A creepy 15-year-old kid murders a 100 pound 70-year-old woman
                                                          

The young teenager was a neighbor of Velma Thomson who would occasionally help her with her chores around her house. He is currently 34 years of age. At the time of the murder, he was only 15 years of age.

 She was found dead in her home, partly nude and lying in a pool of blood. She had defensive wounds and had been stabbed in her heart several times. Her jugular vein was also severed. The evidence suggested that she had been raped and sodomized. What sicko does that to any woman?  His name is Christopher Ellacott—a creep.

The creep committed the crimes of murder, rape and sodomy in 1983 and avoided detection for almost three decades. By the time he was arrested, he was a middle-aged man. The creep was a middle-aged man. He had lived an apparently ordinary life. He had a job, married with two children and had not been convicted of any further crimes.

A thumbprint left at the crime scene was eventually linked to this creep. He was subsequently placed under surveillance and samples of his DNA were obtained surreptitiously. The samples matched the DNA in the exudate (fluid with a high content of protein and cellular debris that escapes from blood vessels and has been deposited in tissues or hair) on the victim’s pubic hairs and semen found on one of her slippers. The creep was then charged with the crime of murder.

 The Crown (prosecutor) brought an application to have the creep sentenced as an adult rather than as a youthful offender. The sentencing judge concluded that Ellacott should be sentenced as an adult and sentenced him to a mandatory term of life imprisonment with a seven-year parole ineligibility period and lifetime supervision. After serving seven years of his sentence, he would be entitled to be paroled as is the law in Canada. Had he been a really bad prisoner and exhibited signs of wanting to kill someone, he could legally be made to serve at least twenty-five years in prison or even the rest of his life. 

 He appealed the sentence and submitted that the sentencing judge erred in sentencing him as an adult rather than as a youthful offender. Specifically, he submitted that the sentencing judge erred in:

1. failing to consider whether the presumption of diminished moral blameworthiness had been rebutted;

2. using the appellant’s testimony and denial of guilt as aggravating factors; and

3. failing to properly weigh the principles of rehabilitation and integration into society.

Why would this creep deny that he raped and sodomized and then murdered the woman? The evidence against him was clearly evident.

At stake in his appeal is the difference between the life sentence the creep received as an adult and the sentence he would receive if he were sentenced as a youthful offender. The creep would receive a minimum of seven years’ imprisonment if sentenced as an adult, as opposed to a maximum of six years if sentenced as a youthful offender. In addition, an adult sentence comes with a lifetime supervision order, while a youth sentence limits the supervisory period to only four years.

The Appeal Court judge that wrote the decision for him and the other two judges hearing the appeal said in his ruling;

“In my view, the appellant was properly sentenced as an adult. Although the sentencing judge erred in using the appellant’s testimony and denial of guilt as aggravating factors, the error is of no consequence and the sentence is nonetheless fit. The enormity of the creep’s crime renders a youth sentence manifestly inadequate to hold him accountable.

Legislation in Canada governing the sentencing of youthful offenders has changed considerably since the creep committed the offences in 1983. It is not contested that the creep was entitled to the benefit of a lesser sentence under the legislation in force at the time of sentencing.

The governing provision is section 72(1) of the Youth Criminal Justice Act provides as follows:

Section 72 (1) The youth justice court shall order that an adult sentence be imposed if it is satisfied that—

(a) the presumption of diminished moral blameworthiness or culpability of the young person is rebutted; and

(b)  a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and section 38 would not be of sufficient length to hold the young person accountable for his or her offending behaviour.

Obviously, the sentencing judge felt that the crime was so serous and horrible, it was necessary to give the creep a greater sentence.

In order to succeed on its application to have the creep sentenced as an adult, the Crown had to satisfy a two-prong test. It had to establish not only that the presumption of diminished moral blameworthiness had been rebutted, but also that a youth sentence would not be sufficient to hold the appellant accountable for his behaviour.

This does not necessarily make young persons less accountable for serious offences; it makes them differently accountable. Nor does it mean that a court cannot impose an adult sentence on a young person. It means that before a court can do so, the Crown, not the young person, should have the burden of showing that the presumption of diminished moral culpability has been rebutted and that the young person is no longer entitled to its protection. 

Promoting the protection of the public is equally well served by putting this onus on the Crown, where it belongs. The Crown may still persuade a youth court judge that an adult sentence or the lifting of a publication ban is warranted where a serious crime has been committed.  Further, young persons will continue to be accountable in accordance with their personal circumstances and the seriousness of the offence. But the burden of demonstrating that more serious consequences are warranted will be, as it properly is for adults, on the Crown.

The creep’s lawyer argued that the sentencing judge failed to consider whether the presumption of diminished moral blameworthiness was rebutted, and instead “jumped directly to the question of whether a youth sentence would adequately reflect the need for accountability. 

In my opinion, the creep possessed no diminished moral blamelessness when he raped, sodomized and murdered the old fail woman who had befriended the creep. He knew that raping and sodomizing his victim was both morally and legally wrong and that is why he then murdered her so that she wouldn’t call the police.   

The appeal court rejected the lawyer’s submission.

Sentencing judges are required to consider the seriousness and circumstances of the offence; the age, maturity, character (including sophistication, intelligence and capacity for moral reasoning), background, and previous record of the young person; and any other factors the court considers relevant. These criteria are relevant to both prongs of the test. 

Many of the factors overlap governing the presumption and the considerations as to whether a youth sentence would be sufficient to hold the young person accountable. Nevertheless, the court stated that the preferred approach is for the two prongs of the test to be analyzed separately, lest a factor relevant to only one of the prongs be relied upon to support a finding in relation to the other. 

 The presumption is not rebutted simply by the seriousness of an offence. But the seriousness of an offence, along with the circumstances of an offender, is a relevant consideration in considering whether the presumption has been rebutted. The level of moral judgment or sophistication demonstrated in the planning and implementation of the offence are also relevant considerations, along with the young person’s role in carrying out the offence.

The sentencing judge considered all of these factors. He recognized the onus on the Crown to rebut the presumption of diminished moral blameworthiness. However, the sentencing judge was not required to analyze the two prongs of the test separately and did not do so. Although the sentencing judge did not state specifically that the presumption had been rebutted, it is implicit on reading his reasons as a whole that he concluded that the presumption was rebutted.

The circumstances of this case were more than sufficient to rebut the presumption of diminished moral blameworthiness. Nothing in the evidence suggested a heightened vulnerability, immaturity, or reduced capacity for moral judgment—the considerations that give rise to the presumption.

His conduct was no mere mistake or lapse in judgment. He committed an act of extreme violence against an elderly, vulnerable neighbour who until then had no known reason to fear him.  His purposeful actions were undertaken by him alone. The high degree of moral blameworthiness attaching to these actions is self-evident. In other words, the 15-year-old boy was an evil killer. The sentencing judge did not fail to consider whether the presumption of diminished moral blameworthiness was rebutted.

Did the sentencing judge err in using the creep’s testimony and denial of guilt as aggravating factors?

It is well established in previous cases that a plea of guilty counts as a mitigating factor on sentencing, but neither a decision to plead not guilty nor the manner in which an accused person presents his or her defence is to be treated as an aggravating factor. Every defendant has the right to plead not guilty of the crime he is charged with even if he really did the crime.  It is when a prisoner is applying for parole that denying that he or she committed the crime is an aggravation factor that can legitimately result in him or her being denied parole.

Any perceived impingement upon the manner in which a defence is to be conducted, such as a fear that a particular tactic might induce a heavier penalty, would impair the right of the defendant to full answer and defence to the charge.

The creep’s lawyer submitted that the sentencing judge used his disbelief of his client’s testimony at trial as an aggravating factor on sentencing, holding that a lifetime supervision order was necessary to protect the public because he considered the appellant’s explanation for his thumbprint to be a contrived attempt to avoid guilt.

  

The Crown responded by arguing that the sentencing judge properly considered that the creep’s  attitude toward the offence and lack of remorse validly supported the sentence imposed by demonstrating that the creep had not accepted responsibility for his actions.

Generally when a criminal commits a crime, at that moment he knows what he is doing and that it is wrong.  However, if later, he treats his crime as something that he did wasn’t morally wrong and won’t accept his responsibility for committing the crime—then that is evidence of a character flaw.

The Appeal Court accepted the fact that an accused’s attitude towards his or her crime and its consequences may be an aggravating factor that is properly considered in deciding on an appropriate sentence.

An accused’s attitude toward the crime may be relevant if it demonstrates a substantial likelihood of future dangerousness. As it turned out, during the decades the creep was free before he was finally caught, there was evidence that he committed another heinous crime or any crime at all. However, despite that evidence, when the sentencing judge sentenced the creep to the heavier sentence, it was because of the creep’s attitude towards the crime he committed decades earlier.

Although the sentencing judge properly recognized that remorse can be considered as a mitigating factor reasons it is not an aggravating one if he shows no remorse.

The creep testified in his own defence and provided a possible explanation for the presence of his thumbprint at the crime scene. He testified that on a day just prior to the victim’s murder, he helped her carry a cardboard box into her home. Further, he said simply that the DNA found at the scene was not his.

The sentencing judge emphasized that there was a 1 in 15 quadrillion chance that the DNA found in the semen and exudate at the murder scene did not belong to the creep and described the creeps explanation for his thumbprint as a “lame and cobbled contrivance.”

Concocting his fictional event to somehow hide the virtual identity  of the murderer, revealed something quite sinister about the creep. He was prepared to manufacture a lie in the hope that this deception might avoid a finding of guilt. Not only was the creep aware that he was the perpetuator, it was obvious that he would do and say anything to avoid the conclusion that he committed this atrocious and violent act and no-one else.

The case against the creep was indeed overwhelming, but that did not disentitle him the right to exercise his right to make full answer and defence. He was entitled to deny that he committed the offence and to defend himself as he considered appropriate.

However, in my opinion, this doesn’t mean that he could make up a phony explanation that he hoped would get him off the charge of murder. Trials are not “who done it” games. Both the Crown and the defendant’s lawyers are expected to conduct themselves seriously. I say this because I am convinced that the lawyer for the creep had to know that his client was lying through his teeth. The lawyer should have asked the judge to permit him to withdraw from the case less he bring the court system into disrepute. 

The attempt by this despicable creep by contrivance and concoction to weave his way around the significant, meaningful, and scientific, direct and circumstantial evidence of his guilt is another factor that persuaded the court of appeal that only a life time monitor of the accused would afford society a measure of assurance that this conduct by this creep will never be repeated.

The creep’s lawyer argued that the sentencing judge erred in concluding that the principles of rehabilitation and integration into society were not relevant considerations because of the passage of time and the fact that the appellant had not reoffended. These considerations were relevant and should have weighed in his client’s favour. Rehabilitation of his client was unnecessary because the evidence demonstrated that before he was arrested decades after the murder was committed, he was wholly integrated into society, and the ultimate objective of holding the offender to account has already been met.

For a sentencing judge to hold a young offender accountable in the sense of being meaningful, it must reflect, as does the retributive sentence, the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender's conduct. I see no other rational way for measuring accountability.

 Rehabilitation and reintegration are important considerations in the accountability inquiry, but, contrary to the creep’s lawyer’s suggestion, they are not determinative of that inquiry

 To be sure, the circumstances of this case were unusual. In the usual circumstances, a young person’s sentence would be determined while he or she was still a young person, or was relatively close in age to a young person. The creep managed to avoid detection for almost three decades. He later presented himself as a man who was well established in the community, and argued that an adult sentence is not required either to rehabilitate him or to protect the public from future offending.

The creep’s lawyer’s submission overlooked the overarching purpose of the law, which is to achieve accountability. The sentencing judge considered all of the relevant factors. Although he considered that neither rehabilitation nor risk was a live issue, and that this weighed in favour of a youth sentence, however, this was subject to the caveat that the creep’s motive for committing the crime was not understood. The sentencing judge did not err in concluding that a proportionate sentence in this case emphasized accountability rather than rehabilitation and reintegration.

 It is important to emphasize that sentencing is a discretionary decision and deference to the sentencing judge’s decision remains the order of the day. Demonstrable unfitness is a very high threshold that must be met before an appellate court may intervene. The focus must be on the fundamental principle of proportionality.

The creep committed a gruesome crime at the age of 15. He sexually assaulted and murdered his elderly, vulnerable neighbour. He went on as though nothing had happened, avoiding justice for nearly 30 years. There is no explanation for his crime; no sense of what motivated him to have committed so heinous an act.

In all of these circumstances, the sentence cannot be said to constitute an unreasonable departure from the principle of proportionality. In my view the sentence imposed is a proportionate sentence that achieves accountability for the serious crime the creep committed. Further, society can rest easier knowing that the National Parole Board will be keeping an eye on this man for the rest of his natural life.

I inserted the word ‘creep’ often in this article for three reasons. The first on is that the man was without a doubt, a creep when he committed those ghastly crimes of rape, sodomy and murder against an old frail woman who was supposedly his friend. Secondly, he hadn’t changed as he grew older. He lied in court trying to get away with the murder. The third reason is that I didn’t want to bandy his last name about as it might unfairly reflect on other persons with the same name. My choice of the word ‘creep’ in my opinion is quite appropriate.