S.C.C. No. 02349
IN THE SUPREME COURT OF NOVA SCOTIA
APPEAL DIVISION
Hallett, Matthews and Chipman, JJ.A.
Cite as: R. v. O’Brien, 1992 NSCA 45
BETWEEN: )
)
)
JOHN ARTHUR O'BRIEN ) Kevin Drolet
) for the Appellant
Appellant )
)
- and - )
)
HER MAJESTY THE QUEEN ) Kenneth W.F. Fiske, Q.C.
) for the Respondent
Respondent )
)
)
) Appeal Heard:
) November 19, 1992
)
)
) Judgment Delivered:
) November 23, 1992
THE COURT: The conviction appeals are dismissed; leave to appeal from sentences is allowed but the sentences are dismissed as per reasons for judgment of Chipman, J.A. ; Hallett and Matthews, JJ.A. concurring.
CHIPMAN, J.A.:
The appellant was convicted in County Court Judge's Criminal Court of two counts of sexual assault with a weapon contrary to s. 272(a) of the Criminal Code, two counts of sexual assault contrary to s. 271 of the Code and one count of attempted sexual assault contrary to s. 271 and s. 463 of the Code. For these offences, he was sentenced to incarceration for a total period of 20 years. He appeals from his convictions and seeks leave and, if granted, appeals from the sentences imposed.
The assaults were against five different female persons and took place in the Halifax area between July 11, 1988 and October 3 of the same year. All five victims testified. The offences bore a remarkable similarity to one another although they vary in detail. In each case the victim was accosted by the perpetrator while alone on the highway and, in four cases, taken to a nearby secluded area and commanded to perform oral sex upon the perpetrator. One victim got away, but the others were forced to engage in fellatio. In one of these, the act was interrupted by a passerby. In the other three, ejaculation into the victim's mouth took place, following which the perpetrator bound the victim with articles of her clothing. In all cases, the acts were accompanied by harsh or foul language from the assailant and in all but one he was driving a motorcycle or had a motorcycle helmet. In two cases he used a knife and in one other he said he had one. All victims were told, in effect, to make no effort to identify the attacker. Some were told to keep quiet or they would be killed. In four instances, the victims' breasts were fondled, they were then asked to remove clothing and told to kneel and perform oral sex. In the three assaults which were not interrupted, the victims were ordered to swallow the ejaculation.
The first victim was able to identify the appellant as her assailant. Following the assault, an artist produced a sketch based on her description of him. She was then hypnotized and as a result, minor changes were made in the sketch. As the trial judge observed, this drawing was very similar in appearance to the appellant. This victim was shown a photographic lineup containing a number of pictures, not including that of the appellant. She did not identify her assailant. Subsequently, she was shown a photographic lineup which did contain the appellant's picture. She was unable to positively identify the appellant as her assailant, but she selected a photograph of the appellant as the person she thought most resembled him. At the preliminary inquiry and at trial, she had no difficulty in identifying the appellant as her attacker.
Another victim picked the appellant from a photographic lineup without reservation. She identified him in court. The remaining victims were unable to make a specific identification of their attacker but gave descriptions of him, not dissimilar from the appellant and the descriptions given by the other two victims.
The appellant did not testify at his trial.
In his decision, the trial judge recognized that in all five cases identity was the crucial issue. He accepted the evidence of the five complainants without reservation. Any discrepancies in their testimony were not serious and were to be expected in such traumatic situations. In particular, he found the two witnesses who made positive identification to be reliable and he accepted their identification evidence expressly without reservation. He found that the lineups were proper, that no pressure nor suggestions were given and that the identification made in each case was "independent". He found that the charges with respect to these two victims were clearly made out on the basis of their evidence.
As to the remaining three victims, the trial judge referred to the similarities between the offences committed against them and those perpetrated in the two cases where identity was directly established. After reviewing the law relating to similar fact evidence, he found that such evidence showed a continuing design or plan on the appellant's part, a continuing modus operandi which clearly identified him and established his guilt beyond a reasonable doubt.
Overall, the trial judge was convinced beyond a reasonable doubt of the guilt of the appellant in four cases of the complete offence, and in the fifth of an attempt. The matter was then adjourned for sentencing.
At the sentencing, the Crown produced evidence of the appellant's record which the trial judge characterized as "unbelievable". There was a total of 41 prior offences. One of these was sexual assault with a weapon committed in Truro in 1985 for which the appellant received a sentence of three years. He was paroled on October 27, 1988 and indeed it was while he was on day pass that he committed the offences with which this appeal is concerned. The trial judge observed that he was out on day parole after some 12 to 15 months of a total 53 month period of incarceration in effect at that time. The 1985 offence in Truro was remarkable for its similarity to the completed offences here.
On January 11, 1989, before his apprehension for these offences, the appellant sexually attacked two women in Hants County. In each case he broke into the homes of the victim, but from then on the modus operandi bore a remarkable similarity to that employed in these offences. For convictions on six charges, he was sentenced in the County Court Judge's Criminal Court to a total period of incarceration of 14 years and was serving these sentences at the time of his trial for these five offences.
The Crown produced victim impact statements from each of the five victims.
The trial judge, in his brief reasons on sentence, referred to the deplorable record of the appellant, the fact that the offences were committed while on parole and to the very negative pre-sentence report. He referred to the need for the protection of society and the dominant role that general and specific deterrence must play in this sentencing. He concluded that in each case the sentence should be consecutive to the others. For each sexual assault with a weapon he imposed a sentence of five years, for each sexual assault a period of four years and for the attempted sexual assault a period of two years, making in all a total period of 20 years incarceration.
On this appeal, a number of grounds were advanced by appellant's counsel. They may be assembled under four headings:
(1) the trial judge erred in failing to properly instruct himself on hypnotically refreshed evidence and, in particular, in admitting the sketch prepared on the information from one of the victims;
(2) the trial judge failed to instruct himself adequately with respect to the law relating to identification evidence;
(3) the trial judge erred in admitting similar fact evidence;
(4) the conviction on each of the five counts was unreasonable and could not be supported by the evidence.
(1) With respect to the hypnotically refreshed evidence, it constituted but relatively minor changes in the composite sketch prepared at the victim's instructions. Cross-examination of the hypnotist revealed that the procedures followed by him did not in every respect comply with recommendations of the Council on Scientific Affairs of the American Medical Association regarding hypnotically refreshed evidence. These weaknesses were matters of weight for the trial judge. He found as a fact that the hypnotist gave no suggestions or assistance to the witness and that the information given by her as to identity was completely independent. He found that she was most definite in her identification. His assessment of her credibility makes clear that he, having seen and heard this witness had no doubt about her evidence. Again, any failure to comply with all eight of the factors set out in R. v. Clarke (1989), 13 C.C.C. (3d) 117 (Alta.Q.B.) cannot, in these circumstances, detract from the very clear finding that the identification evidence was credible. There is no merit in this ground of appeal.
(2) As to the identification evidence, it is clear from the trial judge's decision as a whole that he recognized that identity was the crucial issue and that he must be satisfied as to each of the charges that identity was proved beyond a reasonable doubt. Twice he emphasized the importance of this issue. In particular, he accepted "without reservation" the evidence of the two witnesses who made positive identification. He also accepted without reservation the evidence of Graham Hill who made positive identification of the appellant whom he encountered leaving the scene right after one of the assaults. The trial judge's careful review of and analysis of the evidence shows that notwithstanding the need for caution, he was fully satisfied that identity was established beyond a reasonable doubt.
(3) As to the similar fact evidence, the trial judge correctly stated the applicable principle, recognizing that the evidence must be relevant, sufficiently probative and that its probative value outweighed its prejudicial effect on the accused. See R. v. Benson (1991), 107 N.S.R. (2d) 231 at 247; R. v. L.E.D. (1989), 50 C.C.C. (3d) 142; R. v. C.R.B. (1990), 55 C.C.C. (3d) 1; M.H.C. v. R. (1991), 63 C.C.C. (3d) 385. The similarities between all of the five offences make clear that here the similar fact evidence passed the test and the trial judge was correct in admitting it. The distinctive features of all offences clearly showed a common hand behind them.
(4) We have reviewed the detailed record and the exhibits and have heard the able argument of counsel for the appellant. We are satisfied that a properly instructed jury could reasonably have come to the conclusion reached by the trial judge - indeed would be compelled to reach that conclusion.
The conviction appeals are dismissed.
With respect to sentence, the trial judge made the following comments at the time of passing sentence:
"There is no necessity for me to go into the facts of these matters. We had an extensive trial; the facts are clear in my mind. Some of the facts were reiterated in the victim impact statements today. The acts were violent, disgusting and degrading. They all involve physical violence, two with the use of knives. I think it's very fair to comment that the actions of this offender terrorized the whole metropolitan area during the latter part of 1988. In my opinion, these acts were deliberately planned and showed a method of operation. In my opinion, the offender is a danger to society."
As the trial judge said, the appellant's record is unbelievable. The victim impact statements are heart-wrenching and the appellant's actions revolting in the extreme. It is not necessary to dwell further on the nature of the offences.
As to the offender, the appellant did have the misfortune of being brought up in a home where alcohol and family abuse by his father were a way of life. As with him, some of his siblings also turned to crime at an early age. He is now 32 years old and has been in continuous conflict with the law for the last 16 years. He has spent most of those years in jail. One cannot help but feel sorry for a person who was so disadvantaged in his early years. Having said that, nothing more can be said in his favour. Rehabilitation can be given no weight when balanced against the overpowering need to protect society by specifically deterring this extremely dangerous offender and generally sending the message that this conduct cannot be condoned.
After reviewing the record and the trial judge's reasons, we are satisfied that the sentences were not manifestly excessive and that the trial judge applied the correct principles of sentencing.
We grant leave to appeal the sentences and dismiss both the sentence and conviction appeals.
J.A.
Concurred in:
Hallett, J.A.
Matthews, J.A.
S.C.C. No. 02349
IN THE SUPREME COURT OF NOVA SCOTIA
APPEAL DIVISION
BETWEEN:
JOHN ARTHUR O'BRIEN )
)
Appellant ) REASONS FOR
) JUDGMENT BY:
- and - )
) CHIPMAN, J.A.
HER MAJESTY THE QUEEN )
)
Respondent )