Split panel dismisses sentence appeal, 69-year-old’s 20-year sentence not ‘unduly long or harsh’

The majority of a Court of Appeal panel has dismissed a sentence appeal brought by a man convicted of four home-invasion, gun- and knife-point sexual assaults. Though the crimes occurred more than 30 years ago, Donald Milani was not tried and convicted until 2017, and received a 20-year prison sentence at 69-years old.

Then in his thirties, Milani committed the offences between 1985 and 1987. After being arrested in 1987, he was discharged after the preliminary hearing and then re-arrested in 2010, when the progression of DNA testing techniques allowed investigators to identify him as the offender.

While for these crimes a “substantial term of imprisonment was required,” Milani argued the sentencing judge had failed to take appropriate consideration of his personal circumstances, including his age, says Jill Makepeace, who acted for Milani on appeal.

“When you're imposing a substantial jail sentence on somebody who is older, how does the court balance life expectancy with a proportionate sentence?” she says.

Milani’s argument was that a sentence should not “crush all hope” of the person ever being released from custody, otherwise it would no longer serve the purpose and principles of sentencing, says Makepeace, a criminal lawyer at Greenspan Humphrey Weinstein LLP.

Makepeace is in the process of reviewing the case to determine whether it is appropriate to seek leave to appeal to the Supreme Court of Canada. Though the SCC rarely grants sentence appeals, she says.

“It is a tough case because the offender is entirely unsympathetic,” says Chris Sewrattan, a criminal lawyer in Toronto. “He represents the worst of society, the person who plans to and then breaks into your house, rapes you, and then comes back and does it again.”

“With that backdrop, it's tempting for any court – trial- or appeal-level – to want to seriously punish this guy. And the whole point of the Court of Appeal is to ensure that when we are meting out punishment for these types of horrific crimes that we do so with proportionality in mind.”

During sentencing, the Crown submitted that the judge should arrive at an appropriate sentence for each of the four offences, then pare the global total to follow the totality principle. The Crown suggested 23-30 years, reduced to 20-to-life.

Milani argued for a maximum of three years per attack and that the sentence should not exceed his life expectancy of another decade. He submitted to the sentencing judge a global sentence of five-to-eight years.

The sentencing judge rejected Milani’s position, noting that he had lived free and avoided detection for 30 years in between his arrests. “Delay in sentencing should not encourage offenders to ‘lay low’ as [the appellant] did, hoping to avoid detection,” the judge said.

Each incident called for between five and eight years, the sentencing judge found, arriving at a total of 24. The totality principle brought the sentence to 20 years.

While acknowledging the sentence was not demonstrably unfit and within the typical range, Milani argued on appeal that the sentencing judge improperly applied the totality principle and failed to adequately emphasize the passage of time and his age.

Under the totality principle, from ss. 718.1 and 718.2 of the Criminal Code, a sentence must be proportionate to the offence, to the degree of responsibility held by the offender and, where consecutive sentences are imposed, the total must not be “unduly long or harsh.” Milani argued the sentencing judge erred in all three aspects.

Milani said age should have been treated as a “significant” mitigating factor because, at his age, a 20-year sentence removed all hope. He will be eligible for full parole in December 2023.

Justices Kathryn Feldman and Peter Lauwers found the sentencing judge made no error of law or principle and dismissed the appeal.

In dissent, Justice Ian Nordheimer disagreed that the sentencing judge had given proper effect to the passage of time and Milani’s old age. Justice Nordheimer would have allowed the appeal and reduced the sentence to 14 years, as requested by the appellant.

Justice Nordheimer said the sentencing judge engaged in “an erroneous consideration” of the aggravating and mitigating factors. First, the sentencing judge did not want to send “the wrong message” by allowing a delay in sentencing to encourage other offenders to “lay low… hoping to avoid detection.” But Milani merely carried on with his life, discharged from the allegations and protected by the presumption of innocence, said Justice Nordheimer. “The trial judge erred in using the appellant’s position, as a presumptively innocent person, as a negative factor on sentencing.”

The sentencing judge’s treatment of the issue also ignored “the gap principle,” a “foundational consideration in sentencing,” he said. A gap in an offender’s criminal record, such as the 30 years between Milani’s discharge and re-arrest, speaks to “future risk and to rehabilitative potential” and indicate better prospects. A person with a criminal record, not convicted of any crimes for a number of years, should be treated similar to a first-time offender, according to the principle.

It is not debatable, said Justice Nordheimer, that 30 years without a conviction “is a relevant factor to consider.” Such an interval suggests rehabilitation and the sentencing judge’s consideration of it “reflects an error in principle, one that impacted the sentence imposed.”

Justice Nordheimer also found the sentencing judge erred in consideration of Milani’s life expectancy, requiring medical evidence when a common-sense approach would lead to the conclusion that a 20-year sentence, at 69 years old, would likely exceed the appellant’s lifespan.

Justices Feldman and Lauwers sought to deflect the impact of Milani’s age with reference to his prospect for parole, said Justice Nordheimer. It is “improper” to count on the Parole Board of Canada to lessen the blow of “excessive sentences,” and this reliance is “entirely speculative,” he said.

“I agree with the majority,” says Sewrattan. “You can't look at parole when you're crafting a sentence, generally. But you should be able to look at parole when you're determining whether a sentence is crushing, in that it will exceed the offender’s life expectancy.”

“There are few public bodies better equipped to assess rehabilitation than the parole board of Canada. And so, if Mr. Milani has in fact rehabilitated himself within this 30-year gap… then the parole board of Canada should be able to see that and presumably would be able to give him parole at an early stage of his sentence.”

The sentencing judge’s errors led to a sentence unbefitting Milani’s individual circumstance and the sentencing judge’s reasons did not mention rehabilitation at any point, said Justice Nordheimer. “It effectively deprives the appellant of any realistic hope of release or rehabilitation… The sentence imposed is ‘crushing’ in that respect.”