2017 QCCA 1091, 2017 QCCA 1091

Patel c. R. 2017 QCCA 1091 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006375-172, 500-10-006376-170 (500-01-062522-112, SEQ. ACC. 001 ET SEQ. ACC. 002) MINUTES OF THE HEARING DATE: July 5, 2017 CORAM: THE HONOURABLE manon savard , J.A. geneviève marcotte , J.A. mark schrager , J.A. N o : 500-10-006375-172 APPELLANT COUNSEL BRIJESH PATEL Mtre KIM HOGAN for Mtre MARC LABELLE (Labelle, Côté, Tabah et Associé

s) RESPONDENT COUNSEL HER MAJESTY THE QUEEN Mtre JOHANNE DUPLESSIS (Directeur des poursuites criminelles et pénales) N o : 500-10-006376-170 APPELLANT COUNSEL

HIREN PATEL Mtre KIM HOGAN for Mtre MARC LABELLE (Labelle, Côté, Tabah et Associé

s) RESPONDENT COUNSEL HER MAJESTY THE QUEEN Mtre johanne duplessis (Directeur des poursuites criminelles et pénales) 500-10-006375-172 On appeal from a judgment rendered on February 2, 2017 by the Honourable Justice Linda Despots of the Court of Quebec, Criminal Division, District of Montreal. Motion for permission to adduce new evidence. 500-10-006376-170 On appeal from a judgment rendered on February 2, 2017 by the Honourable Justice Linda Despots of the Court of Quebec, Criminal Division, District of Montreal.

NATURE OF THE APPEAL : Sentence - robbery - forcible confinement - wearing a disguise - use of an imitation firearm - conspiracy Clerk: Robert Osadchuck Courtroom: Pierre-Basile-Mignault HEARING

14:03 Commencement of the hearing. Identification of counsel. 14:03 Submissions by Mtre Hogan 14:43 Submissions by Mtre Duplessis 15 :05 Recess of the hearing. 15 :14 Resumption of the hearing. 15:14 Judgment – see page 4. Robert Osadchuck Clerk BY THE COURT JUDGMENT [ 1 ] This is an appeal from a judgment of the Court of Quebec, District of Montreal (the Honourable Linda Despots), sentencing both Appellants to 35 months and 18 days of imprisonment. [ 2 ] We are also tasked with the adjudication of Respondent’s motion to adduce new evidence in the form of an affidavit of a police detective asserting that:

(1) Appellant Brijesh Patel was suspended from his employment on October 4, 2016 and fired by Fedex on October 27, 2016, and (2) said Appellant was charged on May 3, 2017 with fraud and theft exceeding $5,000, having changed shipping addresses on boxes of electronic products valued at $120,000. [ 3 ] For the reasons which follow, the appeal will be dismissed and, therefore, it will not be necessary to consider the new evidence so that the motion will also be dismissed. FACTS [ 4 ] In August 2011, Appellants robbed a Best Buy electronics store where Hiren Patel was employed and Brijesh Patel had previously worked.

They arrived at the store at closing time, masked and armed with an imitation firearm. They bound two employees and demanded that the manager opened the safe which she was unable to accomplish given her fright. Over the course of the next hour, they loaded a truck with electronic products valued at $275,000. [ 5 ] The police investigation in the following weeks led to their arrest together with a seizure of products valued at $75,000 and $26,000 in cash. [ 6 ] Appellants were charged with the following counts: 1) Robbery, s. 344(1)(

b) Cr.C. ; 2) Forceable confinement, s. 279(2)(

a) Cr.C. ; 3) Wearing a disguise with intent, s. 351(2) Cr.C. ; 4) Possession of a weapon, s. 88(2)(

a) Cr.C. ; 5) Use of an imitation firearm to commit robbery, s. 85(2)(

a) Cr.C. ; 6) Conspiracy to commit robbery, s. 465(1)(

c) Cr.C. ; [ 7 ] On the first day of the trial scheduled for 10 days, the Appellants pleaded guilty to all but the fourth count above. [ 8 ] Sentencing representations were heard on May 11, 2016. Judgment on sentencing was delivered on February 2, 2017 [1] as follows: [33] … Count no 1: 23 months and 18 days Count no 2: 12 months

Count no 3: 12 months Count no 6: 23 months and 18 days All these sentences to be served concurrently Count no 5: 12 months to be served consecutively to counts 1, 2, 3 and 6. [ 9 ] For a total of 35 months and 18 days. In context, the sentence for the robbery was 24 months since the judge considered 7 days of custody after arrest at the rate of 1.5 to be equal to 12 days. The 12-month sentence on count 5 (for the use of an imitation firearm) is the mandatory minimum provided by s. 85(3) Cr.C. and the law provides that such sentence be served consecutively (s. 85(4) Cr.C. ).

DISCUSSION [ 10 ] The grounds invoked in appeal do not, individually or taken together, satisfy us that the sentence results from an error of law or principle, [2] or is manifestly unfit in that the sentencing judge gave an inappropriate weight to one or more of the factors’ ingredient in an appropriate sentence. [3] [ 11 ] In first instance, Appellants sought a 15-month sentence in total for all the counts. They submit that the judge erred by overemphasizing the objective gravity of the crime finding a range of 17 months to 6 years for the robbery in the decided cases.

The judge noted the “violence inherent to the nature of the crimes” and thus emphasized the sentencing principles of denunciation and dissuasion. While Appellants correctly underline that the Supreme Court has indicated that sentencing ranges serve as “guidelines rather than hard and fast rules”, [4] the judge did not stop there. She recognized that “… giving priority to those principles does not mean that the Court evacuates the aspect concerning the individualisation”. She then went on to weigh the aggravating and mitigation factors raised by the circumstances of the case.

We find no reviewable error in such methodology. [ 12 ] Appellants submit that more weight should have been given to the low risk of reoffending and the Appellants’ absence of criminal records. However, both of these items were explicitly mentioned and considered by the judge. It is thus not possible to say that her discretion in such regard was not properly exercised to push the sentence down the scale of appropriate sentences for similar offences. [5] [ 13 ] Furthermore, Appellants submit that the judge’s overemphasis on dissuasion is a segway to an intervention by this Court. We disagree.

The denunciation of violent robbery is often the subject of judicial comment. [6] [ 14 ] The Appellants lack consistency in their approach by pleading for more leniency given their young age and clean records while assailing the judge for imposing too severe a sentence based on deterring them (and others) from repetition of the behaviour. [ 15 ] Without deciding whether the low end of the range of sentence for a robbery is the 17 months mentioned by the judge, there is no doubt that, after consideration of all the relevant factors, the result of the exercise of the judge’s discretion was the imposition of a carceral sentence at the low end of the scale.

Clayton Ruby in Sentencing remarks that: A sentence below two year’s incarceration is rare for robbery; however, it has been imposed in cases where the mitigating circumstances are particularly strong. The average sentence is between two to five years. Accused who commit bank robberies and home invasions typically receive the higher end of this range. Again, mitigating and aggravating factors create large variety in sentences offenders receive within this range.

The high end of the sentencing range is between six and nine years, and such a sentence will typically apply when an offender uses violence and a weapon, most notably a gun, and has a criminal record. Such an offender typically also has committed more than one robbery.

Above 10 years straight up until a life sentence is the extreme end of the sentencing range for robbery and is very rare, even for the most serious of cases. [7] [ 16 ] We are not convinced by any of the Appellants’ arguments that this is an appropriate case to intervene into the exercise of a highly discretionary process in the domain of the sentencing judge. FOR THESE REASONS, THE COURT: [ 17 ] DISMISSES Respondent’s motion to adduce new evidence. [ 18 ] DISMISSES the appeals. manon savard, J.A. geneviève marcotte, J.A.

mark schrager, J.A.