SUPREME COURT OF Nova Scotia
Citation: R. v. Farrow, 2018 NSSC 242
Date: 2018-09-18
Docket: CRSYD 463465
Registry: Sydney
Between:
Her Majesty the Queen
v.
Raymond Glenn Farrow
Sentencing Decision
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Judge: |
The Honourable Justice Patrick J. Duncan
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Heard: |
September 18, 2018 in Sydney, Nova Scotia
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Written Reasons: |
October 01, 2018 |
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Counsel: |
Steve Melnick for Her Majesty the Queen Christa MacKinnon
Darlene MacRury for Raymond Glenn Farrow |
By the Court (Orally):
Introduction
[1] Raymond Glenn Farrow has entered a plea of guilty to the offence of manslaughter in the death of Harold Slaunwhite, which offence took place in Dominion, Nova Scotia, between September 9 and 10, 2006. This is an offence contrary to section 234 of the Criminal Code. While there is no minimum period of incarceration set by the Criminal Code, it does carry a maximum period of imprisonment for life.
Circumstances of the Offence
[2] There is an agreed statement of facts, which has been read in to the record, and which will be incorporated into the written version of this decision. I will not recite it again. However, there are facts that do impact on the sentence to be imposed.
[3] Mr. Slaunwhite suffered a violent death, having been stabbed repeatedly. Forensic examination determined that there were wounds that demonstrated that he tried to defend himself against his attacker. In the end, he was left to bleed to death. It was a heinous crime of violence.
[4] Mr. Slaunwhite was in excess of 80 years of age, a recent widower at the time, and living alone. He was a vulnerable person, and he was killed in his own home.
[5] The home is considered a place of safety, for individuals and families. It is where we entertain, raise our families, enjoy our private moments and sometimes do nothing but relax. We keep our valuable possessions in our homes, especially those which have sentimental value. Courts have repeatedly insisted on lengthy periods of incarceration for home invaders, to reinforce the notion that a breach of our places of retreat are not going to be tolerated.
[6] While the offence to which Mr. Farrow has pled guilty – being manslaughter – recognizes the absence of a specific intent to cause death, the circumstances of this offence attaches a high degree of moral blameworthiness or culpability to Mr. Farrow. As has been recognized by courts, there is a spectrum of blameworthiness in manslaughter cases from something that is close to accidental to one that approximates the full offence of murder. The nature and quality of the acts that lead to Mr. Slaunwhite’s death fall at the high end of that spectrum.
Circumstances of the Offender
[7] I have reviewed a Pre-Sentence Report and I have considered the submissions of counsel, in writing as well as in oral submissions today.
[8] The Pre-Sentence Report tells me that Mr. Farrow is 51 years of age, and as I calculate it, he would have been 39 at the time that this incident took place.
[9] He has no criminal record, either before the commission of this offence nor in the twelve years since it occurred, although the last almost two-year period of that twelve years has been spent in custody.
[10] Mr. Farrow was raised in New Aberdeen, the son of a coal miner and a grocery clerk. His parents and two of his three brothers have now predeceased him. His remaining brother, who was interviewed for the Pre-Sentence Report, and Mr. Farrow remain close. There is nothing in the family history that would suggest that Mr. Farrow, would become involved in substance abuse or criminal activity.
[11] He left home at age twenty and entered a long-term relationship and marriage. The couple have three adult children and two grandchildren. He has been described by family members as being close to them, and that he has been a good father and grandfather. The marriage ended in 2005, due to his drug abuse, but I am told that they remain on good terms.
[12] Mr. Farrow completed Grade 12 and a community college program in machinery. He was employed for a lengthy period at a local fishery plant until he was seriously injured. Subsequently, he attempted other employment but was unable to work due to the pain. He now receives a Canada Pension Plan disability pension of $700 per month. Prior to his remand into custody on this charge, he was living with his brother and their mother, and he was paying for expenses.
[13] Mr. Farrow’s life appears to have changed dramatically in the early 1990s when he suffered the accident. He was prescribed pain killers and became addicted. I am told that at the time of the offence, he was a heavy user of OxyContin and Percocet. As his tolerance to the medications increased, he turned to the street to acquire drugs. Various attempts at programs to address his drug abuse were unsuccessful, and it is apparent that his drug abuse was a major factor in the commission of this crime.
[14] He has suffered from depression, and has attempted suicide on number of occasions. His brother Darren told us, in the Pre-Sentence Report, that he had found Mr. Farrow during one of these attempts.
[15] Mr. Farrow has serious physical ailments. He is a double amputee now, having lost one leg in 2005 due to a motorcycle accident, and the other more recently due to diabetes. Since his incarceration, he has had two heart attacks and is now undergoing kidney dialysis three times a week.
[16] It does appear that after this offence occurred, Mr. Farrow tackled his drug addiction successfully. He sought out professional assistance for that and also for his mental health issues.
[17] The probation officer who prepared the Pre-Sentence Report formed a positive impression of Mr. Farrow, in his discussions with him.
[18] He described Mr. Farrow as being forthright and sincere in their interview, and that in his opinion Mr. Farrow made true expressions of remorse. I note, at this point, that a guilty plea is sometimes accepted by the courts as an expression of an offender’s acceptance of responsibility and remorse. That seems to be the case here. It is a mitigating factor that a guilty plea was entered.
[19] Contact with the remand facility reported that Mr. Farrow had no sanctions for misconduct during his time in custody, albeit his poor health has required frequent attendances for consultations, and treatment by medical professionals.
[20] The lead investigator for this matter was interviewed and confirmed that the offender was known to be involved in the drug culture prior to the killing, and was known to be using drugs excessively at the time. Police learned that in the years after the offence, Mr. Farrow seemed like a “prisoner in his own home”, only going out for medical reasons.
[21] Counsel for Mr. Farrow has, in prehearing submissions, provided some insight to his criminal conduct, as well as again today in her oral submissions. I think it is important to note that Mr. Farrow’s explanation of what happened does not mitigate the deed itself. In the end, he killed somebody. That can never be denied. No explanation that he can offer would ever restore the loss felt, but it does tell us how a person who has never been in trouble or who has never had a criminal record before that day, and has been able to live a law-abiding life for several years after the fact, how it is that person became the violent person that carried out that terrible act that day. Sadly, it is an explanation that we hear in society, in the media, and certainly in courts, all too often: that it’s a person who was in the throes of a severe drug addiction, particularly to opiates. This community, I know, has had to deal with this same issue as other parts of our province.
[22] Mr. Farrow says he did not go to the residence planning to commit a crime. He was not armed when he went there. We have heard the explanation, that Mr. Slaunwhite, for reasons that we will never know, accused him of stealing money and was going to call the police and prevented him from leaving the house. I think that what is evident is that Mr. Farrow at that point totally lost control. It may have been that it was drug seeking behavior of a person whose power to reason and act rationally was severely impaired by his addiction. It is, in any event, one more time that we as a society are reminded about the evils of addiction to strong pain medications.
Positions of the Parties
[23] The parties, the Crown and counsel for Mr. Farrow, have jointly recommended a sentence of 15 years’ imprisonment as being a fit and proper sentence that reflects the totality of the circumstances of the offence and of Mr. Farrow, after having conducted a careful review of other sentencing decisions.
[24] The parties also agree that he is entitled to credit for presentence custody. It is left to me under the Criminal Code to decide what that should be.
[25] The Crown seeks ancillary orders, that include an order for Mr. Farrow to provide a DNA sample, as well as for him to be subject to a Prohibition Order with respect to weapons.
[26] The Crown has reminded me of the provisions of s. 743.6 of the Criminal Code, which provides a discretion to delay his eligibility for parole. If ordered, then Mr. Farrow would not be eligible for parole for a period up to one-half of the sentence imposed. Considerations relevant to that decision include denunciation of the offence, the need for deterrence and the aggravating circumstances of the offence.
[27] Mr. Farrow’s counsel, in response, says that given his lack of criminal record, his good behavior in the community and in prison since the commission of the offence, there should not be a deferral of parole eligibility.
Victim Impact Statements
[28] I am going to turn now to the Victim Impact Statements, which I have read. In addition, Gerard Slaunwhite read his statement in court. I think that it is obvious from those statements that Harold Slaunwhite was an important and a dearly loved person to his friends and to his family.
[29] Marie Restoule is his daughter. She had the terrible experience of finding her father’s body. Like others that I have heard from, she suffers nightmares and an immense sense of loss. It contributed to the breakup of her marriage – she was unable to reconcile her grief for what happened to her father.
[30] Amanda Slaunwhite, a granddaughter, described for me her sense of loss and the long-lasting effects it has had on her sense of security and on her mental health. These were exacerbated by the lengthy passage of time between her grandfather’s death and Mr. Farrow’s apprehension. She hopes for closure now, while recognizing that the punishment of Mr. Farrow cannot restore what she lost, which was time with her grandfather. We can all hope that closure will follow for these loved ones, but understanding how difficult that might be.
[31] Gerard Slaunwhite, who I heard from today, a grandson, provided me with not only the sense of loss that he and other family members feel, but gave me the measure of Harold Slaunwhite – that he was a person who contributed greatly to society as a war veteran, as a coal miner, and that perhaps his most important contribution was his stalwart support to his extended family. Even at his advanced age, he continued to inspire good values in those around him.
[32] Kathleen Slaunwhite, also a granddaughter, was a university student at the time of her grandfather’s death. She described, poignantly, the ongoing sense of loss, of the impact on her that included sleeplessness, nightmares when she did sleep, of her loss of her sense of security – to be free from harm. She too provides an insight to the man that she loved and was lost by this senseless death.
[33] It is important to remember and have brought to life the victims of crime. When we speak about sentencing principles and objectives it seems removed from the reality that a person died. I am reminded again today that the courts have a role to play in trying to ensure that others do not suffer in the same way.
Legal Parameters
[34] The Criminal Code section that describes the offence does not prescribe a minimum sentence. The court must, having regard to the applicable law, arrive at a fit and proper sentence that is within an established range of sentences for persons who have committed the same crimes in similar circumstances and for persons with similar backgrounds. Sentencing judges are guided to this goal in two ways:
• by the statutory provisions in the Criminal Code; and
• by the decisions of other courts that have considered similar circumstances. In particular, we as sentencing judges, look to the guidance that is provided by the decisions of our Nova Scotia Court of Appeal.
[35] The purposes and principles of sentencing are set out in s. 718 and 718.1 of the Criminal Code. I am very familiar with those provisions and I will not recite them today, but I will refer to the concepts that they speak to.
[36] There are no statutorily deemed aggravating factors as set out in s. 718.2(a). However, I have considered the principles are set out in s. 718.2(b).
[37] Suffice to say that the protection of the public is a paramount objective of sentencing. The question, though, is always how do we accomplish that with the sentencing options that are available? We impose sentences that balance certain factors to accomplish that overriding goal.
General Deterrence and Denunciation
[38] The sentence is intended to deter other persons who would be of like mind and in similar circumstances. This is obviously challenging when the offender is a person who acts out of character for reasons of substance abuse or mental illness for example. Nevertheless, the sentence must also speak to the public at large with the message that there are significant penalties to pay for crimes of this nature.
[39] The sentence is also intended as an expression of society’s denunciation for criminal activity.
[40] These two principles, being general deterrence and denunciation, dominate the decision making in a case like this. A serious crime of violence can only result in a lengthy period of imprisonment. The sentence that has been proposed does adequately address general deterrence and denunciation. I will give more detailed reasons for that conclusion, in a moment.
Specific Deterrence and Rehabilitation
[41] We look too, though, to the offender, since most offenders do one day return to live among us. The sentence is intended to provide opportunities for people to rehabilitate themselves. It is also intended to deter the offender, in this case Mr. Farrow, from committing another crime.
[42] Having regard to the circumstances as I have set them out previously, it seems highly unlikely that Mr. Farrow is going to commit another crime.
Range of Sentences
[43] The next step in the analysis is to see if such a sentence is within the range of those sentences that have been handed to other persons in similar circumstances.
[44] This is where it is important to look at those cases. In the interests of time, I will not recite them. Both counsel have provided me with a number of cases that show the proposed 15 year sentence is at the very high end of the range for manslaughter. When we look at those cases, like R. v. Landry, 2015 NSSC 78, affirmed at 2016 NSCA 53; R. v. White, 2013 NSSC 323; and R. v. Reed, 2013 ONSC 4247, that were cited today by Mr. Melnick, we see that those cases certainly involve the same or perhaps, depending on your perspective, even greater violence, and in those cases, the sentences ordered were for a period of 12-14 years.
[45] So, the proposed sentence satisfies that measure of the fitness of the sentence as well.
Joint Recommendations
[46] The parties have asked me to accept their joint recommendation as to penalty. I have considered the words of Bateman, J.A., as she then was in R. v. G.P., 2004 NSCA 154, where, at paras. 13-15, she reviewed the sentencing court’s task when considering whether to adopt a joint recommendation of counsel.
[47] This matter came out of resolution conference, the particulars of which I have put on record before the time of the plea. I am satisfied, I can say without any hesitation, that the 15 year sentence in this case is in the range of sentences that would be appropriate for this type of behavior, and the joint recommendation should be accepted.
Credit for Pretrial Custody
[48] Section 719(3) of the Criminal Code contemplates a maximum of a 1:1 credit for pretrial custody, and with a 1.5:1 credit available where the circumstances justify it. That section has been considered judicially, both in our Nova Scotia Court of Appeal and more recently by the Supreme Court of Canada in R. v. Summers, 2014 SCC 26.
[49] Having regard to the principles as set out in those cases and the circumstances of Mr. Farrow’s pretrial custody, I can see no reason to deny him the benefits of a 1.5:1 credit. There would be a loss of earned or statutory remission or parole by denying the higher period of credit. The offender has no criminal record and has serious health issues. He has demonstrated positive conduct between the offence date and the date of remand, and he has also demonstrated positive conduct while serving his period of remand.
[50] The calculation in this case is from December 7, 2016, to today, which I calculate as 650 days which, with a credit of 1.5:1, results in a total credit of 975 days.
Parole Eligibility Date Delay
[51] The decision whether to order a delay in the eligibility for parole is a discretionary matter for the court. It requires that certain conditions be satisfied and certainly there would be a basis to consider it, and I have considered it, because it is a designated offence, it is a sentence of more than two years that is being imposed, and it is a serious offence, for which the courts have flagged denunciation and deterrence as priorities in arriving at a sentence. Having said that, the Supreme Court of Canada has said in a case called R. v. Zinck, 2003 SCC 6, that it is to be treated by the sentencing judge as an extraordinary disposition that has to be applied fairly; that the court has to first determine what the appropriate punishment is for the crime, and then consider factors that are relevant to the decision for parole; that while priority is given to general and specific deterrence, as well as denunciation, there is a balancing of overall factors. The final point I will make at this stage is that the Supreme Court of Canada said such orders should not be made unless there is a demonstrated necessity.
[52] I have considered all of the factors that have been put before me today and I have considered other cases where this issue has arisen. I am not satisfied that an order is necessary in the circumstances of this case. Notwithstanding the severity of the offence, it is appropriate to permit the Parole Board to carry out its function with respect to making a determination of an appropriate date at which to permit the grant of parole. The expressions of remorse and acceptance of responsibility made by Mr. Farrow in court have been received as being sincere. In a sense, it is not surprising that he, like so many addicts, would never consider doing the same things when sober and straight that they would do while in a drug chasing period.
[53] It is very common for the sober alcoholic or the straightened-out drug addict to make professions of remorse and promises to change. I hear it all the time. My colleagues hear it all the time. Some offenders achieve their goals, and some do not. In this case, there is a long period of post offence conduct, which is evidence of his commitment to leading a law-abiding life. That is rare in such circumstances. I note as well that health issues have impaired Mr. Farrow significantly. The crime was out of character according to his brother.
[54] It is always difficult to look down the road when ordering such significant periods of incarceration. A lengthy period of imprisonment will allow sufficient time, in my view, for correctional authorities to make their determinations as to whether Mr. Farrow has a chance to be successful on the street. If they do not, then I expect that parole would be delayed anyway. On the other hand, if they feel it is appropriate, and the correct behaviors have been exhibited, then parole would be a live issue for Mr. Farrow.
[55] It has to be remembered that Mr. Farrow has not served a previous sentence of incarceration. Again, this does not mitigate the penalty – it speaks solely to the issue of who should decide parole and when. The Parole Board should decide. I conclude that the conditions that are set out by the Supreme Court of Canada in Zinck, and under the s. 743.6 of the Criminal Code, have not been satisfied, and therefore I am not going to order a delay of eligibility for parole.
Sentence of the Court
[56] Mr. Farrow, I accept the recommendation that you be sentenced to a period of imprisonment for 15 years. That sentence is to be reduced by 975 days. It is calculated on the basis of having served 650 days to be calculated with credit of 1.5 days.
[57] In addition, you are required to:
• Comply with a DNA order pursuant to s. 487.051(1) of the Criminal Code to supply a sample of your DNA;
• Be subject to a mandatory weapons Prohibition Order under s. 109(1)(a) of the Criminal Code for ten years for those items listed in s. 109(2)(a) and life for those listed in s. 109(2)(b) of the Criminal Code.
[58] Finally, there is a mandatory requirement in s. 737 of the Criminal Code to impose a Victim Surcharge in the amount of $200, which I do. That amount is to be paid on or before twelve months following the expiry of your Warrant of Committal.
Duncan J.