R. v. Wiseman, 2020 NLSC 107

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Wiseman , 2020 NLSC 107 Date : August 5, 2020 Docket : 201801G6952 and 201801G6953 Her Majesty The Queen v. JUSTIN WISEMAN Before: Justice Robert P. Stack Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: June 23, 2020 and August 5, 2020

Summary: The offender was sentenced to: five years for armed robbery; one year for wearing a mask while committing the robbery, to be served concurrently with the sentence imposed for armed robbery; and two and one-half years for arson, to be served consecutively. A credit of 745 days was allowed for pre-sentence custody at a ratio of 1.5 to 1, leaving the offender to serve 1,995 days of incarceration for the three offences. Appearances:

Kathleen O'Reilly Appearing on behalf of the Crown Karen E. Rehner Appearing on behalf of the Offender Authorities Cited: CASES CONSIDERED: R. v. Wiseman, 2019 NLSC 161; R. v. Mitchell, 2008 NLTD 23; R. v. Peddle (2013), 338 Nfld. &P.E.I.R. 143, 1049 A.P.R. 143 (N.L. Prov. Ct.); R. v. Combdon, 2008 NLTD 71; R. v. Fewer, [2004] N.J. No. 433, 65 W.C.B. (2d) 297(N.L. Prov. Ct.); R. v. Yellowknee, 2017 ABCA 60; R. v. Gladue, (SCC), [1999] 1 S.C.R. 688; R. v. Flynn, 2018 NLCA61; R. v. Young, (N.L. Prov. Ct.); R. v. Hemmerling, 2017 BCPC 10; R. v. Jandrew, 2014 BCPC 317; R. v. Roberts,2016 NLTD(G) 82; R. c.

Lacasse, 2015 SCC 64; R. v. Hutchings, 2012 NLCA 2; R. v. S. (A.T.), 2004 NLCA 1; R. v. Frampton, 2018NLCA 23; R. v. Roberts, 2019 NLCA 43; R. v. Willis, 2014 ONCA 178; R. v. Summers, 2014 SCC 26. STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46. REASONS FOR JUDGMENT Stack, J.: INTRODUCTION [1] I will now impose upon Justin Wiseman a sentence for three criminal offences committed by him on March 13, 2018.Although there were two separate Indictments before the Court, I have agreed to make this single sentencing decision. [2] Mr.

Wiseman will be sentenced on the following charges relating to the first Indictment: Count 1 On or about the 13th day of March, 2018, at or near Mount Pearl, in the Province of Newfoundland and Labrador, did rob monies andgoods from Marie’s Mini Mart thereby committing an indictable offence contrary to

section 343-344(1) of the Criminal Code. Count 4 On or about the 13th day of March, 2018, at or near Mount Pearl, in the Province of Newfoundland and Labrador, did with intent tocommit an indictable offence have his face masked thereby committing an indictable offence contrary to section 351(2) of the CriminalCode. [3] On the second Indictment, Mr.

Wiseman pleaded guilty to the following count: On or about the 13th day of March, A.D., 2018, at or near Mount Pearl, in the Province of Newfoundland and Labrador, did intentionallyor recklessly cause damage by fire or explosion to property that is not wholly owned by him namely: a dwelling house, situated at 17Jersey Avenue, thereby committing an indictable offence contrary to

section 434 of the Criminal Code. [4] Based upon an agreed statement of facts filed with the Court[1], I was satisfied that Mr. Wiseman’s guilt with respect to thearson count was proven beyond a reasonable doubt and a conviction was entered. SENTENCING PARAMETERS AND PRINCIPLES [5] In arriving at an appropriate sentence, consideration must be given to the principles of sentencing set out in

section 718 of theCriminal Code, R.S.C. 1985, c. C-46 (the “Code”). In this case the primary sentencing objectives are: denunciation, through deterrence,both general and specific, as well as rehabilitation, and the promotion of a sense of responsibility in offenders for the harm they havecaused. [6] The principle of totality must also be considered to ensure that the combined sentence is proportionate to the gravity of theoffence and the degree of responsibility of the offender. Proportionality is determined both on an individual basis and by comparison

with sentences imposed for similar offences under similar circumstances. facts First Indictment [ 7 ] Following a trial, in R. v. Wiseman , 2019 NLSC 161 , I found that Mr. Wiseman, masked and brandishing a knife, robbed a Marie’s Mini Mart where a store clerk was the only other person present. The clerk testified that she was alone in the store at approximately 8:25 a.m. on March 13, 2018, when someone bolted in and said, “This is a stick up.” Carrying a knife, he jumped over the counter and demanded that she open the cash. The clerk was shaking and crying.

As a result, it took her a couple of tries to open the cash. Mr. Wiseman told her to relax. [ 8 ] The store clerk testified that she was shaken up and the robber said he had no intention to hurt her. However, because he was holding a knife, she could not be certain of that. He was soft-spoken and said that he was sorry and that it was something that he had to do. He was very calm and did not yell. [ 9 ] The store clerk testified that in addition to the cash from the two tills, Mr. Wiseman mostly took cigarettes. I found that $417.80 in cash was stolen by Mr.

Wiseman together with $1,209.87 worth of cigarettes and cigars. Second Indictment [ 10 ] As stated in the agreed statement of facts, following the armed robbery, the police located Mr. Wiseman at 17 Jersey Avenue, Mt. Pearl. Mr. Wiseman, who was subject to a warrant for a parole violation, refused to leave the home and a standoff with the police ensued. [ 11 ] Although the police observed smoke emanating from the building earlier, it was presumed that it was coming from the chimney. Eventually, however, smoke started to come from other parts of the house as well.

At that time, the police forced their way into the house and observed three separate fires: the first on the stovetop in the kitchen, the second on a mattress in the main floor bedroom, and the third in the bathroom. Mr. Wiseman acknowledged that he was responsible for these three fires. [ 12 ] Sherri Colbourne is the owner of 17 Jersey Avenue and the property was leased to tenants through a property manager. The property was not owned, wholly or in part, by Mr. Wiseman. The Pre-sentence Report [ 13 ] At the request of the Court, a Pre-Sentence Report (“PSR”) was prepared. I will go through it in some detail.

Social History [ 14 ] Mr. Wiseman is 28 years old. He had a troubled childhood. His family was less than stable and Mr. Wiseman alternated between living with his grandparents, his parents, and in foster care. He reports alcohol abuse and domestic violence in his parents’ home. He also reports being sexually abused as a six-year-old child. [ 15 ] Mr. Wiseman struggles with alcohol and substance abuse. His involvement with psychiatrists began at an early age. He has been diagnosed with ADHD, Conduct Disorder and depression. He has made several suicide attempts. [ 16 ] Mr.

Wiseman, through programs he has availed of while incarcerated, is now close to receiving his grade 12 equivalency. He has a very limited employment history, however. [ 17 ] Mr. Wiseman was young when he first became involved with the law and he now has a lengthy record, including for a previous armed robbery. He has also been involved in violent events and in securing contraband while at Her Majesty’s Penitentiary (“HMP”).

Risk Assessments Level of Service/Case Management Inventory [ 18 ] The PSR reports that the Level of Service/Case Management Inventory (LS/CMI) is a risk/need assessment tool which assesses the research literature’s “central eight” risk/need factors. These are:

(1) Criminal History;

(2) Education / Employment;

(3) Family / Marital;

(4) Leisure / Recreation;

(5) Companions;

(6) Alcohol / Drug Problem;

(7) Pro-criminal Attitude / Orientation; and

(8) Antisocial Pattern.

[ 19 ] The results of this inventory are used in formulating a case management plan for an offender including level of supervision and the characteristics that contribute to such risk which may be addressed through various modes of intervention or treatment. [ 20 ] The LS/CMI was administered on Mr. Wiseman and it was determined that he was deemed to be a high risk to reoffend. Available Treatment Services (including Psychiatric) Relative to the Risk/Needs of the Offender [ 21 ] While at HMP, Mr.

Wiseman has participated in individual addictions counselling sessions as well as in sessions with the institutional psychologist. He is also attending Alcoholics Anonymous meetings and a mindfulness/meditation group. [ 22 ] The PSR concluded that despite completed programs, Mr. Wiseman is unable to implement new skills into his daily life. It was recommended that he avail of further programming in the areas of substance abuse, cognitive and mental health functioning, anger management, and childhood trauma.

Programming in these areas is available in the community as well as through provincial and federal correctional institutions. Criminal Record [ 23 ] I have also considered Mr. Wiseman’s criminal record. It is extensive, although with the majority of the offences occurring when he was a youth. Nevertheless, his adult record is significant, including convictions for previous armed robberies. He was on parole at the time he committed these offences. Sam Martin [ 24 ] Mr. Martin is a psychologist. He testified that he provides one-on-one counselling services to inmates at HMP. He first met with Mr. Wiseman in 2011.

He testified that Mr. Wiseman is fully engaged in their sessions, which are voluntary. [ 25 ] Mr. Martin testified that Mr. Wiseman’s mental health issues relate to his childhood and his emotional abandonment by his primary caregivers. He suffers from anxiety, depression and Post-Traumatic Stress Disorder arising from his life overall and from his experiences in prison. Mr. Martin reported that Mr. Wiseman is a man fatigued by his life, including his life in prison. [ 26 ] Mr. Martin testified that Mr. Wiseman is intelligent. Lately, Mr. Wiseman has turned to creating art and reading self-help books.

Alexander White [ 27 ] Mr. White provided an email to the Court detailing his experience as an addictions counsellor with Mr. Wiseman. Mr. Wiseman’s Letter to the Court [ 28 ] Mr. Wiseman read a lengthy letter to the Court, expressing remorse and describing the steps that he has taken to turn his life around. He spoke of the good and the bad influences in his life and how he has lost sight of the former and let the latter control his actions. With this new realization, he is ashamed of his criminal lifestyle. [ 29 ] In particular, Mr.

Wiseman said because in the past he has always pleaded guilty to the charges brought against him, hearing the testimony of the store clerk was a revelation. For the first time he realized the profound effect of his actions on his victims. He says it hurt him to learn how badly he had hurt the clerk and he offered her an abject apology. [ 30 ] Mr. Wiseman finished his statement by declaring that he wants to start a new life, “plant a new seed”, and grow past his mistakes and trauma. Guilty Plea [ 31 ] I have taken into account that Mr.

Wiseman accepted responsibility for and pleaded guilty in respect of the charge of arson. This has saved witnesses from having to testify as well as valuable Court time and resources. victim impact statement [ 32 ] There were two principal victims: the store clerk who was robbed and the woman whose house was set on fire. Store Clerk [ 33 ] No victim impact statement was filed by the store clerk who was robbed. At the trial, she testified as to the impact the robbery has had on her. She testified that for the first while afterwards, she could go nowhere alone. She was always in fear.

While at work, if she saw someone walk by, she would be fearful. The same was the case if someone approached the cash quickly. She would break down crying. She testified that the effects of the armed robbery were still affecting her. It is noteworthy that even though she was traumatized by the robbery, she still went to work the following day because, as she told the Court, she had a family to feed. Owner of 17 Jersey Avenue [ 34 ] The owner of the house that was subject to the fire declined to provide a victim impact statement. Needless to say, the events must have been traumatic for her. CROWN CASES

[35] The Crown has submitted a number of sentencing authorities. [36] In R. v. Mitchell, 2008 NLTD 23, the accused entered guilty pleas to one count each of assault (section 266(

a) of the Code),uttering threats to cause death (section 264.1(2) of the Code), uttering threats to damage property (section 264.1(3) of the Code), arson(section 434 of the Code) and operation of a vehicle while disqualified (section 259(4) of the Code). All the charges related to events onNovember 6, 2007 when he was in the company of his wife who he had married the day before.

He was sentenced to 24 months less aday, less time served of 143 days, placed on probation for two years following his release, subject to DNA analysis and subject to a four-year Firearms Prohibition, and to pay a victim fine surcharge in the amount of $500. [37] In R. v. Peddle (2013), 338 Nfld. & P.E.I.R. 143, 1049 A.P.R. 143 (N.L. Prov. Ct.), the accused pleaded guilty to the offences ofarson and breach of probation, contrary to sections 433(

a) and 733.1(1) of the Code and was sentenced to 27 months’ imprisonmentfollowed by three years of probation. The term of imprisonment was reduced to 20½ months to reflect the period of time spent by Mr.Peddle in pre-sentence custody. [38] In R. v. Combdon, 2008 NLTD 71, following a trial by jury, the accused was found guilty of one count of arson with a disregardfor human life, two counts of assault, and one count of breach of a recognizance.

He was sentenced to three years’ imprisonment for thearson charge, three months concurrent for each of the assaults, and one month concurrent for the breach of a recognizance. [39] In R. v. Fewer, [2004] N.J. No. 433, 65 W.C.B. (2d) 297 (N.L. Prov. Ct.), Gorman, P.C.J. considered the sentencing principlesand precedents applicable to the offence of arson and sentenced the accused to 27 months’ incarceration. He noted at paragraph 36: The primary principles of sentencing that must be applied in all cases of arson are those of general deterrence and denunciation.

Arsonobviously causes property damage, however, the seriousness of this offence extends well beyond any property damage that might occur.Fire is inherently dangerous and difficult to control. Setting fire to a building can have unintended and fatal consequences. There arevarious individuals in our society that have the unenviable task of being required to respond to fires. They risk their lives every time theydo so. Arsonists recklessly place the lives and safety of such individuals at risk. Therefore, the sentences imposed for this offence mustreflect this factor. [40] In R. v.

Yellowknee, 2017 ABCA 60, the accused pleaded guilty to the offences of arson of a dwelling house, mischief, and twobreaches of a recognizance. For these offences, he received a total sentence of 12 months’ imprisonment, followed by 12 months’probation. He appealed on the basis that the sentencing judge failed to give appropriate weight to Gladue[2] factors, as required undersection 718.2(

e) of the Code, and failed to properly consider recommendations for rehabilitation. The offender destroyed by fire a trailerthat served as the residence of his common law wife and their children. It did not belong to him. The Alberta Court of Appeal held thatthe starting point for an arsonist who damages a dwelling place is somewhere in the upper half of the middle subset range – four years tosix years less a day. [41] In R. v. Flynn, 2018 NLCA 61, the Court of Appeal upheld the amount of a sentence relating to three robberies and otheroffences.

At trial, the accused was sentenced as follows: for the first two robberies, a global sentence of five years – each individualrobbery would attract a term of five years but given the close proximity in time, the sentences were made concurrent; and for the thirdrobbery, a sentence of five years to be served concurrently. The terms of imprisonment for the other offences were one yearimprisonment for each of possession of a weapon, assault, and wearing a mask, and one month each for the breaches of probation – allconcurrent to the ten-year term.

DEFENCE CASES [42] The Defence also submitted a number of cases for my consideration. [43] In R. v. Young, (N.L. Prov. Ct.), the accused was sentenced to a period of two years’ imprisonmentfollowed by one year of probation and a twelve month driving prohibition for the offences of arson, by setting fire to a motor vehicle andleaving the scene of an accident, contrary to sections 252(1)(

b) and 434 of the Code. [44] In R. v. Hemmerling, 2017 BCPC 10, the accused pleaded guilty to intentionally or recklessly causing damage by fire orexplosion to a dwelling house owned by Elizabeth Kiss, contrary to

section 434 of the Code. A primary aggravating factor was an on-going confrontation with the police leading up to the setting of the fires. The accused was sentenced to incarceration for two years less aday followed by three years’ probation. [45] In R. v. Jandrew, 2014 BCPC 317, the accused pleaded guilty to four counts of arson: three under

section 434 of the Code; andone under

section 433, the difference being that the charge under

section 433 involved the endangerment of life, although the trial judgenoted that all of those charges can be said to do that to some extent. The trial judge noted that the maximum penalty under

section 433 islife and the maximum penalty under

section 434 is 14 years. The accused was sentenced to four years’ incarceration for the breach ofsection 433 and two-and-a-half years for each of the breaches of

section 434, all to be served concurrently. [46] In R. v. Roberts, 2016 NLTD(G) 82, the accused was convicted of six counts arising from an armed robbery as well as fourcounts arising from driving offences which were committed two days later. The appropriate sentence for the robbery was found to bethree years and six months. After applying the totality principle, he was sentenced to imprisonment for four years globally, less credit fortime served, together with a four year driving prohibition, and required ancillary orders.

ANALYSIS [47] The Crown recommends sentences of five years for the armed robbery, one year for being masked and four years for the arson,all to be served consecutively. Nevertheless, the Crown submits that based upon the principle of totality, an appropriate combinedsentence would be eight to nine years of incarceration. The Defence submits that a combined sentence of six years would be appropriatein the circumstances.

[ 48 ] I have also considered the range of sentences imposed for similar offences in the cases provided by the Crown and the Defence. In considering a range of sentence, however, I am also guided by the words of Wagner, J. in R. c. Lacasse , 2015 SCC 64 , at paragraph 60 , that sentencing ranges are primarily guidelines and not hard and fast rules. [ 49 ] I have also considered the circumstances surrounding the offences for which Mr. Wiseman has been convicted including mitigating and aggravating factors. [ 50 ] The guilty plea regarding the arson charge is a mitigating factor.

I note that the fact he pleaded not guilty to the other charges is not an aggravating factor; it is simply neutral. Mr. Wiseman’s expression of remorse and his apology are his mitigating factors. [ 51 ] Aggravating factors include that this was not Mr. Wiseman’s first conviction for armed robbery. Generally, his criminal record is an aggravating factor. It is a statutory aggravating factor that Mr. Wiseman was on parole at the time of these offences (

section 718.2 (a)(vi) of the Code ). That Mr. Wiseman wielded a knife during the commission of the robbery is a serious aggravating factor. Another aggravating factor is the exposure to harm to which other people, including first responders, were exposed as a result of the fire. [ 52 ] Although Mr. Wiseman suffers from apparent alcoholism and other drug issues, this is not a mitigating factor. It is unfortunate that Mr. Wiseman’s life has been adversely affected by his childhood trauma and his challenging life circumstances. Ultimately, however, he must take responsibility for his actions.

He acknowledged this in his letter to the Court. His is a high level of moral blameworthiness. If he wishes to turn his life around, he will have to use his time while imprisoned to work on the fundamentals of his mental and physical wellbeing. It is hoped that the Mr. Wiseman who emerges from prison will be the man that he says he wants to be. [ 53 ] In relation to the arson charge, however, it must be noted that this was not a planned and deliberate act to cause damage to the property or to cause bodily harm to others. I agree with counsel for Mr.

Wiseman that the entire standoff with the police was a display of self-destructive behaviour on his part. Mr. Wiseman was in an emotional crisis at the time. This does not excuse his behaviour in any way or lessen his blame. However, it does distinguish Mr. Wiseman’s crime from the deliberate acts of arson described in the cited cases. [ 54 ] The following are what I have determined to be appropriate sentences for each of the offences:

(1) Five years for armed robbery, breach of

section 343 - 344(1) of the Code ;

(2) One year for being masked while committing the armed robbery, breach of section 351(2) of the Code ; and (3) 30 months for arson, breach of

section 434 of the Code . CONCURRENT VERSUS CONSECUTIVE SENTENCES AND totality [ 55 ] Because Mr. Wiseman is to be sentenced on a number of offences, the principles set out in R. v. Hutchings , 2012 NLCA 2 , apply. In Hutchings , at paragraph 84 , Green, C.J. set forth the following list of guidelines to be applied to achieve an appropriate and fit total sentence: 1. When sentencing for multiple offences, the sentencing judge should commence by identifying a proper sentence for each offence, applying proper sentencing principles. 2.

The judge should then consider whether any of the individual sentences should be made consecutive or concurrent on the ground that they constitute a single criminal adventure, without consideration of the totality principle at this stage. 3. Whenever, following the determinations in the first two steps, the imposition of two or more sentences, to be served consecutively, is indicated, the application of the totality principle is potentially engaged. The sentencing judge must therefore turn his or her mind to its application. 4.

The approach is to take one last look at the combined sentence to determine whether it is unduly long or harsh, in the sense that it is disproportionate to the gravity of the offence and the degree of responsibility of the offender. 5. In determining whether the combined sentence is unduly long or harsh and not proportionate to the gravity of the offence and the degree of responsibility of the offender, the sentencing court should, to the extent of their relevance in the particular circumstances of the case, take into account, and balance, 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. 6. Where the sentencing judge concludes, in light of the application of those factors identified in the previous step that are deemed to be relevant, that the combined sentence is unduly long or harsh and not proportionate to the gravity of the offences and the offender’s degree of responsibility, the judge should proceed to determine the extent to which the combined sentence should be reduced to achieve a proper totality.

If, on the other hand, the judge concludes that the combined sentence is not unduly long or harsh, the sentence must stand. 7. Where the sentencing court determines that it is appropriate to reduce the combined sentence to achieve a proper totality, it should first attempt to adjust one or more of the sentences by making it or them concurrent with other sentences, but if that does not achieve the proper result, the court may in addition, or instead, reduce the length of an individual sentence below what it would otherwise have been. 8.

In imposing individual sentences adjusted for totality, the judge should be careful to identify: (

a) the sentences that are regarded as appropriate for each individual offence applying proper sentencing principles, without considerations of totality; (

b) the degree to which sentences have been made concurrent on the basis that they constitute a single criminal adventure; and (

c) the methodology employed to achieve the proper totality that is indicated, identifying which individual sentences are, for this purpose, to be made concurrent or to be otherwise reduced. 9. Finally, the sentencing judge should indicate whether one or more of the resulting sentences should be further reduced to reflect any credit for pre-trial custody and if so, by how much. [ 56 ] I have already determined fit sentences for each of the three offences.

Now I must turn my mind to whether they should be served concurrently or consecutively and, in any event, I will take one last look at the combined sentence to determine whether the total sentence is unduly long or harsh, in the sense that it is disproportionate to the gravity of the offences and the degree of responsibility of the offender. Concurrent or Consecutive Sentences? [ 57 ] The first issue to be resolved is whether the armed robbery, the wearing of a mask and the arson can, in whole or in part, be considered to arise out of the same “criminal venture”.

This invokes the sentencing principle that a sequence of events involving the same victim, although resulting in separate convictions, normally also results in those sentences being served concurrently (See: R. v. S. (A.T.) , 2004 NLCA 1 ; R. v. Frampton , 2018 NLCA 23 ). [ 58 ] Although the Court of Appeal discusses the issue of concurrency in other cases, the most recent is in the reasons of Green and White, JJ.A. in R. v.

Roberts , 2019 NLCA 43 : [43] The Crown did not challenge the finding of the sentencing judge that the robbery, weapon possession, face mask and assault offences arose out of a single criminal venture or that the resulting sentences should be ordered to be served concurrently with each other. [44] We would observe, however, that it is not the simple fact that offences occurred at the same time that necessarily determines that they amount to a single criminal venture. As Rowe J.A. observed in R. v.

Newhook, 2008 NLCA 28 , 276 Nfld. & P.E.I.R. 190, it may be that two offences, following “hard on the heels” of one another may be considered “sufficiently distinct in their nature” that they should not be considered to be a single criminal venture. Thus, in that case, a brutal assault and the subsequent kidnapping of a home occupier following a break and enter of a dwelling were not considered to be part of a single criminal venture related to the break and enter. [45] Further, this Court in R. v.

Frampton, 2018 NLCA 23 observed in obiter that the offences of being masked and armed in the commission of a robbery might as a matter of general principle be considered as separate offences and not as a single criminal venture.

We would add the caveat, however, that a consideration as to whether this should be so in a given case would be affected by whether there might be “double punishment” involved if the facts of being armed and masked were factors already taken into account in setting the level of sentence for the robbery offence itself, as it appears that it might have been in the current case. (See O’Quinn, at paragraph

20; R. v. Bourgeois, 2018 NLCA 13 at paragraph 38 ). [46] It is also worth noting that even if factors such as temporal connection, similarity of victim and connections between offences (Bourgeois, at paragraph 36 ; R. v. Flynn, 2018 NLCA 61 , at paragraph 22 ) or the nature of the offences (O’Quinn, at paragraph 18) might be indicative in a given case, of a single criminal venture, concurrent sentences are not the inevitable result (Martin at paragraph 25; O’Quinn at paragraph 21; R. v. Murphy, 2011 NLCA 16 at paragraph 27 ). The Court still has a discretion to make them consecutive.

It might consider doing so if, for example, the offences are sufficiently distinct in nature that one or more of them cannot be said to amount to merely a particular method of carrying out another offence (Bourgeois, paragraph 37 ; Newhook, paragraph 17 ) or they consist of some other element that specifically merits special recognition as a separate delict (R. v. Mahoney, 2018 NLCA 16 at paragraph 37 ), or where for policy reasons they should be treated separately (Murphy). Furthermore,

section 718.3(4) of the Code , as discussed later in these reasons, would also require the sentencing judge to consider making the sentence consecutive in the circumstances indicated in that provision. [47] One might be tempted, therefore, if sitting at first instance and after hearing full argument, to conclude that robbery, followed by a distinct serious physical assault, as opposed to the usual threats employed to influence the turning over of the robbed items, could be considered sufficiently distinct in nature to justify the assault with a weapon charge not being considered part of the single criminal venture, with the result that a consecutive sentence would be imposed.

In like manner, depending on the factors taken into consideration in setting the robbery sentence, the offences of being armed and wearing a face mask might be considered to be separate offences, leading to all remaining sentences to be served consecutively. [48] Nevertheless, considering the concessions of counsel and the absence of argument on the point, it is not appropriate to disturb the sentencing judge’s conclusion.

Decisions on whether offences constitute a single criminal venture and whether they should be served consecutively or concurrently are, absent a legal or palpable and overriding factual error, entitled to appellate deference (Hutchings, at paragraph 24 ; O’Quinn, at paragraph 19).

In the circumstances, we would not disturb the conclusion on this point for the purposes of this appeal. [49] We would also add that even if some or all offences remained to be served consecutively after following the second step, it is likely that the sentencing judge, considering her approach to the matter, might well have achieved the same result by making the sentences concurrent for the purpose of achieving a proper total sentence when considering the third step in the analysis.

As Frampton, at paragraph 37 points out, characterizing multiple offences as a single criminal venture and deciding, as a consequence, whether they should be served consecutively or concurrently precedes and is not part of the totality analysis in step three. It was still open to the judge to make the offences concurrent in order to achieve a proper total sentence. [50] Accordingly, after considering the first two steps in the Hutchings analysis, it can be concluded that there is no basis for interference with the sentencing judge’s decision. [ 59 ] I also note the decision in R. v.

Willis , 2014 ONCA 178 , where the offender was convicted of robbery and of possession of a weapon for the purposes of committing the robbery. The Ontario Court of Appeal imposed concurrent sentences to avoid double counting where the possession of a weapon was part and parcel of the robbery (paragraph 62). [ 60 ] Wearing a mask in this case was part and parcel of the armed robbery. The two offences were connected temporally and there was a single victim. I am satisfied that it is appropriate for the sentence for wearing a mask to be served concurrently.

Such a result is not, however, meant to minimize the severity of that particular offence, or its impact upon the victim, or to suggest that Mr. Wiseman should not be held accountable for it. [ 61 ] Notwithstanding the submissions made on behalf of Mr. Wiseman, I cannot come to the same conclusion with respect to the charge of arson. Setting fire to the house was not connected in such a way to the armed robbery so as to attract a concurrent sentence. It was distinct in time. There was a separate victim.

The nature of the offence was not such that it could be considered a part of a single “criminal rampage” with the robbery. The robbery was planned and deliberate; the arson was impetuous and spontaneous. Subject to the principle of totality discussed below, Mr. Wiseman will be sentenced consecutively for the arson.

Totality [ 62 ] Is the combined sentence unduly long or harsh in that it is not proportionate to the gravity of the offence and the degree of responsibility of the offender? [ 63 ] The total of the sentences that I would impose of five years, one year and 30 months add up to eight years and six months if they were all to be served consecutively. Because I have determined that the sentence for being masked can be served concurrently, the result would be a period of incarceration of seven years and six months. The Crown has suggested a combined sentence of eight to nine years based on totality. Counsel for Mr.

Wiseman suggested a sentence of six years. [ 64 ] Here, I have concluded that the total sentence imposed would not be unduly long or harsh and it would not be disproportionate to the gravity of the offences and Mr. Wiseman’s degree of responsibility. I arrive at this conclusion after considering:

(1) the sentences when taking into account the number of offences and number of victims – three serious offences perpetrated against two distinct victims – the clerk at the store and the owner of the house; this is in addition to the financial loss to the owner of the store, the danger in which Mr. Wiseman placed the police officers as a result of the fires, and the cost to the insurance company for repairing the house;

(2) Mr. Wiseman’s record – long, violent and serious; (3) the impact of the sentence on Mr. Wiseman’s prospects for rehabilitation – although I have emphasized other sentencing factors more than rehabilitation, Mr. Wiseman is still a relatively young man and will one day be released; the sentence imposed must provide him with a reasonable prospect of a fresh start; this is particularly true when Mr. Wiseman has made a heartfelt plea to the Court for an opportunity to turn his life around and to abandon his criminal ways; in assessing Mr.

Wiseman’s prospects for rehabilitation, however, I have taken into account that the PSR noted that although he has completed various wellness programs, Mr. Wiseman remains unable to use these new skills in his daily life; rehabilitation is a work in progress for Mr. Wiseman and I am confident that his current positive mental attitude will assist in his recovery; and (4) other factors, including that Mr.

Wiseman was on parole at the time of the offences, that he had been assessed as a high risk to reoffend, and society’s disapprobation against violent crimes and crimes against property interests. [ 65 ] Having analyzed the case law with respect to sentences imposed in similar cases, and having considered Mr.

Wiseman’s personal circumstances as well as the relevant circumstances related to these offences, I find that a sentence of seven years and six months’ incarceration is appropriate in this case. [ 66 ] I note that had I ordered the sentence for wearing a mask to be served consecutively, I would have changed it to a concurrent sentence for the purpose of totality. Credit for Pre-Trial Custody [ 67 ] Mr. Wiseman has been in custody since his arrest on March 13, 2018. Up to March 27, 2019, he was in custody serving another sentence.

If it had not been for these charges, he would have been eligible for statutory release on that date. Since then, he has been in custody for 497 days awaiting resolution of these matter. [ 68 ] Sections 719(3) - (3.1) of the Code provide that in determining the sentence to be imposed on a person convicted of an offence, I may take into account any time spent in custody by the person as a result of the offence.

I shall limit any credit for that time to a maximum of one day for each day spent in custody, although if circumstances justify it, I can give credit for one and one-half days for each day spent in custody. [ 69 ] The Supreme Court of Canada stated in R. v. Summers , 2014 SCC 26 , at paragraph 79 : Generally speaking, the fact that pre-sentence detention has occurred will usually be sufficient to give rise to an inference that the offender has lost eligibility for parole or early release, justifying enhanced credit. [ 70 ] In this case I can infer that Mr.

Wiseman has lost eligibility for parole or early release as a result of his lengthy pre-trial custody. Therefore, I am satisfied to allow credit for pre-sentence custody at a ratio of 1.5 to 1. This results in a credit of 745 days. Mr. Wiseman has 1,995 days of incarceration to serve. Restitution [ 71 ] I make no order for restitution in respect of the arson. The Crown advised that the victim’s insurance company expended approximately $206,000 to repair the property. Nevertheless, because the house caught fire again after Mr.

Wiseman had been taken into custody and the original fires were extinguished, the amount of damage which Mr. Wiseman caused to the dwelling is not readily ascertainable. DISPOSTION AND SENTENCE [ 72 ] Mr. Wiseman is sentenced to a term of seven years and six months’ incarceration less 745 days of credit for time served, leaving 1,995 days to be served. [ 73 ] I order, pursuant to section 109(3) of the Code , that Mr. Wiseman is prohibited from possessing any firearm, crossbow, restricted weapon, ammunition or explosive substance for life. [ 74 ] Armed robbery is a “primary designated offence”.

Therefore, I order that samples of bodily substances be taken from Mr. Wiseman for DNA analysis in accordance with

Part XV of the Code . _____________________________ Robert P. Stack Justice

Schedule “A” Agreed Statement of Facts Re: charge under

Section 434 of the Criminal Code 1. On March 13, 2018 RNC police officers located a vehicle connected with an armed robbery in the driveway of 17 Jersey Avenue, Mt. Pearl, Newfoundland and Labrador. Police were advised that Justin Wiseman was present in the home and he refused to exit when requested to do so by police. There was a parole warrant in effect for Justin Wiseman. This resulted in a stand-off between Justin Wiseman and police that began at approximately 1 pm. Three females were also present in the home at that time. 2.

Throughout the day, police observed heavy black smoke coming from the chimney as well as a strong smell of burning plastic. By 6:25 pm the three females who had been in the home had all exited and only Justin Wiseman remained. Member of the Tactics and Rescue Unit (hereinafter “TRU”) had taken over the inner perimeter of the scene from patrol officers. 3. At 6:43 pm, TRU members could see smoke coming from a room in the home and not just the chimney. They became concerned for the safety of Justin Wiseman.

At 6:46pm TRU members noted that the smoke inside the residence appeared to be increasing significantly and escaping from the windows. Authorization was given to enter the residence and take Justin Wiseman as police did not want him to die in the fire. 4. TRU member, Cst. D. McDonald, checked the back door of the residence and found that it was locked. He used a ram to gain entry. Upon entry he immediately observed heavy smoke and flickering. He observed a small fire in the entryway of the bathroom and heavy smoke and flickering coming from the last room at the end of the hallway.

As other TRU members located Justin Wiseman in the basement, Cst. McDonald moved towards the kitchen area where he observed more heavy smoke. He also observed plastics and a paint can on the stove and the element was red hot. He removed the debris from the stove as well as the paint can and threw it out the kitchen window. He then exited the front door. 5. TRU member, Cst. J. Lynch, was the first officer to enter the home and he went towards the bedrooms. He noted heavy smoke and a small fire lit in the bathroom. Upon entry of the main bedroom, Cst.

Lynch observed a mattress on the floor, approximately half of which was engulfed in flames. He did not observe anyone in the room and the smoke became so thick he exited the room and left the residence through the front door. 6. TRU member, Cst. K. Hogan, entered the home through the rear door announcing “police” as he entered. He proceeded to the kitchen area of the house where he observed something on the front left burner of the stove that appeared to be burning. Cst. Thompson removed the item from the stove and then both officers proceeded to the basement of the residence where Justin Wiseman was located.

Justin Wiseman was lying face down on the ground. He was handcuffed, checked for injuries and lifted up the stairs to the main area of the house and then out the front door. Justin Wiseman was then turned over to street patrol officers and checked by paramedics. 7. TRU member, Cst. D. Thompson, entered the home through the rear door and proceeded to the kitchen area where it was smoke filled and noted a cloth on the stove burner which was removed. He and Cst. Hogan proceeded through to the kitchen and into the basement where Justin Wiseman was located and handcuffed. Cst. D.

Thompson noted that Justin Wiseman appeared to be suffering from smoke inhalation. 8. At 6:50 pm the standoff ended when Justin Wiseman was taken into custody by police. The St. John’s Regional Fire Department (hereinafter “SJRFD”) was also on scene and extinguished the fires in the residence. 9. At 9:25 pm Cst. L. Rumbolt, who was assigned scene containment, observed flames coming from the top floor window of 17 Jersey Avenue. The fire department was called and they returned to the scene to extinguish the subsequent fire. 10.

After reviewing the notes of the Constables Lynch, McDonald, Thompson and Hogan, RNC Fire Investigator, Cst. Steve

Walsh, determined that there were three separate areas of origin for the fire. The first was the stove top in the kitchen, the second was the mattress in the main floor bedroom and the third was the fire in the bathroom. In Cst. Walsh’s opinion, it would be highly irregular to have three separate fires within one residence unless they were intentionally set. Justin Wiseman was the only occupant in the home at the time these fires were in progress. 11. On March 14, 2018 Cst. Walsh spoke with Cpt.

Gina Burke of the SJRFD who stated that on the original response call, the fire was restricted to the mattress in the main bedroom. According to Cst. Burke, they extinguished the fire, checked for hot spots and everything was good when they left the residence. The SJRFD arrived after the TRU team had arrested Justin Wiseman. Cpt. Burke stated that she was puzzled when they received a call for the subsequent fire at the same location as when the fire department left after the first set of fires, everything seemed fine and there were no hot spots detected.

When the fire department arrived the second time, they could not believe how involved the fire was with little or no fuel load inside the residence. Cpt. Burke said there was extensive damage to one side of the residence with 75% of the ceiling pulled to make sure there were no hot spots. 12. Justin Wiseman acknowledges that he was responsible for the initial fires in the bedroom, bathroom and on the kitchen stove of 17 Jersey Avenue. 13. The cause of the subsequent fire cannot be proven beyond a reasonable doubt. 14.

Sherri Colbourne is the owner of 17 Jersey Avenue and the property was leased to tenants through a property manager. The property was not owned, wholly or in part, by Mr. Wiseman.