R. v. Evans, 2018 NLSC 90

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Evans , 2018 NLSC 90 Date : April 20, 2018 Docket : 201601G1144 Her Majesty The Queen v. DAVID Evans Before: Justice Donald H. Burrage Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: April 12, 2018

Summary: The 23 year old offender was sentenced to three years imprisonment for four counts of armed robbery, one count of robbery and five counts of having his face masked during the commission of an offence. The robberies were treated as part of a single criminal adventure. The offender was 19 years old when the offences were committed with no prior criminal record. The robberies were to finance the offender’s addiction to prescription medicine. Recognizing the importance of general deterrence and denunciation, the rehabilitative measures of the offender were not to be ignored.

In the intervening four years he mastered his addiction, stayed out of trouble with the law, followed the strict conditions of his release, started a family and obtained meaningful employment. Overall, proportionality called for a sentence on the lower end of the range for such offences. Appearances:

Paul J. Thistle Appearing on behalf of the Crown Derek J. Hogan Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Lundrigan, 2012 NLCA 43; R. v. Cluney, 2013 NLCA 46; R. v. Okemahwasin, 2015 SKPC 71; R. v.Ralph, 2007 NLTD 42; R. v. Kane, 2012 NLCA 53; R. v. Stapleton (1984), 45 Nfld. & P.E.I.R. 109, 132 A.P.R. 109 (Nfld. (C.A.)); R. v.Meadus (1986), (NL CA), 60 Nfld. & P.E.I.R. 64, 181 A.P.R. 64 (Nfld. (C.A.)); R. v. Hutchings, 2012 NLCA 2; R. v.Mitchell, 2017 NLCA 26; R. v. Mahoney, 2018 NLCA 16; R. v. Frampton, [2016] N.J. No. 348, 133 W.C.B. (2d) 592 (Prov. Ct.); R. v.

Stanley-Smith (2016), 382 Nfld. & P.E.I.R. 289, 129 W.C.B. (2d) 512 (N.L.(Prov. Ct.)); R. v. S. (N.A.), 2007 MBCA 97; R. v. Arbuthnot, 2009 MBCA 106; R. v. Ryan (2013), Nfld. & P.E.I.R. 293, 1049 A.P.R.293 (N.L. (Prov. Ct.)); R. v. Bungay (2014), 346 Nfld. & P.E.I.R. 28, 1078 A.P.R. 28 (N.L. (Prov. Ct.)); R. v. Snow, 2006 NLTD 3; R. v.Oates (1992), (NL CA), 100 Nfld. & P.E.I.R. 289, 16 W.C.B. (2d) 485 (Nfld. (C.A.)); R. v. Parsons, 2017 NLCA 64;R. v. Wozny, 2010 MBCA 115; R. v. Yetman, 382 Nfld. & P.E.I.R. 243, 130 W.C.B. (2d) 553 (N.L. (Prov. Ct.)) STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c.

C-46 REASONS FOR JUDGMENT Burrage, J.: INTRODUCTION [1] On 12 April 2018 David Evans entered a plea of guilty, and, based on an Agreed Statement of Facts, was convicted of fourcounts of armed robbery, one count of robbery and five counts of having his face masked during the commission of an offence. It nowfalls to the Court to impose a just and appropriate sentence for these crimes. [2] The specific charges for which Mr.

Evans was convicted, as set forth on the Indictment are, as follows: THAT on or about the 5 May 2014, at or near Mount Pearl, Newfoundland and Labrador, did rob monies and goods from NeedsConvenience, contrary to

section 343-344(1)(

b) of the Criminal Code. THAT on or about the 5 May 2014, at or near Mount Pearl, Newfoundland and Labrador, did have his face masked with intent tocommit an indictable offence, contrary to section 351(2) of the Criminal Code. THAT on or about the 7 May 2014, at or near Mount Pearl, Newfoundland and Labrador, did rob monies and goods from NeedsConvenience, contrary to

section 343-344(1)(

b) of the Criminal Code. THAT on or about the 7 May 2014, at or near Mount Pearl, Newfoundland and Labrador, did have his face masked with intent tocommit an indictable offence, contrary to section 351(2) of the Criminal Code. THAT on or about 10 May 2014, at or near Paradise, of Newfoundland and Labrador, did rob monies and goods from K & D. GroceryLtd., contrary to

section 343-344(1)(

b) of the Criminal Code. THAT on or about 10 May 2014, at or near Paradise, Newfoundland and Labrador, did have his face masked with intent to commit anindictable offence, contrary to section 351(2) of the Criminal Code. THAT on or about the 14 May 2014, at or near Mount Pearl, Newfoundland and Labrador, did rob monies and goods from Barbours

Convenience, contrary to

section 343 - 344(1) (

b) of the Criminal Code . THAT on or about 14 May 2014, at or near Mount Pearl, Newfoundland and Labrador, did have his faced masked with intent to commit an indictable offence, contrary to section 351(2) of the Criminal Code . THAT on or about 15 May 2014, at or near Mount Pearl, Newfoundland and Labrador, did rob monies and goods from Needs Convenience, contrary to

section 343 - 344(1) (

b) of the Criminal Code . THAT on or about 15 May 2014, at or near Mount Pearl, Newfoundland and Labrador, did have his face masked with intent to commit an indictable offence, contrary to section 351(2) of the Criminal Code . [ 3 ] Following Mr. Evan’s convictions the Crown withdrew several additional charges. position of the crown and defence [ 4 ] Applying the principle of totality and emphasizing the principles of general deterrence and denunciation, the Crown argues that a total sentence of seven years’ imprisonment is just and appropriate.

The Crown notes that totality is not to be taken as a “bulk discount” for crimes committed. [ 5 ] Finally, the Crown points to the mandatory requirement for a DNA Order and firearms’ prohibition for ten years. [ 6 ] The defence accepts the mandatory orders, but submits that an overall sentence of five years is just and appropriate. The defence points to the positive measures undertaken by Mr.

Evans over the past four years and his avoidance of further trouble. principles of sentencing [ 7 ] The Court’s decision on a just and appropriate sentence must, of course, be guided by the principles codified in sections 718 to 718.2 of the Criminal Code , R.S.C. 1985, c. C-46. [ 8 ]

Section 718 provides that the fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society, by imposing sanctions having one or more of the objectives set forth in that section.

These objectives are to denounce unlawful conduct and the harm done to victims, or to the community that is caused by unlawful conduct; deter the offender and other persons from committing offences; separate offenders from society, where necessary; assist in rehabilitating offenders; provide reparations for harm done to victims, or to the community; and promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims, or to the community. [ 9 ]

Section 718.1 of the Criminal Code sets out that the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. It is an expression of the principle that a fit sentence is one that takes into account the circumstances of the offence(

s) and of the offender ( R. v. Lundrigan , 2012 NLCA 43 ). [ 10 ] Proportionality is central to the sentencing process, as a sentence which properly respects this principle will at the same time ensure that the secondary goals of denunciation, restraint, promotion of justice for victims, and the maintenance of public confidence in the administration of justice are met. The principle of proportionality applies to sentencing for all criminal offences ( R. v. Cluney , 2013 NLCA 46 ). [ 11 ]

Section 718.2 of the Criminal Code provides that a sentence should be increased, or reduced, to account for any relevant aggravating or mitigating circumstances relating to the offence, or the offender. [ 12 ] Pursuant to subsection 718.2 (

d) of the Criminal Code , incarceration is used as a last resort, where less restrictive sanctions are not appropriate. Pursuant to subsection 718.2(

e) of the Criminal Code , all non-custodial sentences should be considered provided they are reasonable and consistent with the harm caused, with particular attention to the circumstances of aboriginal offenders. CIRCUMSTANCES OF THE OFFENCE(S) [ 13 ] As noted, Mr. Evans’s convictions were based on an Agreed Statement of Facts. It reads: May 5, 2014 – Counts 4, 5 On May 5, 2014, at around 10:55 pm Brenda McDonald was working as a clerk at the Needs Convenience at 104 Park Avenue, Mount Pearl, when a male wearing a hoodie rang the bell to enter the store. Ms.

McDonald asked the male to pull down his hood, which he did. The male entered the store, and Ms. McDonald was able to clearly observe his face. The man walked around the store briefly before approaching the counter. When he approached the counter, the man had a scarf covering the lower part of his face. He laid a drink on the counter, presented a knife from his pocket and said “give me the money, put it in the bag.” The knife was 4-5 inches long and a couple of inches thick. Ms. McDonald gave him about $100 in cash and several packs of cigarettes. The man then left on foot.

Police responded to the store and searched the area. Cst. Keith Morgan and Police Service Dog (‘PSD’) Edge obtained a track from the scene of the offence which led to 10 Municipal Ave where the trial ended. At that location PSD Edge alerted on the baseball cap on the ground in front of 10 Municipal Avenue. The baseball cap was seized by Cst. Ian Turpin and sent to the National Forensic Laboratory in Vancouver where it was sampled for DNA. DNA from two individuals was found on the hat, the primary contributor of DNA extracted from the hat was found to be a match with a sample of DNA later taken from Mr.

David Evans on September 17, 2014, pursuant to a DNA warrant. The robbery was captured on the store’s video surveillance system and Cst. Justin Soo was able to identify the individual involved as David Evans. May 7, 2014 – Counts 10, 11 On May 7, 2014, at around 11:45 pm, Rebecca Snook was working at the Needs Convenience at 75 Barbour Drive in Mount Pearl when a man rang the buzzer to enter the store. He was not masked at the time; however, when he entered the store he pulled up a t-shirt to cover the lower part of his face. He approached Ms. Snook, placed a Walmart bag on the counter and presented a pink knife.

He said “give me the money and give me the cigarettes.” He received $150 and 6 packs of cigarettes. The man then left the store. Cst. Morgan and PSD Edge responded to the store and tracked the suspect northward towards a trail system. PSD Edge located a hat, a pair of scrubs and a homemade mask. The trail then led to Babcock Place where the track was lost. The clothing located on the trail was seized by Cst. Simms. The clothing was then sent to the RCMP National Forensic Laboratory in Vancouver where it was sampled for DNA evidence. DNA from two individuals was found on the clothing.

The primary contributor of DNA was found to be a match with a sample of DNA later taken from David Evans pursuant to a warrant. The robbery of the store was captured on video surveillance and Cst. Soo was able to identify the individual involved as David Evans. May 10, 2014 – Counts 13, 14 On May 10, 2014, around 6 pm, Allison Hart, was working as a clerk at K&D Grocery located at 265 Paradise Road, Paradise, when a male wearing a dark hoodie with a white logo at the tip of the hood, a light colored ball cap with a “star” logo and a dark pants entered the store.

The male approached the counter with a piece of cloth over his lower face and stated “money, give me everything.” Ms. Hart gave him approximately $800. She did not recall seeing a weapon. Edward Haynes saw the male flee from the store in a blue Pontiac G5. The robbery of the store was captured on video surveillance and Cst. Justin Soo was able to identify the individual involved as David Evans. May 14, 2014 – Counts 15, 16 On May 14, 2014, at approximately 4:50 pm a male approached the front door of Barbour’s Convenience at 75 Barbour Drive in Mount Pearl.

The male entered the store, put up his hood and concealed the lower part of his face with a mask. The man’s hoodie was black with a white logo reading “MPRA” visible on the hood. The man presented a knife from his right hoodie pocket and said to the clerk “money, twenties and give me all of them.” The clerk, Theressa Heffernan, gave him approximately $100 and the male left the store on

foot. The robbery of the store was captured on video surveillance and Cst. Soo was able to identify the individual involved as David Evans. May 15, 2014 – Counts 18, 19 On May 14, 2014, Leonard Thorne, a retired police officer, contacted the RNC and indicated that over the preceding two weeks on several occasions in the evenings he had noticed a blue Pontiac G5 parked outside of his house on Badcock Place in Mt. Pearl on days when robberies were reported at the Needs Convenience on Barbour Drive. On May 15, 2014, at 10:25 pm Mr.

Thorne reported that the same Pontiac G5 with NL license plate # HKL-447 was parked on his street and that he had seen a man get out of the car and walk down the nearby wooded trail. Constables Hollett and Neary responded and hid nearby, staking out the vehicle. Cst. Mike Hollett recognized the vehicle as one he had stopped earlier that evening, which, at that time, was being driven by David Evans. The vehicle was registered with Motor Registration Division as being in ‘sold-to’ status to David Evans. At around 10:33 pm Cst.

Keith Morgan with PSD Edge positioned himself at the rear of Needs Convenience on Barbour Drive. At 11:34 pm Rebecca Snook was again working at the Needs Convenience on Barbour Drive when a young male entered the store and pulled something up over his face. The male approached the counter and demanded money. Ms. Snook gave him between $50 and $100. The male asked for a carton of cigarettes but Ms. Snook said she did not have access to the cartons of cigarettes. The male then left the store on foot. Ms. Snook said that the robber was the same person who had robbed the store on May 7. Ms.

Snook activated the store panic alarm once the man left. PSD Edge and Cst. Morgan responded immediately and obtained a fresh track on the suspect. The track led north towards the walking trails which led towards Badcock Place. On the trail, PSD Edge located a hoodie which was laid on top of a garbage can. The hoodie was black with a white logo reading “MPRA” embroidered in white lettering on the hood. The track continued down the trail to Badcock Place where it ended at David Evans who, at this point, had been arrested by police. The hoodie was seized by Cst.

Mike Ghaney and sent to the RCMP Forensics Laboratory in Vancouver where it was sampled for DNA evidence. DNA from two individuals was found on the hoodie, the primary contributor of DNA was found to be a match with the sample later taken from David Evans pursuant to a warrant. Shortly after the robbery was reported at Needs, Constables Neary and Hollett observed a male run out of the trail system towards the Pontiac G5 parked on Badcock Place. Cst. Neary placed the male under arrest and searched him locating a knife in his back pocket and a quantity of cash.

A wallet was also found on the man and the male was identified by his Newfoundland and Labrador driver’s license as David Evans. Mr. Evans was read rights and caution from the police issued card at 11:46 pm. He advised he understood and declined to speak with a lawyer. At this point, Mr. Evans advised he “held up a Needs” because he was “on the pills.” Mr. Evans was conveyed to RNC Headquarters to be interviewed by police. May 16 – Counts 13, 14, 15, 16, 18, 19 Starting at around 3 am on May 16, Mr. Evans was interviewed by Sergeant William Rossiter and Constable Justin Soo of the RNC.

The interview was recorded on video. In the interview Mr. Evans admitted to the May 15 robbery of the Needs on Barbour Drive. Mr. Evans also admitted to the May 10 robbery of K & D Grocery in Paradise. Mr. Evans was shown video from the May 14 robbery and did not admit to it but did say “I have a hoodie like that, MPRA stands for Mt. Pearl Referee Association.” [ 14 ] All robberies occurred during a ten-day period between 5 May and 15 May, 2014 and all involved convenience stores. In each case Mr.

Evans received cash ($100, $150, $800, $100, and between $50 - $100) and on two occasions he left with a few packs of cigarettes.

[ 15 ] The modus operandi of the robberies was much the same. Mr. Evans would approach the lone clerk at the counter with his face covered, or partially covered, and demand money. During three of the robberies, Mr. Evans presented a knife from his pocket. [ 16 ] The robberies were not sophisticated, nor were they well planned. Rather, they were crimes of opportunity fueled by Mr. Evan’s addiction to prescription drugs. He was arrested shortly following the fifth robbery. At the time of his arrest Mr. Evans advised the police that he held up Needs Convenience as he was “on the pills”. [ 17 ] Mr.

Evans was interviewed by police early the following morning and at that time admitted to two of the robberies and offered incriminating evidence regarding the clothing worn during a third robbery. [ 18 ] The charges for which Mr. Evans has been convicted are serious, as evidenced by the maximum punishment for armed robbery of life imprisonment. CIRCUMSTANCES OF THE OFFENDER [ 19 ] A Pre-Sentence Report, dated 2 April 2018, was prepared by Tracy Cumby, Adult Probation Officer. In its preparation, Ms. Cumby interviewed Mr. Evans, his paternal grandmother, J.E. and the father, A.C., of Mr.

Evans’ common law spouse. [ 20 ] Mr. Evans completed grade 10 and then quit school to go to work. He was employed for two years with Country Ribbon, but was laid off when a portion of the business was sold. For a period he worked as a labourer with East Coast Trails, but since August 2014 has been employed with Bursey’s Contracting

(2010) Ltd. (Bursey’s). [ 21 ] Mr. Evans has been in a common law relationship since 2016 and has a one-year-old son. J.E. reports that Mr. Evans is a very proud father and that his son is “his world”. A.C. reports that Mr. Evans and his daughter appear to get along well together and spend a lot of time with family. In his opinion, Mr. Evans is an “excellent dad”, who is also loved by his other daughter’s young child. [ 22 ] Mr. Evans presently resides with his common law spouse and young son in an apartment. His spouse is a stay at home mom and he is the sole provider for the family.

He reports that his employer is aware of the matters before the court and is supportive of him. He states that initially he had hoped to earn his heavy equipment ticket, but has since been given increased responsibility with the company. [ 23 ] Ms. Cumby was unable to make contact with Mr. Evans’ employer. However, the defence submitted (with the consent of the Crown) a letter from Keith Barter, Project Manager, with Bursey’s. Mr. Barter writes: I am writing this letter in regards to David Evans Jr, time with our company.

David has been a valuable employee within our company for over 3 years now, over this time David has grown into one of our best employees. He is dependable, hardworking and a team player. Over the last year he has shown interest in learning in specialty work that we do with our company. He is now proving himself in this role and is a valuable member of our team. To sum it up, David is a hard working young man that has shown great interest and potential in learning new things and in turn making himself into a better man. [ 24 ] A.C. reports that he first met Mr.

Evans before he started dating his daughter, at a time when Mr. Evans was “drinking and acting like an idiot”. He reports that this is not the person he knows now and that Mr. Evans has “really turned his life around”. He describes him as a hard worker, who works too hard sometimes. He completely trusts Mr. Evans and regards him as a good person who made a very bad mistake. It is his belief that Mr. Evans has learned from his mistakes and is not the person he was at the time of the offences. He does not believe Mr.

Evans is currently using drugs and has no concerns regarding substance abuse. [ 25 ] J.E. reports that Mr. Evans hung around with the “wrong crowd” after his loss of employment with Country Ribbon, and that he made some bad choices, but since then has been making positive changes. She echoed the sentiment of A.C., that during the past four years Mr. Evans has been working very hard. It is her belief that Mr.

Evans is very remorseful for his actions and describes him as a “good natured person who would do what he could for you”. [ 26 ] Probation Officer Cumby writes: David Evans presented for the purposes of the completion of the presentence report as required. He was cooperative and forthcoming with this author during same and expressed remorse for his involvement in the matters before the court. The accused states that there is no excuse for his behaviours however, the accused appears to have insight into what led to same.

David Evans reports that at the time of the offence he had become involved with drugs and was associating with those that were involved with drugs. The accused states that he will forever regret his choices at that time. [ 27 ] Ms. Cumby concludes her Report with the opinion that Mr. Evans is “a suitable candidate for any form of community supervision that the court may deem appropriate”. I pause at this juncture to observe that while Ms. Cumby may view Mr.

Evans as suitable, a conditional sentence is not an option, as the offences for which he is convicted carry a maximum sentence of life imprisonment. [ 28 ] Mr. Evans was 19 years old at the time of the offences. He has no prior criminal record and thus presents to the court as a youthful first time offender. [ 29 ] Mr. Evans was arrested on 15 May 2014. On 23 May 2014, he was released on a Recognizance with strict conditions.

These included reporting to the Royal Newfoundland Constabulary (RNC) twice a week, a curfew between 10:00 p.m. and 7:00 a.m. daily and not to possess or consume alcohol, or any illegal drug or substance. By all accounts, Mr. Evans has fully complied with the terms of his recognizance during the four years since his release. [ 30 ] As it relates to past drug use, while Mr. Evans denies any usage since the offences, and there is no evidence before me to suggest otherwise, Ms. Cumby recommends that he be referred to Mental Health and Addictions Services for individual counselling, in

order to assess his current treatment needs. She writes: The accused appears to be pre-contemplative in his willingness to address his past issues and has been making positive changes in hislife. It is the opinion of this author that counselling would be effective at this time. [31] Overall the Pre-Sentence Report presents Mr. Evans in a very favourable light, as a young man, who at the age of 19, madesome bad choices in order to finance his drug addiction. He is now 23 years old and by all accounts has taken measures to turn his lifearound.

He has stable employment and a young family who are dependent upon him for support. He has lived under strict conditionsthis past four years and has had no further involvement with the law. [32] Mr. Evans admitted to his role in three of the robberies shortly after his arrest, saying that he did so because he was “on thepills”. Before me, Mr. Evans entered pleas of guilty and was convicted based upon an Agreed Statement of Facts. In doing so, he notonly accepted responsibility for his behavior, but saved others from the trauma of testifying at his trial. When asked if he had anything tosay, Mr.

Evans expressed remorse and apologized to his victims for his behavior. His guilty plea, apology and expression of remorse, allof which I accept as genuine, are mitigating factors on sentencing. Victim Impact Statements [33] In this case Victim Impact Statements were provided to the Court, in accordance with

section 722 of the Criminal Code, fromthe owner of Needs Convenience, Melissa Gough and one of her employees, Kjirsten Earles. [34] Victim impact statements assist the sentencing process by bringing home to the offender the consequences of his or herbehaviour and alerting the Court to the very real damage done to the victims and community as a whole. Victim impact statements thusassist the Court in crafting sentences which acknowledge the harm done to the community and promote a sense of responsibility in theoffender (R. v.

Okemahwasin, 2015 SKPC 71, at para. 15). [35] At the same time, vengeance has no role in the sentencing process. Such statements must not seek to compensate harm throughthe imposition of a harsh sentence (R. v. Ralph, 2007 NLTD 42, at para. 19). [36] Ms. Gough writes of the negative impact of Mr. Evans’ actions on her business and staff. How she has had to send heremployees for counselling, as they are afraid to work alone, and “are always looking over their shoulders”. [37] She concludes by observing that Mr.

Evans made bad choices, and hopes that he gets the help he needs, and in time realizes theimpact of his actions. [38] Ms. Earles was an employee of Needs Convenience when it was robbed on 7 May and 15 May 2014, although she was notworking at the time. Her co-worker, Rebecca Snook, was on shift. [39] Ms. Earles expressed guilt over not being there on the nights her co-worker was robbed. She states that she is no longer thesame carefree happy person, but has become paranoid and fearful and easily subjected to panic/anxiety attacks. [40] Ms.

Snook did not provide a Victim Impact Statement, nor did the other three store clerks who were robbed by Mr. Evans. Nevertheless, I am prepared to recognize that the experience must have been traumatic for all involved. previous decisions [41] The principle of parity, that “a sentence should be similar to sentences imposed on similar offenders for similar offencescommitted in similar circumstances” (section 718.2(

b) of the Criminal Code) is a fundamental principle of sentencing (R. v. Kane, 2012NLCS 53). Accordingly, the Court was referred to a number of prior sentencing decisions for armed robbery. [42] Over 30 years ago, in R. v. Stapleton (1984), 45 Nfld. & P.E.I.R. 109, 132 A.P.R. 109 (Nfld. (C.A.)), our Court of Appeal statedthat the protection of the public is the primary principle of sentencing to be applied in imposing a sentence for this offence (at paragraph10): This Court has consistently stated that armed robberies must attract substantial sentences.

The public must be protected and the offendersand like minded people must be deterred. The only way to try to accomplish these aims is to incarcerate offenders for lengthy terms… [43] The Court in Stapleton also observed that in "the absence of exceptional circumstances, a sentence of three years in cases ofarmed robbery is not inappropriate …", but where a loaded gun is used, more is called for (at paragraph 12). [44] Some two years after Stapleton, our Court of Appeal in R. v.

Meadus (1986), (NL CA), 60 Nfld. & P.E.I.R.64, 181 A.P.R. 64 (Nfld. (C.A.)) made it clear that even in the case of a youthful first offender, while the principle of rehabilitation mustalways be overlooked, in the case of armed robbery “general deterrence must be the principle consideration” (at page 66). The term ofimprisonment must also be such as to reflect society’s abhorrence of this type of crime. [45] More recently, in R. v.

Hutchings, 2012 NLCA 2, Green C.J.N.L. reviewed sentences respecting a number of convenience storerobberies in this jurisdiction and concluded that (at paragraph 104): The normal level of sentence for armed robberies of convenience stores-gas bars by a young person, masked, late at night, where themoney or merchandise taken is relatively small could range from three to five years. [46] The range is not prescriptive; however, as the Court recognized that the range is a “normal level of sentence” that “could”apply. As our Court of Appeal recently confirmed in R. v.

Mitchell, 2017 NLCA 26, sentencing ranges are guidelines, not hard and fastrules intended to set a minimum sentence for a particular charge (at paragraph 17). That said, departures from the range must not beundertaken lightly, and only then with proper justification.

[ 47 ] In Hutchings , the offender appealed a sentence totaling seven years and two days on three counts of armed robbery, two counts of being disguised with intent and two counts of breach of probation. The Court of Appeal varied the sentenced to five years and six months. [ 48 ] Mr. Hutchings had a lengthy criminal record involving a total of 25 offences between late 2006 and mid-2009, which included a conviction for armed robbery as a young offender.

His record prompted the trial judge to observe that he had “not gotten the message” from his prior sentences. [ 49 ] He pled guilty to two groups of offences which occurred on two separate days, six days apart. The first involved a convenience store, the second a gas station. [ 50 ] On both occasions, Mr. Hutchings entered the establishment during the night with his face covered and brandishing a knife. He left with a small quantity of cash ($200 and $115) and some cigarettes.

The convenience store robbery also involved the attempted robbery of a female customer, who was ordered to lay down on the floor. [ 51 ] In reducing the overall sentence the Court of Appeal imposed four years for the convenience store robbery and one year and six months consecutive (reduced from four years for totality) for the gas station robbery. The sentences for all other charges were concurrent. [ 52 ] In reducing the sentence, the Court of Appeal noted that while there was no Pre-Sentence Report, Mr.

Hutchings young age (he was 20 years old at the time of the offences) should be taken into account, insofar as his behavior may be partially attributable to immaturity. The Court noted that he was still maturing and developing those things, like job prospects and relationships, that provide the base for a productive life (at paragraph 107). [ 53 ] Like Mr. Evans, Mr. Hutchings suffered from a drug problem; a circumstance which fueled his behavior. Unlike the present case, however, there was no Pre-Sentence Report and nothing to indicate whether Mr. Hutchings had rehabilitated his behavior before sentencing.

Unlike Mr. Evans, who has no prior criminal record, Mr. Hutchings’ record was lengthy and included a prior conviction for armed robbery. In the case of Mr. Hutchings there was the additional use of force when he ordered the store customer to lay down on the floor. Finally, there was a degree of planning in Hutchings , as he had an accomplice at the first robbery. [ 54 ] As recently as last month our Court of Appeal in R. v. Mahoney , 2018 NLCA 16 observed (at para. 41 ): 41. It must also be noted that armed robberies are a serious problem in the community of St. John's.

Chief Justice Green recognized this problem five years ago in Hutchings (paragraph 98 ). In my view, the problem not only persists, but has increased. Recognition of a serious local crime problem is a valid consideration on sentencing (R. v. Lacasse, 2015 SCC 64 , [2015] 3 S.C.R. 1089 at paras. 87-104 ).

The message must be conveyed to the community that the criminal justice system can and will respond appropriately to protect people from robberies in their homes and in their communities. [ 55 ] It is perhaps not surprising that the same Court confirmed its earlier view in Hutchings regarding an appropriate range of sentence (at paragraph 22). [ 56 ] In Mahoney , the offender argued, amongst other things, that the parity principle required that he should receive the same sentence as his co-offender, J.D., for the armed robbery of a convenience store, Marie’s Mini Mart.

J.D. had been sentenced to 2.5 years for this robbery (committed with Mahoney) and to 30 months concurrent for her armed robbery at an ATM. In drawing a distinction between Mr. Mahoney and J.D., the Court of Appeal observed that J.D. was younger (age 27 vs. 33) with no prior convictions, whereas Mr. Mahoney had a criminal record for thefts, fraud, mischief and breach of probation. [ 57 ] Before me the Crown referred to two authorities as providing appropriate “bookends” for the sentencing of Mr. Evans, R. v. Frampton , [2016] N.J. No. 348, 133 W.C.B. (2d) 592 (Prov. Ct.) and R. v.

Stanley-Smith (2016), 382 Nfld. & P.E.I.R. 289, 129 W.C.B. (2d) 512 (N.L. (Prov. Ct.)). [ 58 ] In Frampton , the offender entered guilty pleas to one count of bank robbery, four counts of armed robbery, five counts of possession of a weapon for a purpose dangerous to the public peace, five counts of having his face masked and five counts of breach of recognizance.

The robberies occurred over a three-month period between the end of August and the end of November 2014. [ 59 ] With the exception of the bank robbery, the other armed robberies were all of convenience stores and involved the use of a large knife, or machete. The robbery of the bank likewise involved the use of a machete. Mr. Frampton was 27 years old with an extensive criminal record. Defence counsel opined that the counselling and programming available in a federal institution might help him eventually re-integrate into society. [ 60 ] Walsh, Prov.

J. rejected a joint submission for a total sentence of eight years’ imprisonment, imposing instead an 11 year sentence. He imposed a sentence of seven years for the bank robbery and four years consecutive for the first of four armed robberies of convenience stores. Taking totality into consideration all remaining sentences were concurrent. [ 61 ] I would observe that the four years for the first of the four armed robberies was not reduced for totality, but reflective of what Walsh, Prov.

J. saw as an appropriate sentence at the first stage in the Hutchings approach (at paragraph 65 ) Frampton had an extensive criminal record and was looking for federal time to help him rehabilitate. [ 62 ] In Stanley-Smith the offender entered guilty pleas and was convicted of four armed robberies, four counts of possessing a weapon, a needle (syringe) dangerous to the public peace, four counts of breaching her recognizance and one count of being masked. The armed robberies were conducted at gas stations over a four-day period in 2015.

Her modus operandi was to threaten the cashier with a needle, saying that it was infected with hepatitis. In each case, she fled with a small quantity of cash (between $60 and $422) and some cigarettes.

[ 63 ] After considering totality, Linehan, Prov. J. imposed a total sentence of six years in prison. Ms. Stanley-Smith was sentenced to three years on the first armed robbery and three years consecutive on the third armed robbery. With remand credit the total sentence imposed was 5-1/2 years. [ 64 ] There are some undeniable similarities between the facts of this case and that of Mr. Evans. Both cases involved the armed robbery of several businesses over a relatively short period, and in both cases, small denominations of cash and cigarettes were stolen. [ 65 ] In addition, the offender was 20 years old (Mr.

Evans was 19) with no prior record and entered guilty pleas at an early stage, as an indication of her remorse. Like Mr. Evans, at the time of the offences, Ms. Stanley-Smith was addicted to drugs and committed the offences in order to obtain money. [ 66 ] While the similarities are apparent, there are also noteable differences. [ 67 ] Ms. Stanley-Smith was subject to a court order at the time of the offences, a fact which the trial judge found to be a “significant aggravating factor”. The trial judge found it “disturbing” that Ms.

Stanley-Smith was armed with a syringe capable of not only causing injury, but exposing the victim to disease. Even if there was no risk of disease, the victims would have no way of knowing that such was the case. [ 68 ] Perhaps the most noteable distinction between this case and that of Mr. Evans, lies in the Pre-Sentence Report. Linehan, Prov. J. described that report as a “problematic document” (at paragraph 24), in which Ms. Stanley-Smith was not entirely forthcoming with the writer.

She lied about her continued addiction to crack cocaine, her attendance at classes at the Discovery Centre and her association with another drug user at a residence she described as a drug haven. This led the judge to conclude that Ms. Stanley-Smith “was presenting a façade that she had changed the behaviours that led to criminality” (at paragraph 24). [ 69 ] Even without the current offences being considered, the Pre-Sentence Report described Ms.

Stanley-Smith as a “high risk to reoffend” (at paragraph 25). [ 70 ] There are two additional cases, not referenced by counsel, out of Manitoba, that I have found to be of assistance. [ 71 ] In R. v. S. (N.A.) , 2007 MBCA 97 the Manitoba Court of Appeal overturned a 22-month conditional sentence imposed on a young adult for five armed robberies while disguised, substituting instead a three-year period of incarceration. [ 72 ] The offender had two prior convictions as a youth (age 17) for armed robbery with a knife while disguised.

After turning 18, he committed four further robberies, again disguised and carrying a knife. He was arrested, admitted to the robberies and released on bail. While on release he committed a fifth robbery while disguised and armed with a knife. Four of the five robberies were of convenience stores, while one was of a clothing store. [ 73 ] The Court observed that the trial judge placed too much emphasis on the offender’s prospects for rehabilitation, a fact borne out by his post sentencing conduct. [ 74 ] Arguably, the facts in this case are more egregious than the matter before me.

In S. (N.A.) the offender had a prior record, committed one offence while on judicial interim release and had proven the trial judge’s belief in the prospects for rehabilitation to be misguided. What makes the two cases similar are the offenders young age (18 vs. 19) and the number and nature of the offences. [ 75 ] In R. v. Arbuthnot , 2009 MBCA 106 , the Manitoba Court of Appeal imposed a six year concurrent sentence for each of the 11 robbery offences. In doing so, the Court took note that Mr.

Arbuthnot was masked for each of the robberies and during two of the robberies held a knife to the throat of the gas attendant and to the stomach of another. While the trial judge placed considerable emphasis on the offenders rehabilitative prospects, the Court of Appeal found that “the evidentiary foundation with respect to accused’s’ future prospects … is scant at best” (at paragraph 13). No pre-sentence report was filed and there was “nothing exceptional to his appreciation of the steep hill he has to climb” (at paragraph 14). These comments are to be contrasted with the circumstance of Mr.

Evans. [ 76 ] The Court of Appeal agreed with the trial judge’s comment that while denunciation and deterrence are paramount sentencing principles “rehabilitation remains a consideration for young first offenders” (at paragraph 37). The Court noted that “the fact an offender is a youthful first offender is a mitigating factor and the prospects of rehabilitation are usually better with youthful offenders” (at paragraph 37). The problem for the Court was that Mr. Arbuthnot, at age 32, was not a “youthful” offender.

In the context of the criminal justice system, a youthful offender is generally considered to be a person between 18 and 21 years of age (at paragraph 37). Mr. Evans is a youthful first offender. [ 77 ] Returning to cases in this jurisdiction, in R. v. Ryan (2013), Nfld. & P.E.I.R. 293, 1049 A.P.R. 293 (N.L. (Prov. Ct.)), the offender pled guilty to two armed robberies, together with two breaches of recognizance. In one of the robberies, Mr. Ryan, whose face was masked, held a knife to an employee of No Name Pizza and demanded money from him. Mr. Ryan was known to the employee, who recognized his voice.

The employee suffered a superficial one inch cut to his upper chest area, just below his collarbone. Approximately $400 was stolen. [ 78 ] In the second armed robbery, Mr. Ryan arrived at a gas station on a bicycle brandishing an imitation handgun, constructed, in part, of electrical tape. He pointed it at the attendant and demanded that the attendant give him everything. He then fled with $181 in cash and roughly $400 worth of cigarettes. To divert suspicion, he left a pill bottle on the counter with another name on it. Mr. Ryan was subject to a recognizance at the time. [ 79 ] Mr.

Ryan was 26 years old with a history of substance abuse. At the time of sentencing, he self-reported that he was doing well on the methadone program and did not have any current substance abuse issues. He had a prior criminal record dating from 2000, when he committed a break and enter at age 13. His criminal record included three armed robberies as a youth, as well as break and enters, breaches of probation and assault causing bodily harm. As an adult, his record included two thefts, breaches of undertaking, probation

and theft of a motor vehicle. [ 80 ] A victim impact statement was filed by the owner of the gas station. While there were no statements filed by the other victims, Walsh, Prov. J. observed that “it would be fair to assume there was significant impact on them” (at paragraph 26). [ 81 ] Taking the principle of totality into account, Walsh, Prov. J. sentenced Mr. Ryan to an overall sentence of four years and eight months, before credit for time served.

For the robbery of the pizza employee, the sentence was 18 months and for the robbery of the gas station, three years consecutive, less time served. [ 82 ] Walsh, Prov. J. observed that it was an aggravating factor that Ryan knew his victim at the pizza place and that the victim was cut, albeit resulting in a superficial wound. He also noted that the gas station robbery involved a degree of planning, as to avoid suspicion Mr. Ryan left a pill bottle on the counter. I would observe, as well, that someone took the time necessary to build a “handgun” out of electrical tape. [ 83 ] In R. v.

Bungay (2014), 346 Nfld. & P.E.I.R. 28, 1078 A.P.R. 28 (N.L. (Prov. Ct.)) the offender pleaded guilty to two armed robbery offences, possession of a weapon dangerous to the public peace, having her face masked and breach of recognizance. [ 84 ] In May 2013, she entered a convenience store armed with a knife in her hand, visible to the attendant, and demanded money. She left with $200, which she later spent on cocaine. [ 85 ] In December of that same year, she entered another convenience store, disguised with a scarf, and demanded money. This time she did not use or produce a weapon.

She was chased by the storeowners and escaped in her vehicle with her two children in the back seat. After evading police, she was eventually arrested while parked at a red light. [ 86 ] She admitted to the robberies, explaining that in each instance she needed the money to buy drugs. She expressed remorse and pled guilty. [ 87 ] Ms. Bungay was 27 years old with two children, ages five years and five months. She had ten previous convictions, including theft, fraud and break and entry into a dwelling house. Her most recent conviction was 2009. [ 88 ] Orr, Prov.

J. observed that while the offences were motivated by Ms. Bungay’s drug addiction and this can be considered as a mitigating factor, where accused persons have a previous history of offending, much of the mitigation is lost (at paragraph 20). As the second robbery was committed after Ms. Bungay was released for the first offence and was on a recognizance, her drug addiction was at best a neutral factor. [ 89 ] Orr, Prov. J. further observed that Ms. Bungay will suffer collateral consequences as a result of her charges and such consequences can be a factor to consider (at paras. 24-25): 24.

The accused has suffered collateral consequences as a result of the charges. Collateral consequences can be a factor to consider. In the Law of Sentencing (A. Manson, Irwin Law 2001 p. 136) the author notes, “The mitigating effect of indirect consequences must be considered in relation both to future re-integration and to the nature of the offence. Burdens and hardships flowing from a conviction are relevant if they make the rehabilitative path harder to travel. Here one can include loss of financial or social support. People lose jobs families are disrupted …” 25. In this case Ms.

Bungay has lost access to her children and suffered subsequent disruption to her family. In Sentencing (Ruby et al. Lexis Nexis 2008) at p. 286 the author notes: Wherever possible courts avoid imposing sentences that will prejudice children or other members of the family. It should be stressed that this principle operates only where there are no other important aspects requiring sever deterrent sentences. [ 90 ] However, in this case Ms. Bungay involved her children directly in the offence by bringing them with her when she committed the robbery. Under the circumstances Orr, Prov.

J. found that the separation from her family could not be considered as a mitigating circumstance. [ 91 ] This may be contrasted with Mr. Evans and his family, for whom the collateral consequences of his incarceration will be significant. He now has a one-year-old child and partner dependent upon him for financial and emotional support. He is in the words of A.C. an “excellent dad”. His separation from his young son at such a formative time in his son’s life is a relevant consideration. [ 92 ] Orr, Prov. J. sentenced Ms.

Bungay to 18 months for the first robbery and three years for the second robbery and 3 months for breach of recognizance, all consecutive. The other offences were ordered concurrent. [ 93 ] The breach of recognizance was an aggravating factor as Ms. Bungay was at the time of the second robbery, some seven months later, on release for the first robbery. It does not appear, however, that the three year sentence for the second robbery was reduced for totality. analysis and disposition [ 94 ] Sometimes otherwise good people do bad things.

I have before me a young man with no criminal antecedents, who at the age of 19 committed a number of serious crimes. The robberies were not sophisticated, or well planned, but crimes of opportunity fueled by Mr. Evans addiction to prescription medication.

[95] That was four years ago. In the intervening period, Mr. Evans has turned his life around and is now on the right path tocontinue as a productive, law abiding, member of society. He has mastered his addiction, stayed out trouble with the law, started a youngfamily and a meaningful career. He has a one year-old son and is in a stable common law relationship. He is the sole breadwinner forhis family. In short, the 23-year-old man now before me is not the desperate youth he once was. The case is rare, in that it does not callfor a sentence designed to rehabilitate the offender. The passage of time and Mr.

Evans’ resolve have seen to this. [96] Mr. Evans has accepted responsibility for his actions, is remorseful and has provided a sincere apology to his victims. [97] Based on Mr. Evan’s lack of criminal record, the recommendation of Probation Officer Cumby and Mr. Evans’ willingness toabide by the conditions of his recognizance, I am satisfied that specific deterrence is not a significant consideration in his sentencing. Heis deemed a suitable candidate for any form of community supervision and for four years has complied with the stringent terms of hisrecognizance.

It is highly unlikely that he would re-offend in the future. [98] Simply put, incarceration will not place Mr. Evans on a “rehabilitative path directed towards future integration into society”, toparaphrase an objective found in many sentencing decisions. He does not require “rehabilitation” and is already “integrated”. Rather,what imprisonment will do is remove him from his family, from his employment and indeed from society. The world he has built forhimself, with all of its supports and positive attributes, will be replaced by the four walls of a prison.

What will his support group in thatnew environment look like? What will he learn? Will the life he has built for himself be waiting for him when he gets out? What is therisk of recidivism, the risk that this new environment will cause him to regress into past behaviour? For me, at least, these are troublingquestions. I can only hope that the time in prison will serve to strengthen, rather than diminish, Mr. Evans resolve to continue as a lawabiding citizen. [99] Despite his rehabilitation, Mr. Evan’s crimes remain serious and can have a lasting impact on those involved.

Such crimes areall too commonplace and rightly attract the condemnation of society. Operators of convenience stores have been forced to resort tosecurity measures to deter would be robbers and to apprehend criminals. Security cameras and electronically locked doors after hourshave become the norm.

Society’s abhorrence of such conduct, supported by judicial precedent, dictate that this young man, who hasnever seen the inside of a prison, must now serve a period of incarceration. [100] Therefore, while specific deterrence is not of concern, general deterrence, that is, a sentence which will serve to deter othersfrom such conduct, and denunciation, reflecting society’s abhorrence for this type of crime, remains a significant consideration. [101] This tension between the need for general deterrence and rehabilitation of the offender, particularly where there is good evidencethat the offender has reformed, is not new.

It was aptly described by Dymond, J. in R. v. Snow, 2006 NLTD 3 as the “trial judge’sdilemma”. In sentencing, the Court must be careful not to miss the bigger picture of general deterrence, in its focus on the positiveantecedents of the offender. Snow was recently quoted with approval by our Court of Appeal in Kane. [102] In Kane our Court of Appeal found that the two years less a day sentence, to be served in the community, imposed by the trialjudge was “clearly unfit” (at paragraph 45).

The Court declined to vary the sentence, however, noting that there are limitedcircumstances where it is in the interest of justice to allow even a flawed sentence to run its course (at paragraph 45). The Courtaccepted the trial judge’s determination that Mr. Kane was unlikely to re-offend, which was of itself “a benefit to society” and that hisprobation officer suggested a “positive outlook” (at paragraph 47). [103] In R. v. Oates (1992), (NL CA), 100 Nfld. & P.E.I.R. 289, 16 W.C.B. (2d) 485 (Nfld. (C.A.)) our Court ofAppeal concluded that Mr.

Oates’ sentence of two years less a day was much too lenient and that appropriate weight had not been givento general deterrence. Steele, J.A. commented that Mr. Oates good prospects for rehabilitation did not qualify as the “exception orunusual circumstances” necessary to permit the trial judge from departing from decisions of Canadian courts for offences of this kind (atparagraph 68). [104] Nevertheless, the Court concluded that at the time of his appeal, Mr.

Oates had served his trial sentence and the steps taken byhim towards rehabilitation would make his re-incarceration counterproductive. [105] Recently, in R. v. Parsons, 2017 NLCA 64, our Court of Appeal observed that even in crimes where general deterrence is aparamount consideration, with rehabilitation being a secondary consideration, “that proposition does not foreclose a focus onrehabilitation where the circumstances warrant” (at paragraph 53). [106] In reducing Mr.

Parsons’ sentence for conspiracy to traffic cocaine from 25 months’ imprisonment to two years, less a day, to beserved in the community, the Court noted that in the five years between his arrest and sentencing, Mr. Parsons took steps to be “acontributing member of society through further education and regular employment” and was “not involved in further criminal activity”(at paragraph 54). [107] In Mitchell our Court of Appeal reduced a sentence of 15 months imprisonment meted out for a single count of trafficking inoxycodone, to a sentence of seven months.

Mitchell was a 21 year old first offender, who was employed and living in a common lawrelationship. The author of her Pre-Sentence Report considered her to be a suitable candidate for community supervision. [108] In determining an appropriate sentence, the Court noted that “general deterrence and denunciation are important factors” (atparagraph 31), as the Courts are well aware of the societal costs from trafficking in prescription drugs. Taking these factors intoconsideration, in reducing Mitchell’s sentence to seven months, the Court went on to consider the particulars of the offence and of theoffender.

The Court observed that Ms. Mitchell was a young, first-time offender who was trafficking in drugs on an irregular basis tofinance her addiction. She had family support and took positive steps to address her problem. [109] As successful as Mr. Evans has been at rehabilitation, I am satisfied that he must nevertheless serve a term of imprisonment. However, I am also satisfied that this is a unique case and that Mr. Evan’s sentence should be on the lower end of the scale for crimes ofthis nature. The seven-year sentence, as suggested by the Crown, is, in my view, disproportionate under the circumstances.

[ 110 ] The initial sentencing step in the context of multiple convictions is to determine the appropriate sentence for each individual offence. The sentence arrived at should presumptively be imposed consecutively (see Hutchings , at paragraph 20 ). [ 111 ] Adopting this approach, and applying the full range of sentencing principles, I would initially impose the following sentences for each of Mr.

Evans convictions, each to be served consecutively: 5 May 2014 Armed robbery of Need’s Convenience 3 years Having face masked 1 year 7 May 2014 Armed robbery of Need’s Convenience 3 years Having face masked 1 year 10 May 2014 Robbery of K & D Grocery Ltd. 2 years Having face masked 10 months 14 May 2014 Armed robbery of Barbours Convenience 3 years Hhaving face masked 1 year 15 May 2014 Armed robbery of Need’s convenience 3 years Having face masked 1 year Total 18 years, 10 months [ 112 ] The lesser sentence for the robbery of K & D Grocery is in recognition of the fact that Mr. Evans was not armed at the time.

That said, the foregoing sentence, were it imposed, would total 18 years and 10 months. It would clearly be disproportionate to the crime and moral culpability of the offender. [ 113 ] The second step is to consider whether some or all of the offences are so related that they can be considered to constitute a single criminal adventure (see Hutchings , paragraph 21 ). If so, those that are so regarded are generally made concurrent to the heaviest sentence arising from that single criminal adventure.

As the Court observed in Hutchings , it is not always easy to determine which offences constitute a single criminal adventure (at paragraph 22): 22. In some cases, separate offences of a similar type, though committed at separate times can be considered to constitute a single event for the purpose of this principle. In Crocker , Goodridge referred, for example, to a “single rampage”.

In other cases, separate offences amounting to a repetition of the same behaviour towards the same victim have been described as a “single transaction” and have likewise been regarded as sufficiently interrelated to attract the application of the principle. See R. v. Arbuthnot , 2009 MBCA 106 (Man. C.A.) at para. 22 . In still other cases, separate offences committed on what has been described as a “crime spree” have likewise been regarded as sufficiently interrelated to attract the application of principle. See R. v. Wozny , 2010 MBCA 115 (Man.

C.A.) at paras. 42 , 50 and 78. [ 114 ] Where a single criminal adventure is shown to exist concurrent sentences may , but are not required to be imposed. There are recognized exceptions, such as breaches of court orders. The sentence for breach of recognizance, or breach of probation, for example, will generally be served consecutive to the sentence for its related offence. [ 115 ] Recently, our Court of Appeal in Mahoney observed that the same may be said for the offences of being masked and possessing a weapon during a robbery (at paragraph 37): 37.

Something must be said about how the separate offences of being masked and possessing a weapon when committing a robbery ought to be treated on sentencing. These offences are separate delicts despite their arising out of the same circumstances as the "principal" offence of robbery. In this regard they are much like breaches of probation and breaches of undertakings which usually arise from the commission of a "principal offence". Separate delicts are separate wrongs which address separate criminal behaviors.

The separate offences of being masked and possessing a weapon when committing a robbery recognize the specific horror and danger, and hence culpability, associated with those actions. Accordingly, from a principled perspective, the offences ought to be treated separately in the sentencing process. [ 116 ] Should the sentences for the four-armed robberies and the robbery be consecutive, or concurrent? All of the robberies took place over a ten day period in May 2014 and all involved the same modus operandi . All were driven by Mr. Evans need to fuel his drug addiction. [ 117 ] In R. v.

Wozny , 2010 MBCA 115 , as referenced by our Court of Appeal in Hutchings , the Manitoba Court of Appeal sentenced

the offender to 3.5 years imprisonment for five robberies committed between 17 August and 26 August 2007 (a period of 9 days). Infour of the five, Mr. Wozny was armed, twice with a knife and twice with a screwdriver, and in two of the five he was disguised. Thesentence was 3.5 years for the first robbery, with the sentences for the remaining robberies running concurrent. [118] Mr. Wozny was also convicted of 11 robberies committed between 2 September and 10 September 2007.

The sentences forthese robberies were also made concurrent, but consecutive to the spree of robberies in August. [119] In upholding concurrent sentences the Court of Appeal accepted the trial judge’s characterization of the robberies as a “crimespree”, noting (at paragraphs 50 – 52): 50.

Dealing more specifically with what this and other courts have described as a crime spree carried out for the purpose of feeding anaddiction, Chartier J.A. wrote in Arbuthnot (at paras. 24-25): In my view, in light of the fact that there were a series of similar, continuous and recurring offences with the same gravamen within asustained and relatively short period of time, the accused's offending conduct with respect to the robbery offences can be viewed assufficiently interconnected to form a single criminal transaction or crime spree and thereby attract concurrent sentences.

This court, as well as other appellate courts, has reached similar conclusions with respect to interrelatedness when dealing with offenderswho commit a series of robberies to feed an addiction. For the most recent examples, see R. v. N.A.S. (2007), 2007 MBCA 97 ,220 Man.R. (2d) 43, 407 W.A.C. 43; 2007 MBCA 97; R. v. Thompson (J.M.) (2008), 2008 BCCA 350 , 259 B.C.A.C. 160, 436W.A.C. 160; 2008 BCCA 350, and R. v. Lagimodiere (S.M.E.) (2008), 2008 MBCA 137 , 231 Man.R. (2d) 261, 437 W.A.C.261; 2008 MBCA 137. 51.

The rationale for permitting a sentencing judge to impose in his/her discretion a concurrent sentence, notwithstanding the fact that"spree offences" appear to be separate and distinct, is that the sentencing judge may conclude that the accused was acting under anunbroken influence of addiction, such that the offences could be seen or interpreted as forming a single, continuous transaction. 52.

While there has been no uniform definition of what is meant by a crime spree fuelled by or carried out to feed an addiction, itwould seem that it is a series of similar and recurring offences which are committed, if not continuously, within a sustained and relativelyshort period of time, for the purpose of obtaining resources necessary to feed an addiction. [120] Mr. Wozny was just a few months short of his 25th birthday when the offences occurred, with no previous criminal record. Hetook responsibility for his actions and was taking measures to treat his crack cocaine addiction.

He was assessed as a medium risk toreoffend. [121] In Arbuthnot, the Crown appealed a sentence of six years and four months for 13 offences committed over a 17 day period. Theoffences started with a break and enter, for which Mr. Arbuthnot was arrested and released. They ended as he attempted to flee frompolice and crashed his vehicle. In the intervening period he committed 11 robbery offences (ten robberies and one attempted robbery)involving gas stations. [122] The Court determined that the robberies should be treated as a single criminal adventure.

The Court noted that the 32 year oldaccused had no criminal record, save for a dated impaired driving conviction, and that the root cause of his conduct was to obtain fundsto feed his drug addiction (at paragraphs 23-24): 23. It is uncontested in this case that the root cause of the accused's criminal conduct was the need to get funds to feed his drugaddiction and that the 32-year-old accused, who had no criminal record save for a dated drive impaired conviction, was actingcompletely out of character.

The fact that the offences were committed while on a drug-fuelled 14-day binge explains the similar,continuous and recurring nature of the accused's criminal conduct. He also purposely targeted businesses which are the most vulnerableand exposed to these types of robberies. In this case the gravamen of the offences was the same: rob vulnerable targets to feed anaddiction. 24.

In my view, in light of the fact that there were a series of similar, continuous and recurring offences with the same gravamenwithin a sustained and relatively short period of time, the accused's offending conduct with respect to the robbery offences can be viewedas sufficiently interconnected to form a single criminal transaction or crime spree and thereby attract concurrent sentences. [123] The Court concluded that the same could not be said for the break and enter and flight from police charges.

As such, thesentence for these offences were appropriately consecutive to the sentences for the robberies, which were to run concurrent. [124] The circumstances of the robberies in Arbuthnot are strikingly similar to those conducted by Mr. Evans and, in both cases, theoffender’s behavior was driven by addiction and completely out of character. [125] The cases of Wozny and Arbuthnot may be compared with that in Hutchings.

In Hutchings the Court of Appeal agreed with thetrial judge’s characterization of the two robberies as separate criminal adventures, noting that though close in time and similar inmethodology, they were separately planned and executed and involved different victims.

[ 126 ] In the case of Mr. Evans, his crimes were likewise close in time and similar in methodology, a consideration which taken in isolation might suggest a single criminal adventure. The Court in Hutchings observed, however, that Mr. Hutching’s robberies were “separately planned” and “involved different victims”. The degree of planning in Hutchings was evidenced by the presence of an accomplice at the first of the two robberies. In addition, Mr. Hutchings had a lengthy criminal record which included a prior conviction for armed robbery. [ 127 ] While some of Mr.

Ryan’s robberies involved different victims, the degree of planning which underscored the robberies by Mr. Hutchings is lacking. Unlike Mr. Hutchings, Mr. Ryan’s behavior during those fateful ten days in May was completely out of character. [ 128 ] In Stanley-Smith the offender committed four armed robberies using the same modus-operandi over a four day period, all to finance her addiction. As the last two robberies occurred on the same day Linehan, Prov. J. treated them as a “single criminal venture” (at paragraph 29).

I note, however, that the two robberies involved different victims, the first a Circle K/Irving gas station and the second an Esso gas station. Further the offender was bound by a recognizance entered into prior to any of the robberies. [ 129 ] Stanley-Smith may be compared with the circumstances in R. v. Yetman , 382 Nfld. & P.E.I.R. 243, 130 W.C.B. (2d) 553 (N.L. (Prov. Ct.)). Mr. Yetman committed two armed robberies of two different gas stations on the same day. The modus operandi was similar in both and both were motivated by money for drugs. Mr.

Yetman was 21 years old with a prior record consisting mostly of thefts and breaches. He was on probation and as a consequence also faced two breaches of probation charges. His counsel acknowledged that the sentence for the breaches should run consecutive, but that the robberies themselves were part of a spree. There was no analysis on this latter argument, but the trial judge treated the robberies as consecutive, with three years for each.

The second robbery was reduced to six months consecutive for totality. [ 130 ] It is perhaps not surprising that the Court of Appeal observed in Hutchings that “it is not always easy to determine what offences constitute a single criminal adventure” (at paragraph 21). [ 131 ] In support of treating Mr. Evans robberies as separate criminal adventures is the fact that different victims were involved. I note, however, that this fact alone is not determinative.

Wozny and Arbuthnot , and Stanley-Smith all involved different victims. [ 132 ] That said, I am satisfied based on the facts before me that during the ten day period in May 2014, Mr. Evans was engaged in a crime spree and that the robberies should be considered to constitute a single criminal adventure. As such, the sentence for each robbery should run concurrent to the heaviest sentence, being the three years for the robbery on 5 May 2014. I reach this conclusion for the following reasons: • Mr. Evans has no prior criminal record.

His sudden spree of criminal behaviour was thus entirely out of character (see Arbuthnot ) as compared to Hutchings , where there was a lengthy record, and Stanley-Smith and Yetman where there were breaches of court orders. • The robberies were fueled by Mr. Evans’ addiction to prescription drugs. At the time he was acting under the unbroken influence of addiction (see Wozny ). • The robberies all occurred within a short ten day period. • The modus operandi of each of the robberies was the same. All involved convenience stores.

The robberies were not sophisticated, nor were they well planned (compare with Hutchings ). • The facts are similar to those in Wozny , where the Manitoba Court of Appeal upheld concurrent sentences for two separate crime sprees, one in August (9 days) and one in September (8 days). • The facts are also similar to those in Arbuthnot , where like Mr. Evans the crime spree by Mr. Arbuthnot was out of character.

I note that both Wozny and Arbuthnot involved robberies of different victims, as did Stanley-Smith . [ 133 ] As previously noted, our Court of Appeal in Mahoney treated the offence of being masked as a separate derelict to the principal offence of robbery, much like a breach of probation or breach of undertaking. As such, at this second stage in the analysis, the sentence is to run consecutive to that for robbery.

As the robberies constitute a single criminal venture, insofar as the masking is the means by which the venture was carried out, the first masking would run consecutive to the first robbery, with the sentence for the remaining maskings running concurrent. The result at this second stage in the Hutchings approach would thus be, as follows: 5 May 2014 Armed robbery of Need’s Convenience 3 years Having face masked 1 year consecutive 7 May 2014 Armed robbery of Need’s Convenience 3 years concurrent

Having face masked 1 year concurrent 10 May 2014 Robbery of K & D Grocery Ltd. 2 years concurrent Having face masked 10 months concurrent 14 May 2014 Armed robbery of Barbours Convenience 3 years concurrent Having face masked 1 year concurrent 15 May 2014 Armed robbery of Need’s convenience 3 years concurrent Having face masked 1 year concurrent Total 4 years [ 134 ] The third and final step in context of multiple offences, where there are consecutive sentences, involves the application of the totality principle. [ 135 ] In Mahoney , our Court of Appeal recently addressed this principle, as follows (at para. 28): 28. … if there remain two or more sentences to be served consecutively, the judge is to take "one last look at the combined sentence to determine whether it is unduly long and harsh, in the sense that it is disproportionate to the gravity of the offence and the degree of responsibility of the offender" taking into account, and balancing the following factors: (

a) the length of the combined sentence in relation to the normal level of sentence for the most serious of the individual offences involved; (

b) the number and gravity of the offences involved; (

c) the offender's criminal record; (

d) the impact of the combined sentence on the offender's prospects for rehabilitation, in the sense that it may be harsh or crushing; (

e) such other factors as may be appropriate to consider to ensure that the combined sentence is proportionate to the gravity of the offences and the offender's degree of responsibility. After consideration of the factors, another adjustment can be made if appropriate in order to achieve a proper totality. [ 136 ] Taking the foregoing factors into consideration, I am satisfied that a further reduction in Mr. Evan’s sentence is appropriate. That adjustment will see him with an overall sentence of three (3) years imprisonment, determined by sentencing Mr.

Evans to three years for the first of the armed robbers with the remaining convictions to run concurrent. The sentence for each offence thus imposed is as follows: 5 May 2014 Armed robbery of Need’s Convenience 3 years Having face masked 1 year concurrent (as a result of totality) 7 May 2014 Armed robbery of Need’s Convenience 3 years concurrent Having face masked 1 year concurrent

10 May 2014 Robbery of K & D Grocery Ltd. 2 years concurrent Having face masked 10 months concurrent 14 May 2014 Armed robbery of Barbours Convenience 3 years concurrent Having face masked 1 year concurrent 15 May 2014 Armed robbery of Need’s convenience 3 years concurrent Having face masked 1 year concurrent Total 3 years [ 137 ] In addition to the principles of sentencing as discussed, above, in imposing an overall sentence of three years, in the totality analysis I have taken the following facts into consideration as they relate to this case: • Convenience store, gas bars and pizza parlors deal in cash and are often open at all hours, manned by a lone employee.

The impact on the victims can be significant. • Four of Mr. Evans robberies involved the use of a knife. While it is true that nobody was injured as a consequence, there was nevertheless a heightened risk of violence owing to the presence of this weapon. • Mr. Evans’ crimes were not sophisticated in their execution, or well planned (contrast with Ryan and Hutchings ). • General deterrence and denunciation are the primary considerations in this case.

However, even where general deterrence and denunciation are the primary considerations on sentencing, the Court may, in appropriate circumstances, give weight to the rehabilitative measures taken by the offender (see Kane , Oates , Parsons , and Mitchell ). • Mr. Evans accepted responsibility for the robberies early on, entered a plea of guilty and is genuinely apologetic and remorseful for his actions; • Mr. Evans has no prior criminal record. • Mr. Evans has had no further involvement with the law and during the past four years has adhered to the strict conditions of his recognizance.

At the same time, I recognize that the circumstances when the conditions of judicial interim release will be given effect as a mitigating factor are limited (see Kane , at paragraph 36 ). The curfew under which Mr. Evans was placed did not amount to house arrest (see Kane , at paragraph 39 ) although, unlike Kane, Mr. Evans had the additional obligation of reporting to the RNC. Under the circumstances, I would not regard his compliance with his recognizance as a mitigating factor, per se . It does, however, represent four years under which Mr. Evans has lived under strict conditions. • Mr.

Evans’ behavior was an aberration of his normal character, driven entirely by his addiction to drugs. His moral culpability is less than might otherwise be the case (see Hutchings , paragraph 108 ). • Mr. Evans was 19 years old at the time of the offences, and as such was a youthful offender (see Arbuthnot ). • Even in the absence of a pre-sentence report, Mr. Evans young age should be taken into account, as his behavior may be partially attributable to immaturity (see Hutchings , paragraph 107 ). • In the intervening four years Mr. Evans completely turned his life around.

He is now a hard working productive member of society, with a young partner and one year old child dependent upon him for support. • With Mr. Evans’ incarceration there will be collateral consequences for his family (see Bungay ). They will be deprived of his financial support and his companionship. His one year old son will have limited contact with his father during a portion of his formative years. • The Pre-Sentence Report prepared by Probation Officer Cumby presents Ms. Evans in a favourable light, such that Ms. Cumby concludes that Mr.

Evans is a suitable candidate for any form of community supervision; • While on the low end of the range identified in Hutchings , I have already noted the distinction between those cases cited where the sentence was somewhat higher. This sentence is in keeping with S. (N.A.) , a case similar on its facts, although in that case the antecedents of the offender were less favourable than the case of Mr. Evans. [ 138 ] Mr. Evans was remanded for a total of eight days prior to being released on his recognizance.

I have taken these eight days, at a credit of 1.5 days for each day on remand, into consideration, in my imposition of the foregoing sentence. As such, no further reduction

in the overall sentence of three years for “time served” is warranted. Ancillary Orders Weapons Prohibition [ 139 ] Section 109(1) (

a) of the Criminal Code requires that the court prohibit an offender from possessing firearms and other related items if the person has been convicted of an "indictable offence in the commission of which violence against a person was used, threatened or attempted..." This criteria has been met in this case. Therefore, I order that Mr.

Evans is prohibited from possessing any firearm, cross-bow, restricted weapon, ammunition and explosive substance for a period of ten years after his release from imprisonment and from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. DNA Order [ 140 ] Armed robbery is a "primary designated offence." [ 141 ] Therefore, it is hereby ordered that samples of bodily substances be taken from Mr. Evans for DNA analysis in accordance with

Part XV of the Criminal Code . _____________________________ Donald H. Burrage Justice