TORONTO — A man who secretly downloaded intimate pictures from a woman's cellphone, threatened to pass them around, and sent one of the images to her son had his three-year prison term upheld on Monday even though the prosecution and defence had proposed a much lower sentence.
In dismissing a sentencing challenge by Daniel Myles, the Ontario Court of Appeal sided with a lower court judge in Hamilton who rejected the joint punishment submission last year.
"Three years was within the range that this court has identified for serial harassers," the Appeal Court said. "It was reasonable for the trial judge to emphasize specific deterrence, public denunciation and separation from society, and to conclude that a penitentiary term was required."
Court documents show Myles pleaded guilty before Judge Timothy Culver to criminal harassment for downloading the contents of his victim's cellphone onto his computer and threatening to send the intimate images to her friends, co-workers and son. Myles did follow through on his threats by sending photos of the woman's genitals to her son, the documents said.
After hearing the defence and prosecution suggest a sentence of six to nine months, Culver informed them he thought that would be insufficient. He indicated that three years would be a more appropriate punishment. Culver then gave them time to come back and argue the issue. He also gave Myles the opportunity to withdraw his guilty plea but the accused decided against doing so, court documents show.
Prosecution and defence then suggested in a new joint submission a sentence of nine to 12 months. Culver said no. He sentenced Myles last June to three years after describing him as someone who was "predatory, lacks empathy for his victims, lacks insight into his offending behaviour," and had failed to mend his ways despite numerous run-ins with the criminal justice system.
Myles appealed, arguing Culver was legally out of line to reject the joint submission.
In upholding the sentence, the Appeal Court said Culver had followed the correct process by giving the parties clear notice of his concerns about the adequacy of the punishment they were proposing, inviting them to argue the issue, and by giving Myles the opportunity to withdraw his guilty plea.
"Nothing more was required," the Appeal Court said.
The Appeal Court noted Myles had a long criminal record, including three dozen convictions for crimes such as harassment, uttering threats, and theft of telecommunications. He was also known for domestic violence and a "continuing pattern of threatening and abusive behaviour toward partners" and people in the community, the Appeal Court said.
Given those circumstances, the Appeal Court found, Culver was entitled to conclude that the proposed punishment was "wholly inadequate and contrary to the public interest," and instead impose the three-year term.
