R. v. Roberts, 2019 NLCA 43

Her Majesty the Queen (appellant) v. Kevin Roberts (respondent) (17/47) Indexed As: R. v. Roberts 2019 NLCA 43 4 C.A.N.L.R. 614 Court of Appeal of Newfoundland and Labrador Green, White and Harrington JJ.A. July 11, 2019

Summary: Mr. Roberts was convicted of five offences involving armed robbery, possessing a weapon dangerous to public peace, assault with a weapon, having his face masked with the intent to commit an indictable offence and breach of recognizance. The sentencing judge initially calculated the sentence to be four years for four of the offences, with an additional three months for the breach of recognizance charge. The judge then adjusted the sentence for totality and reduced the sentence to a total period of 24 months, to be served concurrently to a sentence Mr.

Roberts was already serving in connection with a previous armed robbery. She also imposed a lifetime prohibition on possessing firearms. The Crown sought leave to appeal the sentence on the basis that it was demonstrably unfit and that the judge did not properly apply the principles of totality. The Crown also argued that the sentencing judge erred in concluding that a lifetime firearm ban was statutorily required. Counsel for Mr. Roberts sought to admit evidence on the appeal to support the position that, should the Court vary the sentence and impose additional incarceration time, Mr.

Roberts should not be returned to prison due to his rehabilitation prospects and the fact that he had already been released on day parole. A letter from Mr. Roberts’ parole officer was admitted and the Crown was permitted to cross- examine the parole officer on her letter. During cross-examination, the parole officer confirmed that approximately one month before the appeal hearing, Mr. Roberts breached his parole conditions by using cocaine and prescription drugs that were not prescribed by a doctor. Held: Leave to appeal granted; sentence affirmed.

Green and White JJ.A. (Harrington J.A. concurring): The Crown was granted leave to appeal as required by section 676(1) (

d) of the Criminal Code , as the issues were not frivolous (paragraph 32). With respect to the firearms issue, counsel for both parties conceded, and the Court accepted, that the sentencing judge had the discretion to impose the lifetime ban (paragraph 33). Principles of sentencing are discussed, particularly in the context of multiple offences (paragraphs 34-39). The four-year sentence imposed by the sentencing judge, before adjusting for totality, was not inappropriate in the circumstances.

While the offences could be considered distinct in nature so as to justify the imposition of consecutive sentences, the Crown did not challenge the judge’s finding that the offences arose out of a single criminal venture or that the resulting sentences should be served currently with each other. The judge’s finding respecting the length of the individual sentences and her finding that the sentences should be served concurrent to each other were therefore not disturbed (paragraphs 40-50).

When adjusting for totality, a prior sentence can only be considered where the accused is currently being sentenced for multiple offences. Further, it is appropriate to consider only the unexpired portion of an existing sentence. Where one or more of the current offences for which the accused is being sentenced is what triggers the existence of the prior unexpired sentence, the impact of the unexpired sentence

is substantially minimized. When considering the effect of a prior unexpired sentence, it is only the fact that the offender is serving anunexpired sentence, and its duration, that can be considered. While the judge did not err in principle by considering Mr. Roberts’unexpired sentence in her totality analysis, she did err by failing to consider only the unexpired portion of the prior sentence. However,had the judge considered only the unexpired portion of the sentence, she still would have concluded that the sentence was unduly harshand would interfere with Mr. Roberts’ rehabilitation.

The judge therefore did not err in principle in arriving at a 24 month sentence forthe current offences (paragraphs 51-93). The judge erred by ordering that the sentence for the current offences be served concurrent to the sentence for the previous offences. Byimposing concurrent sentences, the judge did not consider the direction from Parliament in

section 718.3(4) of the Criminal Code that, incertain circumstances, sentences are to be served consecutively. This error had a material impact on the resulting sentence and thesentence imposed by the sentencing judge was, for this reason, unfit (paragraphs 94-102). Accordingly, the Court set aside the sentencing judge’s decision to make the 24 month sentence concurrent with the unexpired portion ofthe previous sentence and ordered that the 24 month sentence be served consecutively to the previous sentence (paragraphs 103-108). While counsel for Mr.

Roberts had asked the Court to exercise its discretion to allow the sentence imposed by the sentencing judge to runits course rather than returning Mr. Roberts to jail, this was no longer an issue by the time the appeal was heard. Mr. Roberts wasreturned to custody after he admitted to drug use and had therefore no longer finished serving his sentence. The Court accepted theCrown’s suggested approach, which was to assume that Mr.

Roberts would be returned to prison to serve the additional portion of thesentence imposed on appeal and let the Parole Board of Canada decide what portion, if any, of the increased sentence should be served inprison (paragraphs 109-118). Cases cited: R. v. Roberts, 2016 NLTD(G) 82, 377 Nfld. & P.E.I.R. 226 R. v. Barrett, 2012 NLCA 46 R. v. Hutchings, 2012 NLCA 2, 316 Nfld. & P.E.I.R. 211 R. v. Lacasse, 2015 SCC 4, [2015] 3 S.C.R. 1089 R. v. Martin, 2018 NLCA 12 R. v. Blok-Anderson, 2016 NLCA 9, 376 Nfld. & P.E.I.R. 130 R. v. Alexander, 2013 NLCA 15 R. v. O’Quinn, 2017 NLCA 10 R. v.

Newhook, 2008 NLCA 28, 276 Nfld. & P.E.I.R. 190 R. v. Frampton, 2018 NLCA 23 R. v. Bourgeois, 2018 NLCA 13 R. v. Flynn, 2018 NLCA 61 R. v. Murphy, 2011 NLCA 16 R. v. Mahoney, 2018 NLCA 16 R. v. Johnson, 2012 ONCA 339 R. v. Parry, 2012 ONCA 171 R. v. Park, 2016 MBCA 107 R. v. Crocker (1991), (NL CA), 93 Nfld. & P.E.I.R. 222 (Nfld. C.A.) R. v. McCarthy, 2005 NLCA 36, 248 Nfld. & P.E.I.R. 14 R. v. Rees, 2018 NLCA 64 R. v. Keats, 2018 NSCA 16 R. v. Kane, 2012 NLCA 53

R. v. Taylor, 2013 NLCA 42 Statutes considered: Criminal Code, sections 676(1)(d), 109, 718.3(4), 719 and 727 Counsel: Sheldon Steeves, for the appellant; Derek Hogan, for the respondent. The appeal was heard on March 15, 2018 before Green, White and Harrington JJ.A.

The following judgment was filed on July 11, 2019 by Green and White JJ.A. for the Court. ______________________________________________________________ Green and White JJ.A.: [1] Kevin Roberts pleaded guilty to and was convicted of five offences involving armed robbery, possessing a weapon dangerous topublic peace, assault with a weapon, having his faced masked with the intent to commit an indictable offence and breach ofrecognizance.

The sentencing judge initially calculated the sentence to be four years for the four offences associated with the robbery, inaddition to three months for the breach of recognizance charge. In adjusting this sentence for totality, the sentencing judge reduced thesentence to a total period of 24 months, to be served concurrently with a sentence Mr. Roberts was already serving in connection with a previous armed robbery.

She also imposed a lifetime prohibition onpossessing firearms. [2] The Crown appeals on the basis that the robbery-related sentences were demonstrably unfit and were not the product of a properapplication of the principles of totality. In addition, the Crown submitted that the sentencing judge erred in concluding that a lifetimeban on firearms possession was statutorily required. Background [3] On November 17, 2015 an armed robbery occurred at Pharmacy Solutions in the Goulds, NL. Mr.

O’Keefe, the pharmacist atPharmacy Solutions, stated to police that a male rushed into the pharmacy, jumped over the counter and demanded that he open thenarcotics case. The man was armed with a pipe and knife and was wearing a ski mask. Mr. O’Keefe stated that, after he tried to take offthe ski mask, the male struck him in the head with a pipe. The man held a knife to Mr. O’Keefe’s side and uttered threats to him until heopened the narcotics safe. After filling a bag with narcotics, the male fled the scene, leaving behind the pipe and knife.

The make andmodel of the fleeing vehicle, as well as a partial license plate, were obtained before it left the scene. Police later located the vehicle at anIrving gas station in Torbay, NL. An officer identified the driver of the vehicle to be Mr. Roberts, who was known to the police, but didnot arrest him then. [4] The police followed the vehicle and Mr. Roberts was arrested outside a building on Wigmore Court in St. John’s, NL later thatafternoon. The bag Mr. Roberts had been carrying was searched by police and 20 pill bottles matching the inventory of pills stolen fromthe pharmacy were found inside the bag.

Mr. Roberts was interviewed under caution, where he claimed not to know what was in the bagand that he was transporting the bag for a friend. He further claimed to be at home watching television at the time of the robbery. Believing the evidence did not yield probable grounds to lay a charge, the police did not charge Mr. Roberts with the robbery at thistime. [5] In March 2016, the police were advised that DNA had been recovered from the pipe used to assault Mr. O’Keefe, but was notmatched to an offender in the DNA Offender Registry.

Approximately one month later, the lead investigator was advised that thisprevious information was incorrect and the DNA on the pipe was matched to Mr. Roberts’ DNA in the national DNA registry. [6] On June 2, 2016, the police obtained a DNA warrant to confirm that it was Mr. Roberts’ DNA on the pipe left at the scene. Thewarrant was not executed until July 29, 2016. On August 26, 2016, the police were advised that the DNA found on the pipe matchedthat of the sample taken from Mr. Roberts. [7] On September 14, 2016 while he was at the St. John’s lock-up, Mr.

Roberts was charged with the offences that are the subject ofthis appeal (the “subject offences”). Though Mr. Roberts declined to provide a statement to the police at that time, he later requested tomeet with the police on October 5, 2016. At this meeting, Mr. Roberts gave a statement in which he admitted to committing the subjectoffences. He entered a guilty plea for these offences on March 27, 2017. The Sentencing Decision (2017 NLPC 0116A03038, )

[ 8 ] At the sentencing hearing, the defence called three witnesses all of whom indicated that Mr. Roberts had made significant efforts to turn his life around. Mr. Roberts apologized for committing the offences and for any harm he caused to Mr. O’Keefe. He accepted full responsibility for his actions. He further claimed that, through his newfound faith, he was prepared to turn his life around. Mr.

Roberts further spoke of being addicted to Percocet but, through a counselling program he attended while incarcerated in Stephenville and his newfound faith, he was able to overcome his addiction. [ 9 ] Prior to being charged with the subject offences, but after having committed them, Mr. Roberts had been sentenced, in a separate proceeding, to four years imprisonment, less 524 days for time served, for a series of offences including a robbery at the Hayloft Lounge (the “Hayloft robbery”) on September 23, 2014 ( R. v. Roberts , 2016 NLTD(G) 82 , 377 Nfld. & P.E.I.R. 226 ).

He had been subject to a recognizance in relation to these prior offences at the time he committed the second robbery at Pharmacy Solutions. [ 10 ] Counsel for the Crown suggested a global sentence of five years consecutive to sentences currently being served, having considered the factors it believed to be both aggravating and mitigating in this case. The defence argued that the delay in charging Mr. Roberts denied him the opportunity to benefit from being sentenced for the two robberies at the same time under the principle of totality.

Defence counsel suggested that eighteen months, in addition to the sentence he was already serving, would be appropriate. [ 11 ] After considering the sentencing provisions in Sections 718 – 718.2 of the Criminal Code , previous case law relating to robbery offences submitted by the parties as being factually comparable, as well as aggravating and mitigating factors, and observing that “a lengthy period of custody is typically required to meet the principles of sentencing for crimes of this nature” (paragraph 18), the sentencing judge identified appropriate sentences for each offence as follows: 1) Armed robbery, contrary to

section 343-344(1)(b) – 4 years 2) Possessing a weapon dangerous to the public, contrary to section 88(1)-88(2) – 18 months 3) Having his face masked with the intent to commit an indictable offence, contrary to section 351(2) – 18 months 4) Assault with a weapon, contrary to

section 267(a) – 18 months 5) Breach of recognizance, contrary to section 145(3)(a) – 3 months [ 12 ] Served consecutively, the sentences would have totaled eight years and nine months; however, she concluded that because “the four substantive offences occurred during the robbery” those four offences constituted a single criminal venture and should be served concurrently, with the result that the total sentence that would actually be served for those four charges would be four years (the longest single sentence imposed). Applying R. v.

Murphy , 2011 NLCA 16 , however, she ordered that the three-month sentence for the breach of recognizance offence had to be served consecutively to the robbery sentences. Without any other consideration, therefore, the sentence to be served would have totaled four years and three months. [ 13 ] The sentencing judge then moved to a consideration of whether there should be any further adjustment of the resulting total sentence on the basis of the application of the totality principle. Defence counsel had submitted that the fact that Mr.

Roberts was serving time for the Hayloft offences should “inform” the judge’s totality analysis because of the delay in laying the charges relating to the current offences. Had they been laid sooner, it was argued, sentencing for both the Hayloft and current offences might have been undertaken together and that totality would have to be assessed in the context of all sentences that had been imposed. Defence counsel also laid emphasis on the need not to defeat an opportunity for rehabilitation.

She stressed the extremely positive evidence of a Salvation Army officer and a former Provincial Court Judge who were counselling Mr. Roberts, that he had turned his life around. [ 14 ] Referring to this Court’s decision in R. v. Barrett , 2012 NLCA 46 , the sentencing judge concluded that that case stood for the proposition that “if the facts of a particular case warranted it, consideration can be given to an existing sentence being served by the offender” in the course of considering totality. Referring to the delay in charging Mr.

Roberts with the subject offences, and his strong prospects for rehabilitation, the judge concluded, again quoting Barrett , that the existence of the sentence for the Hayloft offences “warrants a downward adjustment in sentence” ( Barrett , at paragraph 37 ; Sentencing decision, paragraph 29). [ 15 ] The sentencing judge further concluded that: [30] Irrespective of whether the DNA warrant prevented the offender from being sentenced at the same time for the Hayloft Lounge offences and the subject offences, if the offender received a sentence of 3 ½ years for the Hayloft robbery and a sentence of 4 years for the subject robbery, it would be crushing.

It would be unduly harsh and it would impede the progress the offender has made with respect to rehabilitation. Supporting Mr. Robert’s rehabilitation is in his best interest and in society’s best interest. A prior existing sentence is relevant to the circumstance of the offender and to ignore it ignores the fundamental purpose of the totality principle. Irrespective of whether an offender is presently serving a sentence of earlier offences or whether he or she is about to be sentenced for multiple offences, the period of incarceration being imposed engages the totality principle.

It is the total amount of jail time that impacts rehabilitation and informs the analysis of whether the sentence is “unduly long or harsh”. (Emphasis added.) [ 16 ] As a result of the foregoing analysis, the sentencing judge adjusted the four year, three month sentence for totality.

She reduced the sentence for the four robbery-related offences to 21 months, but maintained the separate three months sentence for breach of recognizance, for a total of 24 months. [ 17 ] Furthermore, without any further discussion and without assigning any additional reasons, except to assert that “it balances the principles of specific and general deterrence, denunciation and rehabilitation”, she declared that the resulting 24 month sentence for the subject offences should be served concurrently with the Hayloft offences. [ 18 ] To summarize, the sentence actually imposed for the subject offences was as follows:

1) Armed robbery of Pharmacy Solutions – concurrent with his existing sentence for the Hayloft Lounge robbery group of offences – 21 months; 2) Possessing a weapon dangerous to the public – 18 months concurrent with the Pharmacy Solutions robbery; 3) Having his face masked with the intent to commit an indictable offence – 18 months concurrent with the Pharmacy Solutions robbery; 4) Assault with a weapon – 18 months concurrent with the Pharmacy Solutions robbery; 5) Breach of recognizance – 3 months consecutive to the sentences for the Pharmacy Solutions robbery. [ 19 ] Taking into account the unexpired portion of the sentence for the Hayloft offences, the manner of imposing the sentence for the subject offences effectively meant that Mr.

Roberts would serve one additional month in respect of the subject robbery and three additional months for the breach of recognizance. [ 20 ] The sentencing judge made a number of ancillary orders which are not relevant to this appeal, but also made an order under

Section 109 of the Criminal Code prohibiting possession of firearms. She made a lifetime ban because she concluded that the predicate offence (robbery) was a “subsequent offence” under Section 109(3) of the Code . Appeal Submissions [ 21 ] On this appeal, the Crown submits that the sentence resulting from the foregoing analysis – effectively only one additional month for a very serious armed robbery of a pharmacy involving violence and injury to an elderly pharmacist - is demonstrably unfit.

Counsel submitted that this result is the product of a flawed totality analysis which materially impacted the sentence that should have been imposed. Specifically, counsel argued that the sentencing judge failed to apply a proper totality analysis by not only reducing the sentences to a total of 24 months but also making them concurrent with the Hayloft sentences by: - improperly having regard to the delay in charging Mr. Roberts by “second – guessing” the police decisions on when to lay charges; - failing to give consideration to

section 718.3(4)(b)(ii) of the Code when deciding to make the 24 month sentence concurrent with the Hayloft sentences, especially since the Hayloft robbery was a separate criminal venture; and - the sentencing judge failed to give sufficient or any weight to the fact that Mr.

Roberts was on judicial interim release at the time he committed the subject offences. [ 22 ] While Crown counsel acknowledged that, given the evidence relating to rehabilitation, some downward adjustment in sentence could arguably have been warranted, his fundamental position was that, as expressed in paragraph 57 and 58 of the Crown’s factum: The problem with the trial judge’s approach is that it goes too far. It does not punish the offender at all. There is no accountability or proportionality to the sentence. Deterrence and denunciation should have some role. These are serious offences.

The sentence … gives the Respondent a free ride on these offences. [ 23 ] The main issue taken by the Crown with respect to the sentencing result related, therefore, to the decision of the judge to make the sentences concurrent with the Hayloft sentence in addition to reducing the sentences to 24 months.

As Crown counsel conceded in his factum and reiterated in oral argument: “If the trial court had made the 24 months consecutive, to the existing sentence, then arguably, the sentence would otherwise be fit” (Appellant’s Factum, paragraph 62). [ 24 ] A secondary issue in the Crown’s submissions related to the imposition of a lifetime firearm prohibition. Crown counsel pointed out that the Crown did not give notice to Mr. Roberts that the Crown would seek greater punishment which, he says, was mandatory in these circumstances.

He also pointed out that while Section 109(3) of the Criminal Code does provide for a mandatory lifetime firearm prohibition where there is a prior related conviction, it is not clear whether Mr. Roberts’ conviction for the Hayloft offences would constitute a prior conviction because of its timing in relation to the subject convictions. Nevertheless, Crown counsel noted that the sentencing judge still had the discretion under section 109(2) of the Criminal Code to impose a lifetime firearm prohibition even for a first time offender if the circumstances warrant.

The Crown submitted it may have been appropriate to do so in this case given Mr. Roberts’ extensive general criminal history. [ 25 ] Counsel for Mr. Roberts, in response, submitted that neither the approach of the sentencing judge constituted an error in principle, nor was the resulting sentence demonstrably unfit. The sentencing judge did explain why a downward adjustment of sentence was warranted – that consecutive sentences for the subject offences would be crushing on Mr. Roberts’ prospects for rehabilitation. Though counsel for Mr.

Roberts acknowledged that the sentence imposed was lenient on its face, the sentencing judge had the discretion to stress the importance of rehabilitation. [ 26 ] Counsel further submitted that the sentencing judge both cited and properly applied R. v. Hutchings , 2012 NLCA 2 , 316 Nfld. & P.E.I.R. 211 dealing with sentencing for multiple offences. Accordingly, she was at least aware of the principle that consecutive sentences should be imposed unless there is a valid reason not to do so. Counsel argued that

section 718.3(4) of the Code was merely reflective of the pre-existing law and added nothing further to the sentencing analysis in the context of sentencing for multiple offences. [ 27 ] It was acknowledged by counsel for Mr. Roberts that a delay in police investigation is not a mitigating factor in sentencing, absent an abuse of process or egregious misconduct. However, in counsel’s view, the delay was merely cited by the sentencing judge as an alternative reason, in the context of her totality analysis, for considering and taking account of the existing Hayloft sentence Mr. Roberts had been serving at the time.

[28] Mr. Roberts’ counsel also acknowledged that the four months added by the sentencing judge to the existing sentence, imposed inrelation for the Hayloft robbery was 14 months less than the sentence this Court imposed in Hutchings for two robberies and,accordingly, could be said to be a lenient sentence. However, counsel argued that Mr. Roberts’ concerted attempts at rehabilitation boreemphasis and could, in the circumstances, justify the lower combined sentence. Counsel emphasized that a sentence outside the range isnot, by itself, a reason for appellate intervention (R. v.

Lacasse, 2015 SCC 4, [2015] 3 S.C.R. 1089, at para. 11). For these reasons,counsel submitted that the sentence was not demonstrably unfit. [29] Counsel agreed with the Crown’s submissions on the lifetime firearm prohibition and argued that the trial judge erred in rulingthat such a prohibition was mandatory. However, counsel conceded that a lifetime prohibition was nevertheless within the sentencingjudge’s discretion to impose pursuant to section 109(2) of the Code.

Issues [30] The challenge by the Crown to the overall sentence in this case can best be understood and considered in the context of adiscussion of the application of principles set out in Hutchings, relating to sentencing for multiple offences. With that focus, the issuescan be stated as: 1. Did the sentencing judge err in law or principle in the application of the principle relating to the imposition ofconsecutive/concurrent sentences with respect to determining totality and, in particular by: (

a) failing to consider and apply

section 718.3(4) of the Criminal Code; (

b) making the sentence, which was already reduced to 24 months for totality, concurrent with the sentence being served for the Hayloftrobbery offences; (

c) relying on a perceived delay in charging Mr. Roberts for the current offences as a factor in adjusting the sentences on the basis oftotality. 2. Was the resulting sentence demonstrably unfit? [31] A secondary issue in this appeal, which both parties have identified, is whether the sentencing judge erred in law by imposing alifetime firearm prohibition under

section 109 of the Criminal Code? Analysis Leave to Appeal [32] Leave to appeal is required because this is an appeal by the Crown as to sentence only (section 676(1)(

d) of the Criminal Code).This Court has previously stated the test for granting leave in an appeal of this nature is whether the appeal is “frivolous in the sense ofhaving no arguable basis or sufficient merit” (R. v. Martin, 2018 NLCA 12, at para. 6; R. v. Blok-Anderson, 2016 NLCA 9, 376 Nfld. &P.E.I.R. 130, at para. 8). The issues in this case are not frivolous. In our view, this test is met. We would grant leave. Firearms Prohibition [33] Before addressing the heart of this appeal, we will first deal with the secondary issue of the lifetime firearms prohibition imposedon Mr. Roberts. At the hearing, counsel for the Crown acknowledged that (

i) the Crown was required to give notice that the Crown wasseeking a greater punishment because of a previous conviction (Criminal Code, section 727(1); R. v. Alexander, 2013 NLCA 15) andthat it did not do so in this case; and (ii) the conviction and sentence for the Hayloft robbery would not be considered a prior convictionbecause the conviction for the Hayloft robbery had not been entered when Mr. Roberts’ committed the Pharmacy Solutions robbery.

Nevertheless, counsel for both parties conceded that imposing the prohibition was within the sentencing judge’s discretion in any event(Criminal Code, section 109(2)). In these circumstances, and considering Mr. Roberts’ lengthy criminal history, we would not disturb thedecision of the sentencing judge in this regard. Sentencing Appeals Generally [34] In R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089.

Wagner J., writing for a majority of the Supreme Court of Canada,discussed the basic principles relative to appellate intervention in sentencing appeals: 43 … I agree that an error in principle, the failure to consider a relevant factor or the erroneous consideration of an aggravating ormitigating factor can justify the intervention of an appellate court and permit that court to inquire into the fitness of the sentence andreplace it with the sentence it considers appropriate.

However, in my opinion, every such error will not necessarily justify appellateintervention regardless of its impact on the trial judge's reasoning. … 44 In my view, an error in principle, the failure to consider a relevant factor or the erroneous consideration of an aggravating ormitigating factor will justify appellate intervention only where it appears from the trial judge's decision that such an error had an impacton the sentence. … 49 For the same reasons, an appellate court may not intervene simply because it would have weighed the relevant factors differently.In Nasogaluak, LeBel J. referred to R. v.

McKnight (1999), (ON CA), 135 C.C.C. (3d) 41 (Ont. C.A.), at para. 35, in

this regard: To suggest that a trial judge commits an error in principle because in an appellate court's opinion the trial judge gave too much weight toone relevant factor or not enough weight to another is to abandon deference altogether. The weighing of relevant factors, the balancingprocess is what the exercise of discretion is all about. To maintain deference to the trial judge's exercise of discretion, the weighing orbalancing of relevant factors must be assessed against the reasonableness standard of review.

Only if by emphasizing one factor or by notgiving enough weight to another, the trial judge exercises his or her discretion unreasonably should an appellate court interfere with thesentence on the ground the trial judge erred in principle. [para. 46] [35] Further, regarding a demonstrably unfit sentence, Wagner J. concluded: 52 It is possible for a sentence to be demonstrably unfit even if the judge has made no error in imposing it.

As Laskin J.A. mentioned,writing for the Ontario Court of Appeal, the courts have used a variety of expressions to describe a sentence that is "demonstrably unfit":"clearly unreasonable", "clearly or manifestly excessive", "clearly excessive or inadequate", or representing a "substantial and markeddeparture": R. v. Rezaie (1996), (ON CA), 31 O.R. (3d) 713 (Ont. C.A.), at p. 720.

All these expressions reflect thevery high threshold that applies to appellate courts when determining whether they should intervene after reviewing the fitness of asentence. 53 This inquiry must be focused on the fundamental principle of proportionality stated in s. 718.1 of the Criminal Code, whichprovides that a sentence must be "proportionate to the gravity of the offence and the degree of responsibility of the offender". A sentencewill therefore be demonstrably unfit if it constitutes an unreasonable departure from this principle.

Proportionality is determined both onan individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparisonwith sentences imposed for similar offences committed in similar circumstances. Individualization and parity of sentences must bereconciled for a sentence to be proportionate: s. 718.2(

a) and (

b) of the Criminal Code. [36] From these principles, it is clear that the sentencing judge is to be afforded significant deference in arriving at a sentence as wellas in respect of the weight to be accorded to the relevant factors he or she considers in the process. Sentencing for Multiple Offences [37] This Court established a framework for sentencing for multiple offences in Hutchings. That framework has been described insubsequent cases as a “three-step approach” (Martin, at paragraph 10; R. v.

O’Quinn, 2017 NLCA 10, at paragraph 18), with the firststep being to determine an appropriate sentence for each individual offence according to ordinary sentencing principles, with thepresumption that the individual sentences will be served consecutively. This is followed by the second step of determining whether anyof the offences should be ordered to be served concurrently with other sentences being imposed on the basis that they constitute a singlecriminal venture.

The third and final step is to take “one last look” at the combined sentence for the purpose of consideration of theprinciple relating to totality. [38] To put the submissions of the Crown in this case into proper perspective, it is appropriate to discuss the issues presented withinthe Hutchings framework so as to identify whether the sentencing judge adopted the proper approach to sentencing in the context of whatspecific issues are – and are not - actually engaged. [39] The sentencing judge in this case purported to follow the three-step Hutchings approach by first determining individualsentences, then considering whether they were the product of a single criminal venture and, finally, addressing totality.

It can be statedat the outset, therefore, that no error can be found in the framework approach she adopted to deal with the multiple offence sentencing inthis case. The issue that must be addressed, however, is whether she properly analyzed and applied the appropriate considerations at thevarious stages of the analysis. First Step – Determine Proper Individual Sentences [40] The Crown did not take issue with the individual sentences imposed by the sentencing judge. The judge considered priorprecedent, aggravating and mitigating factors and the principles of sentencing set out in

section 718 of the Criminal Code. She describedthe circumstances as being “serious and quite violent”, emphasizing the use of a weapon and the attack on the elderly pharmacist. Shenoted the special need to protect pharmacies, which are vulnerable to robberies, and adverted to the fact that a lengthy period of custodywas typically required to meet the principles of sentencing in cases of this nature. She concluded, however, that “strong mitigatingfactors exist” because Mr.

Roberts was a good candidate for rehabilitation, having made “concerted efforts” in that regard. [41] While the four year initial sentence for the robbery offence is at the low end of the range, considering the manner in which therobbery was carried out and the fact that a pharmacy was involved, it cannot be said that it was inappropriate in the circumstances, giventhe fact that the judge was obviously impressed with Mr.

Roberts’ rehabilitative prospects. [42] Accordingly, the assignment of individual sentences in this case provides a satisfactory basis for completing the remaining stepsin the sentencing process for multiple offences.

Second Step - Determine whether any or all of the offences were the result of a Single Criminal Venture [43] The Crown did not challenge the finding of the sentencing judge that the robbery, weapon possession, face mask and assaultoffences arose out of a single criminal venture or that the resulting sentences should be ordered to be served concurrently with eachother. [44] We would observe, however, that it is not the simple fact that offences occurred at the same time that necessarily determines thatthey 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 bethat two offences, following “hard on the heels” of one another may be considered “sufficiently distinct in their nature” that they shouldnot 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.

Third Step – Determine whether the overall sentence should be adjusted by application of the Totality Principle [ 51 ] The approach to be taken in determining the application of the totality principle was described in Hutchings as follows at paragraph 84 : 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 account, and balance, the following factors: (

a) the length of the combined sentence in relation to the normal level of sentence of the most serious of the individual sentences 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 degree of the offender’s responsibility. 6. Where the sentencing judge concludes, in the light of the application of those factors identified in Step 5 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 otherwise have been. [ 52 ] Of relevance to this appeal, it is to be noted that this approach primarily focuses on the multiple sentences that are then present before the court for adjudication and it engages where it is determined that the combined sentences are unduly long or harsh and not proportionate to the gravity of the offences and the offender’s degree of responsibility.

The length, harshness and proportionality of each individual offence will have already been worked out in the first step of the analysis, as explained above. [ 53 ] The sentencing judge concluded that the totality principle was engaged and purported to apply it by: (

i) reducing the four year sentence for robbery to 21 months; and (ii) ordering that the reduced robbery sentence (with which the other assault with a weapon, face mask and weapon possession charges were already to be served concurrently, by the operation of step two) be served concurrently with the Hayloft robbery sentence. [ 54 ] Of note is that the combined sentence remaining before the Court after the application of the first two steps consisted of the robbery (four years) and the breach of recognizance (three months) for a total of four years and three months.

It is that sentence that, at least in the first instance, should be examined to determine whether it is unduly long or harsh or disproportionate. The four year sentence for robbery had already been determined to be appropriate, even considering the offender’s rehabilitative prospects, at the first stage of the analysis. It would be hard, therefore, to say that a sentence of only three months longer, when viewed against the length of the robbery sentence ( Hutchings , 84(5)(a)), the number and gravity of the offences involved (84(5)(

b) and (e)) and Mr. Robert’s criminal record (84(5)(c); - 68 offences spanning 17 years) would be unduly long or harsh, so as to call for an adjustment. Further, it would be hard to assert that the impact of the combined sentence (i.e. created by only the additional three months for the breach of recognizance) on Mr. Roberts’ rehabilitation would be harsh or crushing (84(5)(d)). [ 55 ] Although the sentencing judge did not say as much, it appears from the way she approached the matter, that she must have had the impact on Mr.

Roberts’ rehabilitation in mind because she focused, instead, on the impact of having to serve the current robbery sentence (four years) in conjunction with the Hayloft robbery sentence (three years, six months) and concluded that viewed from that perspective the combination of the sentences before the court and the Hayloft robbery would be “crushing”, thereby warranting an adjustment. [ 56 ] This appeal therefore raises the question of the degree to which the existence of previous sentences being served at the time of a sentencing for multiple offences can or should be factored into a totality analysis. [ 57 ] The starting point is this Court’s decision in Barrett .

In that case, Hoegg J.A., writing for the Court, observed: [24] A totality analysis pursuant to

section 718.2(c) [of the Criminal Code ] does not expressly address consideration of offences which are not before the sentencing court. In ordinary circumstances, a judge who is imposing sentence for multiple offences conducts his or her totality analysis on considerations relating to sentencing for the multiple offences which are before him or her and does not usually consider a sentence previously imposed by another judge. This is not to say that consideration of an offender’s past convictions and sentences is not relevant to his sentencing for current offences.

The circumstances of an offender are always relevant to sentencing, notably with respect to the principle of rehabilitation, and the fact that an offender is incarcerated and for how long is a factor that could be considered by a sentencing judge.

The issue is how consideration of this factor can be addressed when the circumstances of the case engage a totality analysis. [ 58 ] In Barrett an offender had been sentenced for three sexual assaults and two breaches of probation which the trial judge determined, without considering totality, justified a total sentence of six years for the assaults and four months for the probation breaches.

However, he determined that the combined sentence should, without expressing specific reasons, be reduced to four years and three months to “reflect the principle of totality.” Then, ostensibly also to reflect additional totality considerations, he further reduced that sentence to three years and three months because the offender was already in the process of serving another five year sentence for certain other sexual assault offences.

In the judge’s opinion, when the earlier five year sentence was added to the current four year three month sentence, the total period of incarceration of nine years and three months was unduly long and harsh given the offender’s young age, antecedents and prospects. [ 59 ] On appeal, this Court, after determining that certain individual sentences should be increased, concluded, applying the totality principle, that the overall sentence should be five years.

While this was more than what the sentencing judge arrived at, it was still less than the total of the individual sentences that would otherwise have been imposed. In doing so, the Court concluded that the trial judge was not wrong in principle to recognize the offender’s incarceration for the other offences as a factor in the totality analysis (paragraph 37).

Where the judge erred, however, was not in considering the other sentence but in adjusting the total sentence for totality “without explanation or analysis” and for making the adjustment by employing a method that effectively involved a separate and independent “second totality adjustment” to account for the existence of the previous sentence. Hoegg J.A. explained: [37] … the fact that an offender is already serving an incarcerating sentence does not independently support a second totality adjustment. Moreover, neither is an automatic downward adjustment necessarily warranted.

The trial judge must assess whether an offender’s incarceration for previous offences is a factor which, with all of the other factors bearing on a totality analysis, warrants a downward adjustment in sentence, and, if so, explain why. The sentencing judge referred to the foregoing passages from Barrett . [ 60 ] The Court in Barrett did not consider it necessary to describe specifically how the existence of a previous sentence should be factored into the multiple sentencing process and, in particular, into the totality analysis.

From the manner in which the Court in Barrett ultimately dealt with the matter, however, one can infer that consideration of the existence of an unexpired sentence is not to be undertaken as a separate and independent totality adjustment but, rather, must in some manner be integrated into one overall totality analysis.

[ 61 ] Decisions of other appellate courts decided both before and after Barrett , have indicated that once the totality principle is engaged the existence of an unexpired prior sentence can, subject to special considerations related to that sentence, appropriately be considered, along with the sentences currently being imposed, when addressing whether the total period of incarceration that the offender will face as a result of the new sentences will be unduly long or harsh in the sense that they are crushing with respect to rehabilitative prospects ( R. v. Johnson , 2012 ONCA 339 ; R. v.

Parry , 2012 ONCA 171 ; R. v. Park , 2016 MBCA 107 ). [ 62 ] Barrett was considered by the Manitoba Court of Appeal in Park : [16] It is true that this principle has been subject to some criticism. See R. v. Barrett (A.W.) , 2012 NLCA 46 , 324 Nfld. & P.E.I.R. 246 . But even in Barrett , the principle was not rejected.

The Court concluded that the fact that the accused was already serving an incarceratory sentence could be taken into consideration with respect to the accused’s prospects for rehabilitation, and noted that this generally meant that an accused should not be crushed by a heavy sentence, as this will not allow him to learn from his mistakes and will cause him to lose all motivation to reintegrate with society upon release (see para 55). Ultimately, the Court in Barrett did consider “all of the time he will be incarcerated” (at para 58). We agree with this

interpretation of the decision in Barrett . [ 63 ] That said, however, it should be noted that there are differences in the way that a previous unexpired sentence, as a factor, can and should be dealt with in a Hutchings analysis. [ 64 ] In the first place, since a totality analysis is only engaged when the offender is being currently sentenced for multiple offences, there must be at least two current sentences at issue which, absent the application of totality, are liable to be served consecutively. It is only if that situation exists that a prior unexpired sentence can be considered at all.

Thus, if an offender is being sentenced for a single offence, that sentence cannot be reduced for totality on the basis that he or she is already serving another sentence. (Whether or not the existence of an unexpired sentence can otherwise be considered to reduce a current single sentence on the basis of other considerations is not engaged on this appeal.

See, however, the comments of Blair J.A. in Johnson for a different point of view on the application of a totality analysis in the context of considering a prior sentence when sentencing for a single current sentence). [ 65 ] In the current case, the totality principle is engaged because the sentencing process under consideration involved sentencing for two offences which otherwise have been served consecutively.

It was therefore appropriate for the judge to address the effect of the existence of an unexpired sentence on totality. [ 66 ] Secondly, since it is the impact of current proposed incarceration on whether on overall period of incarceration is unduly long or harsh, it is only the unexpired portion of the existing sentence that can be added to the other sentences to determine whether the combined period of incarceration will be unduly long or harsh. The portion of a prior sentence that has already been served is spent and therefore not relevant to this question.

This has been emphasized in other cases ( Johnson , at paragraph 25 ; Park , at paragraph 10 ). [ 67 ] In considering the existence of a prior unexpired sentence in this case, the sentencing judge appears to have focused on the length of the sentence as originally imposed rather than on the unexpired portion, when she stated: “…if the offender received a sentence of 3 ½ years for the Hayloft robbery and a sentence of 4 years for the subject robbery, it would be crushing.” This was an error but whether it would have had an impact on her ultimate disposition is a matter to which we will return later. [ 68 ] Thirdly, a countervailing consideration that, in certain circumstances, substantially minimizes the impact that the existence of an unexpired sentence should have on the application of the totality principle is where one or more of the offences for which the offender is currently being sentenced is what triggers the existence of the prior unexpired sentence, as for example, where the offender is on parole which is forfeited as a result of commission of the offences for which he or she is now being sentenced ( Barrett at paragraphs 19-20 ). [ 69 ] This consideration does not apply on the facts of the current case.

At the time of sentencing for the current offences, Mr. Roberts was serving sentences for the Hayloft robbery. His then incarceration status did not result from losing parole privileges or being otherwise brought back to jail because of his subsequent commission of the Pharmacy Solutions offences. [ 70 ] Fourthly, when considering the effect of a prior unexpired sentence in the totality analysis, “it is only the fact that [the offender] is serving an incarcerating sentence and its duration that can be considered” ( Barrett , at paragraph 54 ).

Unlike in the case of current offences, the facts and background circumstances (even if they could be properly gleaned from the record) surrounding the commission of the previous offences that led to the prior sentence should not be considered. This follows from the fact that the current sentencing process, which engages totality, focuses on the impact that the length of the combined sentences (including the unexpired portion of the previous sentence), if served consecutively, would have on current rehabilitative prospects.

That is the only relevance of the previous sentence. [ 71 ] There is no indication from the judge’s sentencing decision that she considered anything but the length of the previous sentence and the impact that it might have had on Mr. Roberts’ prospects of rehabilitation for the purpose of determining whether the combined period of incarceration would be unduly long or harsh or crushing.

As the sentencing judge stated, “[i]t is the total amount of jail time that impacts rehabilitation and informs the analysis of whether the sentence is ‘unduly long or harsh’” (paragraph 30). [ 72 ] We conclude that, subject to the foregoing considerations, it is appropriate in a totality analysis when sentencing for current offences to take account of and to factor into the analysis, the existence of a prior unexpired sentence when applying the factors listed in the analytical framework outlined in Hutchings , at paragraph 84 (5)-(6).

To the extent that the language used in paragraph 84 of Hutchings does not clearly recognize this, it should be read with this idea in mind.

Accordingly, except with respect to possibly focusing on the total Hayloft robbery sentence as originally imposed instead of only the then unexpired portion, it cannot be said that the sentencing judge erred in principle by taking account of the sentences related to the Hayloft robbery in conducting her totality analysis. [ 73 ] Regarding the factors to be considered in conducting a totality analysis, three general observations should be made. [ 74 ] First, the factor relating to “the length of the combined sentence in relation to the normal level of sentence of the most serious of

the individual sentences involved” ( Hutchings factor 84(5)(a)) is not an absolute requirement in all cases in the sense that is imposes a minimum limit on the extent to which the combined sentence can be reduced . As pointed out in Hutchings , it is but one factor to consider in appropriate cases when making the ultimate decision on proportionality and fitness (paragraphs 72-80). [ 75 ] Secondly, there does not have to be a finding that the combined sentences will be “crushing” ( Hutchings factor 84(5)(d)) before there can be a reduction for totality.

As noted in Hutchings : [81] … While the notion of a “crushing sentence” in relation to the offender’s prospects of rehabilitation may still be useful in providing a justification for reducing an overall sentence to achieve a proper totality, it cannot define the parameters of the notion of “harsh” within s. 718.2 (c) [of the Criminal Code ].

It would have to be balanced against other factors, such as his record, the number of offences involved and the perception of the overall gravity of the offence. [ 76 ] Thirdly, it is also worth remembering that the factor relating to ensuring that ‘the combined sentence is proportionate to the gravity of the offences and the degree of the offender’s responsibility” ( Hutchings factor 84(5)(e)) can in appropriate cases amount to a brake on the degree to which a sentence can be reduced for totality purposes.

This consideration is, after all, the prime consideration in the overall sentencing process as recognized in Hutchings , paragraph 84 (4). After considering the other factors, including of course any concern that the sentence will have a significant negative effect on the offender’s rehabilitative prospects, the court must also satisfy itself that the resulting reduced sentence will nevertheless be proportionate to the gravity of the offences and the degree of the offender’s responsibility.

Blair J.A. put it this way in Johnson : [23] … Just as a sentence cannot be unduly harsh and excessive, neither can it be overly lenient or unresponsive to other purposes and principles that underpin the sentencing regime – denunciation, deterrence, the promotion of a sense of responsibility in offenders and acknowledgement of harm done to victims and the community, and the protection of the public … [24] … The need to protect the integrity of the sentencing process, and the overall purposes and goals of sentencing, are to be balanced against the recognition that there will be situations where, globally speaking, a combined sentence will be simply too harsh and excessive. [ 77 ] In the end, therefore, in reacting to the perception that a long sentence will be crushing or otherwise harsh in respect of its impact on rehabilitative prospects, the court cannot completely turn a blind eye to other sentencing goals when trying to arrive at an overall proportionate sentence. [ 78 ] Of note with respect to the approach taken by the sentencing judge, in this case is the fact that she chose both to reduce the current robbery sentence and make the resulting sentence concurrent.

The Hutchings analysis, paragraph 84 (6), contemplates making sentences concurrent instead of consecutive as the initial mechanism of reducing the overall sentence for totality purposes and then, if that does not fully achieve the proper result, reducing the length of an individual sentence below what it would otherwise have been.

In this case, making sentences concurrent with the Hayloft robbery and related sentences (which had in excess of two years to run) would not have achieved the judge’s apparent objective of leaving only a minimal amount of additional sentence to be served, since at least two years additional (four years, three months less the remainder of the Hayloft sentence) would still have to be served.

To achieve her objective, the judge therefore first reduced the current robbery sentence to 21 months and then made the resulting sentence concurrent with the Hayloft sentence. [ 79 ] While it is unusual, it cannot be said that proceeding, in an appropriate case, to reduce a combined sentence either before or as an alternative to making it concurrent is necessarily an error in principle.

Paragraph 84(7) of Hutchings specifically contemplates reducing the length of a sentence in “addition” to or “instead” of using the concurrency mechanism. [ 80 ] In reducing the overall current sentence of four years and three months to twenty-four months (21 months for the robbery and three months for the breach of recognizance) for totality purposes, the sentencing judge referred to two matters. [ 81 ] The first related to the submission of Mr.

Roberts’ counsel that the court should take account of the fact that were it not for a delay in laying the charges, sentencing for the Hayloft and Pharmacy Solutions robbery-related offences could have been dealt with together for the purpose of totality. In the course of her reasons, the judge refused to accept the suggestion that the DNA analysis that confirmed Mr. Roberts’ connection to the Pharmacy Solutions robbery could not have been conducted sooner. She commented that “because the police did not act expeditiously,” Mr.

Roberts did not know he was being charged with the subject offences at the time of the Hayloft sentencing and he was therefore not given the opportunity to postpone the Hayloft sentencing until the Pharmacy Solutions offences (to which he pleaded guilty) could also be dealt with. She also referred to “the delay in executing the DNA warrant” along with other factors when stating her decision to reduce the overall sentence to 24 months for the subject offences. [ 82 ] Counsel for the Crown submitted that this focus on the delay and the police’s responsibility for it inappropriately influenced the judge’s decision.

He submitted that it is an error for the judge to “second-guess” the police or to supervise the operation or efficiency of police operations and to use her conclusions to justify a downward adjustment of sentence. If that were so, we would agree with the counsel’s submission. However, in our view, this is not an accurate

interpretation of the sentencing judge’s decision. She drew no inference as to the reasons for the time that it took to lay the charges, nor did she suggest that the delay was intentional or otherwise the result of poor or wrongful police action. Most importantly, however, it is clear from other portions of her judgment that any police delay was not fundamental to her decision.

This is made clear from her decision: [30] And irrespective of whether the DNA warrant prevented the offender from being sentenced at the same time for the Hayloft Lounge offences and the subject offences , if the offender received a sentence of 3 ½ years for the Hayloft robbery and a sentence of four years for the subject robbery it would be crushing. (Emphasis added.) [ 83 ] Read as a whole, the judge’s reasons dealing with the fact of (not the responsibility for) the delay can and should be regarded simply as providing a justification for considering the previous sentence in the overall totality analysis.

There was nothing objectionable

in that; in fact that was a circumstance that certainly called for consideration of both groups of sentences together because of the intertwining of the offence, charging and sentencing dates. Of course, even that special consideration was not necessary to justify consideration of the prior sentences since, as noted above, the unexpired portion of a previous sentence can in any event, subject to the limits discussed, be considered in a totality analysis.

The sentencing judge therefore committed no error in making reference to the issue of delay because it did not influence her ultimate decision. [ 84 ] The second focus of the judge in reducing the sentence for totality - and in fact the real reason for that reduction - was on Mr. Roberts’ rehabilitation and his continuing prospects in that regard.

It is clear from the way in which the judge dealt with the matter that she regarded this as the primary and overwhelming consideration in her analysis. [ 85 ] Captain Kevin Hoddinott, who was Chaplain at Her Majesty’s Penitentiary, spoke to his pastoral counselling with Mr. Roberts while he was incarcerated. Mr. Roberts attended sessions for eight weeks and then returned to the program as a mentor and leader. Captain Hoddinott stated he had “every confidence” that Mr. Roberts was a different person (Transcript of Proceedings (Decision), page 30, line 10).

Captain Hoddinott further stated that, while he had worked with at least 200 men, he felt that Mr. Roberts was one of only two men to have undergone a sincere change during their time in prison. [ 86 ] Robert Smith, a retired Provincial Court judge, also spoke of his relationship with Mr. Roberts, who he had met during volunteer work with The Seventh Step Society at Her Majesty’s Penitentiary. According to Mr. Smith, Mr. Roberts had already turned his life around before he started the group. Mr. Smith further stated that everything about his experience with Mr.

Roberts was positive and that the behavior described in the facts of the case was not the man that he met. [ 87 ] The sentencing judge therefore had the testimony of two witnesses before her, who both spoke to Mr. Roberts’ significant efforts to rehabilitate himself and its importance for his future life. It was appropriate for the sentencing judge to consider this rehabilitation in the totality analysis and to give it significant weight in arriving at a sentence for Mr.

Roberts. [ 88 ] She concluded: [30] … if the offender received 3/12 years for the Hayloft robbery and a sentence of 4 years for the subject robbery, it would be crushing. It would be unduly harsh and would impede the progress the offender has made with respect to rehabilitation. Supporting Mr. Roberts’ rehabilitation is in his best interest and in society’s best interest .

A prior existing sentence is relevant to the circumstances of the offender and to ignore it ignores the fundamental purpose of the totality principle. (Emphasis added.) [ 89 ] While she did not advert to the other factors listed in paragraph 84(5) in Hutchings , it is clear that for the judge, after hearing the very positive evidence relating to the prospects for Mr. Roberts’ rehabilitation, this was the dominant consideration. As already noted, it is not necessary to find all of the factors listed as being applicable in a particular case.

The judge cited Hutchings ; it cannot be suggested that she was not aware of the proper approach to be taken or to the considerations necessary to complete the analysis. [ 90 ] Earlier, we noted that the judge appeared to focus on the total sentences for the Hayloft offences when considering the effect of the combined sentences on Mr. Roberts’ prospects for rehabilitation, rather than on the unexpired portion of those sentences. In addition, she only focused on the robbery offences and not the total sentences that were in play.

What she should have done was consider the unexpired portion of all previous sentences (since they represented the relevant portion of the existing incarceration that would impact on rehabilitation) together with all of the current sentences that would otherwise be served consecutively.

Approached that way, she should have considered a total of six years and three months (four years and three months currently plus approximately two years of the unexpired sentence) instead of seven and a half years (three and a half years for the Hayloft robbery alone plus four years for the Pharmacy Solutions robbery alone). [ 91 ] Would this have made a difference to her conclusion that the combined sentence was unduly harsh and would interfere with Mr. Roberts’ rehabilitation? We do not think so.

It is clear from her focus on the importance of rehabilitation in this case and the need for it not to be stultified by Mr.

Roberts’ remaining for very long in prison that applying the revised numbers would not have changed her decision to regard the combined sentence as unduly harsh or her decision to impose 21 months for the Pharmacy Solutions robbery (with which the other related offences had already been made concurrent on the basis of a single criminal venture). [ 92 ] We are supported in this conclusion by the fact that Crown counsel did not take issue with the 24 months arrived at by the judge (21 months for the Pharmacy Solutions robbery and three months for the breach of recognizance).

His main concern was with the fact that the 24 months was made concurrent with the existing sentence. To quote counsel again: “If the trial court had made the 24 months consecutive to the existing sentence, then arguably the sentence would be otherwise fit”.

While it is always open to the Court to disagree with Crown counsel’s position, it would be inappropriate to do so where, as here, counsel for the other side was not aware that the reduction or its amount was under challenge and had no opportunity to react and respond to such a possibility. [ 93 ] Accordingly, we conclude that the sentencing judge made no error in principle that would have an impact on the ultimate sentence of 24 months in considering the factors she did in finding the sentence should be adjusted for totality. The evidence of rehabilitation called for a downward adjustment of sentence.

Further, in the circumstances, her factual conclusions that the combined sentence would be “unduly harsh,” would impede Mr. Robert’s progress with respect to rehabilitation and could therefore be regarded as “crushing,” and that the overall sentence should be reduced to 24 months, are entitled to deference. [ 94 ] The real battleground in this case related to the decision of the judge, not only to reduce the overall sentence to 24 months but also make that sentence concurrent with the existing sentences for the Hayloft robbery offences.

While it is not inappropriate in principle, to achieve a proper totality, to both reduce a sentence and to make what results concurrent with another sentence, such a result has to be accomplished without undermining the other principles of sentencing. The judge in this case gave no specific reason for doing so except to generally assert that doing so balances the principles of specific and general deterrence, denunciation and rehabilitation. In the circumstances of this case, it is difficult to see where there was any “balancing” of any other sentencing principles with the goal of rehabilitation.

In other words it is difficult to say that the result of the judge’s analysis is proportionate. Within the Hutchings totality

analysis, factor 84(5)(e), contemplates the judge giving consideration to making the resulting sentence “proportionate to the gravity ofthe offences and the degree of the offender’s responsibility.” This factor is also the overall fundamental consideration in sentencing andin the totality analysis as well (Hutchings, at paragraph 84(4)).

As noted by Blair J.A. in Johnson, the fact that a combined sentence maybe regarded as excessive and harsh has to be balanced against the need to protect the integrity of the sentencing process and the overallpurposes and goals of sentencing. [95] We agree with the submissions of Crown counsel that the result of the judge’s analysis (effectively a total of four additionalmonths in prison) virtually does not punish Mr. Roberts at all and does not make him accountable for these serious offences, giving himalmost “a free ride”, as described by Crown counsel, for the Pharmacy Solutions crimes.

This is especially so where, as here, Mr.Roberts was on judicial interim release with respect to other matters when he committed the Pharmacy Solutions robbery. [96] We also agree with Crown counsel’s submission that the judge did not give proper or any consideration to

section 718.3(4) of theCode when deciding whether to make the sentences concurrent. That

section provides in pertinent part: 718.3(4) The court that sentences an accused shall consider directing (

a) that the term of imprisonment that it imposes be served consecutively to a sentence of imprisonment to which the accused issubject at the time of sentencing; and (

b) that the terms of imprisonment that it imposes at the same time for more than one offence be served consecutively, including when […] (ii) one of the offences was committed when the accused was on judicial interim release, including pending determination of anappeal [97] We do not accept Mr. Roberts’ counsel’s submission that this provision, which was enacted in 2015 and specifically directsconsideration of imposition of consecutive sentences in certain circumstances, is merely reflective of the previous law.

It is true that theprevious law already presumptively required consecutive sentences, with concurrent sentences being the exception, notwithstanding thefact that section 719(1) of the Criminal Code provides that a sentence presumptively commences when it is imposed (Hutchings atparagraph 20; R. v. Crocker (1991), (NL CA), 93 Nfld. & P.E.I.R. 222 (Nfld. C.A.), at para. 33; R. v. McCarthy, 2005NLCA 36, 248 Nfld. & P.E.I.R. 14, at para. 11) and, furthermore, that a sentencing judge should address the question of whethermultiple sentences should be consecutive or concurrent (R. v. Rees, 2018 NLCA 64).

Nevertheless, unless a legislative act is intended tobe a complete codification of the law, Parliament must be presumed not to enact an unnecessary or replicative provision. In our view, byenacting

section 718.3(4), Parliament was signaling to sentencing courts that special consideration must be given to making sentencesconsecutive in certain circumstances. It requires special thought to be given before proceeding to make sentences concurrent in thosesituations. [98] In our view, the preferable way to do this is to require the sentencing judge, when conducting her totality analysis andconsidering whether one or more sentences should be made concurrent to achieve a proper totality, to give careful consideration to theadmonitions of Parliament in

section 718.3(4) before making any sentence concurrent. [99] There is no indication that the sentencing judge in this case addressed her mind to this. The only time she appeared to haveturned her mind to imposing consecutive or concurrent sentences was in the context of the second stage of the multiple sentencingprocess, i.e. her treatment of whether the offences constituted a single criminal venture. She erred by not analyzing why this would beappropriate in the context of her totality analysis. Had she done so she might well have considered whether in all the circumstancesgiving Mr.

Roberts a virtual “free ride” for the Pharmacy Solutions offences was inappropriate. In our view, it was. [100] In R. v. Keats, 2018 NSCA 16 a trial judge imposed a thirty month sentence for sexual assault but ordered it to be servedconcurrently with an existing four year term the offender was already serving for sexually assaulting another female.

On appeal, theNova Scotia Court of Appeal held that the thirty month sentence should be served consecutive to the existing four year sentence becauseit was “proportionate to the gravity of the offences and reflective of [the offender’s] overall moral blameworthiness and breach of trust”(para 50). The Court stated: [44] … there is no principled reason for there to be concurrent sentences.

Such an order trivializes these serious sexual assaults by aperson in a position of trust and does not adequately reflect [the offender’s] moral blameworthiness. [101] While the nature of the offences in Keats was different from those in the current case, the decision nevertheless recognizes that,where concurrency results in a sentence that is otherwise not proportionate to the gravity of the offences and reflective of the offender’sdegree of responsibility, there will be strong reasons not to make the sentences concurrent.

It is true that there was no emphasis in Keatson strong rehabilitative prospects of the offender, as there was in the current case. Where such prospects exist there may well be ajustification to reduce the length of the overall sentence, or as an alternative or in addition, to make a sentence concurrent. But, eventhere one would normally expect the resulting disposition still to have some teeth and not undermine other appropriate sentencing goalsand principles.

In the ordinary case, where one or more sentences are made concurrent to achieve a proper totality, one would expectthat there would still be other sentences in play which would stay, in whole or in part, consecutive so that the resulting disposition wouldstill reflect the goals of denunciation and deterrence. It would be the rare case where the resulting sentence, when viewed through thelens of sentencing principles other than those relating to rehabilitation, would effectively give the offender virtually a “free ride” forserious morally blameworthy offences.

In the current case there were no other sentences that were being served consecutively (exceptthe three months for breach of recognizance). [102] Notwithstanding the fact that the determination of whether to impose consecutive or concurrent sentences generally attractsdeference (Keats) and that judges have a broad discretion to craft an appropriate sentence, that decision must be arrived at in accordancewith proper principles and must result in an overall fit sentence (Lacasse). In our view, that did not happen here.

The failure to considerwhether making the Pharmacy Solutions robbery sentence concurrent with the remainder of the Hayloft robbery sentence would result in

the overall sentence not being proportionate to the gravity of the offences and the degree of Mr. Roberts’ responsibility, coupled with the failure to specifically advert to the admonition to give consideration to making the sentences consecutive in the circumstances before her, constituted error by the sentencing judge. Because those errors had a material impact on the resulting sentence, they constitute reversible error. Further, it did not result in a fit sentence.

Fitness of Sentence [ 103 ] It is therefore now open to this Court to impose what it believes to be a fit and proper sentence. [ 104 ] In view of the fact that we have not found any reversible error with respect to the length of the individual sentences imposed by the judge under the first step in the multiple sentencing analysis, nor with respect to the decision to treat the offences as a single criminal venture so as to make them, with the exception of the sentence for breach of recognizance, concurrent with each other under the second step, and in view of the fact that the judge’s decisions in those respects were not challenged by counsel for the Crown and Mr.

Roberts’ counsel had no opportunity to respond, it would be inappropriate to interfere with those dispositions. [ 105 ] Nor is it appropriate in the circumstances to second-guess the decision under the third step (totality analysis) to reduce the overall sentence to twenty-four months (21 for the robbery and 3 for the breach of recognizance) on the ground that anything longer would have substantially interfered with Mr. Roberts’ excellent prospects for rehabilitation and would thus be unduly harsh. The evidence supporting a major emphasis on rehabilitative prospects was well beyond what would normally be expe

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