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SENTENCING - Harassment and threatening - Probation

Tuesday, May 21, 2019 @ 9:16 AM  

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Appeal by 60-year-old Butler from his sentence of imprisonment for two years less a day and three years’ probation imposed for his conviction for criminal harassment. Over a four-year period, the appellant harassed the complainant 26 times by repeatedly driving and walking by her home. On one occasion, he went to the medical clinic where she practiced and made a nuisance of himself. The harassment stemmed from the appellant’s professed religious views. The appellant had a dated, unrelated criminal record. He adhered to a strict belief system and espoused several conspiracy theories. He was not remorseful. No medical evidence was presented at the sentencing hearing respecting the appellant’s mental health.

HELD: Appeal allowed. The appellant’s motivation for harassing the complainant was not determinative of the sentence and did not outweigh other factors. His reasons for harassing the complainant did not make the harassment any less serious. It was clear the sentencing judge considered the circumstances that might have motivated the appellant’s harassing actions. There was no evidence before the sentencing judge on which he could rely to conclude the appellant suffered from mental illness to support the mitigation of sentence. Without evidence, it was not appropriate to conclude the appellant was delusional or that his belief system was the product of mental illness. The custodial portion of the sentence was disproportionate to the gravity of the appellant’s conduct, excessive when compared with other sentences for criminal harassment, and in conflict with the objectives of sentencing. The probation order was appropriate. Dissenting reasons were provided. Sentence: 12 months’ imprisonment; three years’ probation; non-contact order -- Criminal Code, s. 264(2).

R. v. Butler, [2019] N.J. No. 123, Newfoundland and Labrador Court of Appeal, L.R. Hoegg, F.P. O'Brien and W.H. Goodridge JJ.A., April 5, 2019. Digest No. TLD-May202019001