discretionary decision as to the amount of credit to be assigned to the respondent’s pre-trial custody attracts considerable deference from this court. It is not challenged by the Crown on appeal.
[17]
Second, while the Crown relies on several “strangulation manslaughter” cases in which sentences longer than that received by the respondent were imposed, those cases are factually distinguishable from this case in several respects.
[18]
As recognized by the sentencing judge, self-defence was a live issue in this case. Nonetheless, the respondent pleaded guilty to manslaughter. In these circumstances, it was open to the sentencing judge to attach considerable weight to the respondent’s relatively early guilty plea.
Page: 5
[19]
Moreover, on the evidence in this case, it was not established that strangulation was the sole cause of death. The pathology evidence demonstrated that the cocaine ingested by Ms. Beck was a complicating and potentially causative factor in her death. There is no suggestion that the respondent knew or could have known of any particular vulnerability by Ms. Beck due to her consumption of a considerable quantity of cocaine.
[20]
Finally, unlike many of the cases relied on by the Crown, this was not a domestic abuse situation. Nor did the offence involve a breach of trust, any planning or premeditation, or the use of any weapon by the respondent. On the contrary, on the uncontested findings of the sentencing judge, the respondent was the victim of rapid and repeated violent attacks by Ms. Beck, involving the use of a lamp, a glass and a piece of glass as weapons.
[21]
Third, and importantly, Crown counsel properly conceded during the course of oral argument before this court that the sentence imposed in fact is within the applicable range of sentences, albeit at the lower end of that range.
[22]
Fourth, the sentencing judge expressly adverted to the range of sentences advanced by the Crown and to the authorities relied on by the Crown in support of the asserted range. He recognized that:
It is virtually impossible to ever find a precedent case that has exactly the same facts surrounding the events and the same facts surrounding the offender, and that impossibility shows itself in this case, as is the usual circumstance.
[23]
The sentencing judge also correctly observed that:
The circumstances that can constitute manslaughter can range over such a variety of circumstances that it is impossible to legislatively predict what the least amount of punishment should be.
[24]
The sentencing judge concluded, citing R. v. Turcotte (2000), 48 O.R. (3d) 97 (C.A.), at para. 36, that the offence in this case was “committed under very specific difficult conditions unlikely to ever reoccur”. That observation, with which I agree, is amply supported by the record.
[25]
Moreover, the sentencing judge’s reliance on Turcotte was not misplaced. In that case, this court made a clear statement about the range of sentences available in a manslaughter case, noting at para. 19 that, “[w]hile many, if not most, sentences for manslaughter are in the penitentiary range, maximum reformatory sentences are not unknown and are clearly within the acceptable range (citations omitted).” Further, “[c]onditional sentences of that duration and, indeed, of shorter duration, have been
Page: 6
passed against persons found guilty of manslaughter both in this province and elsewhere (citations omitted).” See also R. v. Simcoe (2002), 156 O.A.C. 190 (C.A.), at para 14.
[26]
Fifth, the Crown’s claim that trial defence counsel recognized that a further term of two years imprisonment, in addition to the respondent’s pre-trial custody, was warranted in this case does not assist the Crown on appeal.
[27]
At the sentencing hearing, the Crown asserted that the proper range of sentences in this case was between seven and ten years imprisonment. The respondent’s trial counsel urged the imposition of a two-years less one day conditional sentence. He also argued that if a conditional sentence was rejected, a two-year penitentiary sentence should be imposed.
[28]
As I read the transcript of defence counsel’s submissions on sentence, it was his position that given the particularly harsh circumstances of the respondent’s pre-trial custody, enhanced credit for pre-trial custody should be given to the respondent. Defence counsel argued, in effect, that such enhanced credit would negate the need for a further term of imprisonment. He then submitted, in the alternative, that if a custodial term of imprisonment was to be imposed, a penitentiary term should apply. He explained:
The reason we ask for a penitentiary term, rather than a provincial term, is because of my client’s health problems. What did not emerge during the course of, of the evidence, and it’s my fault completely, is that he has had a bout with testicular cancer, and requires ongoing medical care. He has profound issues involving his teeth, because of the assault [during pre-trial custody]. And he has been advised by having made inquiries that the opportunity to obtain medical treatment is much swifter in the federal system.
[29]
Thus, as I understand his position, defence counsel argued first, that no further custodial term of imprisonment should be imposed once proper credit was assigned to the respondent’s pre-trial custody. Next, and in the alternative, he submitted that any additional custodial term should be served in the penitentiary to accommodate the respondent’s serious health concerns.
[30]
The sentencing judge, of course, was not bound to accept the submissions of either party. However, he did accept defence counsel’s argument that enhanced credit should be given for the respondent’s pre-trial custody. Indeed, his reasons indicate that, on the facts of this case, he was prepared to give even greater credit for pre-trial custody than he ultimately awarded. In his reasons, the sentencing judge said:
Page: 7
[I]ndeed if it were necessary to my decision I would enhance the amount of pre-trial credit by virtue of the violence perpetrated on him while he was within…correction’s control and by virtue of the solitary confinement to which he was subjected, not as a result of any misbehaviour on his part.
[31]
Ultimately, the sentencing judge rejected the defence request for a conditional sentence on the basis of what he viewed as the respondent’s “callous” and “inhumane” treatment of Ms. Beck’s body and the respondent’s failure to seek assistance from the police or medical authorities when Ms. Beck stopped breathing. In the sentencing judge’s opinion, these serious aggravating factors compelled the rejection of a conditional sentence and the imposition of a penitentiary term. I agree.
[32]
A 30-month penitentiary sentence was in fact imposed. That sentence was effectively reduced to one day, having regard to the lengthy pre-trial custody served by the respondent in difficult circumstances that involved violence, serious and on-going personal injuries, and isolated and restrictive confinement.
[33]
In the end, there is simply no basis on which to conclude that the sentencing judge failed to consider the applicable sentencing principles, erred in their application to the facts of this case as he found them, or failed to appreciate the range of sentences established in manslaughter cases involving strangulation and disposal of the deceased’s body. I would reject this ground of appeal.
(2) Other Alleged Errors
[34]
Nor do I accept that the sentencing judge otherwise erred as asserted by the Crown.
[35]
The Crown submits that the sentencing judge erred in his appreciation of the respondent’s evidence of the altercation with Ms. Beck. In particular, the Crown asserts that the respondent’s evidence indicated that he responded to Ms. Beck’s “advances” with “two separate strangulations”. The Crown says that, contrary to the sentencing judge’s findings, the respondent was not struck with the glass directly after he was hit by the lamp and he did not push Ms. Beck away at any point in time. Rather, after he was struck with the lamp, the respondent held Ms. Beck by the throat with sufficient force to prevent her from speaking and then let her go after this “first strangulation”. According to the Crown, only thereafter was the respondent hit by the glass, whereupon he “pushed her towards the couch as he strangled her again”, with greater force. The Crown maintains that the sentencing judge misapprehended the respondent’s evidence of this chronology of events, key aspects of the altercation and the degree of force applied in the “strangulations”. I disagree.
Page: 8
[36]
In his evidence, which the sentencing judge accepted, the respondent described two applications of force to Ms. Beck’s neck. Contrary to the Crown’s contention, the respondent testified that the first application was discontinued when Ms. Beck “acknow-ledged she was gonna be a, behave, so I let her go”. He then said, “I backed up, she came at me, I was over by the door. I kind of grabbed her again by the throat, took a step at her and grabbed rather a little more forcefully and pushed her towards the couch. By the time she got to the couch she just collapsed.”
[37]
This was a relatively short sentencing hearing. The sentencing judge delivered his reasons the day after hearing the respondent’s evidence. Thus, the respondent’s testimony would have been fresh in the sentencing judge’s mind.
[38]
In his reasons, the sentencing judge described the respondent’s evidence, including the sequence of events outlined by him in his testimony, in only brief compass. However, the reasons reveal that the sentencing judge had a firm grasp of the respondent’s evidence. In particular, when the reasons are read as a whole, it is clear that the sentencing judge understood that separate applications of manual pressure to the deceased’s neck were applied by the respondent and that the force used by him was excessive. The sentencing judge observed in his reasons that Ms. Beck attacked the respondent not once, but a total of three times, and that the respondent’s guilty plea confirmed his acknowledgement that he used excessive force in responding to Ms. Beck.
[39]
Although the sentencing judge did not elaborate on the degree of force used by the respondent to repel each of Ms. Beck’s attacks, or set out in detail the respondent’s exact description of the events at his home, the reasons demonstrate that the sentencing judge appreciated the core of the respondent’s evidence – that manual strangulation occurred and that the amount of force used was ultimately excessive. In my view, on this record, the Crown’s contention that the sentencing judge misapprehended the respondent’s evidence is unsustainable.
[40]
I would also reject the Crown’s complaints that the sentencing judge erred by failing to appreciate the loss of dignity to Ms. Beck arising from the condition in which the respondent left her body and by failing to take into account the fact that Ms. Beck was pregnant at the time of her death.
[41]
The sentencing judge held that the respondent’s disposal of Ms. Beck’s body was “callous”, “uncaring” and “inhumane”. He regarded it as “certainly an aggravating factor” to be considered on sentencing. As I have said, it was the respondent’s treatment of the body, coupled with his failure to seek assistance when Ms. Beck stopped breathing, that led the sentencing judge to conclude that a penitentiary sentence was required in this case. In my opinion, it was inherent to the sentencing judge’s strong condemnation of the
Page: 9
respondent’s callous acts that he recognized the impact of those acts on Ms. Beck’s human dignity.
[42]
There is also no basis on which to fault the sentencing judge for his failure to expressly mention Ms. Beck’s pregnancy at the time of her death. There is no evidence that the respondent knew that Ms. Beck was pregnant. Indeed, there is no evidence that Ms. Beck herself was aware of her pregnancy. No questions on this issue were put to the respondent during cross-examination by Crown counsel at trial. It is also telling that Crown counsel did not assert that Ms. Beck’s pregnancy was an aggravating factor to be taken into account on sentencing. Indeed, the Crown made no mention of this fact at all in her sentencing submissions. In these circumstances, I would not give effect to this ground of appeal.
[43]
I note that in its appeal factum, the Crown also complained that the sentencing judge failed to mention the victim impact statement of Ms. Beck’s mother. This complaint was not pursued by the Crown in oral argument. In any event, the sentencing judge was not required to explicitly list every piece of evidence considered by him in crafting his sentence. There is nothing in his reasons to support the conclusion that he failed to consider the victim impact statement. On the contrary, his reasons reveal a sensitive and explicit recognition of the value and importance of Ms. Beck’s life and of the tragedy occasioned by its loss.
[44]
I conclude with this observation. The sentencing judge emphasized in his reasons that, “[t]his is not a case, whatsoever, of anyone preying upon a sex trade worker or of anyone committing violence towards a sex trade worker engaged in that profession.” He also said:
Whatever Ms. Beck’s [antecedents] may be, they are of no relevance or interest to me in this sentencing, in that her attendance at Mr. Ryczak’s home had nothing whatsoever to do with any life choices she may have made, other than the fact she chose to be in another individual’s home with no lawful purpose or reason or excuse for being there on the day in question.
I agree.
[45]
This case concerns the tragic loss of the life of a woman who was unlawfully in the respondent’s home, who the sentencing judge found on the evidence “must have been there to steal something”, and who repeatedly attacked the respondent without provo-cation. In fashioning a just sentence, this experienced sentencing judge indicated that he had attempted to meet the aims of the sentencing principles dictated by the Criminal
Page: 10
Code without in any way suggesting a lack of value to Ms. Beck’s life. This was both appropriate and necessary.
IV. Disposition
[46]
For the reasons given, I would grant leave to appeal sentence and dismiss the appeal.
RELEASED:
“MR” “E.A. Cronk J.A.”
“APR 15 2009” “I agree M. Rosenberg J.A.”
“I agree Janet Simmons J.