R. v. Lewis, 2012 NLCA 11

Date: 20120224 Docket: 10/78 Citation: R. v. Lewis , 2012 NLCA 11 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: DEAN EDWIN LEWIS APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Wells, Rowe and White JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (G) 200901T3815 Appeal Heard: January 13, 2012 Judgment Rendered: February 24, 2012 Reasons for Judgment by Wells J.A. Concurred in by: Rowe and White JJ.A. Counsel for the Appellant: Peter Ralph, Q.C.

Counsel for the Respondent: Sheldon Steeves Wells J.A.: [ 1 ] This appeal involves, primarily, an appeal against conviction for being a party, with three others, to breaking and entering a dwelling house and committing the indictable offence of robbery therein. The consequent convictions for breach of probation and breach of recognizance are also appealed, as well as the fitness and totality of the sentences imposed. [ 2 ] The appeal against conviction turns on whether the trial judge erred in admitting as evidence the contents of garbage bags and statements made by Mr.

Lewis consequent upon the police discovering the contents of the garbage bags. That evidence was

admitted as a result of the trial judge deciding that the right of Mr. Lewis under

section 8 of the Canadian Charter of Rights and Freedoms to be free from unreasonable search and seizure was not breached. [ 3 ] The appeal against sentence raises the issue of whether, by reason of there being no evidence that Mr. Lewis entered the residence, or that he was involved in the violent assault on the residents, his sentence of eight years for the break and entry offence, the same as that imposed on the other three who did enter the residence, was unfit.

It also raises the question of the totality of sentence resulting from the imposition of the two further sentences, for breach of probation and breach of recognizance, being ordered to be served consecutively and consecutive to the break and entry sentence. BACKGROUND FACTS [ 4 ] Mr. Lewis and three others were charged in relation to the break and entry into the home of Georgina and David Carey at 23 MacKenzie Street in St. John’s. Mrs. Carey is the aunt of one Christopher Webster, who was serving time in the penitentiary. Mr.

Lewis encountered him there while serving a sentence at the same time and, as a result of Mr. Webster’s boasting, became aware that Mrs. Carey was holding a large sum of cash (approximately $6,000.00) for Mr. Webster. Several weeks prior to the offences, Mr. Lewis came to Mrs. Carey’s home and she, having received the prior approval of Mr. Webster, gave Mr. Lewis $100.00 out of the money she was holding for Mr. Webster. Some two weeks prior to the offences, Mr. Lewis telephoned Mrs. Carey looking for more money but, as she did not have approval from Mr. Webster, she refused. However, as a result of Mr.

Lewis’ persistent telephone calls, she finally relented and gave him $200.00 to stop his hounding her. Again, he picked up the money at her residence. [ 5 ] The remaining critical facts, as found by the trial judge, were succinctly set out in his sentencing decision (2010 NLTD (G) 104). He wrote: [3] On April 13, 2009 at about 11:00 p.m., the home of Georgina and David Carey of 23 MacKenzie Street in St. John’s was terrorized when three armed and masked men violently broke and entered the home and robbed the owners. Both Mr. and Mrs.

Carey are older middle-aged people and as such were unable to prevent the attack upon them or the violation of their home. Both Careys were injured; however, Mr. Carey’s injuries were more serious and required hospitalization. [4] One of the robbers was armed with a hand gun which he placed at Mrs. Carey’s head and cocked the mechanism threatening to blow her head off if she did not produce the money and to shut up her husband. She was pushed and shoved and pulled by her hair into the bedroom where she produced and handed over a significant amount of money. Mrs.

Carey was so terrified that she begged for her life. [5] At the same time that his wife was being assaulted, Mr. Carey was being attacked by one of the other intruders who wielding a claw hammer beat him on his head and upper body. Mr. Carey was seriously injured yet he struggled and fought his attacker off, perhaps saving his own life or at least preventing further injuries. [ 6 ] Dean Lewis was not one of the three who actually entered the Carey home nor did he personally inflict injuries on either of the Careys. Mr.

Lewis’ role was that; as a party to the offence he enabled the robbery and assaults to take place. It was Mr. Lewis who provided the other three accomplices with the knowledge of where the money was, that is the Carey residence. He knew the address from his having been in the home at least on two previous occasions to legally obtain money from the Careys. It was Mr. Lewis who provided the taxi and paid for it to transport all four of them to the Carey residence to conduct a drive-by to confirm that it was the right place and that the plan could proceed. [ 7 ] At trial it was determined that while Mr.

Lewis had no appetite himself for the violence used against the Careys he knew the volatility of his companions and that they were armed and that they were capable of violence, yet he still facilitated the robbery and indeed put the whole plan in motion. [ 8 ] As well, at trial it was accepted that there was no evidence to establish that Mr. Lewis had received any money from the Carey robbery. ... [6] As a result of these circumstances, Mr. Lewis was charged with a total of 15 offences, three of which are at issue in this appeal.

The first is breaking and entering a dwelling house and committing therein the indictable offence of robbery, contrary to the provisions of paragraphs (

b) and (

d) of subsection 348(1) of the Criminal Code . The other two are breach of probation contrary to paragraph (

a) of subsection 733.1(1) and breach of recognizance contrary to paragraph (

a) of subsection 145(3) . [7] Seven other charges, all arising out of the same factual circumstances, included robbery involving wounding and beating, aggravated assault, unlawful confinement, assault with a weapon, and robbery. The remaining five charges included possession of stolen goods, attempt to obstruct justice and three charges of being an accessory after the fact. PRIOR PROCEEDINGS [8] The trial consisted, in the main, of a lengthy voir dire challenging the admissibility of evidence seized by the police without a search warrant and allegedly in breach of

section 8 of the Charter . The police had seized three garbage bags and their contents from an uncovered plastic garbage container located adjacent to but inside the property boundary of the rented residential premises in which Mr. Lewis lived with his mother at 189A Merrymeeting Road in St. John’s. The garbage bags contained blood stained clothes and a piece of paper on which was written the residence address of Mr. and Mrs.

Carey. [ 9 ] At the conclusion of the voir dire , the trial judge, in his decision ( 2010 NLTD 9 ), on the Charter challenge, gave detailed consideration to the evidence, including photographs of the garbage container in situ and precise measurements, taken on the day following seizure of the bags of garbage, as to its location in relation to the boundary of the property and the city sidewalk. The trial judge concluded that the garbage container was approximately 1.7 feet inside the property line.

The trial judge wrote that it was: … about as far away from the entrance to the residence as it could be placed without being on or outside the property line. This would

seem to be a place where the garbage would have been customarily located for removal. [10] Applying principles he attributed to R. v. Patrick, 2009 SCC 17 , [2009] 1 S.C.R. 579, the trial judge concluded that“Mr. Lewis did not have a reasonable expectation of privacy in the garbage seized from 189A Merrymeeting Road.” The trial judgewrote: [60] In the present case, viewed objectively, I find that Mr.

Lewis did not have a reasonable expectation of privacy in that thegarbage bucket was placed at almost the extreme boundary of the property close to a busy, combined, commercial and residential street,in full view and with easy access by the public or any other interested life form, for example, dogs, cats, gulls or crows, the garbagebucket had no lid on it nor was it itself in any restraint box or system.

It was open to anybody interested in it, including scavengers or, asin this case, the police. …. [68] I find as a fact that on the evidence and viewed in all of the circumstances, the seized garbage had been abandoned and it wasopen to the police to seize it as part of their ongoing investigation. I find that the police intrusion by stepping on the property was atechnical trespass of such a minimum nature as to make the intrusion into the lives of the residents of 189A negligible [11] Further evidence presented at trial included the evidence of a taxi driver, Mr. Kavanagh, who picked up Mr.

Lewis and theother three men at 189A Merrymeeting Road and, on the instructions of Mr. Lewis who was in the front seat with him, drove them to 25MacKenzie Street. They stopped there for a brief period of time and all remained in the taxi. Mr. Lewis then requested the taxi driver todrive them to the Irving Oil service station a short distance away where Mr. Lewis paid for the taxi with his Mastercard and all four mengot out of the taxi. [12] In addition, an agreed statement of facts was submitted.

It was described by the trial judge in the following manner: [1] An Agreed Statement of Facts was submitted to the court as follows: AGREED STATEMENT OF FACTS 1. Consent 1, the preliminary inquiry evidence of the two victims, David and Georgina Carey, is admitted for the truth of itscontents except with respect to hearsay and opinion evidence. 2. There is no evidence to support Constable Hogan’s allegations regarding Dean Lewis consuming drugs etc. found at page 3 ofDean Lewis’s second statement of 17 April 2009. 3.

Dean Lewis was seen with Renee Seers, who has been charged as a principal in this offence, when stopped for a traffic stop on 12April 2009. 4. Consent 15 is a photograph of Dean Lewis with Gordie Bishop, who has been charged as a principal in this offence, taken on 17April 2009, the day of Lewis’s arrest. 5. Consent 11, a Master Card with Dean Lewis’s name on it, was retrieved from Dean Lewis’s wallet when he was arrested. 6. Consent 12, an Athlete’s World receipt, was retrieved from Lewis’s home. 7.

Consent 4 consists of a still photograph of Dean Lewis exiting the taxi at Irving’s and is taken from the disc played by Sgt.Hoskins, to be entered as Consent 16. A review of Consent 16 does not show Lewis, after the taxi left, entering the Irving store nor doesit show him in front of the store in the range of the camera. 8. Chris Webster had been boasting in HMP about having money at his Aunt’s place, namely: Georgina Carey’s home at 23McKenzie Street, and this information had been passed on to the RNC during their investigation prior to their interview with DeanLewis. 9.

There is no evidence to place Dean Lewis in the Carey residence at the time of the offence.

10. There is no evidence that Dean Lewis received any money as a result of the offence and when Dean Lewis was seen by the surveillance team at various banks after the offence, he was simply opening an account. 11. Prior to Dean Lewis’s interview with the police, they were unaware of the taxi ride taken by Dean Lewis and the three co-accused in the Jiffy Cabs’ taxi driven by Mr. Kavanagh. [ 13 ] Further evidence given by a policeman consisted of his presentation of a videotape captured by a security camera at the Irving Oil service station where the taxi dropped off Mr. Lewis and the other three men.

The evidence of Mr. and Mrs. Carey, given at the preliminary inquiry, was, by consent, admitted as trial evidence. It detailed the violence of the assault on them by the three men who entered their residence. Other evidence was also admitted by consent. [ 14 ] The trial judge considered all of the evidence in detail and, in his reasons for the conviction decision (2010 NLTD(G) 66), quoted extensively from the two statements given by Mr. Lewis to the police.

The trial judge concluded that he was satisfied that the Crown had proven all of the elements of the charge of break and entry into the residence of Georgina and David Carey and that Mr. Lewis was “a party to that offence in that he did aid in the commission of the indictable offence of robbery, including acts of violence towards Georgina and David Carey…”. He found Mr. Lewis guilty under paragraphs (

b) and (

d) of subsection 348(1) of the Criminal Code . Because of that conviction, he also convicted Mr. Lewis on the charge of breach of recognizance and the charge of breach of probation. The seven further charges arising out of the same factual circumstance were stayed. Acquittals were entered on the five remaining charges. [ 15 ] In his separate sentencing decision, the trial judge reviewed a variety of decisions imposing sentences for home invasion and, in particular, home invasion with violence. These sentences varied from a low of three years to a high of 15 years.

The majority involved sentences of six to ten years, with the more common sentence being eight years. [ 16 ] The trial judge identified and listed the aggravating and mitigating factors as follows: AGGRAVATING FACTORS 1) Mr. Lewis has a lengthy criminal record going back to 1991 as a young offender. In total he has over 100 previous convictions including convictions for assaults, assaults with a weapon, break and entry, thefts and numerous breaches of court orders; 2) Mr. Lewis was on probation at the time of these present offences; 3) Mr.

Lewis was bound by a recognizance to keep the peace when he committed these offences; 4) Mr. Lewis set the crimes in motion when he informed his companions of the money at the Carey’s home. He participated in the drive-by of the Carey home and he provided the taxi to carry out the crime; 5) Mr. Lewis knew that his companions were armed, dangerous and crazy enough to do anything, including violence, to obtain the money they desperately needed. MITIGATING FACTORS 1) Mr. Lewis did not actually engage in acts of violence against the Careys; 2) Mr.

Lewis showed remorse before the court and regrets his involvement; 3) Mr. Lewis did not profit from the crime. [ 17 ] With respect to the sentence appropriate for Mr. Lewis’ participation in the break and entry into the residence of Mr. and Mrs. Carey, the trial judge imposed a sentence of eight years and made the following comments: [42] I agree that the principle[sic]offenders should receive significantly higher penalties than Mr. Lewis; however, it was Mr. Lewis who facilitated and enabled the home invasion to happen. He put the whole thing in place.

He was the one who pulled the levers and pushed the buttons to put this mad criminal scheme with these mad companions of his in motion. He cannot now say that he did not wish it or that he had no appetite for the violence. His appetite for the money was every bit as desperate as that of his companions as evidenced at trial. [43] For the offence of break and entry into the residence of the Careys, Mr. Lewis is sentenced to serve eight year[s] imprisonment. Mr.

Lewis is a career criminal and must be taken out of society to protect that very society. [44] Having considered all of the cases and the circumstances of this case and the brutal force and intimidation used against the Careys as well as the Victim Impact Statement of Mrs. Cary, I find that eight years is in the mid range for such a case. [ 18 ] With respect to the breach of recognizance and breach of probation charges, the trial judge wrote: [45] Mr. Lewis was on probation and bound by a recognizance at the time he committed these offences. It is obvious that court orders mean nothing to Mr. Lewis.

However, court orders are serious matters for which breaches carry a maximum prison term of two years for each breach. [46] By his actions Mr. Lewis has made a mockery of these court orders. Others must not make the same mistake. Deterrence is the prime consideration in sentencing for these offences.

[47] After consider[ing] Mr. Lewis’ long criminal record, including numerous breaches of court orders, I am sentencing Mr. Lewisto serve nine months incarceration on each of these offences to be served consecutively to each other and to be served consecutively tothe eight years imprisonment for the home invasion. These are stand alone offences and must be treated as such, especially where thereis a history of breaching court orders. [19] The only comment in the sentencing decision that refers, in any manner, to the total sentence is: [48] Since Mr.

Lewis was on remand for the past 9 1/2 months, he will be credited with a period of 18 months towards his totalsentence. In other words, Mr. Lewis will serve eight years in total. ISSUES ON APPEAL [20] In his notice of appeal, Mr. Lewis identified 18 separate grounds of appeal, the majority of which were focused on allegedbreaches of sections 7, 8, 9 and 15 of the Charter, and claims that, as a consequence, the trial judge ought to have excluded the evidencecontained in the garbage bags seized by the police, and ought to have excluded both statements given by Mr.

Lewis to the police on thebasis that the taking of the statements flowed from the Charter breaches. Four of the grounds of appeal related to alleged errors insentencing including alleged failure to take totality into account. [21] In his factum, after a change of solicitors, Mr. Lewis confined the issues with respect to appeal of the convictions to: 1. Did the trial judge misapply the test for abandonment set out in R. v. Patrick 2009 SCC 17 , [2009], 1 S.C.R. 579? 2.

Did the trial judge err by failing to find that the appellant had an expectation of privacy with respect to the garbage seized by thepolice on April 16th, 2009? 3. Did the trial judge err in not finding a breach of s. 8 (unreasonable search and seizure) and err by not excluding evidence such asthe items found in the garbage bags seized and the statements made by the appellant to the police and the undercover operant? [22] With respect to sentencing, in his factum, Mr. Lewis identified the issues as: 1.

Did the trial judge impose [a] demonstrably unfit sentence when he imposed a sentence of 8 years for the break and enter and 18months consecutive for the two breaches of court orders? Were the sentences imposed disproportionate to the gravity of the offence andthe degree of responsibility of the offender. 2. Did the trial judge err by failing to consider totality, and, thereby imposed a sentence which was unduly long and/or harsh? 3. Did the trial judge err by attributing a leadership role to the appellant which was not supported by the evidence? 4.

Did the trial judge err by making inferences about the role of the Appellant not supported by the evidence? [23] In oral argument, counsel for Mr. Lewis essentially recognizes that what was put forward in the factum as three separate issueson the appeal against conviction is in reality, three aspects of a single issue. That single issue is: whether the trial judge erred inconcluding that Mr.

Lewis did not have a reasonable expectation of privacy and there was, therefore, no breach of the appellant’s section8 Charter rights and, as a result, admitting in evidence the contents of the garbage bags and the two statements given by Mr. Lewis to thepolice. Counsel argued his appeal against conviction on that basis, which I will deal with as “Issue 1”. [24] The three further issues emphasized in oral argument all relate to the sentence appeal. Although the issues on sentencing wereexpressed somewhat differently in Mr.

Lewis’ factum, and responded to in the same manner in the Crown’s factum, the argumentsaddressed to the Court at the hearing are most conveniently dealt with as: “Issue 2”, whether the trial judge erred in imposing a sentencefor the break and entry conviction that is unfit by reason of it being the same eight year sentence as he imposed on the three persons whoactually entered the house and committed the acts of violence; “Issue 3”, whether the trial judge erred in imposing sentences that areunfit for the breach of recognizance and breach of probation convictions; and “Issue 4”, whether the trial judge erred by failing toconsider the totality principle.

THE LAW (

a) The law with respect to the conviction issue: alleged breach of

section 8 of the Charter [25] It is not necessary, for purposes of this appeal, to do an exhaustive review of the authorities to discern the principles applicableto determination of the merits of an allegation of breach of a person’s

section 8 Charter right to be free from unreasonable search andseizure. Both Mr. Lewis and the Crown cite R. v. Patrick, and rely almost exclusively on the reasons of Binnie J. to support thepropositions they put forward. That is quite understandable because that decision is a very recent decision of the Supreme Court ofCanada dealing with an alleged breach of

section 8 in respect of a warrantless seizure of a garbage bag left in an open container justinside the boundary of property, circumstances nearly identical to the circumstances under consideration in this appeal. [26] It is, however, important to recognize that in a number of earlier decisions the Supreme Court identified the existence of areasonable expectation of privacy as a prerequisite to assertion of a

section 8 Charter right. In R. v. Tessling, 2004 SCC 67 ,[2004] 3 S.C.R. 432, (at paragraph 18) the Court commented that “only where those state examinations constitute an intrusion uponsome reasonable privacy interest of individuals does the government action in question constitute a search within the meaning of section8” and “it is only if the police activity invades a reasonable expectation of privacy that the activity is a search”.

Binnie J., who authoredboth the decision in Tessling and the decision in Patrick, writing for the Court in Tessling, summarized the Court’s view when he wrote: 19 Accordingly, the Court early on established a purposive approach to s. 8 in which privacy became the dominant organizingprinciple. “The guarantee of security from unreasonable search and seizure only protects a reasonable expectation”: Hunter v. Southam,

supra, at p. 159 (emphasis in original). Given the bewildering array of different techniques available to the police (either existing orunder development), the alternative approach of a judicial “catalogue” of what is or is not permitted by s. 8 is scarcely feasible. Theprincipled approach was carried forward in R. v.

Edwards, (SCC), [1996] 1 S.C.R. 128, at para. 45, where Cory J.,referring to the need to consider “the totality of the circumstances”, laid particular emphasis on (1) the existence of a subjectiveexpectation of privacy; and (2) the objective reasonableness of the expectation. [27] Binnie J. then adopted and employed the “totality of circumstances” test for determining whether a reasonable expectation ofprivacy existed, patterned on the test set out in Edwards. However, he noted that “the questions need to be tailored to the circumstancesof the present case”.

That case involved forward looking infrared technology and Binnie J. tailored the questions to suit thatcircumstance. In Patrick, a case involving seizure of a bag of garbage in circumstances nearly identical to the circumstances before us,Binnie J., following the Tessling principles, identified four questions to be addressed as follows: 1. What was the nature or subject matter of the evidence gathered by the police? 2. Did the appellant have a direct interest in the contents? 3. Did the appellant have a subjective expectation of privacy in the informational content of the garbage? 4.

If so, was the expectation objectively reasonable?

In this respect, regard must be had to: a. the place where the alleged “search” occurred; in particular, did the police trespass on the appellant’s property and, if so, what isthe impact of such a finding on the privacy analysis? b. whether the informational content of the subject matter was in public view; c. whether the informational content of the subject matter had been abandoned; d. whether such information was already in the hands of third parties; if so, was it subject to an obligation of confidentiality? e. whether the police technique was intrusive in relation to the privacy interest; f. whether the use of this evidence gathering technique was itself objectively unreasonable; g. whether the informational content exposed any intimate details of the appellant’s lifestyle, or information of a biographic nature. [28] Answering those four questions and considering the factors to be considered in answering the fourth question is the approachtaken by Mr.

Lewis in his factum and the Crown in its factum. Answering those four questions enables assessment of the totality ofcircumstances. (

b) The law with respect to the sentencing issues [29] The law at issue, with respect to fitness of the sentences, is not complex. For purposes of this appeal, it can be simplyexpressed by reference to a few brief comments from decisions of the Supreme Court of Canada. In R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227 Iaccobucci J., at paragraph 47, wrote: In considering whether a sentence should be altered, the test is not whether we would have imposed a different sentence; we mustdetermine if the sentencing judge applied wrong principles or [if] the sentence is clearly or manifestly excessive.

He also commented, at para. 50, that: Unreasonableness in the sentencing process involves the sentencing order falling outside the “acceptable range” of orders… In R. v. M.(C.A.), (SCC), [1996] 1 S.C.R. 500 at para. 90, Lamer CJC, writing for the Court, wrote: Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court ofappeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit.

Parliament explicitly vestedsentencing judges with a discretion to determine the appropriate degree and kind of punishment under the Criminal Code… (Emphasis in original.) In R. v. McDonnell, (SCC), [1997] 1 S.C.R. 948, Sopinka J., after quoting and adopting the foregoing comments, atpara. 17, wrote: In my opinion, the decision to order concurrent or consecutive sentences should be treated with the same deference owed by appellatecourts to sentencing judges concerning the length of sentences ordered. In R v.

Nasogaluak , 2010 SCC 6 , [2010] 1 S.C.R. 206, Lebel J. wrote for the Court and, at paragraph 44, wrote: [44] The wide discretion granted to sentencing judges has limits. It is fettered in part by the case law that has set down, in somecircumstances, general ranges of sentences for particular offences, to encourage greater consistency between sentencing decisions inaccordance with the principle of parity enshrined in the Code. But it must be remembered that, while courts should pay heed to theseranges, they are guidelines rather than hard and fast rules.

A judge can order a sentence outside that range as long as it is in accordancewith the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is notnecessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community inwhich the offence occurred.

[ 30 ] With respect to the question of totality, because some decisions of this Court reflected somewhat varying views as to the manner in which the issue is to be addressed, the Court in R. v. Hutchings , 2012 NLCA 2 , was constituted of five judges to consider those views and resolve the lack of certainty. The decision in that case expressed a definitive view as to the approach to be taken to address the question of totality. Green CJNL, writing for an unanimous Court, wrote: [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. [ 31 ] After considering the jurisprudence of recent years, Green CJNL also commented on the effect of the addition of

section 718.2 to the Criminal Code and, in particular, paragraph (

c) which requires a court imposing consecutive sentences to take into consideration that “the combined sentence should not be unduly long or harsh”. With respect to the word “harsh”, he wrote: [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 of circumstances 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 an overall sentence to achieve a proper totality, it cannot define the parameters of the notion of “harsh” within s. 718.2 (c).

It would also have to be balanced against other factors, such as his record, the number of offences involved and the perception of the overall inherent gravity of the offence. [ 32 ] Following those comments, Green CJNL set out, at paragraph 84, as “guidelines for the analytical approach to be taken”, the following: 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 shouldfirst attempt to adjust one or more of the sentences by making it or them concurrent with other sentences, but if that does not achieve theproper 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, withoutconsiderations 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 thispurpose, 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 anycredit for pre-trial custody and if so, by how much. [33] The foregoing comments and guidelines reflect the approach this Court and other courts in the province should take whendealing with the issue of totality.

ANALYSIS Issue 1: Alleged Charter Breach and Admissibility of the Challenged Evidence [34] Counsel for Mr. Lewis started his oral argument by noting that the appeal on conviction is on a very narrow ground. Heacknowledges that, if this Court concludes that the trial judge was correct in his decision to admit the evidence obtained from the bags ofgarbage, and the further evidence derived as a result of the police having access to the information contained in those garbage bags, thatwould be decisive of the appeal respecting conviction.

The convictions are not now challenged on any other basis. [35] As noted above, both Mr. Lewis and the Crown present their factum arguments in the context of posing and answering the fourquestions in the “totality of circumstances” test adopted by Binnie J. in Patrick, and set out in paragraph 27 above. Each, however,collapsed their arguments on questions 1, 2 and 3 as a single presentation in addressing the critical first part of the test: Did Mr. Lewishave a subjective expectation of privacy in the informational content of the garbage?

As there are no substantial differences between theparties as to the nature of the evidence or the fact that Mr. Lewis had some informational interest in the content of the garbage bags, thenature of questions 1, 2 and 3 readily permits their treatment in that manner. It will, therefore, be convenient for the Court to consider thearguments of both parties by following the form and sequence they adopted. Depending on the conclusions reached in the course of theprocess, it may not be necessary to consider all of their arguments in respect of some of the factors identified for consideration underquestion 4. (

a) Questions 1, 2 and 3 cumulatively: Did Mr. Lewis have a subjective expectation of privacy in the informational content ofthe garbage? (

i) Argument of Mr. Lewis [36] Mr. Lewis cites and relies on Patrick as authority for his proposition that a person can have a very high expectation of privacyin a bag of garbage on the basis of the fact that, in reality, it is a “bag of information”. At the hearing, his counsel argued that the trialjudge erred by taking into account that Mr. Lewis did not own the garbage in the bags when he commented that “the evidence does notindicate these items were the property of Mr. Lewis or that he had any direct interest in them”.

He argues that the trial judge “seems todiminish” the importance of the privacy interest and, in support of the argument, quotes the comment of the trial judge that: [53] It would seem then that there is a general concession that an accused such as Mr. Lewis would be presumed to have somesubjective expectation of privacy. Such subjective expectation, however, is not to be tested on a reasonable basis but to be tested on anobjective basis.

At paragraph 38 Binnie, J. stated as to whether or not there was, objectively, a reasonably expectation of privacy stated: The reasonable expectation of privacy "can vary with the nature of the matter sought to be protected, the circumstances in which and theplace where state intrusion occurs, and the purposes of the intrusion": R. v. Colarusso, (SCC), [1994] 1 S.C.R. 20, at p.53; see also R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at paras. 22, 23 and 24. Four factual elements are of prime importance in the appeal: (

i) the garbage was put out by the appellant for collection in the customarylocation for removal, (ii) that location was at or near the property line, (iii) there was no manifestation (such as a locked receptacle) ofany continuing assertion of privacy or control, and (iv) the police took the bags to search for information about activities within the homeas part of a continuing criminal investigation. [Emphasis mine] [37] In his factum Mr.

Lewis then argues that: The Appellant’s reading of Patrick is that Binnie [J] is acknowledging that a person may have a high expectation of privacy in relationto their garbage rather than grudgingly and tepidly accepting that is so. [The trial judge] seems to be suggesting that the nature of thecontents in this case would weigh against a subjective expectation of privacy. The Appellant submits that [the trial judge] wronglyapplies this aspect of the analytical framework and as Binnie [J] suggests the difference in perspective makes a difference in the result. [38] In

summary, Mr. Lewis submits that, as a result of misapplication of the tests, the trial judge failed to presume that Mr. Lewishad a subjective expectation of privacy in the informational content of the garbage bags. That misapplication of the test, Mr. Lewis

argues, “clearly colours his consideration of the totality of the circumstances”. (ii) Argument of the Crown [39] The Crown challenges the submission in Mr. Lewis’ factum that Binnie J. acknowledges, in Patrick, that a person may have avery high expectation of privacy in relation to their garbage. The Crown also challenges the submission of Mr. Lewis that the trial judge“incorrectly minimized” Mr. Lewis’ subjective expectation of privacy and submits that “the trial judge did presume that Mr. Lewis hadsome subjective expectation of privacy” in the garbage.

The Crown also notes that: The [Crown] concedes the police trespassed on the property of 189A Merrymeeting Road but notes the trial judge found it to be aminimal trespass which would have only caused insignificant interference with the enjoyment of the property by the residents there. (iii) Conclusion respecting the existence of a subjective expectation of privacy [40] In Patrick, Binnie J., citing earlier decisions of the Court adopted the conclusion that “it may be presumed unless the contraryis shown in a particular case that information about what happens inside the home is regarded by the occupants as private, without needof testimony from the accused [emphasis added]”.

Applying that approach to this case would have required that the trial judge presumethat Mr. Lewis, as an occupant of the residence, had a subjective privacy interest in the bags of garbage seized by the police, there beingno convincing evidence to the contrary. I am of the view that the trial judge’s comment that “it would seem then that there is a generalconcession that an accused such as Mr. Lewis would be presumed to have some subjective expectation of privacy” clearly indicates thetrial judge’s presumption of Mr.

Lewis’ subjective privacy in the contents of the bag of garbage. [41] I do not accept the argument of counsel for Mr. Lewis that by his comment “the evidence does not indicate these items werethe property of Mr. Lewis or that he had any direct interest in them”, or any other comment he made, so diminishes or undervalues Mr.Lewis’ subjective expectation of privacy as to amount to a misapplication of the test. The trial judge was dealing with Mr. Lewis’expectation of privacy in the informational content and simply noted the fact that Mr. Lewis had no proprietary interest in the physicalcontent.

Notwithstanding that fact, the trial judge presumed Mr. Lewis had a subjective expectation of privacy. Neither do I find anymerit in Mr. Lewis’ submission that the trial judge erred by “grudgingly and tepidly accepting” that Mr. Lewis had a subjectiveexpectation of privacy in the garbage instead of finding that he had “a very high expectation of privacy”. While another judge may haveexpressed the conclusions in a different manner, I can find no error in the effective conclusions of the trial judge. He clearly proceededon the basis of a presumption that Mr.

Lewis had a subjective expectation of privacy in the bags of garbage. (

b) Question 4: Was Mr. Lewis’ expectation of privacy objectively reasonable? [42] Having presumed that Mr. Lewis had a subjective expectation of privacy in the bags of garbage, it remained to be determinedwhether that was a reasonable expectation of privacy protected by

section 8 of the Charter. As Binnie J. decided in Patrick, that requiresthe objective assessment of whether the expectation is one that an independent and informed observer is prepared to recognize asreasonable. Considered in the context of garbage, this raises the question of the effect of abandonment of material in respect of whichthere is a presumed expectation of privacy. On that matter, Binnie J., in Patrick, made the following comments: [22] In R. v. Dyment, (SCC), [1988] 2 S.C.R. 417, La Forest J. treated abandonment as fatal to a reasonable expectationof privacy.

He held that when an accused abandons something, it is “best to put it in Charter terms by saying that he [has] ceased tohave a reasonable expectation of privacy with regard to it” (p. 435). [23] In R. v. Stillman, (SCC), [1997] 1 S.C.R. 607, McLachlin J., in dissent, but not on this point, stated that “[t]hepurpose of s. 8 is to protect the person and property of the individual from unreasonable search and seizure.

This purpose is not engagedin the case of property which the accused has discarded” (para. 223). (To the same effect see Cory J. for the majority at para. 62, andMajor J., concurring in part, at para. 274.) …. [25] Abandonment is therefore an issue of fact. The question is whether the claimant to s. 8 protection has acted in relation to the subjectmatter of his privacy claim in such a manner as to lead a reasonable and independent observer to conclude that his continued assertion ofa privacy interest is unreasonable in the totality of the circumstances. (

i) Argument of Mr. Lewis [43] With respect to the first factor usually considered in answering question four, the place where the alleged search occurred in thecontext of the trespass if any and the impact of any trespass, after comparing the conclusion of the trial judge with the conclusion ofBinnie J. in Patrick, Mr. Lewis acknowledges that while there was a trespass, it resulted in insignificant interference. With respect to thesecond factor, whether the informational content of the garbage bag was in public view, Mr. Lewis correctly observes that, because thebags were opaque, it was not.

It is the third factor, whether the informational content of the garbage bag had been abandoned, that is thecritical consideration in this appeal. In fact, in his factum, Mr. Lewis acknowledged that: The result in Patrick turned on this consideration and also the result in this matter. [44] In his factum, Mr.

Lewis then quotes from the decision of Binnie J. in Patrick, the following excerpts: [54] … Logically, because abandonment is a conclusion inferred from the conduct of the individual claiming the s. 8 right, thereasonableness line must relate to the conduct of that individual and not to anything done or not done by the garbage collectors, thepolice or anyone else involved in the subsequent collection and treatment of the “bag of information”. ….

[62] Nevertheless, until the garbage is placed at or within reach of the lot line, the householder retains an element of control over its disposition and cannot be said to have unequivocally abandoned it, particularly if it is placed on a porch or in a garage or within the immediate vicinity of the dwelling where the principles set out in the “perimeter” cases such as Kokesch , Grant and Wiley apply. [63] … However, when the garbage is placed at the lot line for collection, I believe the householder has sufficiently abandoned his interest and control to eliminate any objectively reasonable privacy interest.

He follows those excerpts with quoting the earlier remarks of Binnie J. in Patrick , as follows: [2] In my view, the appellant’s initial privacy interest in the evidence was abandoned when he placed the bags for collection as garbage from a stand indented in the back fence of his Calgary home adjacent to a public alleyway, to which any passing member of the public had ready access. The police had no greater access in this regard than the public, but their access was no less.

At that point, the appellant had done everything required to rid himself of the contents, including whatever private information was embedded therein, and this conduct, I believe, was inconsistent with the continued assertion of a constitutionally protected privacy interest. I would therefore dismiss the appeal. [ 45 ] Mr. Lewis’ position with respect to the question of abandonment is effectively summarized in the following paragraph from his factum: The appellant submits that the action of the appellant is very different from the actions of Patrick .

There was no evidence to suggest that the place where the garbage seized by the police was the customary place for the garbage to be placed for pick up by the City. The appellant had not put the garbage to the curb therefore it could not be said that he had done anything he could to rid himself of the contents of the garbage. The abandonment was not unequivocal. In fact, the upstairs tenant Aaron Hunt testified that the tenants at 189A kept their garbage outside their front door regardless of the day of pick up.

Furthermore, it was clear that pick-up was not to take place for 5 days. (ii) Argument of the Crown [ 46 ] The Crown acknowledges that the information was concealed from view and notes that the trial judge found it to be a minimal trespass which would have caused only insignificant interference with the enjoyment of the property. Crown counsel submits, however, “that the totality of the circumstances lead to the reasonable inference that the garbage was abandoned”. In particular, he refers to the photographic evidence and location of the garbage in relation to the boundary and the sidewalk.

He argues that there was no continuing assertion of control by Mr. Lewis and that the garbage was open to anyone, including the police. Counsel submits that there was no way Mr. Lewis could deny anyone access to that garbage. He argues that “the totality of the circumstances lead to the reasonable inference that the garbage was abandoned”. [ 47 ] In its factum the Crown also submits that: Even more so, than in Patrick , the garbage was open and visible to the general public. (iii) Conclusion respecting abandonment [ 48 ] In Patrick the court was dealing with a circumstance quite similar to the one before us.

Binnie J. explained that the police suspected that the appellant in that case was operating an ecstasy lab in his home and, on several occasions, “they grabbed bags located inside garbage cans placed on a stand (without lids) just inside his property line… The officers did have to reach through the air space over the property line in order to retrieve the bags.” The garbage stand was some 17 metres to the rear of the house on a back alley. [ 49 ] Except for the existence of a garbage stand from which garbage was expected to be collected and the distance from the house, the circumstances are quite similar to the ones before us.

Here the garbage was in plastic garbage bags in a garbage container with no lid. The container was 1.7 feet inside the property boundary, which the photographs and other evidence indicate was adjacent to city property and a foot or two from the sidewalk. At the point where the garbage container was located, there was no fence between the residential property and the sidewalk. [ 50 ] The crux of Mr. Lewis’ argument, as his counsel emphasized it on oral argument, can be discerned from the excerpt from his factum quoted in paragraph 47 above.

Essentially, he argues that there is no evidence that the place where the garbage container was located is “the customary place” from which the city picks up the garbage. He notes also that a city by-law requires garbage to be placed by the curb and that the pick up was not to take place for five days. From that he submits that “the abandonment was not unequivocal”. The essence of his argument is that garbage must be placed at the curb in accordance with the city by-law at a time convenient to allow for pick up in order for it to be considered abandoned. [ 51 ] Counsel for Mr.

Lewis argues that the comments made by Binnie J. in Patrick support his submission. I disagree. It is accurate to say that Patrick is authority for the proposition that so placing garbage is indicative of abandonment, but it is not authority for the proposition that only if it is so placed can it be deemed abandoned. Counsel’s submission is also effectively refuted by other comments of Binnie J. in Patrick , including: [43] I also do not think constitutional protection should turn on whether the bags were placed a few inches inside the property line or a few inches outside it.

The point is that the garbage was at the property line, accessible to passers-by. (Emphasis added.) Similarly, counsel’s submission is quite inconsistent with the comments of Binnie J. that:

[64] Given the “totality of the circumstances” test, little would be gained by an essay on different variations of garbage disposal.

To take a few common examples, however, the rural people who take their garbage to a dump and abandon it to the pickers and the seagulls, the apartment dweller who unloads garbage down a chute to the potential scrutiny of a curious building superintendent, and the householder who takes surreptitious advantage of a conveniently located dumpster to rid himself or herself of the “bag of information” are all acting in a manner inconsistent with the reasonable assertion of a continuing privacy interest, in my view. [ 52 ] When the photographs of the area are examined, it becomes obvious that the trial judge made no error when he found that the garbage container was located: … about as far away from the front entrance to the residence as it could be placed without being on or outside the property line.

This would seem to be a place where the garbage would have been customarily located for removal. and found that it was: … as far away from the front door as possible … easily accessible to be picked up by the garbage collection. At that point the garbage container was open and accessible to anybody on the city property and sidewalk two or three feet away.

The factual finding by the trial judge that the garbage was abandoned cannot be challenged. [ 53 ] Applying two of the principles identified and adopted by Binnie J. in Patrick , “abandonment [is] fatal to a reasonable expectation of privacy” and “[t]he purpose of

section 8 … is not engaged in the case of property which the accused has discarded”, there can be no doubt that Mr. Lewis did not have a reasonable expectation of privacy in the information seized by the police from the garbage bags taken by them from 189A Merrymeeting Road. It is not, therefore, necessary to specifically consider the remaining question 4 factors. As Mr. Lewis’ factum acknowledges, “The result in Patrick turned on this consideration and also the result in this matter”. The trial judge made no error when he concluded: In the present case, viewed objectively, I find that Mr.

Lewis did not have a reasonable expectation of privacy in that the garbage bucket was placed at almost the extreme boundary of the property close to a busy, combined, commercial and residential street, in full view and with easy access by the public or any other interested life form, for example, dogs, cats, gulls or crows, the garbage bucket had no lid on it nor was it itself in any restraint box or system.

It was open to anybody interested in it, including scavengers or, as in this case, the police. [ 54 ] As a result of the foregoing, the challenged evidence admitted by the trial judge must be found to have been properly admitted. Accordingly, the appeal against conviction on the break and enter charge is dismissed. The conviction on that charge being proper and the probation order and recognizance having been proved, the appeal in respect of the conviction for breach of probation and in respect of the conviction for breach of recognizance must also be dismissed.

Issue 2: Whether a sentence of eight years for the break and enter conviction is unfit. (

a) Argument of Mr. Lewis [ 55 ] In his factum Mr. Lewis argues that the trial judge “erred by ascribing a leadership role to the appellant that is not supported by the evidence” and that he erred by drawing inferences as to Mr. Lewis’ greater role and, in particular, erred in drawing the inference that “Mr. Lewis’ precise knowledge of the events that took place at the crime scene places him in the immediate proximity of 23 MacKenzie Street”. [ 56 ] It is also submitted, in his factum, that notwithstanding the trial judge’s finding that Mr.

Lewis lied throughout his statements to the police, the trial judge nonetheless accepted some of his statements as true if they assisted in finding aggravating facts. It is argued that the trial judge uses speculation based upon the appellant’s statements to find aggravating facts. (

b) Argument of the Crown [ 57 ] The Crown challenges Mr. Lewis’ submission that the trial judge ascribed a leadership role to Mr. Lewis and argues that “nowhere in the judgment is [Mr. Lewis] labeled as a leader”. The Crown submits that the language used describing Mr. Lewis’ role is “colourful but not factually incorrect”. Instead, the Crown submits, the trial judge found Mr.

Lewis to have facilitated the home invasion, having learned of the money from Christopher Webster while in the penitentiary, told the others who were with him that night about the money and its location, and paid for the taxi trip which resulted in pinpointing the location of 23 MacKenzie Street. The Crown submits that the actual finding of the trial judge is that it was Mr. Lewis who “brought the knowledge together and enabled the home invasion to occur”. [ 58 ] With respect to the inferences drawn by the trial judge as to Mr.

Lewis’ level of knowledge of the events that took place at the crime scene, the Crown submits that the trial judge did not cite this as an aggravating factor in his sentencing decision. Rather, it is in the trial judge’s decision on conviction. The Crown also submits that “while there is no direct evidence that [Mr. Lewis] was in the immediate vicinity of 23 MacKenzie Street, the trial judge was entitled to draw inferences from the facts as he found them”. [ 59 ] In any event, the Crown submits, citing this Court’s decision in R. v.

Power , 2011 NLCA 68 , 312 Nfld. & P.E.I.R. 31 that, even if the trial judge made a factual error on the point, “the effect of that error was not material and [thus] was not such as to warrant setting aside the sentence”. (

c) Conclusion with respect to alleged errors [ 60 ] Before setting out my conclusions I would note the Crown’s submission that the trial judge’s finding that Mr. Lewis was in the immediate proximity of 23 MacKenzie Street was not cited as an aggravating factor but rather was a comment in the trial judge’s decision on conviction, while accurate, is of no consequence. The trial judge was dealing with the issue of the penalty appropriate for

Mr. Lewis’ involvement in the crime. He was entitled to rely on all of the evidence and his findings in relation to the conviction in deciding that there was no basis for imposing a lesser sentence on Mr. Lewis than that which would be appropriate for the others who participated in the crime. On sentencing, an aggravating factor that is disputed is, like an essential element of the offence, required to be proven beyond a reasonable doubt. (See Criminal Code , s. 724(3)(e)). [ 61 ] The trial judge did a very extensive assessment of what he described as “Mr.

Lewis’ explanation of his involvement” based on consideration of the statements he gave to the police. He did so, he said, because his analysis of Mr. Lewis’ level of involvement “relies heavily on what Mr. Lewis had to say in these statements to the police”. He quoted extensively from those statements. [ 62 ] The trial judge set out a detailed assessment of the conclusions that he drew from the evidence and the evidence on which he relied to support those conclusions.

He also set out, in considerable detail, the inferences that he drew and the reasons for his drawing those inferences from the whole of the evidence before him. In particular, he referred frequently to the comments of Mr. Lewis in his statements to the police. In doing so, he demonstrated the existence of a basis for the inferences that he drew as to the role played by Mr. Lewis in the criminal adventure and the basis for his conclusions that Mr.

Lewis was in the vicinity of 23 MacKenzie Street at or immediately before the time the other three carried out the break and entry. [ 63 ] Earlier in his reasons the trial judge cited R. v. Jackson , 2007 SCC 52 and quoted excerpts from it.

After concluding a thorough and detailed examination of the evidence and setting out the basis for his credibility decisions, the conclusions to which he came, and the inferences that he drew, the trial judge wrote the following: … As in Aires-Jackson the cumulative effect of that evidence along with the other matters I have considered above convinces me beyond a reasonable doubt that Mr. Lewis aided the principles[sic] in carrying out these serious crimes and further that he knew what the plan was and how it would be carried out when all four discussed it at Mr. Lewis’ residence. Mr.

Lewis did what he did for the purpose of aiding these three men and I am convinced beyond a reasonable doubt that he had the “ mens rea ” or guilty mind to aid the principal offenders and intended the consequences that flowed from this aid to them. Mr. Lewis may not have desired or approved of the consequences that flowed from his assistance to the principals however that does not negate his intention to aid in the commission of these crimes and thus make himself a party to the offences. [ 64 ] I am of the view that the trial judge’s approach to determining the level of involvement of Mr.

Lewis in the crime was a valid basis for determining his guilt. Essentially, that was accepted by Mr. Lewis when he acknowledged that the conviction could only be challenged on the basis of his

section 8 Charter argument. It follows that it is an equally valid basis for determining Mr. Lewis’ level of culpability in the process of sentencing. I can find no error in principle in the trial judge’s use of any of the conclusions to which he came and the inferences that he drew in the process of determining Mr. Lewis’ culpability and relying on those inferences to determine the sentence appropriate to Mr.

Lewis’ participation in this crime. [ 65 ] With respect to the fitness of the sentence generally, the trial judge’s conclusion, that eight years is a term of imprisonment appropriate for involvement in the heinous crime of forcefully breaking into the residence of Mr. and Mrs. Carey, the physical mistreatment of Mrs. Carey, and the brutal beating of Mr. Carey, is in accord with the jurisprudence. As well, as the trial judge noted, Mr. Lewis has a record of more than 100 criminal convictions. At least five of those include convictions for break and entry, the latest of which was in June, 2008.

Several others involve offences of the nature of assault, assault causing bodily harm, assault with a weapon, and uttering threats. The trial judge correctly took that criminal record into account. [ 66 ] The Crown’s response to Mr. Lewis’ argument, that because he was not a direct participant in the actual break and entry and the physical beatings of Mr. and Mrs. Carey he should not receive a sentence as severe as those who were, is also a relevant consideration The Crown notes that two of the three benefited from a joint submission following a guilty plea while Mr. Lewis did not.

Thus, the Crown submits, they could expect a quid pro quo to which Mr. Lewis was not entitled. [ 67 ] Taking all of the circumstances into account, the sentence of eight years imprisonment cannot be said to be demonstrably unfit. For all of the foregoing reasons, the appeal against the imposition of a sentence of eight years for the break and entry into the home of the Careys is dismissed. Issue 3: Whether the trial judge erred in imposing sentences that are unfit for the breach of recognizance and the breach of probation convictions. (

a) Argument of Mr. Lewis [ 68 ] Mr. Lewis cites R. v. Oxford , 2010 NLCA 45 and submits that the appropriate period of incarceration for breaches of court orders is six months on each of the offences. He submits that the nine month sentences are unfit and that they should have been imposed concurrent to each other and to the sentence for break and entry. (

b) Argument of the Crown [ 69 ] The Crown argues that Mr. Lewis was, at the time of the break and entry into the Carey residence, on probation arising out of a previous break and entry conviction, as well as on a recognizance as a result of being charged with dangerous driving. The Crown cites R. v. Murphy , 2011 NLCA 16 as authority for the proposition that sentences for breaches of court orders should be imposed in such a manner as to be served consecutively to other dispositions. The Crown also submits that “given the number of breaches of court orders on Mr. Lewis’ criminal record, … nine months consecutive for each breach is within the range”. (

c) Conclusion respecting fitness of the sentences for breach of probation and breach of recognizance [ 70 ] With respect to conviction for the indictable offence of breach of a court order, this Court, in Oxford at paragraph 103 , held that “six months for the indictable offence would be well within the normal range for such an offender as Mr. Oxford in circumstances similar to those in this case …”. ( Followed in Murphy , see paragraph 35 ). In considering the applicability of the standard that this Court approved in Oxford to the circumstances of Mr. Lewis, it is helpful to consider what the Court wrote about Mr. Oxford’s record. At

paragraph 21 the Court wrote: Mr. Oxford’s criminal record was placed before the Court. It does include four convictions for the offence of assault as the trial judge noted. However, the first of these was in 1989, the second in 1993 and the third and fourth both in 1994. None of the convictions subsequent to 1994 involved violence. Two are for theft, two relate to impaired driving and four relate to failure to comply with conditions of an undertaking. That record establishes that Mr.

Oxford had not been convicted of an offence involving violence for fifteen years. [ 71 ] That record is in marked contrast to the record of Mr. Lewis who, in addition to the record of serious criminal offences noted above, also has a record of more than 50 fraud, forgery, impersonation, false pretense and theft type offences, as well as more than 30 convictions for failure to comply with court orders.

In such circumstances, this Court cannot justify interfering with the trial judge’s exercise of discretion simply on the basis that the sentence imposed is outside the generally accepted range. (See Nasogaluak , at paragraph 44 , quoted in paragraph 29 above). [ 72 ] Bearing in mind the seriousness of the underlying offence which resulted in the convictions for breach of probation and breach of recognizance, the fact that Mr. Lewis was on probation following conviction for a previous break and entry offence, and Mr.

Lewis’ abysmal record with respect to breaches of court orders, a sentence of nine months for each of the charge of breach of probation and the charge of breach of recognizance is quite consistent with the sentence of six months in Oxford . In the circumstances of this case, imposing the additional three months can only be viewed as a principled exercise of discretion. Consistent with Nasogaluak, this Court ought not to intervene in that exercise of the trial judge’s discretion. He made no error in principle and, clearly, the sentences have not been shown to be demonstrably unfit.

Issue 4: Whether the trial judge erred by failing to consider totality (

a) Argument of Mr. Lewis [ 73 ] Mr. Lewis relies on

section 718.2 of the Criminal Code requiring courts that impose consecutive sentences to take into consideration that “the combined sentence should not be unduly long or harsh.” In his factum Mr. Lewis submits that: A sentence offends the totality principle if the overall sentence for multiple offences is unduly harsh or long considering the gravity of the offence and the degree of responsibility of the offender. (

b) Argument of the Crown [ 74 ] The Crown acknowledges that the trial judge did not “overtly” consider the principle of totality. It argues, however, that that fact alone is not sufficient to warrant interference by the Court. Rather, the Crown, citing R. v. Lin , 2007 NLCA 13 , submits that: The sentence to be served, before pre-trial credit was deducted, was nine and one half years. Given the range for home invasion as outlined by the trial judge, it cannot be said that the aggregate sentence was substantially above the normal level of a sentence for the most serious of the individual offences involved.

Nor, given Mr. Lewis’ criminal record and prospects, can the sentence be seen as crushing, unduly long, or harsh. (

c) Conclusion respecting totality [ 75 ] As noted above, this Court very recently, and subsequent to the decision of the trial judge, expressed definitive views respecting application of the totality principle. It is obvious that the decision of the trial judge does not meet the requirement that totality be considered in all cases “involving the potential imposition of consecutive sentences” (See Hutchings and the Court’s earlier decision in R. v. E.W.A. , 2009 NLCA 47 , 289 Nfld. & P.E.I.R. 36. That is an error in principle and this Court must, therefore, address the question of totality.

The guidelines for doing so are excerpted in paragraphs 30 to 32 above. [ 76 ] The first four guidelines are essentially already addressed in the comments above respecting the other sentencing issues and bring me to the factors identified in guideline 5. With respect to the first, the length of the combined sentence in relation to the normal level of sentence for the most serious of the individual offences involved, bearing in mind the range of sentences for home invasion with the kind of brutality that was involved here, cannot be said to be unduly long.

With respect to the second factor, the number and gravity of the offences involved, there was only one very serious offence and two breaches of court order type offences. With respect to the third, Mr. Lewis’ criminal record is such that it is difficult to imagine he could have had time for anything else in the last 15 years other than a life of crime. With respect to the fourth factor, the impact of the combined sentence on the offender’s prospects for rehabilitation, it is difficult to give that factor full consideration as no pre-sentence report or other evidence bearing on the issue was before the Court. Mr.

Lewis’ criminal record, however, is such that it can only be concluded that the length of the sentence imposed would have little or no effect on his prospects for rehabilitation. [ 77 ] There is, however, one other fact that should be considered under guideline 5 as an “other factor that may be appropriate”. That factor arises from the definition of “harsh” identified in the excerpt from Hutchings quote in paragraph 76 above. It is there defined as “unpleasantly rough or intense to the senses; cruel or severe”. When one considers that Mr. Lewis was sentenced to eight years imprisonment for his

part in the break and entry and commission of an indictable offence in the residence of Mr. and Mrs.

Carey and that it was those same actions that resulted in his being convicted and sentenced for breach of probation to a further nine months, compounding it with another nine months for breach of recognizance, again solely on the basis of the same actions that resulted in the other two sentences, all to be served consecutively, is, in my view, “unpleasantly rough or intense” and perhaps even “cruel or severe”. [ 78 ] As this Court decided in Murphy and in Hutchings , a sentence for breach of probation and, in my view, breach of any other court order, should, in the ordinary course, be served consecutively.

However, where the same actions results in two or more separate consequential breaches, imposing sentences for the breaches consecutive to each other and all consecutive to the sentence for the underlying offence, can only be viewed as “piling on”, absent some clearly stated reason for so doing. While the nine month sentence is, as I have already decided , appropriate for the breach of recognizance in this cases, making it consecutive to the nine months for breach

of probation and both consecutive to the eight years for the break and entry makes the total sentence “harsh”, as this Court has defined that term in Hutchings . [ 79 ] I would conclude, therefore, that it is appropriate to reduce the combined sentence to achieve a total sentence that does not offend the Criminal Code requirement that a compound sentence not be unduly long or harsh.

In accordance with the guidelines identified in Hutchings , proper totality should be achieved by first making the sentences for breach of probation and breach of recognizance concurrent but those concurrent sentences to be served consecutive to the sentence for break and entry. I would note, in passing, that the Crown agrees that doing so would be appropriate if the Court concluded, on its consideration of totality, that the overall sentence was unduly long or harsh. CONCLUSION [ 80 ] Accordingly, the appeal against the three convictions is dismissed.

The appeal against sentence is allowed and the sentence is varied to the extent only that the nine month sentence for breach of probation and the nine month sentence for breach of recognizance are to be served concurrently and that those concurrent sentences are be served consecutive to the eight year sentence for break and entry. The remainder of the sentencing order of the trial judge was not challenged and is not otherwise affected. C. K. Wells J.A. I concur: M. H. Rowe J.A. I concur: C. W. White J.A.