R. v. LeBlanc, 2011 NBCA 28

COURT OF APPEAL OF NEW BRUNSWICK 100-10-CA HER MAJESTY THE QUEEN APPELLANT SA MAJESTÉ LA REINE APPELANTE - and - - et - MARC DANIEL LEBLANC RESPONDENT MARC DANIEL LEBLANC INTIMÉ R. v. LeBlanc, 2011 NBCA 28 R. c.

LeBlanc, 2011 NBCA 28 CORAM: The Honourable Justice Larlee The Honourable Justice Bell The Honourable Justice Green CORAM : L’honorable juge Larlee L’honorable juge Bell L’honorable juge Green Appeal from a decision of the Provincial Court: June 23, 2010 Appel d’une décision de la Cour provinciale : Le 23 juin 2010 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard and judgment rendered: January 24, 2011 Appel entendu et jugement rendu : Le 24 janvier 2011 Reasons delivered: March 31, 2011 Motifs déposés : Le 31 mars 2011 Reasons for judgment by: The Honourable Justice Larlee Motifs de jugement : L’honorable juge Larlee Concurred in by: The Honourable Justice Bell The Honourable Justice Green Souscrivent aux motifs : L’honorable juge Bell L’honorable juge Green

Counsel at hearing: For the appellant: M.-C. Nicole Angers For the respondent: Eric Aucoin Avocats à l’audience : Pour l’appelante : M.-C. Nicole Angers Pour l’intimé : Eric Aucoin THE COURT The application for leave to appeal and the appeal are allowed and the sentence below is varied to a sentence of 20 months. LA COUR La demande d’autorisation d’appel et l’appel sont accueillis et la peine infligée en première instance est portée à 20 mois. The judgment of the Court was delivered by LARLEE, J.A. [ 1 ] The Attorney General seeks leave to appeal against a sentence imposed by a judge of the Provincial Court.

The respondent, Marc Daniel LeBlanc, pled guilty to four indictable offences: two charges of stealing merchandise ( s. 334 ( b )(

i) of the Criminal Code ); uttering a threat ( s. 264.1(2) ( a ) ); and willfully obstructing a police officer ( s. 129 ( d ) ).

A four-month sentence was imposed on each count of stealing, the two terms to be served consecutively followed by a two-year probation order; a one-month concurrent sentence was imposed for each of the other two offences. [ 2 ] The Attorney General raises three grounds of appeal: (1) the sentencing judge erred in failing to adequately consider the record of previous convictions of the respondent; (2) he erred in failing to adequately consider the gravity of the offences; and (3) he erred in failing to consider the representations of both counsel.

Specifically, this appeal raises the issue of whether the sentence in this case was d emonstrably unfit. [ 3 ] At the conclusion of the appeal we granted leave, set aside the eight-month sentence imposed by the judge and imposed a global sentence of twenty months. Reasons were to follow, here are those reasons . I. The Facts [ 4 ] On May 4, 2010, Mr.

LeBlanc entered a Jean Coutu pharmacy in Dieppe, filled his cart with $1,429.81 worth of merchandise, took it to the front of the store, placed it in the cart corral, walked by the cashier, grabbed the filled cart, and then ran out of the store with the unpaid merchandise. On May 7, 2010, the respondent entered the same Jean Coutu store, proceeded in the same manner, and left the store with $758 worth of unpaid items. On this occasion however, he had been observed and followed by the loss prevention officer, who called the police. As the loss prevention officer approached Mr.

LeBlanc, the latter told him not to try to stop him or he was going to kill him. Mr. LeBlanc then abandoned the cart full of merchandise and ran away from the store and the loss prevention officer. When the police arrived on the scene, two police officers chased Mr. LeBlanc for approximately five minutes through various streets, properties, parking lots and into the children’s play area of a nearby McDonald’s restaurant, before finally arresting and

handcuffing him. [5] At the sentencing hearing the Attorney General sought a sentence of a total term of incarceration of twenty-four months based on Mr. LeBlanc’s record and the nature of the offences. Mr. LeBlanc’s counsel recognized that his client had receiveda nine-month sentence for his most recent conviction for theft, but recommended to the sentencing judge a conditional sentence beimposed. If that were not appropriate then he suggested a short term of imprisonment followed by probation. The sentencing judgerealized it would be difficult to impose a conditional sentence because of Mr.

LeBlanc’s serious criminal record which included anumber of breaches of probation. The sentencing judge concluded by saying: Okay I have to consider he entered a guilty plea as well as his record which is a horrendous one. I have to also consider the time he’sspent in custody and the circumstances of what happened and while the Crown’s perhaps justified in asking for very lengthy term in viewof his record and the large number of similar offences I'm going to sentence him as follows [...] [6] Here is the

summary of the sentence: Stealing the property of a Jean Coutu store for a value not exceeding $5,000 on May 4th, 2010 (s. 334(

b) of the Criminal Code): 4months and 2 years supervised probation with provisions. Stealing the property of a Jean Coutu store for a value not exceeding $5,000 on May 7th, 2010 (s. 334(b)): 4 months consecutive Obstructing a peace officer engaged in the execution of his duty on May 7th, 2010 (s. 129(d)): 1 month concurrent Uttering a death threat to the loss prevention officer on May 7th (264.1(1)(a)): 1 month concurrent II. The Standard of Review [7] In order to vary a sentence, an appellate court must be“convinced it is not fit”, that is, “that […] the sentence [is] clearly unreasonable” (R.v.

Shropshire, (SCC), [1995] 4 S.C.R. 227, [1995] S.C. J. No. 52 (QL),at para. 46, quoted in R. v. McDonnell, (SCC), [1997] 1 S.C.R. 948,[1997] S.C.J. No. 42 (QL), at para. 15). The Supreme Court of Canada also made thefollowing comment in R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500,[1996] S.C.J. No. 28 (QL): […] absent an error in principle, failure to consider a relevant factor, or anoveremphasis of the appropriate factors, a court of appeal should only intervene tovary a sentence imposed at trial if the sentence is demonstrably unfit. [para. 90]

[8] In R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, the Court reiterated that appellate courts must show greatdeference in reviewing decisions of trial judges on appeals against sentence. An appellate court may not vary a sentence simply becauseit would have ordered a different one. [9] In reviewing the fitness of any sentence imposed, deferencewill have its limits. If the sentencing court commits an error of law or an error inprinciple, or if the sentence imposed is clearly unreasonable, an appellate court isrequired to impose the sentence which it considers fit (see R. v.

R.K.J. (1998), (NB CA), 207 N.B.R. (2d) 24, [1998] N.B.J. No. 483 (C.A.) (QL), para.12). [10] If the sentencing judge failed to consider relevant factors orfailed to give proper weight to each relevant circumstance, this will amount to anerror in principle. A sentence will be clearly unreasonable when it is inordinatelyshort: if there is a substantial and marked departure from the sentence customarilyimposed for similarly situated offenders committing similar crimes. In R. v.

R.K.J.,Drapeau J.A. (as he then was) stated: In this context, an error in law most commonly occurs as a result of a misapprehension of the evidence or a misapplication of judicialprecedents. As for an error in principle, it typically involves one or more of the following: the application of wrong sentencing principles,a failure to consider relevant factors or the taking into account of irrelevant considerations.

As well, there will be cases where the failureto give proper weight to each relevant circumstance will amount to an error in principle. (Our Court will necessarily be slow to find anerror of this nature for, if it was otherwise, professions of deference would soon ring hollow.) Finally, a sentence will be clearlyunreasonable where it is either inordinately long or inordinately short. It will reach this level only if it is a substantial and markeddeparture from the sentence customarily imposed for similarly situated offenders committing similar crimes. [para. 13] [11] In R. v.

LeBlanc (G.A.), 2003 NBCA 75, 264 N.B.R. (2d) 341, the Court provided guidance to parties andcounsel by articulating the following analytical framework: … intervention on appeal against sentence is inappropriate unless at least one of the following questions is answered affirmatively:

(1) Isthe sentence the result of an error of law?

(2) Did the sentencing judge err in principle in the exercise of his or her discretion?

(3) Is thesentence clearly unreasonable having regard to the fundamental purpose and objectives of sentencing (s. 718), as well as the principlesenunciated in sections 718.1 and 718.2 of the Criminal Code? [para. 17]. See Steeves v. R., 2010 NBCA 57, 360 N.B.R. (2d) 88, para 26. [12] Counsel for Mr. LeBlanc relied on the case of R. v. Richards, (ON CA), [1979] O.J. No. 1030 (C.A.) (QL), and argued since Mr.LeBlanc had served his sentence we ought not to vary the sentence unless we aresatisfied it is so manifestly wrong that we are required in the interest of justice tointervene.

The appeal was brought expeditiously and was scheduled while Mr.LeBlanc was still incarcerated. It was adjourned to a date after he had completed histerm of imprisonment at his request so his lawyer could be available. Because thedelay was due to Mr. LeBlanc’s request the jurisprudence set out in R. v. Richards is,in our view, not applicable. In any event, I am of the view the sentence imposed in thiscase is demonstrably unfit and requires intervention (see R. v. Veysey, 2006 NBCA 55,

303 N.B.R. (2d) 290 para. 32 ; R. v. Dunn , 2011 NBCA 19 , 2011 N.B.J. No.72 (QL) para. 22 ). III. Analysis and Decision [13] The sentencing judge mentioned the correct principles of sentencing in his reasons, but in the end failed to give proper emphasis to Mr. LeBlanc’s prior record and the gravity of the offences.

Consequently, he imposed a sentence that does not accord with the purpose and principles of sentencing set out in ss. 718, 718.1, and 718.2 of the Code . [14] The importance of the prior criminal history and its effect on subsequent sentences is a well established consideration for a sentencing judge: Absent some explanation, it is the practice of courts to punish persistent offenders more severely than those who had not previously committed crimes. Where the criminal record discloses that the offender is a “professional” practicing a particular crime, this will justify a severe sentence. [Clayton C.

Ruby, Sentencing , 6 th ed., (Markham: LexisNexis Canada Inc., 2004) at para. 8.62] Clearly a record which discloses a pattern of similar offences indicates the offender is dedicated to a life of crime and therefore is more of a danger to the public. Previous attempts to deal with have him have not been successful. [Ruby, at para. 8.66] [15] The sentencing judge described Mr. LeBlanc’s record in a number of ways: “horrendous”, “bad”, and “very, very, very bad”. It contains ninety-six convictions, forty of those were property offences and twenty-six of them were for theft. Mr.

LeBlanc had seven prior convictions of obstruction pursuant to s. 129 of the Code . He had ten prior convictions related to violence, five of which are charges under s. 264.1 of the Code . The remainder of his criminal record relates to breaches of probation orders, breaches of court undertakings, being unlawfully at large, parole violations, weapons charges and drug charges. [16] Courts have suggested for the repetition of an offence, the term of imprisonment imposed ought to be greater on the second occasion.

The so-called step principle dictates that the sentencing judge should not give a lesser sentence than the one the previous sentencing judge had given for the same offence. As Robertson, J.A. expressed it in Andrade v. R. , 2010 NBCA 62 , 363 N.B.R. (2d) 159 , para. 20 , the principle “contemplates a progression in the length of sentences imposed in the event of recidivism for the same offences”. [17] Since Mr.

LeBlanc’s record of previous convictions contained several prior entries of the same nature, his sentence should have reflected this and should have been greater than the last sentence on the similar offences. Even Mr. LeBlanc understood this principle. At the sentencing hearing his counsel explained: Mr. LeBlanc understands that every time he’s coming, it’s going to be higher and higher and higher … … we understand it’s gotta to be higher too. It’s just the logic of the system. [18] In July 2008 Mr.

LeBlanc pled guilty to three counts of theft and received a nine-month sentence on each count to be served concurrently. In February of 2009, he pled guilty to two counts of obstruction ( 129( d )) and received seven months on each to be served concurrent to a sentence he was serving in penitentiary. In 2003, he pled guilty to a threat charge (s. 264.1(2)( a ) ) for which he received a three-month conditional sentence.

This would lead one to the logical conclusion that the sentence to be imposed for the present set of offences ought to have been higher. [19] In addition to examining his previous record it is necessary to explore the gravity of the present offences. The theft offences involved a degree of forethought and planning on the part of Mr. LeBlanc. They were referred to on occasion at the sentencing hearing as “shoplifting”, but clearly this method of attempting to take goods from a store goes way beyond the notion of shoplifting. Mr.

LeBlanc went to the store, filled the cart with items, returned to the cart corral, went by the cashiers empty-handed,

quickly retrieved the merchandise and fled from the store. This demonstrates a degree of planning to purposely avoid detection fromemployees and store sensors. Returning to steal in the same manner from the same store three days later, after he succeeded in takingmerchandise, shows this was not impulsive behaviour. Deliberately targeting the store with premeditation and specific intent increasesthe gravity of the offence. Mr. LeBlanc’s violent reaction to the loss prevention officer’s attempt to detain him demonstrates hisdetermination to carry out his crime. [20] Mr.

LeBlanc’s exact threatening words to the loss prevention officer were “Don’t try to stop me cocksucker, Ijust won’t knock you out; I’ll kill you.” There is nothing in the record to make one believe that the loss prevention officer would not haveunderstood the content and portent of this threat and taken it seriously. Finally, the description of the police chase of Mr. LeBlanc wassufficient to attract a sentence similar to the last obstruction offence Mr. LeBlanc committed. [21] The sentencing judge made a demonstrable error in arriving at the quantum of the theft sentences.

Each ofthese offences should have attracted a sentence similar and proportional to the one imposed by the last sentencing judge. Whether or notthe last two offences formed part of the same criminal operation or transaction, I am of the view that a concurrent sentence isinappropriate.

I would not want to trivialize threats made against civilians, or the necessity for police to chase criminals in public areas.Consecutive sentences underscore the seriousness of these offences, and are appropriate in this case to deter this type of activity. [22] As a consequence of imposing consecutive sentences, this court stated in R. v. Daye, 2010 NBCA 53, 362N.B.R. (2d) 1, the totality principle found at s. 718.2(

c) is engaged at this stage, and the comprehensive sentencing approach set out bythe Supreme Court of Canada in 1996 in M. (C.A.) is to be followed. In consideration of the gravity of the offences, the offender’s moralculpability, the harm done to the victims, that the effect of the sentence is not “crushing”, and that it be in keeping with the offender'srecord and future prospects, the eight-month sentence imposed by the sentencing judge is varied and a cumulative twenty-monthsentence imposed in its stead. IV.

Disposition [23] For these reasons, I joined with my colleagues when the Court allowed the application for leave to appeal andthe appeal, and varied the sentences imposed in the court below to produce a twenty-month sentence. The Court settled upon thefollowing individual jail sentences, to be served consecutively: nine months for each of the two counts of theft, with the two-yearsupervised probation order with provisions remaining intact; one month for obstructing a peace officer and one month for uttering adeath threat to the loss prevention officer.

If the threat had been directed at a police officer, consideration would have been given to alengthier sentence (see R v. LeBlanc (1988), (NB CA), 90 N.B.R. (2d) 63 (C.A.), [1988] N.B.J. No. 810 (QL) and R.v. Daye, 2010 NBCA 53, 362 N.B.R. (2d) 1). We also gave the respondent sixty days credit for his one and one half month’s remand time, and he is eligible for creditfor the sentence he has already served. ____________________________________ M.E.L. LARLEE, J.A. WE CONCUR: ___________________________________ B. RICHARD BELL, J.A.

_____________________________________ BRADLEY V. GREEN, J.A.