The Yukon Court of Appeal has overturned a Whitehorse man’s dangerous offender designation — and by extension, the possibility of his indefinite incarceration — after finding that the sentencing judge failed to consider the man’s future treatment prospects.
Instead, Mark Lange will return to court for a new dangerous offender hearing, in front of a different judge.
A territorial court judge declared Lange a dangerous offender in 2015 after he pleaded guilty to assault causing bodily harm for repeatedly punching, kicking and stomping on another man in front of the old Salvation Army building the year before.
During Lange’s dangerous offender hearing, the Crown had presented evidence of Lange’s lengthy criminal record that was peppered with violent offences, including, perhaps most infamously, a conviction of manslaughter for his role in the 2004 killing of Carcross hotelier Robert Olson.
Lange appealed the designation.
In a Jan. 15 decision, Yukon Court of Appeal Justices Susan Cooper and Gregory Fitch, supported by Chief Justice Robert Bauman, set the designation aside, finding that the sentencing judge had erred on two grounds: in not providing sufficient reasons for the designation, and for not considering Lange’s prospects for treatment.
The two grounds of appeal are “inextricably connected,” Cooper and Fitch wrote, as judges, when considering declaring someone a dangerous offender, must consider the offender’s future treatment prospects. However, the sentencing judge in Lange’s case did not touch on that subject at all.
The Crown, the decision notes, conceded that the sentencing judge had erred by not considering Lange’s treatment prospects. However, it argued that even had the error not occurred, Lange would have been designated a dangerous offender anyway based on the evidence before the court.
“Having found that the sentencing judge erred, the Court can dismiss the appeal if there is no reasonable possibility that the verdict would have been any different had the error of law not been made,” Cooper and Fitch wrote. “… In this case, it is not possible for the Court to determine what the verdict would have been if the judge had not erred because he failed to give sufficient reasons for his decision.”
The decision notes that the sentencing judge had, among other things, two reports by a forensic psychiatrist, Dr. Shabehram Lohrasbe, who had assessed Lange which addressed the topic of his treatment prospects.
Lohrasbe had also testified in court during the designation hearing.
In one of the assessment reports, Cooper and Fitch noted, Lohrasbe had wrote that Lange had “engaged with and benefited from programs in the past,” and that “while his relapse into substance abuse and his violence are of obvious concern, it does not follow that further treatment interventions are worthless.”
Combined with his testimony, Lohrasbe’s conclusion was that “successful treatment was a ‘reasonable possibility’” should Lange commit himself to a treatment program, establish a “track record of cooperation, honesty, and disclosure” and totally abstained from “alcohol and all intoxicants.”
“Regrettably, although the sentencing judge reviewed Dr. Lohrasbe’s evidence, he did not make findings of fact in relation to it,” Cooper and Fitch wrote, explaining that the dangerous offender designation could have turned on whether the sentencing judge found Lohrasbe’s evidence credible or not.
Because of “the absence of clear actual findings on this critical issue,” Cooper and Fitch wrote that the Court of Appeal was not in a position to either affirm Lange’s dangerous offender designation nor deem him a long-term offender instead.
Offenders subject to dangerous offender hearings are automatically considered for a less-restrictive long-term offender designation as well, which does not carry the possibility of an indefinite prison sentence.
“Unfortunately, a new hearing before a different judge is required…” Cooper and Fitch wrote.
Contact Jackie Hong at firstname.lastname@example.org