R. v. Kelly, 2014 NLCA 9

Date: 20140217 Docket: 13/17 Citation: R. v. Kelly , 2014 NLCA 9 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : JONATHAN GORDON KELLY APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Welsh, Rowe and Harrington JJ.A. Court Appealed From: Provincial Court of Newfoundland and Labrador Corner Brook Appeal Heard: January 8, 2014 Judgment Rendered: February 17, 2014 Reasons for judgment by Rowe J.A. Concurred in by Welsh and Harrington JJ.A. Counsel for the Appellant: Derek Hogan Counsel for the Respondent: Elaine Reid Rowe J.A.:

LEAVE TO APPEAL [ 1 ] Pursuant to s. 675(1)(b), Mr. Kelly needs leave of the court to appeal his sentence. Such leave is granted, there being serious (i.e. not frivolous) issues raised in the appeal. FACTS [ 2 ] In July 2012, Jonathan Kelly pleaded guilty to robbery, theft and two associated breaches of probation. He was sentenced as follows: - 30 months for robbery - four months for theft - one month for each breach of probation. All sentences were consecutive, resulting in an overall term of 36 months. [ 3 ] Mr. Kelly appeals only that part of his sentence relating to the robbery.

He says that the sentence is demonstrably unfit and calls on this Court to impose a sentence of 18 months instead. [ 4 ] The sentencing judge set out the facts (based on an agreed statement of facts) in paragraphs 4-9 of his decision ( (2013) 333 Nfld. & P.E.I.R. 114 ): 4 …[o]n July 24, 2012, [the complainant] was walking on the Glynmill Pond Trail. This is a popular and well used trail in the centre of the City of Corner Brook. The parties filed an agreed statement of facts which is attached to this judgment as Appendix “A.” 5 As [the complainant] was walking on the trail she saw a male person (Mr.

Kelly ) walking toward her. As [the complainant] passed Mr. Kelly he grabbed her from behind around her throat and dragged her into a wooded area off of the trail. [The complainant] began to scream and Mr. Kelly told her to “shut up”. [The complainant told Mr. Kelly to take her backpack, but he continued to drag her into the woods.] Mr. Kelly released his grip on [the complainant] and ran off through the woods. [The complainant] crawled out of the woods and back on to the trail.

Her screams alerted four other individuals who were also using the trail and they ran toward her. [The complainant] suffered minor cuts to her legs and back. 6 Mr. Kelly went to a friend’s residence. He asked for assistance in disposing of his clothing and footwear. The clothing and footwear was placed in a shed and subsequently seized by the police. 7 At the scene, the police found a towel that Mr. Kelly had been wearing around his neck when he attacked [the complainant]. Forensic testing located samples of DNA on the towel which matched a sample taken from [the complainant] and Mr.

Kelly’s DNA which had been deposited in the National DNA databank. 8 On November 14, 2012, Mr. Kelly was arrested. He provided a statement to the police admitting to having attacked [the complainant]. Mr. Kelly indicated that he needed money to purchase drugs. 9 On July 24, 2012, Mr. Kelly was bound by a probation order issued on M arch 1, 2012. This order required that he keep the peace and be of good behaviour. [ 5 ] At the time of the attack, the complainant was a high school student, 16 years of age.

The attack terrified her and had serious, harmful consequences, as was made clear in her victim impact statement. [ 6 ] In that statement, the complainant wrote that “I had a huge fear of leaving my house and I lost my trust in people”. She gave examples, stating that she rarely left the house during the rest of the summer, did not get a job or her learner’s driving permit, suffered panic attacks, and missed school which affected her grades.

She wrote that she changed from being an outgoing, energetic, happy teenager to being “sad and scared”. [ 7 ] The sentencing judge outlined the circumstances of the offender in paragraphs 12-14 of his decision: 12 Mr. Kelly is twenty-nine years of age. He was born and raised in Gillams. He described his childhood to the author of the pre- sentence report in “positive terms”. He was enrolled in a plumbing program at the time of his arrest. 13 On March 1, 2012, Mr.

Kelly was sentenced to a period of ninety days incarceration, to be served on an intermittent basis, and placed on probation for a period of twelve months. The pre-sentence report indicates that Mr. Kelly’s “compliance to the Court’s community-based dispositions has been poor in that he has committed other offences while subject to the probation order. Further, Mr. Kelly did not report to his supervisor on a consistent and required basis” though he did “participate in correctional case planning with regard to completing an anger management program.” 14 Mr.

Kelly advised the author of the pre-sentence report that in the spring of 2012 he began using the prescription drug Dilaudid. [ 8 ] Mr. Kelly’s criminal record is as follows: August 2010: theft under $5000 (2 counts); March 2012: theft under $5000, fraud under $5000, uttering threats, causing a disturbance, failure to comply with a probation order (two counts), and breach of undertaking (2 counts). For the August 2010 convictions, Mr. Kelly was given a conditional discharge and 24 months probation. For the March 2012 convictions, Mr.

Kelly was sentenced to 90 days imprisonment (intermittent) and 12 months probation. Accordingly, he was on probation when he committed the robbery that is the subject of this appeal.

[9] In his decision, the sentencing judge had regard to relevant sentencing principles and conducted an extensive review ofsentencing precedents. While he did not separately address aggravating and mitigating factors (which should usually be done),nonetheless he took account of them in the course of his review of sentencing precedents. ISSUES [10] Is the sentence demonstrably unfit? If so, what is a fit sentence? ANALYSIS [11] It is important to recall in sentence appeals what Chief Justice Lamer wrote in R. v.

M.(C.A.), (SCC), [1996] 1S.C.R. 500: [90] … absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appealshould only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit… [92] Appellate courts, of course, serve an important function in reviewing and minimizing the disparity of sentences imposed bysentencing judges for similar offenders and similar offences committed throughout Canada…But in exercising this role, courts of appealmust still exercise a margin of deference before intervening in the specialized discretion that Parliament has explicitly vested insentencing judges.

It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime…Sentencing isan inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime willfrequently be a fruitless exercise of academic abstraction.

As well, sentences for a particular offence should be expected to vary to somedegree across various communities and regions in this country, as the “just and appropriate” mix of accepted sentencing goals willdepend on the needs and current conditions of and in the particular community where the crime occurred. For these reasons, consistentwith the general standard of review we articulated in [R. v.

Shropshire, (SCC), [1995] 4 S.C.R. 227] I believe that a courtof appeal should only intervene to minimize the disparity of sentences where the sentence imposed by the trial judge is in substantial andmarked departure from the sentences customarily imposed for similar offenders committing similar crimes. See also R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, para. 46. [12] Counsel for Mr. Kelly argued that the sentencing judge erred by: (

a) arriving at a relevant sentencing range of 2-4 years, which is too high; (

b) relying on cases where the offender had a more serious criminal record; (

c) relying on cases where the offender used a weapon, whereas Mr. Kelly did not. [13] Regarding the first point, the sentencing judge did not set out, nor did he rely on, any particular sentencing range. To thecontrary, he stated in paragraph 48 that, “a prescriptive range of sentence [for offences such as this one] has not been established”. [14] Counsel for Mr. Kelly is accurate when he says that the sentencing judge had regard to and placed reliance on some caseswhere the offender’s record was worse than Mr. Kelly’s or the offender had used a weapon.

But this does not necessarily constitute areversible error. [15] One needs to consider how such cases were used by the sentencing judge. It would be contrary to the principle ofproportionality to use cases that were dissimilar in some key way so as to impose on this offender a sentence unwarranted by thecircumstances of this case. However, what the sentencing judge did here was an extensive review of sentencing precedents indicatingthroughout that he was mindful of differences among offenders and offences.

In this case, the sentencing judge struggled with the fact,acknowledged by counsel, that there is a paucity of cases where key facts resemble those in this case. Of necessity, the trial judge reliedon some cases where the circumstances of the offence or of the offender were, to a degree, different. That is not fatal. [16] One should avoid the idea of “water tight compartments” in sentencing precedents.

Robbery with a weapon can be less seriousthan the robbery in this case, where the offender took the complainant by surprise, grabbed her by the throat, from behind, in a place outof public view, refusing to simply take her valuables when offered and instead dragged her into the woods in a way that terrified her. The impact on the victim in this case is far more serious and enduring than in many robberies where a weapon is involved. [17] In his factum, counsel for Mr. Kelly argues that the sentencing precedents upon which the sentencing judge relied weremisapplied. For the reasons set out above, I cannot agree.

That said, I will comment briefly on four cases emphasized by Mr. Kelly’scounsel. [18] In R. v. T.(J.L.) 2003 Carswell Nfld. 270 (N.L.P.C.), the 21 year old offender (with prior convictions as a youth) committed tworobberies while masked, one involving a break and entry. In one of the robberies, the offender along with two others attacked an elderlyhomeless man who was sleeping on a park bench. In the break and entry, the offender and the two others beat the occupant of the homethey had entered.

The offender was sentenced to 12 months for the robbery of the homeless man and 18 months for the robberyassociated with the break and entry. [19] In R. v. Strickland-Murphy, (2012) 324 Nfld. & P.E.I.R. 36 (N.L.P.C.), an 18 year old female offender with no criminal recordand with mental health problems was sentenced to two years for armed robbery involving holding a knife to an elderly woman’s throat ata bank machine. [20] In R. v.

Sheppard, 2006 NLTD 48, (2006) 255 Nfld. & P.E.I.R. 207 a 34 year old offender with an extensive criminal record,but low intelligence because of birth trauma, was sentenced to three years for robbery of a man in his home with the threat of violence.

[21] The argument by counsel for Mr. Kelly relating to these cases amounts to this: in each instance there was a robbery withviolence or the threat of violence and (save for Sheppard) the offender received a lesser period of imprisonment than did Mr. Kelly. Thatis accurate, but it does not avail Mr. Kelly. Sentencing involves a mix of factors, some mitigating, some aggravating, with varyingdegrees of mitigation and aggravation. [22] Mr. Kelly relies in particular on the decision in R. v. B.(T.F.), 2004 CarswellNfld 85 (N.L.P.C.), which he submits is factuallysimilar to this appeal.

B. was sentenced to 18 months imprisonment for robbery of an elderly and homeless man who had been sleepingon a park bench. The circumstances are described by the trial judge: [3] On June 22nd 2003, B. and two other men (including J.L.T.) were on a walking trail in Corner Brook when they came across anelderly and homeless man [who] was sleeping on a bench (Mr. Levigne). They decided to see if he had any money, which he did not. The attacked him by punching and kicking him. All three of them were wearing sweat shirts with hoods and they had bandanas acrosstheir faces. He was knocked to the ground.

He received a large bruise in the area of his eye. [23] Finding that Mr. Levigne had no money, the three went on to commit a robbery at a residence where the occupant, who wasknown to them, was beaten with a glass, resulting in “a fair amount of bloodletting and a serious cut to Mr. Borden’s head” (paragraph5). B. was sentenced to 18 months imprisonment for the robbery of the homeless man, 30 months for the robbery of Mr. Borden, and“for having his face masked on each occasion, a period of six months imprisonment for each offence” (paragraph 78). [24] The decision in that case does not assist Mr. Kelly.

The trial judge’s focus was the robbery at Mr. Borden’s residence. Little issaid about the incident involving the homeless man which, including the sentence for committing the offence while masked, resulted ina sentence of 24 months. [25] A sentence of 30 months in this case is not disproportionate when the circumstances are compared. The complainant in thisappeal was a 16 year old girl who, while walking along a well-used public trail, was attacked suddenly from behind and dragged into thewoods.

She was understandably terrified and suffered significant psychological harm, effects that have endured long after the physicaltrauma. There was nothing to indicate similar, on-going psychological harm in the other cases. [26] On this point, I note that a victim impact statement is a factor in determining an appropriate sentence.

Section 722(1) of theCriminal Code provides: For the purpose of determining the sentence to be imposed on an offender…the court shall consider any statement that may have beenprepared in accordance with subsection (2) of a victim of the offence describing the harm done to, or loss suffered by, the victim arisingfrom the commission of the offence. [27] A thorough and helpful discussion regarding the rationale underlying

section 722 and its appropriate use is found in R. v.Gabriel (1999), (ON SC), 137 C.C.C. (3d) 1 (Ont. S.C.), at paragraphs 19 to 32. The complainant in this case wasyoung and vulnerable. Her life has been seriously affected. She suffered fear, loss of self-esteem and distrust of others.

This is a factorproperly taken into account by the trial judge and which distinguishes it from B.(T.F.) in particular. [28] Upon careful review, I see no reviewable error in the sentencing judge’s treatment of sentencing precedents, nor in his relianceon aggravating factors relating to the offence and its impact on the victim. [29] That said, the sentencing judge dealt with a number of issues in his decision. I have addressed only one, whether the sentencefor robbery was demonstrably unfit. Other aspects of the decision were not in issue and, accordingly, I say nothing about them.

Obiter [30] I would note an issue raised from the Bench in the course of oral argument. It is whether it is proper both to enter a convictionfor breach of probation (or an undertaking), and also to treat that breach as an aggravating factor in imposing sentence for the primaryoffence, in that the commission of an offence during probation or while subject to an undertaking indicates a flagrant disregard for thelaw. [31] In Sentencing (7th ed.) (LexisNexis: Markham, Ontario, 2008) at

section 5.123, Clayton Ruby writes: A sentence will be increased where the offender has reoffended after having been released from prison for only a short time before thenew offence is committed. So, too, if an offence is committed while the offender is on parole. Where the offence is committed whilethe offender is under an order of probation, that fact will be treated as aggravating, or the court will take the view that “there is littlejustification to ask for or expect favourable consideration”… (Emphasis added.) Nothing turns on the issue in this case, so it need not be dealt with here.

However, it may well warrant consideration by this Court in alater case. CONCLUSION [32] The appeal is dismissed. _____________________________

M. H. Rowe J.A. I concur: _____________________________ B. G. Welsh J.A. I concur: _____________________________ M. F. Harrington J.A.