R. v. Hutchings, 2012 NLCA 2

Date: 20120112 Docket: 10/100 Citation: R. v. Hutchings , 2012 NLCA 2 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : RICHARD HUTCHINGS APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Green C.J.N.L., Welsh, Rowe, White and Hoegg JJ.A. Court Appealed From: Provincial Court of Newfoundland and Labrador Judicial Centre at St. John’s Appeal Heard: November 7, 2011 Judgment Rendered: January 12, 2012 Reasons for Judgment by Green, C.J.N.L. Concurred in by: Welsh, Rowe, White and Hoegg JJ.A. Counsel for the Appellant: Tony St.

George Counsel for the Respondent: Robin Fowler Green C.J.N.L.: [ 1 ] The appellant seeks leave to appeal and, if leave is granted, appeals against a sentence imposed in the Provincial Court, totaling 7 years and two days (less 141 days for pre-trial custody) on three counts of armed robbery, two counts of being disguised with intent and two counts of breach of probation. The issue on appeal is whether the sentencing judge properly applied the principles relating to consecutive and concurrent sentences and, in particular, the principle of totality. The appellant submits that as a result of the improper

application of these principles, the resulting overall sentence was unfit and should be reduced. [2] As the case engages the potential application of the totality principle, it is necessary to consider and enunciate the principlesrelating to its application. Recent jurisprudence in this Court has discussed the circumstances under which the totality principle can beengaged in differing terms. The current case provides an opportunity to clarify the situation for future cases. To do so, it was deemedappropriate for the Court to sit as a panel of five rather than the usual three.

Leave to Appeal [3] Because there is, as will become apparent from these reasons, a genuine issue as to how the principles related to totality are tobe applied, it cannot be said that the appeal has “no arguable basis” or lacks “sufficient merit” (R. v. Perrier, 2009 NLCA 61; 293 Nfld.& P.E.I.R. 92). [4] Accordingly, leave to appeal is granted pursuant to s. 675(1)(

b) of the Criminal Code. The Sentences [5] The appellant pleaded guilty to two groups of offences which occurred on two separate days six days apart. The first grouprelated to an armed robbery at the Hamilton Avenue Convenience Store in St.

John’s on February 24, 2010 (the “Hamilton Robbery”).The second group of offences occurred on March 2, 2010 at the Blackmarsh Ultramar service station (the “Blackmarsh Robbery”). [6] With respect to the Hamilton Robbery, the facts that were accepted on sentencing were that the appellant and anotherindividual, one Hunt, entered the convenience store carrying knives and wearing handkerchiefs over their faces at about 10 p.m. Theyapproached a customer and demanded that she hand over her purse. The appellant told the customer to get down on the floor.

When shesaid she did not have a purse, they went behind the counter and proceeded to take cigarettes and a tray of lottery tickets as well as $200in cash from the till. They then fled the store. The appellant pleaded guilty to robbery with respect to the theft of the cash, cigarettes andtickets (s. 343(

d) of the Criminal Code), attempted robbery of the customer with intent to steal her purse (s. 463(

a) of the Code), wearinga mask with intent to commit an indictable offence (s. 351(2) of the Code) and breach of an existing probation order (s. 733.1(1)(

a) ofthe Code). He was sentenced as follows for these offences: Robbery (Count No. 7) 4 years Attempted robbery (Count No. 9) 3 years, concurrent Wearing face mask (Count No. 8) 1 year, concurrent Breach of probation (Count No. 10) 1 day, consecutive The sentence with respect to the first three charges is the same as the sentence imposed on the appellant’s co-robber, Hunt. [7] With respect to the Blackmarsh Robbery, the appellant entered the service station alone at about 1:00 a.m. wearing a maskand brandishing a knife. He demanded and received $115 in cash, as well as some cigarettes. He then fled the store.

He pleaded guilty toone count each of robbery, wearing a face mask and breach of probation.

For these offences he was sentenced as follows: Robbery (Count No. 1) 3 years (less 141 days pre-trial custody), consecutive to the robbery sentence for the Hamiltonrobbery Wearing Face mask (Count No. 2) 1 year, concurrent Breach of Probation (Count No. 3) 1 day, consecutive [8] Certain other counts were withdrawn following the entry of the guilty pleas. [9] The net effect of the sentencing was that the appellant was sentenced to a total term of imprisonment of seven years (less 141days) plus two additional days (for the breaches of probation).

The sentencing judge also imposed a lifetime firearms prohibition and aDNA order. These ancillary dispositions are not the subject of this appeal.

The Sentencing Judgment [10] After submitting that, considered individually, the Hamilton Robbery should attract four to six years, the attempted robberythree to five years concurrent, wearing the face mask one year concurrent and breach of probation two months consecutive, and for theBlackmarsh Robbery, four to six years consecutive, wearing a face mask one year concurrent and breach of probation two monthsconsecutive, Crown counsel stated that “that may be a bit of a lengthy sentence” and suggested to the sentencing judge that a “globalsentence” in the range of eight years, less time served in pre-trial custody, would be appropriate to achieve a proper totality. [11] Defence counsel suggested that totality required a total sentence “in the five year range at most”, less credit for pre-trialcustody. [12] The sentencing judge cited this Court’s decision in R. v.

Crocker (1991), (NL CA), 93 Nfld. & P.E.I.R. 222(Nfld.C.A.) for the general proposition that all sentences should be consecutive unless one of two reasons exists for making themconcurrent, those two reasons being: where there are multiple convictions arising out of one single criminal adventure; and to achieve aproper totality. He held that the two robberies were separate criminal adventures. The sentences flowing from each robbery shouldtherefore be consecutive to each other but within each robbery event the sentences for other offences flowing from that event (wearing amask in each case) should be concurrent.

He decided, however, that the breaches of probation should be consecutive.

[13] He then went on to explain his ultimate sentencing rationale: The real question here is the achievement of a proper totality having regard to the guilty plea of the offender which I regard as mitigatingand having regard to his age which I will also regard as something worthy of consideration. The other thing that I need to consider, Ithink, is the fact that this will be his first substantial period of custody … The only adult custody which Mr.

Hutchings has received hasbeen … 30 days intermittent… What is worrisome to me is that after … approximately 20 visits to Youth Court … - and one whichrequired secure custody which is difficult to get in Youth Court involving a robbery, this person has not gotten the message. … The sentence calculation is as follows: I will give him 141 days pre-trial custody. My initial intention was on the second armed robberyin the interest of totality even though he was acting on his own to give him a sentence of three years which would be served consecutiveto the first one.

The sentence has been by me broken down by days … less 141 gives him a sentence of 955 days from today’s date onthat one. With respect to count two [wearing a face mask], he will be sentenced to one year concurrent … Count three [breach ofprobation] …I’m [going to] depart from Crown counsel’s recommendation in the interest of totality and I am going to impose aconsecutive sentence for breach of probation, but I’m going to only make it one day consecutive….

With respect to the robbery of Hamilton Avenue, I considered this to be particularly egregious because not only is it a robbery of thestore owner, but it’s … attempted robbery … of the innocent customer and also I am trying to achieve consistency of sentence and Idon’t see enough of a difference between the two people involved in the robbery to markedly depart from what I gave [the other robber].So he’ll be sentenced on that one to four years consecutive. For the face masked I will give him one year concurrent.

For the attemptedrobbery from [the store customer], three years concurrent and for the breach of probation, one day consecutive, so that will be effectivelyseven years and a few days less credit for time served.

Issues [14] The appellant asserts on this appeal that in approaching the sentencing process as he did, the sentencing judge erred in hisapplication of the principles of consecutive and concurrent sentences and, in particular, in failing to apply the totality principle in a propermanner, thereby leading to the imposition of an unfit sentence. [15] The central issue on this appeal is whether the sentencing judge properly applied the totality principle. Analysis (

a) Standard of Appellate Review [16] Section 687 (1) of the Criminal Code gives an appellate court power to review the “fitness” of the sentence appealed against(except for a sentence fixed by law) and upon conducting such a review to either vary it or dismiss the appeal. [17] In conducting the appellate review, the sentencing judge’s discretion will not be interfered with lightly.

An appellate courtshould only intervene to vary a sentence imposed at trial if the sentencing judge committed an error in principle, failed to consider arelevant factor, overemphasized appropriate factors or the sentence is demonstrably unfit: R. v. M. (C.A.), (SCC),[1996] 1 S.C.R. 500, per Lamer C.J. at para. 90.

If one of those circumstances is identified by the appellate court, the sentencing decisionis no longer entitled to deference and the appellate court may then proceed to vary the sentence in accordance with what it determines tobe appropriate, having regard to the proper principles of sentencing and the circumstances of the offence and of the particular offender. (

b) Consecutive and Concurrent Sentences: Principles [18] In R. v. Crocker Goodridge C.J. addressed the circumstances where consecutive or concurrent sentences should be imposed atthe time of sentencing for multiple offences, as follows: [47] … consecutive sentences should be imposed unless there is a valid reason not to do so. Each sentence should be an appropriate onefor the offence.

Concurrent sentences may, but are not required to be, imposed where multiple convictions arise out of several offenceswhich constitute a single criminal adventure, and may also be imposed to achieve proper totality for multiple convictions. [19] This approach has been reaffirmed by subsequent decisions of this Court: R. v. Spellacy (R.A.) (1995), (NLCA), 131 Nfld. & P.E.I.R. 127 (Nfld.C.A.) at para. 67; R. v. E.W. (2002), 2002 NFCA 49 , 216 Nfld. & P.E.I.R. 89 (NLCA) atpara. 79; R. v.

S. (A.T.), 2004 NLCA 1; 232 Nfld. & P.E.I.R. 283 at paras. 7 – 11. [20] The first step in sentencing in the context of multiple convictions is therefore to determine the appropriate sentence for eachindividual offence, applying the full range of applicable sentencing principles. The sentences so arrived at should presumptively beimposed consecutively. [21] The second step is to consider whether some or all of the offences are related in a manner such that they can be considered asingle criminal adventure.

If so, those that are so regarded should generally be made concurrent with the heaviest sentence arising out ofthat single criminal adventure. It is not always easy to determine what offences constitute a single criminal adventure. In Crocker,Goodridge C.J. observed: [40] A single criminal adventure may not be an adequate description of the circumstances which invite concurrent sentences. Otherexpressions have been used such as “a single enterprise”.

A situation where two or more crimes are connected or related may also beincluded in that description. [41] As an example, possession of drugs for the purpose of trafficking, and trafficking, while constituting two offences, may in propercircumstances attract concurrent sentences. A single rampage involving damage to two or more premises, while constituting two or moreoffences, may attract concurrent sentences.

[22] In some cases, separate offences of a similar type, though committed at separate times can be considered to constitute a singleevent for the purpose of this principle. In Crocker, Goodridge referred, for example, to a “single rampage”. In other cases, separateoffences amounting to a repetition of the same behaviour towards the same victim have been described as a “single transaction” and havelikewise been regarded as sufficiently interrelated to attract the application of the principle. See R. v. Arbuthnot, 2009 MBCA 106 atpara. 22.

In still other cases, separate offences committed on what has been described as a “crime spree” have likewise been regarded assufficiently interrelated to attract the application of the principle. See R. v. Wozny, 2010 MBCA 115 at paras. 42, 50 and 78. [23] Assuming no error in principle is disclosed, the decision whether to impose consecutive or concurrent sentences will generallybe shown deference on appeal to the same M. (C.A.) standard as is applicable with respect to length of sentence: R. v. McDonnell, (SCC), [1997] 1 S.C.R. 948, per Sopinka J. at para. 46; R. v.

Ladouceur and Traverse, 2008 MBCA 110 at para. 8. [24] It is to be noted as well that Goodridge C.J. in Crocker stressed that where multiple offences arise out of a single criminaladventure, concurrent sentences “may, but are not required to be” imposed. There are exceptions. For example, this Court hasdetermined that breaches of court orders, such as probation orders, will generally result in a sentence to be served consecutively to asentence for the related offence that constitutes the breach: R. v. Murphy, 2011 NLCA 16 at para. 27; R. v.

Hennebury (1996), (NL CA), 138 Nfld. & P.E.I.R. 56 (Nfld.C.A.) at para. 7. Failure on the part of a sentencing judge to advert to theserecognized exceptions and to consider their application will be regarded as an error in principle. [25] The third step in the context of multiple offences, following the application of the proper principles respecting consecutive andconcurrent sentences in accordance with the second step, is to consider and apply the totality principle.

This Court has said on previousoccasions that whenever an accused is being sentenced for multiple convictions, this principle is theoretically engaged: R. v. E.W., perWelsh J.A. at para. 78.

If the totality principle would be offended by keeping the remaining sentences consecutive, after following thesecond step, then the sentencing court should further adjust the overall sentence by either making additional sentences concurrent or ifthat does not achieve an appropriate result, by shortening some of the individual sentences. [26] It is worth stressing that the totality analysis takes place at the end of the sentencing process. It involves, as has been called,“one last look” (R. v. Reader (M.), 2008 MBCA 42 at para. 26) or “a final look” (R. v.

Adams, 2010 NSCA 42 at para. 23) at the overallsentence to determine whether the total punishment is “just and appropriate” and “not excessive”(R. v. English (E.) (1994), (NL CA), 122 Nfld. & P.E.I.R. 15 (Nfld.C.A.) at, respectively, paras. 30 and 36) and is reflective of the overall culpability of theoffender. In R. v. S. (A.T.), Rowe J.A., writing for a unanimous court specifically considered and rejected the so-called “Hatchapproach” (after the Nova Scotia Court of Appeal decision in R. v.

Hatch (1979), (NS CA), 31 N.S.R. (2d) 110)which involves first determining the global sentence to be imposed based on an assessment of the overall culpability of the offender andthen parceling out individual sentences so as to constitute in total what the pre-determined global sentence is to be.

Among the reasonsgiven for rejecting this approach is that the resulting individual sentences will not necessarily be reflective of the seriousness of eachindividual offence and may lead to misunderstanding, from the point of view of precedent, as to the range of sentences for particulartypes of offences when applied in other cases. It also complicates appellate review in cases where some, but not all, of the individualsentences are challenged. [27] It should also be noted that the purpose of engaging in a totality analysis is to ensure that, in the words of s. 718.2(

c) of theCriminal Code the resulting overall sentence is not “unduly long or harsh” (the phrase which now can be said to replace the phraseologyadopted in English, “not excessive”). This means that it cannot be employed to increase the overall sentence beyond the total arrived atby adding up each individual sentence: R. v. Cooper (1997), (NL CA), 153 Nfld. & P.E.I.R. 106 (Nfld.C.A.); R. v.Oxford, 2010 NLCA 45. (

c) Totality [28] Counsel for the appellant primarily rested his submission for a reduction in sentence on an argument that the sentencing judgedid not approach the application of the totality principle correctly. It is necessary therefore to define the scope and application of thisprinciple before determining whether it was properly applied. (

i) Differences of Opinion? [29] As noted previously, there appear to be differences of opinion in recent jurisprudence in this Court as to the formulation of theprinciples that determine the application of totality in a given case. [30] The differences of opinion as to the application of the principle appear to have their genesis in the decision of this Court in R. v.Hicks, 2007 NLCA 41; 268 Nfld. & P.E.I.R. 125. In that case, Rowe J.A., writing for a unanimous panel of three, expressed thecircumstances when the principle would be engaged as follows: [39] … in applying totality one looks at the total of the sentences and determines whether, in light of the circumstances: (

a) it is “substantially above the normal level of sentence for the most serious of the individual offences involved” …, or (b) “its effect is to impose on the offender ‘a crushing sentence’ not in keeping with his record and prospects.” If so, the sentence may be adjusted. If not, then the sentence must stand. [31] Three things are to be noted about this formulation. The first is that the two circumstances mentioned are expressed asalternatives (“or”). The second is that the alternative circumstances are expressed as the only gateways into consideration of totality (“Ifnot, then the sentence must stand”).

The third observation is that if one or the other circumstance applies and the gateway is entered, itdoes not follow that the sentence will necessarily be adjusted (“If so, the sentence may be adjusted”).

[ 32 ] In R. v. Rowe , 2008 NLCA 3 ; 273 Nfld. & P.E.I.R. 38 released about a year later, Rowe J.A. writing now for a majority, affirmed the approach he enunciated in Hicks using identical language. [ 33 ] Wells C.J., in a minority opinion in Rowe , disagreed with this approach. Without referring to Hicks as a precedent, he stated that the test for the principle’s application should not be stated in disjunctive form, as had been done by Rowe J.A. He preferred to state the test as follows: [58] … I would not construe … [the two criteria] … to be alternative and unrelated.

Rather, I would think the construction of the phrase “substantially above the normal level”, applied in the totality context, is to be informed by the second criterion “its effect is to impose on the offender ‘a crushing sentence’”...

I would take the approach, therefore, that ensuring proportionality, in the context of imposing consecutive sentences, requires that the total of the sentences not be so substantially above the normal level of a sentence for the most serious of the individual sentences involved that, taking into account the number and seriousness of the additional sentences for which consecutive sentences are to be imposed, its effect is to impose on the offender a crushing sentence not in keeping with his record and prospects. [ 34 ] This approach would require that both criteria would have to be applied and satisfied before sentences should be adjusted on the basis of totality.

It also appears that, unlike the formulation in Hicks , which appears directed to determining when the totality principle should be applied, this formulation seems more directed at what the result of the application would be in a given case. [ 35 ] In the subsequent decision in R. v. Newhook , 2008 NLCA 28 ; 276 Nfld. & P.E.I.R. 190, Welsh J.A., writing for a majority, and without referring to Hicks, expressly rejected the majority approach in Rowe and adopted the approach enunciated by Wells, C.J.

Rowe J.A., in a minority judgment, affirmed his approach in Hicks and Rowe . [ 36 ] The result of these developments is that although Hicks has never been overruled, there now also exists a majority precedent supporting the approach adopted by the majority in Newhook as well. These two approaches have been regarded as being in opposition to each other. [ 37 ] Subsequent cases in this Court discussing totality have not resolved this apparent difference of opinion.

The current case provides the opportunity to clarify the situation for future cases. (ii) Historical Considerations [ 38 ] The starting point for a discussion of totality in this Court is the decision of Goodridge C.J. in Crocker . As already noted, that case dealt primarily with the principles to be applied in determining when consecutive or concurrent sentences should be imposed in cases involving multiple offences.

In the course of his analysis, however, he expressed the circumstances where consideration of totality was necessary as follows: [46] The imposition of fit sentences for each of several offences may result in a total term of imprisonment so lengthy as to be unrealistic or disproportionate to the conduct of the accused. Where there are multiple convictions and sentences, the sentences must be added together to see whether they are, in totality, excessive.

If they are, it becomes necessary to determine what term of imprisonment is not excessive and to make some of the sentences imposed concurrent to each other, but only for the purpose of achieving a proper totality. [ 39 ] The touchstone for Goodridge C.J. for determining whether the Court should address totality is whether the package of individual sentences, viewed globally, could be said to be “excessive”, in the sense of being so “lengthy as to be unrealistic or disproportionate to the conduct of the accused.” Thus, notwithstanding the fact that the circumstances of the offence and the offender are necessarily considered when fashioning individual sentences, the nature of the accused’s overall criminal activity, as exemplified in all the offences under consideration, must be considered from a global perspective to determine whether the overall punishment is considered excessive.

That would, no doubt, involve, amongst other things, a consideration of the nature of the crimes committed and their interrelationship, viewed in the light of the principles of sentencing to ensure that those principles, such as deterrence and rehabilitation, can still be respected by a lower overall sentence. [ 40 ] It is noteworthy that Goodridge C.J. did not purport to describe with any particularity a limited set of circumstances under which a consideration of totality would be triggered.

He appears to have regarded the proper approach to be that whenever there is to be multiple sentencing which, other things being equal, would lead to imposition of consecutive sentences, the sentencing court must give consideration to whether the total sentence would be excessive in the sense of being unrealistic or disproportionate to the conduct of the offender. [ 41 ] This approach to eschewing a defined set of circumstances as determining when the door to consideration of totality can be opened was echoed by Steele J.A. in this Court in English (

E) at paras. 30 and 36: [citing Ruby, Sentencing 3d] … The purpose is to ensure that a series of sentences, each properly imposed in relation to the offence to which it relates, is in aggregate “just and appropriate” … … it is the final duty of the sentencing judge when consecutive sentences are imposed to ensure that the totality of the consecutive sentences is not excessive .

When considering the totality of consecutive sentences it is not possible to measure or ferret out an excessive sentence by any mathematical calculation or formula. (Italics added.) [ 42 ] A number of subsequent cases also dealt with the totality principle without any attempt to articulate any particular formula for its application. They were content to use such general phrases as “excessive” as triggering its application. See Spellacy (R.A.) at para. 68 . [ 43 ] Then, in M. ( C.A. ) , Lamer C.J. made a number of observations on its application that have been picked up and referred to in

much of the subsequent jurisprudence. In his words: [42] In the context of consecutive sentences, this general principle of proportionality expresses itself through the more particular form of the “totality principle”. The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. As D.A.

Thomas describes the principle in Principles of Sentencing (2 nd ed. 1979), at p. 56: The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate sentence is “just and appropriate”.

Clayton Ruby articulates the principle in the following terms in his treatise, [Clayton Ruby, Sentencing , 4 th ed. (Toronto: Butterworths Canada Ltd., 1994)], at pp. 44-45: The purpose is to ensure that a series of sentences, each properly imposed in relation to the offence to which it relates, is in aggregate “just and appropriate”.

A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of a sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender “a crushing sentence” not in keeping with his record and prospects. (Italics in quotation from Ruby added.) [ 44 ] It was this quotation from M.( C.A. ), especially the reference to Clayton Ruby’s text, which was relied on in formulating the approach to totality in Hicks . [ 45 ] It appears that Ruby’s language, including the disjunctive “or”, entered the Canadian totality lexicon from an identical formulation by D.A.

Thomas which was based on his analysis of English jurisprudence with a view to explaining the cases where consecutive sentences were actually reduced by application of the totality principle (See, D.A. Thomas, Principles of Sentencing , 2d (London: Heinemann, 1979), at 57-58). [ 46 ] A number of observations should be made about this passage in M.( C.A. ) . First, the purpose of the totality principle is stated to be to ensure that the overall sentence does not exceed the “overall culpability of the offender”.

Second, the quotation from Thomas, immediately following, with its emphasis on the overall sentence being “just and appropriate” suggests that the phrase “just and appropriate” means, in this context, that the overall sentence must not exceed overall culpability. Third, the phrase “just and appropriate” was the description used by Steele J.A. in English (E.) and by other justices in subsequent cases. Fourth, the reference to Ruby’s formulation comes at the end of Lamer C.J.’s discussion and should be read in the larger context of that overall discussion.

Fifth, it has been pointed out in later cases that the result in M. (C.A.) (affirmation of an overall sentence of 25 years for a number of sexual assaults, assaults with a weapon, incest, threats and common assault with the largest sentence for an individual offence being 8 years and the maximum permissible sentence for the most serious individual offence being 14 years) suggests that Lamer, C.J. could not have fully approved of Ruby’s formulation if it is to be interpreted as disjunctive, because the cumulative sentence of 25 years was in fact “substantially above” the normal level of a sentence for the most serious of the individual sentences involved.

See Posyiglione v. R. (1997), 189 CLR 295 (N.S.W.Ct. of Crim. Appeal) ; Seroka v. Western Australia (2006), 168 A. Crim. R. 469 (WASC); R. v. Ewanchuk , 2010 ABCA 298 at para. 12 . [ 47 ] Following M. ( C.A. ) , the sentencing provisions in the Criminal Code were amended and augmented by s. 718.1 to state as a fundamental principle that “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender” and by s. 718.2 (

c) which requires a sentencing court to “take into consideration” the principle that “where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh”. [ 48 ] It will be recalled that in M. ( C.A. ) Lamer, C.J. linked proportionality and totality by describing the totality principle as a “more particular form” of the proportionality principle. The formulation of these two principles in s. 718.1 and 718.2(

c) must now be taken to supplant the linguistic formulations used by Lamer C.J. in M. ( C.A. ) to the extent that there can be said to be any differences between them. [ 49 ] The enactment of s. 718.1 and 718.2(

c) after the decision in M.( C.A. ) is one of the factors that apparently influenced Wells C.J. in Rowe to disagree with the adoption of the Ruby formulation in Hicks .

He wrote in Rowe : [56] If every total of consecutive sentences that is “substantially above” the normal level of sentence for the most serious of the individual sentences involved offends the totality principle, the further question arises: how does a court differentiate between the sentence to be imposed on an offender who has been convicted of one additional offence for which a consecutive sentence is to be imposed, and the sentence to be imposed on an offender who has been convicted of multiple additional offences for which a number of consecutive sentences are to be imposed.

Inability to differentiate, when adjusting for totality, could have the effect of causing what should be consecutive sentences to be concurrent instead. [57] I would also note that, since the decision in R. v. M. ( C.A. ) , amendment to the Criminal Code has resulted in two provisions that bear particularly on the issue [citing s. 718.1 and 718.2 ]. … The first of those provisions would require, all other things being equal, that a more severe sentence be imposed on an offender convicted of multiple additional offences than that imposed on an offender convicted of a single additional offence.

The second would require that the total of the consecutive sentences not be a mathematical totaling if doing so produced an unduly harsh result. [58] Taking those matters into account, I would not construe the comments adopted by Chief Justice Lamer in R. v. M.(C.A.) , respecting a sentence that is “substantially above the normal level of sentence for the most serious of the individual sentences involved”, and a sentence that would “impose on the offender a ‘crushing sentence’ not in keeping with his record and prospects” to be alternative and unrelated.

[50] Attention will now be turned to how the totality principle has been formulated and applied in other jurisdictions. (iii) Other Jurisdictions [51] The cases in other jurisdictions are not consistent in their approach to this issue. [52] Some do not refer to either of the two branches of the Ruby formulation at all and instead use more open-ended and generalizedlanguage (R. v. Daye, 2010 NBCA 53, referring at para. 18 to the overall “gravity of the offences”; Andrew Daniel Blaisdell v. TheQueen, 2007 PESCAD 14, referring at para. 7 to the overall sentence being “excessive”; Amos Haywood Hubley v.

R., 2009 PECA 21,referring at para. 14 to “overall culpability of the offender”; R. v. Stephen John Rockett, 2009 PECA 7, referring at para. 25 to “notexcessive” and “does not exceed the overall culpability of this offender”; R. v. Edgett, 2008 NBCA 65, quoting at para. 10 from Thomasin M.(C.A.), “just and appropriate”; R. v. Hotomanie, 2009 SKCA 135 at para. 19: “not unduly long or harsh”; Reader, at para. 27:“overall culpability of the offender”; R. v. Taylor, 2010 MBCA 103 at paras. 8 and 16: “not unduly long or harsh”). [53] Others refer only to one branch but not both (R. v.

Louison, 2008 SKCA 69 at para. 10 (second branch); Arbuthnot, at para. 18(second branch)) or reject one of the branches as not being applicable (Adams, at para. 24, rejecting the first branch). [54] Still others refer to both branches in a disjunctive sense (R. v. Bernard, 2011 NSCA 53 at para. 41 [leave being sought SCCDocket # 34421]; R. v. Golden 2009 MBCA 107 at para. 86; Ladouceur and Traverse, at para. 65; R. v. Drouin (1995), (SK CA), 125 Sask. R. 49 (Sask.C.A.) at para. 14; Wozny, at paras. 60 and 62); some only in a cumulative way (R. v. Abrosimo,2007 BCCA 406; 225 C.C.C. (3d) 253, at para. 31; R. v.

Wharry, 2008 ABCA 293; 437 A.R. 148, at para. 35). [55] For those that refer to both branches, some regard them as defining the circumstances when a sentence should be adjusted fortotality whereas others regard them as solely defining the circumstances under which it is permissible, but not required, to adjustcumulative sentences using totality considerations. Finally, some simply regard the Ruby branches as merely two factors, among otherswhen the court, in the exercise of its discretion by giving consideration to proportionality, could adjust for totality (Abrosimo, para. 31;R. v.

Li, 2009 BCCA 85 at paras. 50-52; LaDouceur and Traverse at para. 65, stating the basic consideration to be whether the overallsentence is “just and appropriate in light of the overall culpability of the offenders” but that, “as well”, the court should keep the twobranches in mind). [56] Some of the cases also make the point that just because one or the other of the Ruby branches may prima facie apply, that doesnot mean that there will be an automatic reduction of the sentence. The overall culpability of the offender may nevertheless not justify areduction.

In Ladouceur and Traverse, for example, Chartier J.A. observed at para. 70 that “The higher the degree of moral culpability,the less likely the total sentence will be reduced to any extent, if at all.” In similar vein, Watson J.A., dissenting in R. v. Tasew, 2011ABCA 241 made the following observation (which was not disagreed with by his colleagues) at para. 74: …the principle of totality reflected in s. 718.2(

c) of the Code does not contemplate some sort of routinized rounding down to sentencesleading to results that are fundamentally unrelated to proportionality. [57] Such comments underscore the fact that the overriding consideration when considering totality is not whether the case fits intoa particular category but whether proportionality is achieved. To quote from Ladouceur and Traverse again: [35] … the last look at the total sentence is to make sure it does not exceed what would be just and appropriate in light of the overallculpability of the offender.

This requires an examination of the gravity of the offences, the offender’s degree of guilt or moralblameworthiness with respect to the crimes committed and the harm done to the victim or victims… [58] If there are any general themes that can be extracted from this diverse case law, they are these: (

i) few cases would limit theapplication of the totality principle solely to the two circumstances identified by Ruby as attracting its operation; (ii) little attention hasbeen paid to whether the two branches of the Ruby formulation were intended to describe when totality is engaged and can be consideredor to describe the definitive test for determining when a sentence should be reduced for totality reasons; (iii) especially since theenactment of s. 718.2(

c) of the Code, the general emphasis is on whether the total sentence is “unduly long or harsh” as the touchstonefor determining when a sentence should be reduced; and (iv) most cases regard totality as operating within – and taking its justificationfrom – the notion of proportionality which is a principle of universal application. [59] What remains is for this Court to enunciate the principles for application in this case, taking into account the differing viewsthat have been expressed in this jurisdiction as well as the discussion of the issue elsewhere. (iv) The Applicable Principle [60] In R. v.

Henry, 2005 SCC 76 , [2005] 3 S.C.R. 609, Binnie J. wrote at para. 57 that: … The notion that each phrase in a judgment of this Court should be treated as if enacted in a statute is not supported by the cases and isinconsistent with the basic fundamental principle that the common law develops by experience. [61] It is well to bear that admonition in mind when considering the words used by Lamer C.J. in M.(C.A.) that have already beenquoted, as well as when considering the words used by this and other appellate courts when attempting to describe the totality principle. [62] A careful examination of the Hicks and Rowe (minority) approach reveals that they are, in fact, directed to different issues. [63] The approach expressed in Hicks, and by the majority in Rowe, conforms to the actual language used by Ruby in the quotationreferred to by Lamer C.J. in M.(C.A.).

In doing so, however, it places less emphasis on the other introductory language used by LamerC.J. and is restated in a way that appears directed to identifying the circumstances when the totality principle will be engaged, not whena sentence will necessarily be adjusted by application of the principle. It is the “gateway” into the issue: if one or the other branch doesnot apply, totality need not be considered (“If so, the sentence may be adjusted. If not, then the sentence must stand”). This approach

does not therefore address how the court should ultimately determine, assuming the gateway is entered, whether a particular total sentence should be modified in a given case. It recognizes that just because one can say that one of the branches has prima facie application does not mean that the sentence will necessarily be adjusted. [ 64 ] By contrast, the approach of the minority in Rowe addresses the actual circumstances when a sentencing court should adjust a sentence so as not to offend the totality principle.

It does not consider whether there is a “gateway”; it proceeds on the basis that all cases of consecutive sentences potentially engage consideration of the totality principle and proceeds to the considerations that should apply to enable a determination to be made as to whether a sentence should be reduced.

The discussion in dissent in Rowe assumes that the approach of the majority was also directed to this issue and proceeds to explain why, under that view, it might be inappropriate for a total sentence to be reduced in some circumstances just because it is “substantially above the normal level of a sentence for the most serious of the individual sentences involved” without also considering other factors like proportionality. [ 65 ] What must be addressed therefore is: (

i) under what circumstances will considerations of totality be engaged; and (ii) what is the test for determining whether a sentence should be actually reduced on the basis of totality? [ 66 ] The starting point for determining these questions has to be s. 718.2 (

c) of the Criminal Code as applied in accordance with the fundamental principle in s. 718.1 . It is worth repeating them here: 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 A court that imposes a sentence shall also take into consideration the following principles: …. (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; [ 67 ] Of note, initially, is that s. 718.2 (

c) requires consideration of whether a combined sentence is unduly long or harsh “where consecutive sentences are imposed”. On its plain reading, this means that considerations of totality are engaged in all cases involving the potential imposition of consecutive sentences. That is the answer to the first question posed above and is consistent with this Court’s earlier jurisprudence ( R. v. E.W. ).

The more difficult question is to formulate the test for its application in a given case. [ 68 ] It may be said at the outset that a formulation that contains a number of discrete principles has the merit of providing certainty and consistency in application, whereas too generalized a statement becomes an invitation to imposition of subjective opinions that may differ from judge to judge. [ 69 ] That said, s. 718.1 nevertheless mandates, as a fundamental principle, that a sentencing court apply, in every case, a general principle of proportionality.

Any application of s. 718.2 , therefore, must take place under the umbrella of the fundamental principle of proportionality in s. 718.1. This is consistent with Lamer C.J.’s discussion of totality in M.( C.A. ) where he wrote of ensuring that “the cumulative sentence rendered does not exceed the overall culpability of the offender” and quoted Thomas to the effect that the aggregate sentence should be “just and appropriate”.

As noted in Reader , the purpose of the “last look” is to ensure that the total sentence respects the principle of proportionality as set out in s. 718.1 of the Code by not exceeding the “overall culpability of the offender” as emphasized by Lamer C.J. in M.( C.A. ) . [ 70 ] In Arbuthnot , Chartier J.A. described several factors helpful in assessing the question of proportionality. He described the last look at para. 18 as: … a more focused application of the general principle of proportionality (see M.( C.A. ) , at para. 42 ).

It does not require a reconsideration of the sentencing principles [applied when determining individual sentences]. Rather, this last look ensures that the total sentence is not unduly long or harsh. To make this determination, the sentencing judge is to consider the gravity of the offences, the offender’s moral culpability, the harm done to the victims, that the effect of the sentence is not “crushing”, and that it be in keeping with the offender’s record and future prospects … [ 71 ] Notably, in Chartier J.A.’s view, considerations of proportionality must intrude in every case.

I agree. [ 72 ] This appears to have been a concern in the minority view in Rowe , though stated from a slightly different perspective. The concern appears to have been that a rote application of the “substantially above the normal level” test by itself would not take into account differences in situations where there were two consecutive sentences under consideration as opposed to a much larger number. In the latter scenario, considerations of proportionality could dictate that there not be a reduction or at least a significantly smaller one.

Accordingly, because of the operation of the proportionality principle, the two branches of the test had to be considered together, with the court always taking into account the “number and seriousness of the individual offences involved” – something that in the minority’s view could not be done if the first branch of the test were to be considered in isolation. [ 73 ] On the other hand, scenarios could be envisaged where considering the notion of a “crushing” sentence as modifying the circumstances when the first branch could apply might unduly limit the application of the totality principle.

Consider a rash of minor break and enter offences occurring in a short span of time by a person with an otherwise clean record, each of which attracts a short sentence but together they add up to a very significant, but not a “crushing” sentence, given the offender’s record and rehabilitative prospects. It is possible that it would be regarded as “excessive” or not “just or appropriate”, if all sentences were to be served consecutively.

If the “substantially above the normal level of sentence for the most serious of the offences” principle could not apply in a stand-alone manner, it has been suggested, the sentence could not be modified. [ 74 ] As to the Ruby formulation, it is possible to develop sentencing scenarios that might identify situations where both a disjunctive and a cumulative approach to application of the Ruby formulation might prevent the application of the totality principle where, intuitively, one might consider that it should apply.

I agree with the submissions of counsel for the appellant in a companion case which was argued in conjunction with the current case:

Section 718.2 codifies the principle of totality and varies the test that was enunciated in R. v. M.(C.A.), (SCC), [1996] 1S.C.R. 500… … neither test completely captures the test enunciated in s. 718.2. For example, the first branch of the disjunctive approach narrowlyfocuses on the circumstance in which multiple offences are before the court but one offence is more serious than other offences.However, offenders are often sentenced for a number of similar offences and the imposition of consecutive sentences may result in anoverall sentence which is unduly long or harsh.

The first branch of the disjunctive approach may be particularly helpful to a judge in thecircumstance in which one particularly serious offence has been committed. This branch may assist a court in determining that an overallsentence is unduly [long or harsh] given the gravity of the offence and the degree of responsibility of the offender.

However, assumingthat an offence is not ‘crushing’, the first branch of the disjunctive test should not be the only circumstance in which a sentence isconsidered unduly [long or harsh]… … the use of the word ‘crushing’ may assist the court in determining that a sentence is unduly [long or harsh] but it should not be a[criterion] which must be present before a sentence may be adjusted because of the application of totality. .. … there may be circumstances in which an overall sentence is unduly [long or harsh] despite the fact that it is not crushing.

This isparticularly true when considering less serious offences that attract relatively short sentences. [Appellant’s Brief in R. v. Bambrick, 2010 01H 134] [75] The answer to this conundrum is not to apply the two branches either disjunctively or cumulatively as if they represent the onlysituations which require a reduction in sentence for purposes of totality. Instead, it is more appropriate to regard them as factors toconsider, along with other considerations, when deciding if the combined sentence is “unduly long or harsh”.

This phrase must now beregarded as replacing the other talismans referred to in M.(C.A.) and English (E.) (“just and appropriate”, “excessive”). Otherconsiderations would include all those factors that go into considering, as part of a last look, the notion of proportionality. They wouldinclude, of course, the gravity of the individual offences, their number, the culpability of the offender, victim impact and the offender’srecord and future prospects.

The emphasis on a sentence being “unduly long or harsh” engages considerations of length as well as theoverall quality of the sentence. [76] As to length, it begs the question as to what the comparator of determining undue length should be. Should it be the length ofthe longest of the imposed sentences? Or the maximum statutory length of sentence for the most serious of the offences? Or the upperlimit of the normal range of sentence for the type involved or for the most serious of those offences?

Or is the judge left to his or her ownoverall impression of what is “undue” in a given case? [77] This Court has treated the first branch of the Ruby formulation, which also deals with comparative lengths, as involving acomparison of the overall sentence, not with the actual sentence imposed for the most serious of the individual sentences imposed, butwith the range of sentence that was available for imposition in respect of that offence. See R. v. Provost, 2006 NLCA 30.

That approachis similar to that explained by Thomas whose sentencing text is the apparent original source of the first branch of the Ruby formulation.He explained that the rationale for the principle is that a series of consecutive sentences should not be reduced for totality purposesbelow what is necessary to recognize “the inherent gravity of the individual offences” (p. 58).

He wrote at p. 59: … the essence of the principle appears to be that the aggregate sentence should not be longer than the upper limit of the normal bracketof sentences for the category of cases in which the most serious offence committed by the offender would be placed.

This formulationwould allow an aggregate sentence longer than the sentence which would be passed for the most serious offence if it stood alone, butwould ensure that the sentence bore some recognizable relationship to the gravity of that offence. [78] For “normal bracket of sentences” in this quotation, one should read “range of sentences” in Canadian terminology.

This wouldinvolve an examination, in each case, of the sentencing case law for the most serious offence in the group to establish a descriptive rangeof sentence for the factual circumstances constituting the offence, and then comparing the upper level of that range with the overallsentence to determine whether a lower sentence could be justified as still being within the “inherent gravity” of the offences committed. [79] Employed in this way, the identification of the range of sentence for the most serious of the offences committed serves twopurposes.

In the first place, it serves as a benchmark which indicates the level below which an overall sentence being adjusted fortotality should generally not be reduced. It also serves, however, as a possible justification for reducing, to some degree, an overallsentence that is “substantially above” the level of sentence that bears some recognizable relationship to the inherent gravity of thecriminal activity involved.

The degree of reduction, if any, would, of course, depend on the presence of other factors as well, such as thenumber and seriousness of the other offences. [80] On a practical level, an analysis based on range of sentence may result in additional challenges for busy first instance courtsthat may not always have the assistance of counsel. Indeed, as this Court has recently noted, establishment of ranges for different factualscenarios of a given offence is not always easy: Murphy; R. v. Johnston, 2011 NLCA 56.

Nevertheless, tailoring a reduction in overallsentence to ensure that any reduction still recognizes the “inherent gravity” of the criminal activity is a proper consideration indetermining an appropriate sentence.

Rather than making this analysis a requirement to be met before a sentence reduction could occur,however, it would be better to make it a factor to be considered in determining the overall sentence. [81] As to the notion of a “harsh” sentence in s. 718.2(c), in the context of the phrase “unduly long or harsh” in that provision,“undue” means more than is reasonable or necessary, or excessive (Compact Oxford English Dictionary of Current English, 3d ed rev.2008) and “harsh” is defined in the same dictionary as “unpleasantly rough or intense to the senses; cruel or severe”.

The concept of“unduly long or harsh” is therefore broader than the notion of “crushing” and would accordingly admit of a larger number ofcircumstances where the totality principle could be applied than under the second branch of the Ruby formulation. 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 anoverall sentence to achieve a proper totality, it cannot define the parameters of the notion of “harsh” within s. 718.2(c).

It would alsohave to be balanced against other factors, such as his record, the number of offences involved and the perception of the overall inherentgravity of the offence.

[ 82 ] In

summary, I prefer a general approach similar to that taken by the British Columbia Court of Appeal in Li which, when faced with an argument that the first branch of the Ruby formulation required a reduction in sentence, quoted from and adopted a previous statement by Frankel J.A. in an earlier decision, Abrosimo : [31] Mr. Ruby’s statement does no more than provide an example of when the totality principle “may” be violated.

While consecutive sentences can run afoul of this principle, it is not simply because the aggregate is above the normal range for the most serious offence, but because it exceeds what is appropriate given the offender’s overall culpability.

When an offender’s overall culpability warrants more severe punishment nothing precludes the imposition of such a sentence. [ 83 ] This approach recognizes the branches of the Ruby formulation as simply factors, or examples of situations, where an overall sentence may be regarded as unduly long or harsh and as such requires adjustment to ensure that the proportionality principle is observed. [ 84 ] The foregoing analysis, as well as the fact that the Ruby formulation which was referred to in M.( C.A. ) , pre-dated ss. 718.1 and 718.2 (c), requires a restatement of the applicable approach.

I would state the following as guidelines for the analytical approach to be taken henceforth: 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 steps 1 and 2, 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 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 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. (

v) Application to this Case [ 85 ] In this case, the sentencing judge regarded the two robbery events as separate criminal adventures. Neither counsel has challenged this finding on the appeal. I agree with this position. Though close in time and similar in methodology, they were separately planned and executed and involved different victims and, as such, were discrete criminal events. Accordingly, the sentencing judge was

correct to treat the Hamilton and Blackmarsh Robberies as calling for consecutive sentences when applying the second stage of theanalysis. As well, he was correct in treating the offences of wearing a mask as being part of the same criminal adventure, i.e. either theHamilton Robbery or the Blackmarsh Robbery, to which they related. Each of those offences was integral to the robbery itself. [86] With respect to the offences of breach of probation, however, a different analysis applies.

While the event which constituted thebreach was the related substantive robbery and mask offence in each case, and would therefore under normal circumstances attractsentences concurrent with the robbery/mask offences to which they related, offences relating to breaches of court orders will, as notedpreviously, be generally made consecutive to the other related offences. In fact, the sentencing judge did this. [87] That said, the judge’s approach to totality is problematic.

Although recognizing that “the real question” was “the achievementof a proper totality” he proceeded to deal with it in the context of sentencing for individual offences. In the course of sentencing, hemade further reference to totality twice. [88] The first occurred in the course of sentencing for the Blackmarsh Robbery.

He stated: My initial intention [which also turned out to be his final intention, except for a reduction for pre-trial custody] was on the second armedrobbery in the interest of totality even though he was acting on his own to give him a sentence of three years which would be servedconsecutive to the first one. (Emphasis added.) [89] The second reference occurred in relation to sentencing for the breaches of probation.

He stated: I’m [going to] depart from Crown counsel’s recommendation in the interest of totality and … I’m going to only make it one dayconsecutive. (Emphasis added.) Although he did not say so when imposing the same sentence for the second breach of probation (which also attracted one dayconsecutive), it can be assumed he was adopting the same approach, based on totality, to sentencing for that offence as well. [90] In both of these cases, the judge did not identify what sentence he regarded as appropriate for the individual offences, applyingproper sentencing principles.

Instead, he appears to have given consideration to totality when deciding on those individual sentences. Inthe case of the robbery offence, he appears to have been influenced by the Crown’s submission that, to achieve an overall totality, aglobal sentence of eight years would be appropriate and, although he ultimately came to the determination that seven years and two dayswas appropriate, his approach in formulating individual sentences seems designed to achieve that overall result.

This is close to the“Hatch” approach which has been rejected in this jurisdiction. [91] Instead, he should first have made determinations of sentences for each individual offence without reference to totality. Then,after determining (as he did) whether some sentences should be served consecutively or concurrently in accordance with the “singlecriminal adventure” principle, he should have considered whether the totality principle required a reduction in the overall sentence.

Infailing to do so, he committed an error in principle. [92] In Provost, Rowe J.A. wrote: [12] … An error in principle justifies appellate intervention and substitution of an appropriate penalty. As Laskin, J.A. stated in R. v.Rezaie (1996), (ON CA), 31 O.R. (3d) 713 (C.A.) at 719: “ …[i]f the sentencing judge commits an error in principle,the sentence imposed is no longer entitled to deference and an appellate court may impose the sentence it thinks fit”. See also to the same effect: Johnston at para. 29; R. v.

W.E., 2010 NLCA 4 at para. 30. [93] Counsel for the Crown submitted that it is not enough for the appellant to show that the sentencing judge committed an error inprinciple to justify intervention; rather, he must go further and demonstrate that the resulting sentence is, in fact, unfit. He cited R. v. Lin,2007 NLCA 13; 263 Nfld. & P.E.I.R. 273 in support of that proposition. The decision in Lin is not inconsistent with the proposition inProvost.

The actual decision in Lin was based on a finding that the totality principle, even if it had been considered by the sentencingjudge in that case, would not have justified a reduction in sentence. The point made in Lin is that where the sentencing judge fails toapply the totality principle properly it does not necessarily follow that an appellate court considering whether to vary the sentencepursuant to its powers under s. 687(1)(

a) of the Criminal Code will impose a different sentence. The appellate court’s determination ofwhat is a fit sentence may in fact result in affirmation of the sentence below. [94] I turn now to a consideration of what fit sentences should be imposed in this case, and whether, having so decided, the originalsentences should be varied. (vi) A Fit Sentence [95] No issue was taken with the one year sentences for wearing a face mask or the three years for the attempted robbery.

I do notpropose to say anything further about them. [96] Counsel for the appellant did not dispute the proposition that sentences of four years and three years for the Hamilton andBlackmarsh Robberies, respectively, were fit. Counsel for the Crown, although stating that he had “no issue” with those sentences,submitted that four years for each would be more appropriate. [97] I agree that, in the circumstances of this case, parity requires a four year sentence to be imposed for the Hamilton Robberybecause that was the sentence meted out to Mr. Hutchings’ co-robber.

The sentence for that robbery can also be considered as a

benchmark for the other. There is little to differentiate between them except that a customer was also involved in the Hamilton Robberyand there were two robbers. Both were convenience stores, the modus operandi was the same, only a small amount of money ormerchandise was taken and the events took place at night. Mr. Hutchings must bear more responsibility for the Blackmarsh Robberybecause he acted alone. It was also his second robbery in a very short time. These factors countervail to some extent for the fact that theHamilton Robbery involved both a customer and a store employee.

Given the sentencing judge’s identification of the prevalence ofarmed robberies in the community and that there is a need to protect people working in or using convenience stores late at night, a fitsentence for the second robbery should be four years. [98] While this sentence is somewhat higher than the levels of sentence imposed in other comparable cases in this jurisdiction (SeeR. v. Sheppard (1997) (NL CA), 147 Nfld. & P.E.I.R. 304 (Nfld.C.A.) (no criminal record; one robbery with mask;severe gambling problem; four years reduced to three on appeal); R. v.

Butt (1986), (NL CA), 59 Nfld. & P.E.I.R. 89(Nfld.C.A.) (armed robbery of gas bar; four years reduced to two years less a day because of psychiatric illness); R. v. Pardy (1994), (NL SC), 126 Nfld. & P.E.I.R. 218 (Nfld.SCTD) (one robbery of service station, masked; prior convictions; threeyears); R. v.

Power (2006), 2006 NLTD 149 , 262 Nfld. & P.E.I.R. 30 (NLSCTD) (robbery of restaurant; psychiatric disorders;joint submission of three years accepted), it is nevertheless justified given the present community problems with this type of offence, andthe concern for the safety of vulnerable workers, as identified by the sentencing judge. [99] As far as the sentences for breach of probation are concerned, a sentence of one day, as imposed by the sentencing judge isinappropriate. Sentences can range between one month and sometimes less to upwards of six months. See Murphy (six months); Oxford(three months).

In Oxford, the Court accepted statements in prior cases that sentences for non-compliance with probation orders could beone month or less even where there are prior convictions. [100] In the current case, Mr. Hutchings has several convictions for failure to comply with court orders.

In light of the requirements ofspecific and general deterrence, I am satisfied in the circumstances that sentences of two months for each offence are necessary toachieve respect for the observance of court orders. [101] I have already indicated that I agree that the two robberies should be considered separate criminal adventures and that thesentences, other things being equal, should be served consecutively. The robbery and attempted robbery at the Hamilton conveniencestore were part of the same criminal adventure and the sentences are appropriately made concurrent with each other.

It is also appropriateto make the sentences for having the face masked concurrent with the respective robbery sentences, as they were part of and arose out ofthe robbery events. Sentences for breaches of court orders are generally an exception to the normal rules respecting consecutive andconcurrent sentences. They should normally be made consecutive.

I see no reason to depart from that approach here. [102] Accordingly, before considering totality, the overall sentence would be eight years for the two robberies plus four months forthe two breaches of probation orders for a total of eight years, four months. [103] It is now necessary to consider totality, the application of which is engaged because some sentences are consecutive to eachother. [104] The most serious offences here are the robberies.

The normal level of sentence for armed robberies of convenience stores-gasbars by a young person, masked, late at night where the money or merchandise taken is relatively small could range from three to fiveyears. When compared with the total sentence of eight years four months that would otherwise be indicated, this would be a factorcalling for a reduction in the overall sentence. [105] There were two offence events. While not a rash of robberies, neither was it a single isolated incident. The two events occurredwithin a short period of time.

Although the gravity of these offences can be regarded as not as serious as, say, large scale robberies whereviolence is actually perpetrated, they are nevertheless of great concern. Weapons were involved, Mr. Hutchings was masked and theoffences were carried out at night when the victims were more vulnerable. The total sentence must reflect these factors. [106] Mr. Hutchings has a lengthy prior criminal record spanning from late 2006 to mid-2009, involving a total of 26 offences, elevenof which were convictions for failure to comply with a previous undertaking, recognizance or probation order.

Of the remaining 15offences, nine were committed as a young offender and two as an adult. The sentencing for these offences occurred in four clusters as ayouth and once as an adult. The sentence for the adult offences was 30 days intermittent plus 2 years probation for 2 counts of theftunder $5,000 and 2 counts of failure to comply with a prior court order. The most concerning sentence as a young offender involved aconviction for armed robbery in 2006, where Mr.

Hutchings was sentenced to 9 ½ months involving a combination of secure and opencustody plus an additional 159 days supervision order and 12 months probation. This is a significant sentence in the context of a youngoffender where the emphasis is on rehabilitation. With that exception, none of the other youth sentences involved any significant amountof custodial time. The sentence for the current offences will be Mr. Hutchings’ first substantial period of imprisonment as an adult. Thecommitting of the current offences does indicate, however, as the sentencing judge noted, that Mr.

Hutchings “has not gotten themessage” from the sentences imposed for his prior offences. That said, even though the sheer number of prior offences is a matter ofconsiderable concern, a sentence of eight years, four months is a substantial movement from a thirty day intermittent sentence which wasthe longest period of jail time he had previously received as an adult, or even from 9 ½ months, which was the longest period of custodyhe had previously received as a young offender. [107] Mr. Hutchings’ young age has to be considered in relation to his prospects for rehabilitation.

Notwithstanding the absence of apre-sentence report, the fact of his age should be taken into account insofar as his behaviour may be at least partially attributable toimmaturity. While eight years, four months might not be considered a “crushing” sentence, it certainly will take away from him asubstantial portion of his twenties which are important to a young man who is still maturing and developing those things, like jobprospects and relationships, that provide the base for a productive life. This factor also points toward modifying the total sentence. [108] Mr.

Hutchings suffers, as noted by the sentencing judge, from a drug problem, a circumstance that often fuels the type ofbehavior for which he was sentenced. Some of the cases cited previously (e.g. Sheppard, Butt, Power) recognize addictions, such asgambling and alcohol dependency, or emotional or psychiatric illness as factors that may mitigate the severity of a sentencing

disposition. [ 109 ] Other appellate decisions recognize that it may be appropriate to reduce an overall sentence when an offender is being sentenced for multiple robberies committed in close succession. (See Wozny ). [ 110 ] Taking all these factors into consideration, and noting that a number of them point toward a reduction in overall sentence, I am satisfied that a sentence of eight years, four months is unduly long or harsh when measured against the gravity of the offences and the offender’s degree of responsibility.

While recognizing the serious nature of this type of offence and that a considerable term of imprisonment is nevertheless warranted, a more appropriate overall sentence that will still recognize the inherent gravity of the offences would be five years, six months. [ 111 ] To achieve this result, I would impose sentences as follows: For the Hamilton Robbery: Robbery 4 years Attempted robbery 3 years, concurrent Wearing a mask 1 year, concurrent Breach of probation 2 months, concurrent [changed, for totality, from consecutive to concurrent] For the Blackmarsh Robbery: Robbery 1 year, 6 months consecutive [reduced, for totality, from an otherwise appropriate sentence of 4 years] (less 141 days pre-trial custody), Wearing a mask 1 year, concurrent Breach of probation 2 months, concurrent [changed, for totality, from consecutive to concurrent]

Summary and Disposition [ 112 ] I would vary the sentence imposed by the sentencing judge as follows: for Count No. 1 on the Information to one year, six months (less 141 days pre-trial custody); Count No. 2 to one year concurrent; Count No. 3 to two months concurrent; Count No. 7 to four years consecutive; Count No. 8 to one year concurrent; Count No. 9 to three years concurrent; and Count No. 10 to two months concurrent. [ 113 ] In the result, I would grant leave to appeal, allow the appeal and vary the sentence to a total term of imprisonment of five years and six months, less 141 days for pre-trial custody. J. D. Green C.J.N.L. I concur: B. G. Welsh J.A. I concur: M. H. Rowe J.A.

I concur: C. W. White J.A. I concur: L. R. Hoegg J.A.