SUPREME COURT OF NOVA SCOTIA
Citation: R. v. Cleary, 2014 NSSC 333
Date: 2014-08-06
Docket: Antigonish CR No. 413858
Registry: Antigonish
Between:
Her Majesty the Queen
v.
Lawrence Patrick Cleary
SENTENCING DECISION
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Judge: |
The Honourable Justice Joshua M. Arnold
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Rendered: |
August 6, 2014, in Antigonish, Nova Scotia |
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Written Release: |
October 14, 2014 |
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Counsel: |
Darlene Oko, Counsel for the Crown Adam Rodgers, Esq., Counsel for the Defence |
Delivered orally by the Court:
[1] This decision is dealing with the sentencing of Lawrence Cleary.
[2] Mr. Cleary was convicted of 11 separate Criminal Code charges following a trial by judge and jury that took place April and May 2014 (the Indictment is attached as Appendix “A”). This morning he also pled guilty to five breach charges not included on the Indictment left with the jury.
[3] The trial charges for which he was found guilty by the jury relate to three separate offence dates: May 14, 2012, June 16, 2012, and June 17, 2012.
May 14, 2012
[4] On May 14, 2012, Auxiliary Constable Matthew VandeWeil was off duty and driving his personal vehicle on the 316 Highway. As a result of entering a school zone, he slowed down to about 30 kilometers per hour. While Constable VandeWeil was in that slow zone he drove past a convenience store. Lawrence Cleary was well-known to Constable VandeWeil. Constable VandeWeil noted Mr. Cleary coming out of the convenience store carrying beer. Constable VandeWeil was aware that Mr. Cleary was prohibited from possessing alcohol. The constable then observed Mr. Cleary getting into a green motor vehicle and driving away from the store. Constable VandeWeil was also aware that Mr. Cleary was prohibited from driving. Constable VandeWeil therefore used his personal cellular telephone to call the RCMP detachment and alert them to the problem. While continuing to drive his personal vehicle the constable followed Mr. Cleary from one highway to another. At that time Mr. Cleary was driving properly.
[5] Mr. Cleary’s vehicle eventually turned into a trailer park. The constable parked his vehicle to allow him to observe Mr. Cleary travel around the trailer park. He observed Mr. Cleary failing to come to complete stops at stop signs and increasing speed as he travelled around the trailer park. The constable was aware that the trailer park is home to many families with children and was concerned by Mr. Cleary’s increasingly erratic driving in the park. Eventually, Mr. Cleary exited the trailer park and resumed travelling down a major highway.
[6] In the meantime, in response to Constable VandeWeil’s telephone call, two RCMP members were travelling toward the location of Mr. Cleary and Constable VandeWeil in a marked police vehicle, in order to intercept Mr. Cleary. Constable Sue Shaw-Davis was travelling in the passenger seat of the police vehicle. The RCMP were in the vicinity of Mother Webb’s Restaurant when they encountered Mr. Cleary driving in the opposite direction. Mr. Cleary was well-known to Constable Shaw-Davis. Constable Shaw-Davis was aware that Mr. Cleary was a prohibited driver. She immediately identified him and advised the RCMP officer who was driving. The RCMP turned the police cruiser around to follow Mr. Cleary. They activated the vehicle’s emergency equipment in an effort to try and pull Mr. Cleary over.
[7] The highway in issue had a posted speed limit of between 60 and 80 kilometers per hour. The incident occurred at about 11:00 a.m. Traffic at the time was described by the police as heavy for that area. The incident occurred just before a temporary two-lane bridge that was under construction. The bridge consisted of one driving lane in each direction with no shoulder. There was little or no room to allow a vehicle to pull over in that area.
[8] As soon as the police turned on their emergency equipment, including lights and siren, Mr. Cleary accelerated away from them very quickly, increasing his speed by at least 50 percent. His vehicle was described by the police as bursting forward and accelerating directly into oncoming traffic at a point where there was no passing lane or shoulder. Mr. Cleary passed three to five vehicles in an area without a passing lane and then passed six or seven vehicles in the passing lane going up a hill away from the police. Although this occurred in a construction area, fortunately, there was no actual construction going on at the time; there were no flagmen on the road and there were no collisions.
[9] Constable Shaw-Davis described Mr. Cleary’s driving as being so terrifying and dangerous that she screamed and ordered the other officer to stop the pursuit so as not to endanger the public. The RCMP turned off their emergency equipment and pulled over to the side of the road so that Mr. Cleary would see that he was no longer being pursued. They hoped that once Mr. Cleary saw they had stopped their pursuit he would drive more safely. The police felt comfortable with their identification of Mr. Cleary and attempted to arrest him at his home on several occasions later that day; however, he was nowhere to be found. At all material times, Mr. Cleary was prohibited from driving.
June 16, 2012
[10] One month later, on June 16, 2012, at about 9:20 p.m., RCMP Constable Michael Thompson received a complaint of a vehicle squealing its tires on the Dunmore Road. Daylight was waning but visibility was good. Upon his arrival at Dunmore Road Constable Thompson noted a blue Chrysler Intrepid parked in the northbound lane. Constable Thompson was driving southbound and came within six feet of the blue Intrepid. He and the driver made eye contact. Constable Thompson noted that Mr. Cleary was on his cellphone and when eye contact was made he saw Mr. Cleary throw his cellphone down to the floor of his vehicle. Constable Thompson knew Mr. Cleary well and testified that he was the driver of the blue Intrepid.
[11] Constable Thompson described the Dunmore Road as a winding, hilly, country road with a posted speed limited of 80 kilometers per hour. Constable Thompson said that as soon as Mr. Cleary threw his cellphone down he accelerated quickly away from the police, passing a tractor hauling a load of hay in a no-passing zone. He observed Mr. Cleary travelling between 110 and 120 kilometers per hour on this road, cutting corners, not slowing down on corners and travelling on the wrong side of the road around corners. Mr. Cleary continued to drive in that manner for approximately three kilometers until the Dunmore Road met the 104 highway. At that junction the constable observed Mr. Cleary slow down for the stop sign that allows the merge, and then saw him “gun” the car onto the 104 heading toward a temporary bridge with a posted speed limit of between 60 and 80 kilometers per hour.
[12] Constable Thompson said there was traffic on the highway and he saw Mr. Cleary passing cars carelessly, causing oncoming vehicles to veer to the shoulder of the road to avoid head-on collisions. Mr. Cleary passed at least three vehicles in a no-passing zone. Constable Thompson estimated Mr. Cleary’s speed to be in excess of 100 kilometers per hour on the Highway 104 despite the posted speed limit.
[13] The constable stopped his pursuit of Mr. Cleary in an effort to encourage him to stop driving so dangerously. Luckily, there were no accidents and no injuries. Constable Thompson travelled to Mr. Cleary’s home that evening in an effort to arrest him. He was unable to locate Mr. Cleary at his home. Cst. Thompson would encounter Mr. Cleary early the next morning.
June 17, 2012
[14] Carissa MacFadyen was visiting the Antigonish area on June 16, 2012, and was socializing at a bonfire. Mr. Cleary and his girlfriend arrived uninvited at the bonfire. Mr. Cleary was acquainted with Ms. MacFadyen but did not know her well. During the course of the evening, Ms. MacFadyen found herself sitting in the back seat of Mr. Cleary’s car chatting with Mr. Cleary’s girlfriend. Mr. Cleary got in the vehicle and started to drive with no explanation. Mr. Cleary and his girlfriend then began to argue. At some stage, Mr. Cleary pulled over on a dark, country highway and his girlfriend got out of the car. Subsequently, both Mr. Cleary and Ms. MacFadyen decided that they should go look for his girlfriend who was walking through the dark on a rural highway. Mr. Cleary cruised various country roads with Ms. MacFadyen, who was now in the front seat, while they were looking.
[15] While continuing their search, Mr. Cleary said he needed gas and eventually stopped at an Ultramar. He asked Ms. MacFadyen to put $50.00 worth of gas into his vehicle. When she finished pumping gas, Mr. Cleary told Ms. MacFadyen that he did not have any money to pay. They then drove away from the Ultramar without paying for the gas.
[16] About five minutes after they left the gas station, Ms. MacFadyen noted a marked RCMP vehicle pulling in behind their vehicle. The RCMP member driving the police vehicle was Constable Thompson. Constable Thompson activated his vehicle’s emergency equipment. Ms. MacFadyen alerted Mr. Cleary that the police were behind them. He then drove much faster. Ms. MacFadyen described Mr. Cleary as driving between 100 and 140 kilometers per hour on a small, winding, country road. His vehicle inevitably left the road and flew through the air into a farmer’s field. Ms. MacFadyen’s face was injured on impact. Her two front teeth were knocked out. She suffered other scrapes and abrasions. As soon as the vehicle came to rest in the field, Mr. Cleary ran away leaving the wrecked vehicle and his injured passenger behind.
[17] Constable Thompson had encountered Mr. Cleary at 9:20 pm on June 16, 2012. At trial he advised that at about 3:50 a.m. on June 17, 2012, he saw Mr. Cleary’s blue Chrysler Intrepid driving on Highway 104 approaching the Addington Forks Road. Constable Thompson saw the vehicle swerving back and forth on the highway. He activated his emergency equipment, including lights and sirens, and the vehicle accelerated away from him. Constable Thompson was not able to keep up with Mr. Cleary and eventually stopped pursuing out of concern for public safety.
[18] Constable Thompson eventually saw the blue Intrepid off the road, in a field. He called the RCMP detachment for assistance and requested that Corporal Hamilton attend with the police service dog. Other police officers arrived with Corporal Hamilton. They tracked the driver of the motor vehicle to a wooded area near some homes.
Black GMC Terrain
[19] During the search for the driver of the wrecked blue Intrepid, Constable Shaw-Davis and another constable were on the Addington Forks Road stopping vehicles to determine if anyone had seen the driver of the blue Intrepid. A black GMC Terrain slowed down to walking speed as it passed the police. Constable Shaw-Davis observed the driver to be Lawrence Cleary. Mr. Cleary appeared to be laughing or smirking at the police as they shone their flashlights on his face. He drove past the police, turned around further up the road and then drove slowly by them again. The police yelled at Mr. Cleary to stop and to get out of his vehicle. He ignored them. As it turned out, Mr. Cleary had just stolen the black GMC Terrain from Ralph Kelly. The vehicle had been parked in Mr. Kelly’s driveway, in the area where the police dog had tracked the driver of the wrecked blue Intrepid.
[20] Constable Shaw-Davis and her partner got into their vehicle and activated the emergency equipment. They pursued Mr. Cleary; however, he sped away on the Addington Forks Road. They were unable to catch him. A short time later they saw Mr. Cleary heading back toward them with his high beams on. Corporal Hamilton was driving a very large police equipped SUV. He parked it across the road in an effort to block Mr. Cleary’s path. When Corporal Hamilton activated his vehicle’s emergency equipment, Mr. Cleary stopped the stolen vehicle abruptly and backed into a driveway in an effort to change directions and avoid Corporal Hamilton. Corporal Hamilton seized the opportunity to stop Mr. Cleary by using his SUV to push the GMG Terrain into a ditch, pinning it there.
[21] Corporal Hamilton then told Mr. Cleary to get out of his vehicle. Mr. Cleary did not respond to this direction. Instead, he put the stolen GMC Terrain from drive to reverse repeatedly, in an effort to make his way out of the ditch.
[22] Corporal Hamilton used his police baton to smash in the driver’s window of the stolen vehicle in an attempt to arrest Mr. Cleary. Other police officers arrived to assist in the arrest. At some stage Mr. Cleary’s door was unlocked and the police attempted to pull Mr. Cleary out of the vehicle. Mr. Cleary undid his own seatbelt. When the police eventually pulled him out of the vehicle, Mr. Cleary was squirming in order to avoid being handcuffed. Corporal Hamilton managed to get one handcuff on Mr. Cleary but Mr. Cleary leaned back into the vehicle in an effort to try to avoid being fully handcuffed. This struggle continued for a number of seconds until Corporal Hamilton’s police dog jumped out his vehicle and bit Mr. Cleary’s hamstring. Having been bitten, Mr. Cleary immediately complied with the police demand that he allow himself to be cuffed. The police dog was told to let go of Mr. Cleary. Emergency services were called and examined the dog bite, confirming that Mr. Cleary suffered superficial wounds and did not require any medical treatment.
Breach Charges
[23] The facts to which Mr. Cleary has pled guilty in relation to the breach charges were read into the record by the Crown. They relate in large part to the charges of which he was found guilty at trial. I will not repeat them again today.
Position of the Crown and Defence
[24] The Crown asks for six years in custody, less time for remand credit, which all parties agree should be assessed at a ratio of 1.5 to 1. The defence suggests a range of one and a half years to four years custody is appropriate, less remand credit time. (Prior to the hearing, the defence had been requesting time served.) Both counsel provided a number of cases for the Courts consideration including:
List of Authorities of the Crown:
1. R. v. Roberts, 2005 ABCA 11 (CanLII)
2. R. v. Breton, 2004 ABCA 391 (CanLII)
3. R. v. Burnett, 2007 ABCA 299 (CanLII)
4. R. v. Hogg, 2009 ABPC 230 (CanLII)
5. R. v. Naugle, 2011 NSCA 33
List of Authorities of the Defence:
6. R. v. Mozlisky, 2009 SKCA 94
7. R. v. Melnick, 2005 ABPC 241
8. R. v. Fedick, 2005 ABPC 15
9. R. v. Sicotte, 2006 BCPC 337
10. R. v. Arlow, 2013 CanLii 62678
11. R. v. Delorey, 2010 NSSC 161
12. R. v. Fogarty, 2013 NSSC 298
13. R. v. Summers, 2014 SCC 26
Analysis
[25] The Criminal Code sets out the purpose and principles of sentencing at ss. 718, 718.1 and 718.2. Counsel have referred to these provisions during their submissions and Crown counsel has referred to them in part in their brief. They also do not need to be repeated.
[26] Two Pre-sentence Reports were prepared in relation to this matter. The first Pre-sentence Report was of absolutely no value to the Court for a number of reasons. Mr. Cleary was completely uncooperative with Probation Services in the preparation of the report that was supposed to be of assistance to his counsel, the Crown and the Court in sentencing him. Additionally, Probation Services made little, if any, effort to provide a detailed report or to contact any collateral sources. The original Pre-sentence Report also contained comments from the police that counsel and the Court agree are not appropriate.
[27] Sentencing was therefore adjourned to allow for the preparation of a new Pre-sentence Report. In the meantime, I forwarded the decision R v. Purchase, (1992), 127 N.S.R. (2d) 392, 1992 CanLII 2851 (NSSC) to all relevant parties. Purchase, supra, clarifies what sort of comments by the police should not be included in a Pre-sentence Report. A new Pre-sentence Report was then prepared. I wonder, merely rhetorically, why the new Pre-sentence Report contains the same inappropriate comments attributed to the police as were contained in the original Pre-sentence Report?
[28] In any event, the new Pre-sentence Report details that Mr. Cleary’s parents separated when he was young. His mother described him as having a very rough life growing up but did not elaborate further. Mr. Cleary has very little formal academic education. He has tried for some upgrading but has not followed through. Mr. Cleary does have a record of employment and when working appears to be a good employee.
[29] Mr. Cleary recognizes that he has a significant issue with regard to alcohol abuse and any issue with marijuana addiction. Family members believe that Mr. Cleary is in need of grief counselling to help him overcome the loss of his father. Certainly, keeping in mind the comments contained in the Pre-sentence Report, the unusual facts of this case, combined with Mr. Cleary’s remaining mute for in excess of one year while remanded in custody awaiting this trial, it appears that he is in need of not only addictions counselling, but other mental health counselling as well.
[30] Mr. Cleary has accumulated a significant criminal record and has been subject to all types of court-imposed dispositions. The Crown has tendered his criminal record and I will not repeat it (Mr. Cleary’s criminal record is attached as Appendix “B”).
[31] Deterrence, specific and general, have the utmost significance in this case. Denunciation also has a role in this case. Additionally, however, consideration must be given to rehabilitation and reformation if we are to give any effect to ss. 718, 718.1 and 718.2. All of these principles must be blended and balanced in order to come up with the correct disposition for Mr. Cleary considering his personal circumstances and the circumstances of this case. No cookie-cutter will be used in sentencing Mr. Cleary.
[32] Mr. Cleary has shown disregard for the safety not only of himself and his passenger on one occasion but also the general public and the police. He has shown disregard for court orders relating to his behaviour and his legal obligations. In fact, the majority of his criminal record relates to motor vehicles, alcohol and breaking court orders.
[33] There is no clear explanation for Mr. Cleary’s behaviour except that he appears to have initially been attempting to avoid the police and, at times, was possibly seeking some sort of thrill or adventure, thereby creating a risk to anyone who was near him or who crossed his path. The Dukes of Hazard was fiction. Mr. Cleary’s behaviour over those three different dates was real and put many people in danger.
[34] Nothing in counsels’ sentencing submissions addresses the unexplained behaviour of Mr. Cleary in remaining mute during the year or more after his remand. The only glimmer of insight came about during a pre-trial application when a forensic psychiatrist communicated in writing with Mr. Cleary. Mr. Cleary wrote that he was not speaking because he did not think he had anything to say that anybody would be interested in hearing. Mr. Cleary himself believes that he is suffering from depression and has untreated grief issues. Clearly, there is some sort of significant mental health issue that needs to be identified and addressed.
[35] The Crown asks for a sentence of six years less credit for remand time. The Defence had originally asked for time served, but changed their position for the hearing, in accordance with the cases that they provided, to essentially suggest a maximum sentence of four years less remand time.
[36] I believe that a sentence in the range of four years as suggested by Mr. Rogers on behalf of Mr. Cleary is appropriate considering Mr. Cleary’s record, the circumstances of this case, the cases provided to me and Mr. Cleary’s background. However, Mr. Cleary has accumulated approximately two years’ worth of remand credit. I do think that the justice system needs control over Mr. Cleary for a period in excess of two years because I believe that he has serious personal issues that must eventually be addressed through counselling and monitoring.
[37] Therefore, I will impose a sentence of two years in custody followed by three years’ probation for a total of five years’ control over Mr. Cleary.
[38] The probation order will include the following conditions: to keep the peace and be of good behaviour; not to operate any motor vehicle; not to consume alcohol outside of his residence; to attend for mental health assessment and counselling, as directed, with particular attention to depression and grief counselling; and to perform 100 hours of community service. Mr. Cleary can give something back to the community that he endangered. It appears that he is a good worker when working and there is no reason why he cannot perform 100 hours of community service.
[39] I will break the sentence down as follows:
1. Count No. 1, May 14, 2012: dangerous driving, contrary to s. 249 – six months in custody;
2. Count No. 2, May 14, 2012: operating a vehicle while disqualified, contrary to s. 259 - four months’ concurrent;
3. Count No. 3, May 14, 2012: evading the police - six months’ concurrent;
4. Count No. 4, June 16, 2012: operating a motor vehicle while disqualified, contrary to s. 259 - five months’ concurrent;
5. Count No. 5, June 16, 2012: operating a motor vehicle on highway 104 dangerously, contrary to s. 249 - two years’ concurrent;
6. Count No. 6, June 16, 2012: operating a motor vehicle while being pursued by a peace officer, that is evading, contrary to s. 249.1 - 18 months’ concurrent;
7. Count No. 7, June 17, 2012: stealing Ralph Kelly’s car, contrary to s. 333.1 - six months’ concurrent;
8. Count No. 8, June 17, 2012: operating a motor vehicle while disqualified, contrary to s. 259 - six months’ concurrent;
9. Count No. 9, June 17, 2012: operating a motor vehicle while being pursued by a peace officer, that is, evading, contrary to s. 249.1 - two years’ concurrent;
10. Count No. 10, June 17, 2012: operating a motor vehicle dangerously on Addington Forks Road, contrary to s. 249 - one year concurrent;
11. Count No. 11, June 17, 2012: resisting the police by fighting - two months’ concurrent.
[40] As well, in relation to the breach charges to which he pled guilty at the hearing, I sentence Mr. Cleary as follows:
1. The charge relating to the Recognizance dated May 10, 2012, the breach of curfew, one month concurrent;
2. The charge relating to the Recognizance dated May 14, 2012, possession of alcohol, one month concurrent;
3. The charge relating to an allegation of failing to attend Court on May 22, 2012, one month concurrent;
4. The charge relating to the Recognizance dated to June 14, 2012, the police officers’ attendance at his home following his flight from Constable Thompson, three months concurrent; and
5. The charge relating to the Recognizance alleging a between dates offence of May 14 to June 17, 2012, failing to keep the peace and be of good behaviour, one month concurrent.
6. The sentences will be concurrent to each other.
[41] In relation to the June 17, 2012, charges, that is, evading the police and dangerous driving charges from that same date, there will also be three years’ probation with the conditions to which I previously referred.
[42] In relation to the Crown’s request for an order that half of Mr. Cleary’s time in custody must be served before his parole eligibility in accordance with s. 743.6, I decline to make such an order. I do not believe that the facts of this case, where there were no accidents or injuries, whether by luck or for other reasons, require the imposition of such an order. Nor, do I believe that Mr. Cleary’s personal circumstances – although he does have a serious and related record - require such an order. I believe this is in keeping with R. v. Zinck, [2003] 1 SCR 41, 2003 SCC 6, which outlines the test for such a restriction on parole. I appreciate why the Crown may have asked for it, but I do not think that the standard is met here. Simply put, I just do not believe it is necessary or appropriate.
[43] However, as far as the driving prohibition goes, driving in Canada is a privilege. Mr. Cleary has repeatedly proven himself to be immature, irresponsible and a danger to society when he is behind the wheel of a car. Mr. Cleary simply did not care one bit for anybody else that was on the road or in their homes as his vehicle sped through traffic and in one instance went flying off the highway.
[44] Therefore, I agree with the Crown’s position in relation to the driving prohibitions. Pursuant to s. 259(1)(c), I order a three year consecutive driving prohibition in addition to any period for which Mr. Cleary is sentenced to imprisonment, for each conviction of driving while disqualified. Additionally, pursuant to the s. 259(2) charges, he is prohibited from driving for three years consecutive plus any period to which he is sentenced to imprisonment for each conviction. The same sentence will apply to his convictions for flight or evading the police contrary to s. 249.1 of the Criminal Code as well as the dangerous driving charges contrary to s. 249(1)(a) of the Criminal Code. The driving prohibitions imposed above should be served consecutively to each other, and to the ten year and nine month driving prohibition order imposed June 12, 2009.
[45] Therefore, the total driving prohibition that ought to be imposed upon Lawrence Cleary is 21 years, to commence after this sentence of imprisonment of two years in custody, all consecutive to his current driving prohibition.
[46] So to be clear, considering the submissions and cases put forward by counsel, the sentencing principles codified at s. 718, 718.1 and 781.2, the principles of totality, all other comments just made by me, from today forward, a sentence in the range of four years would have been appropriate. Considering the remand time accumulated by Mr. Cleary I am imposing an actual sentence starting today of two years in a federal penitentiary followed by three years’ probation along with the driving prohibition as just discussed.
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Justice Joshua M. Arnold