R. v. Cleary, 2020 NSSC 49

SUPREME COURT OF Nova Scotia Citation: R. v. Cleary, 2020 NSSC 49 Date: 2020 01 28 Docket: CRH 473587 Registry: Halifax Between: Her Majesty the Queen v. Austin Miller and Cameron Robert Cleary Sentencing Decision of Cameron Robert Cleary Judge: The Honourable Justice John P. Bodurtha Heard: January 14, 2020, in Halifax, Nova Scotia Oral decision: January 28, 2020 Written Release: February 5, 2020 Counsel: William Mathers, Crown Ian Hutchison, Defence By the Court (orally): Introduction [ 1 ] On September 4, 2018 Cameron Robert Cleary (“Mr.

Cleary”) entered guilty pleas to: • Count 1 - robbery, contrary to s. 344(1) of the Criminal Code ; • Count 7 - possession of a prohibited or restricted firearm with ammunition, contrary to s . 95(1) of the Criminal Code ; and • Count 6 - careless use of a firearm, contrary to s. 86(1) of the Criminal Code . [ 2 ] Section 344(1) reads: Every person who commits robbery is guilty of an indictable offence and liable (

a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of: (

i) in the case of a first offence, five years, and (ii) in the case of a second or subsequent offence, seven years; (a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and (

b) in any other case, to imprisonment for life.

Criminal Code , R.S.C. 1985, c. C-46, s. 344 [ 3 ] Parliament has prescribed a mandatory minimum sentence of five years’ imprisonment in relation to robbery when a restricted or prohibited firearm is used in the commission of the offence. [ 4 ] Mr. Cleary also pled guilty to s. 95(1) which reads: 95(1) Possession of prohibited or restricted firearm with ammunition Subject to subsection (3), every person commits an offence who, in any place, possesses a loaded prohibited firearm or restricted firearm, or an unloaded prohibited firearm or restricted firearm together with readily accessible ammunition that is capable of being discharged in the firearm, without being the holder of: (

a) an authorization or a licence under which the person may possess the firearm in that place; and (

b) the registration certificate for the firearm. 95(2) Punishment Every person who commits an offence under subsection (1) (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years and to a minimum punishment of imprisonment for a term of: (

i) in the case of a first offence, three years, and (ii) in the case of a second or subsequent offence, five years; or (

b) is guilty of an offence punishable on

summary conviction. 95(3) Exception Subsection (1) does not apply to a person who is using the firearm under the direct and immediate supervision of another person who is lawfully entitled to possess it and is using the firearm in a manner in which that other person may lawfully use it. Criminal Code , R.S.C. 1985, c. C-46, s. 95 [ 5 ] Section 86(1), to which Mr. Cleary also pled guilty, is the careless use of a firearm provision. Section 86(1) reads: 86(1) Careless use of firearm, etc.

Every person commits an offence who, without lawful excuse, uses, carries, handles, ships, transports or stores a firearm, a prohibited weapon, a restricted weapon, a prohibited device or any ammunition or prohibited ammunition in a careless manner or without reasonable precautions for the safety of other persons. 86(2) Contravention of storage regulations, etc. Every person commits an offence who contravenes a regulation made under paragraph 117(

h) of the Firearms Act respecting the storage, handling, transportation, shipping, display, advertising and mail-order sales of firearms and restricted weapons. 86(3) Punishment Every person who commits an offence under subsection (1) or (2) (

a) is guilty of an indictable offence and liable to imprisonment (

i) in the case of a first offence, for a term not exceeding two years, and (ii) in the case of a second or subsequent offence, for a term not exceeding five years; or (

b) is guilty of an offence punishable on

summary conviction. Criminal Code , R.S.C. 1985, c. C-46, s. 86 [ 6 ] The punishment section, 86(3), with respect to that offence, states that every person who commits an offence under ss. 86(1) or 86(2) is guilty of an indictable offence and liable to imprisonment, in the case of a first offence, for a term not exceeding two years. [ 7 ] The Crown’s position is that Mr.

Cleary should be sentenced globally to a custodial sentence of five years’ imprisonment. [ 8 ] The Defence also seeks a global sentence of five years’ imprisonment. [ 9 ] At the hearing, the Crown confirmed there were no victim impact statements to provide the Court. I now must determine what is the fit and proper sentence for Mr. Cleary. [ 10 ] An Agreed Statement of Facts was tendered at the sentencing hearing and it reads as follows: 1. THAT on May 3, 2017 Austin Miller (Mr. Miller), Cameron Cleary (Mr. Cleary), and Justin Tonge (Mr.

Tonge) attended at a garage attached to the residence of Hunter Hutchinson (Mr. Hutchinson), located at 32 Inverary Drive, Dartmouth, Nova Scotia (the "Garage"); 2. THAT Mr. Cleary, Mr. Miller, and Mr. Tonge entered the Garage, for the purpose of purchasing marijuana from Mr. Hutchinson and

his friend, Brett Eid (Mr. Eid); 3. THAT two additional teenagers, Austin Moore (Mr. Moore) and Lynell Downey (Mr. Downey), had accompanied Mr. Miller, Mr. Cleary, and Mr. Tonge to the Garage, however they did not enter and instead waited outside on the road; 4. THAT Mr. Hutchinson knew Mr. Tonge and Mr. Moore from Prince Andrew High School; 5. THAT once inside the Garage, while Mr. Hutchinson was weighing the marijuana, Mr. Cleary produced a sawed-off shotgun (the "Shotgun") and pressed it to the back of Mr. Hutchinson’s head; 6. THAT Mr. Cleary demanded the marijuana from Mr. Hutchinson; 7. THAT Mr.

Eid produced a can of bear-spray and dispensed the aerosol over the Garage and the five young men inside; 8. THAT in the course of these events Mr. Cleary's crucifix, with his name on it, was torn from his person and left in the Garage; 9. THAT Mr. Miller, Mr. Cleary, and Mr. Tonge fled the Garage; 10. THAT once outside the Garage, Mr. Miller ordered Mr. Moore to return to the Garage and, "go get the stuff"; 11. THAT Mr. Moore refused to return to the Garage without his backpack; 12. THAT Mr. Miller then ripped Mr. Moore's backpack from his person and kicked him — to his torso and his face — while Mr.

Moore was on the ground. 13. THAT Mr. Miller, Mr. Cleary, and Mr. Downey ran away from the scene, while Mr. Tonge and Mr. Moore remained to apologize for what had happened, and to check on Mr. Hutchinson who was suffering from the effects of the bear spray; 14. THAT Mr. Hutchinson's father called the police; 15. THAT police officers arrived on scene quickly and began pursuing Mr. Cleary, Mr. Miller and Mr. Downey; 16. THAT Mr. Tonge and Mr. Moore later identified Mr. Cleary as the individual with the Shotgun to the police; 17. THAT police officers located Mr. Miller, Mr. Cleary, and Mr.

Downey near the baseball diamond in Ira Settle Park, roughly one kilometre from the Garage; 18. THAT Mr. Miller, Mr. Cleary, and Mr. Downey split up near the baseball diamond and were pursued by different officers; 19. THAT Mr. Cleary was taken into custody by Cst. MacFarlane in a thicket of heavy thorns at the base of an embankment bordering the baseball field, after Mr. Cleary had attempted to dispose of the Shotgun in the thorns; 20. THAT police officers later located the Shotgun in the thorns, near where Mr.

Cleary was arrested and true and accurate photographs of the weapon, are attached to these facts as Appendix "A"; 21. THAT on his arrest Mr. Cleary was searched and five shotgun shells capable of being fired from the Shotgun were located on his person; 22. THAT the Shotgun and the shells are firearms or ammunition within the ambit of ss. 2 & 84 of the Code, as the case may be; 23. THAT by virtue of its sawed-off barrel the Shotgun was a prohibited class firearm; 24. THAT Mr.

Cleary did not possess a valid Possession and Acquisition License, even had the firearm been a non-restricted or restricted class firearm; and, 25. THAT at all material times Mr. Cleary was in possession of the Shotgun together with readily accessible ammunition for it. Circumstances of the offence [ 11 ] The offence occurred in the home of the victim. Mr. Cleary was invited into the victim’s garage, along with other individuals. When the victim was weighing the marijuana, Mr. Cleary brandished the shotgun and put it to the victim’s head. [ 12 ] The victim’s associate released a can of bear spray. Mr.

Cleary and the other individuals fled the garage. He ran and threw his shotgun in the woods, and the police later apprehended him. Circumstances of the Offender [ 13 ] I have reviewed the Pre-Sentence Report, the numerous character letters filed in support of Mr. Cleary, reports from doctors who have treated Mr. Cleary, and the testimony of his father from the sentencing hearing to learn more about Mr. Cleary’s background and current circumstances. [ 14 ] Mr. Cleary was born in December 1998. He was just past his 18 th birthday when he committed the offences.

He stands before the Court as a youthful offender with no prior criminal record, but with a history of mental health issues. He has a supportive family and

is currently employed. Sheldon Larkin, a probation officer, prepared a favourable Pre-Sentence Report on Mr. Cleary dated October 8,2019. [15] Mr. Cleary stated that he has a close and supportive relationship with both his parents and two siblings. He reports having a“good” childhood where all his basic needs were met. However, he had a shy and timid demeanour which led to him being the target ofbullying. At the age of 15, he began hanging around with the wrong crowd because he finally felt accepted. It was around this time thathe began to experiment with drugs and alcohol. [16] Mr.

Cleary received his grade 10 at Auburn High School in Dartmouth, Nova Scotia but was unable to finish his high schooleducation as a result of the charges he eventually plead guilty to. He is currently attending the Dartmouth Learning Centre to obtain hisGED. [17] Mr. Cleary has been working with P.Y. Siding since November 2017 and earns approximately $30,000 per year. He continuesto reside at his parents’ house. [18] Mr. Cleary has been diagnosed with ADHD, bipolar disorder and depression for which he takes medications. Mr. Clearyadvised that he experimented with molly, cocaine and Xanax in the past.

He attempted to commit suicide in 2018 and informed theprobation officer that he has been clean from all substances since his suicide attempt in 2018. [19] Mr. Cleary expressed remorse and took responsibility for his actions. He has taken the initiative to seek out counselling toaddress the issues that have brought him before the Court. He did not deny his actions when discussing the matters before the Court. [20] The doctors’ reports filed at the hearing indicate that Mr. Cleary has been diagnosed with ADHD since 2006.

He has receivedtreatment for this condition and for depression and the doctors believe he will benefit from consistent pharmacological and psychologicalmanagement approaches. [21] The character references speak of how Mr. Cleary was a quiet, reserved child and how the offences came out of the blue andare not in his character. His father testified and spoke about how they have put Mr. Cleary in various programs to address his substanceabuse issues. He spoke about how difficult this has been for the family, but they are very supportive of Mr.

Cleary and will be ready tosupport him and have him come back to the house upon his release. He advised that Mr. Cleary has been working full-time for the lasttwo years and mentally is doing very well.

He describes him as a “good kid, who just messed up.” Position of the parties [22] The Crown says the appropriate sentence range is as follows: • Robbery – five years; • Possession of a prohibited or restricted firearm with ammunition – 3 years, concurrent, • Careless use of a firearm – 6 months, concurrent. [23] The Crown acknowledges this is at the lowest end of sentences for a “home invasion” robbery type of offence involving a “drugrip” and the use of a modified firearm. [24] The Crown submitted that sentences for simple robbery in this province usually begin at three years’ imprisonment and arguedthat the Court of Appeal has emphasized the principle that crimes of robbery involving weapons or violence will result in sentences ofthree years or more, even for youthful offenders or first time offenders, absent special circumstances (see R. v.

Boutilier, (NS CA), 66 N.S.R. (2d) 310 at para 6). [25] In addition, the Crown relied on R. v.

Nur, 2015 SCC 15, to support the principle that crimes involving the mere possession ofprohibited or restricted category firearms, but which fall at the “true-crime” end of the spectrum, will typically attract sentences of threeyears or more. [26] The Crown is also seeking several ancillary orders: • A DNA Order (primary); • A Firearms prohibition for life; and • A Forfeiture Order of the firearm and ammunition seized. [27] The Crown submits that a fit and proper sentence is the mandatory minimum five years’ imprisonment. [28] The Defence is seeking the same sentence – the mandatory minimum of five years’ imprisonment, yet this is not a jointrecommendation. [29] The Crown and Defence agree Mr.

Cleary has remand credit from May 3, 2018 to July 7, 2018 which is 66 days. Applyingthose 66 days to the maximum ratio of 1.5:1 pursuant to s. 719(3.1) of the Criminal Code, Mr. Cleary is entitled to 99 days of enhancedremand credit. I find this to be reasonable and will take this into consideration in the overall sentence. Principles of Sentencing [30] In imposing an appropriate sentence, I must apply the purpose and principles of sentencing set out in ss. 718, 718.1, and 718.2of the Criminal Code. These provisions provide me with the general principles and factors I should consider in reaching a just sentence.

The purpose of sentencing is to protect society and to contribute to respect for the law and maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives outlined in s. 718. [ 31 ]

Section 718 reads as follows: Purpose and Principles of Sentencing Purpose 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 32 ]

Section 718.1 of the Criminal Code says that the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 33 ]

Section 718.2 requires that I consider specific sentencing principles, including the mitigating or aggravating factors relating to the offence or the offender. [ 34 ]

Section 718.2 reads: Other sentencing principles 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, (

v) evidence that the offence was a terrorism offence, or (vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under

section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act. shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [ 35 ] Any sentencing hearing requires a careful consideration of the unique circumstances of the offender and the offence. It requires a balancing of sentencing objectives, as stated by Judge Buckle in R. v. Rushton, 2017 NSPC 2 , at para 63 :

The overarching goal of long-term protection of the public informs how I balance the principles and purposes of sentencing and applythem to the facts to arrive at a fit sentence. The common law provides me with guidance as to how I should interpret and balance theseprinciples and how they should be applied to different categories of offence. However, the best means of addressing the principles andattaining the ultimate objective will always depend on the unique circumstances of the case. Because of that, it has been consistentlyrecognized that sentencing is a delicate and inherently individualized process (R. c.

Lacasse, 2015 SCC 64 (S.C.C.) at para. 1 and R. v.M. (C.A.), (SCC), [1996] 1 S.C.R. 500 (S.C.C.) at para. 91-92). Analysis Aggravating and mitigating factors Aggravating [36] The Alberta Court of Appeal, in determining the range for sentencing for a home invasion robbery, set out a number of factorsthat are the "basic, essential features of a 'home invasion' robbery", at pages 263-264 in R. v. Matwiy, supra: 30 We consider the following features to be the basic, essential features of a "home invasion" robbery to which this guideline applies. Amature individual with no prior record, (

a) plans to commit a home invasion robbery (although the plan may be unsophisticated), and targets a dwelling with intent to stealmoney or property, which he or she expects is to be found in that dwelling or in some other location under the control of the occupants orany of them; (

b) arms himself or herself with an offensive weapon; (

c) enters a dwelling, which he or she knows or would reasonably expect is occupied, either by breaking into the dwelling or byotherwise forcing his or her way into the dwelling; (

d) confines the occupant or occupants of the dwelling, even for short periods of time; (

e) while armed with an offensive weapon, threatens the occupants with death or bodily harm; and (

f) steals or attempts to steal money or other valuable property. 31 The starting point for sentences for a home invasion robbery as we have defined it, should be eight years. [37] In R. v. Sawanas, 2011 MBPC 26, the Manitoba Provincial Court discussed R. v. Matwiy, 1996 ABCA 63 at paragraph 35: In R. v. Matwiy three men committed a home invasion robbery when they broke into a residence using weapons, including a loaded gun,threatened to kill the occupants of the home and took money. The Alberta Court of Appeal used the R. v. Matwiy case to developguidelines for sentencing in home invasion robberies.

By the term “home invasion robberies” the Crown intended "those in which theculprits selected the residence because they thought that there was something of value inside (at page 256). The Alberta Court of Appealwas of the view that a home invasion robbery deserved a higher starting point sentence than the armed robbery of a commercialinstitution.

The Alberta Court of Appeal decided that a starting point sentence for such an offence was eight years incarceration for anaccused who is mature with no prior criminal record. [38] The question before this Court is whether this offence is characterized as a “home invasion” robbery or as a “robbery”. Thereare several factors in Mr. Cleary’s case, that are similar to the guiding factors in R. v. Matwiy, supra. [39] One distinguishing difference, as Defence counsel pointed out, and Crown concedes, is that Mr. Cleary was first invited in,prior to producing the shotgun and on impulse, robbing Mr. Hutchinson.

And I say, on impulse, because based on the Agreed Statementof Facts, there is nothing to suggest that the robbery was premeditated. That is a distinguishable feature from the home invasioncharacteristics as described in Matwiy. [40] A similar set of circumstances was considered by the Manitoba Provincial Court in R. v. Sawanas, 2011 MBPC 26.

Relying onthe Matwiy decision, the Court found the offence was not a home invasion robbery: 51 When one considers these Manitoba Court of Appeal cases, what seems to put a case in the category of a home invasion type offenceto which the sentencing range of seven to ten years will be applicable is the commission of an indictable offence (which could be, but isnot necessarily, a robbery) plus two other important elements. These are a “break in” or forcible entry into a residence, generally with aweapon, and having a premeditated plan to commit an indictable offence.

Indeed, the Manitoba Court of Appeal, in the R. v. Turtle case,specifically said that the absence of those two elements took the offence out of the category of a ‘home invasion’. 52 I note the comments made by the Saskatchewan Court of Appeal in R. v. Campeau (2009), 2009 SKCA 3 , 245 C.C.C. (3d)258 (Sask. C.A.). In that case, an offender was convicted of breaking and entering and committing assault in a residence. Although theCrown was seeking a seven to ten year sentence on the basis this was a “home invasion”, the Court of Appeal upheld a four yearsentence.

The Saskatchewan Court of Appeal said at paragraph 24: The submissions made by the parties suggest that uncertainty exists as to whether a home invasion within the meaning of s. 348.1 issynonymous with a “home invasions robbery”. Simply put, it is not... 53 In R. v. Campeau, the Saskatchewan Court of Appeal said that each case of ‘home invasion’ as described in s. 348.1 must be decidedon its own facts, having regard to the motive for entering the dwelling house, the degree of violence used and the nature of the offencescommitted inside the residence.

54 In the offences committed by Michael Sawanas, based on the facts agreed to, there was no break in or forced entrance into the residence, and there was no premeditated plan made prior to entering the residence, to commit a robbery. Although the other features of a “home invasion robbery” set out in R. v. Matwiy, were present, the absence of those two factors would seem to take it out of the category of a “home invasion” or “home invasion type” of offence to which the seven to ten year sentencing range necessarily applies. 55 Accordingly, I find that it was not a “home invasion robbery” that Mr.

Sawanas committed, nor an offence sufficiently analogous to a “home invasion” type of offence, that the seven to ten year range necessarily applies. [ 41 ] The Court went on to say: 56 That of course does not mean, in and of itself, that a seven to ten year range is not appropriate here. The Court must look, as I stated previously, at the circumstances of the offence and the offender and the mitigating and aggravating factors to determine an appropriate sentence.

A comparison of all those circumstances and factors to the circumstances and factors of other cases is key, in order to determine what an appropriate sentence is for Michael Sawanas. [ 42 ] Lastly, the Court said it was unable to find any cases on point with the facts of the case before it: 57 I have not been referred to, and indeed I could not find, any cases on point with the facts in this case, namely where an armed robbery occurs inside a home, but does not have the element of a break in or forced entry, and was not initiated with a premeditated plan to commit the robbery. [ 43 ] The facts in Sawanas are like those in Mr.

Cleary’s case. Mr. Sawanas, along with three other individuals attended the home of a local drug dealer to buy marijuana. It was not until they were in the home and shown the marijuana that they decided to rob the residents. In Mr. Sawanas’s case, the robbers produced machetes and a broken/imitation firearm. The robbers searched the house and took a small amount of marijuana and cash. Mr. Sawanas was a person of aboriginal descent who entered an early guilty plea. He was sentenced to six years’ imprisonment on the s. 344 charge and one-year consecutive on the s. 85(2 ) charge. [ 44 ] Similarly, Mr.

Cleary went to Mr. Hutchinson’s house to purchase marijuana, not with any plan or intent to commit a robbery. The situation turned into a robbery, but that does not turn what happened into a “home invasion robbery”. As in, Sawanas , there are two elements missing in this case from the guidelines for establishing that there was a home invasion as set out in Matwiy (no forced entry and no premeditation), which, if established, would bring the sentence closer to seven to eight years. [ 45 ] Another similar decision to the case at bar is R. v.

Meads , 2016 ONSC 8186 , in which the offender was 21 years old with no prior criminal record when he robbed a “grow house” while armed with a shotgun. There was no indication that the shotgun was a modified or prohibited weapon and the mandatory minimum was four years. The offender was accompanied by two accomplices during the robbery, one of whom was also armed with a firearm. The Court imposed a global sentence of five years. [ 46 ] Other aggravating features pointed out by the Crown are: • The use of a prohibited weapon; • The fact that ammunition was accessible by Mr.

Cleary; and • A gun was pointed at the complainant’s head. [ 47 ] I am statutorily obligated to consider s. 348.1 of the Criminal Code as another aggravating circumstance. It reads as follows: Aggravating circumstance — home invasion If a person is convicted of an offence under

section 98 or 98.1, subsection 279(2) or

section 343, 346 or 348 in relation to a dwelling- house, the court imposing the sentence on the person shall consider as an aggravating circumstance the fact that the dwelling-house was occupied at the time of the commission of the offence and that the person, in committing the offence, (

a) knew that or was reckless as to whether the dwelling-house was occupied; and (

b) used violence or threats of violence to a person or property. [ 48 ] It is an aggravating circumstance that Mr. Cleary knowingly broke the law by bringing a concealed sawed-off shotgun to a pre- arranged meeting to buy marijuana and then after attempting to rob the dealer, Mr. Hutchinson, he attempted to dispose of the shotgun. [ 49 ] This was a “drug rip”, which is an aggravating circumstance because of the combination of illegal drugs and firearms. Mitigating Factors [ 50 ] Mr. Cleary addressed the Court during his sentencing hearing. He expressed remorse to the Court, his family and the victims.

He accepted responsibility for his actions. He was genuine and sincere in his comments and it was obvious that the gravity of the sentence was weighing on him. [ 51 ] Other mitigating factors are his young age, the fact that he is a first-time offender, he pled guilty early on, his previous good character and his full admission to the police during an interview on May 3, 2017. [ 52 ] Mr. Cleary suffers with mental health disorders. He has been subject to house arrest, as part of his bail recognizance since May 2017, and has not breached this Order or committed further offences. [ 53 ] Mr.

Cleary has a supportive family and has been working full time for the last two years. He has been receiving treatment for

his mental health disorders and has been substance free. His Presentence Report is favourable. On the facts before the Court, Mr.Cleary has high prospects of rehabilitation. He is a youthful first-time offender. He committed the offences just after he turned 18. Hestands before the Court today as a 22-year-old looking at a significant period of incarceration. Mitigating factors are he has no priorcriminal record and his age. I refer to the Ontario Court of Appeal decision in R. v. Priest, (ON CA), [1996] O.J.

No.3369, where Rosenberg, J.A. highlighted the primary objectives in sentencing first offenders are individual deterrence and rehabilitation. At paragraph 17, the Court said: The primary objectives in sentencing a first offender are individual deterrence and rehabilitation. Except for very serious offences andoffences involving violence, this court has held that these objectives are not only paramount but best achieved by either a suspendedsentence and probation or a very short term of imprisonment followed by a term of probation. In R. v. Stein (1974), (ON CA), 15 C.C.C. (2d) 376 (Ont.

C.A.) at page 377, Martin J.A. made it clear that in the case of a first offender, the court shouldexplore all other dispositions before imposing a custodial sentence … [54] Rosenberg, J.A. also commented on youthful first offenders: 22 The rule laid down by this court is that ordinarily for youthful offenders, as for first offenders, the objectives of individual deterrenceand rehabilitation are paramount. See R. v. Demeter (1976), (ON CA), 32 C.C.C. (2d) 379 (Ont. C.A.).

Theseobjectives can be realized in the case of a youthful offender committing a nonviolent offence only if the trial judge gives properconsideration to alternatives to incarceration. 23 Even if a custodial sentence was appropriate in this case, it is a well-established principle of sentencing laid down by this court that afirst sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather thansolely for the purpose of general deterrence. … 24 Martin J.A. also stated that this emphasis on individual deterrence rather than general deterrence was particularly applicable in thecase of a youthful first offender.

Those statements of principle were binding on the trial judge in this case and should have been applied.He should not have imposed a sentence, to paraphrase MacKenna J., that was very long, disproportionate to the gravity of the offence,and imposed as a warning to others. [55] These comments must be taken in context with the fact that Parliament has imposed a mandatory minimum of five years forthe offence of robbery under s. 344 of the Criminal Code and, as well, with respect to violent offences, which this was, generaldeterrence and denunciation are the paramount factors for consideration.

Impact on the Victim [56] Although the victims have declined to provide any victim impact statements, it can be inferred from the circumstances whichinvolved a home invasion style “drug rip”, conducted with a firearm, that the events were frightening for the victims: see R. v. Meads,supra, at para. 47. Proportionality principle [57]

Section 718.1 reads “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of theoffender.” It requires that a sentence not be more severe than what is just and appropriate given the seriousness of the offence and themoral blameworthiness of Mr. Cleary. [58] The Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64 at para. 12 stated: …In other words, the severity of a sentence depends not only on the seriousness of the crime's consequences, but also on the moralblameworthiness of the offender. Determining a proportionate sentence is a delicate task.

As I mentioned above, sentences that are toolenient and sentences that are too harsh can undermine public confidence in the administration of justice. … [59] Assessing the gravity of the offence requires me to consider both the gravity of these offences in general and the gravity of Mr.Cleary’s specific offending behaviour. [60] Our Court of Appeal addressed sentencing procedure and explained how the total sentence must respect the principle ofproportionality in R. v. Adams, 2010 NSCA 42, at paragraph 25 where it said: 25 Very recently in R. v. Draper, 2010 MBCA 35 (Man.

C.A.), Steele, J.A. succinctly described the proper approach, as follows: 30 That procedure is for the sentencing judge to first determine whether the offences in question are to be served consecutively or not. Second, if they are to be served consecutively, then an appropriate sentence for each offence should be determined. Third, the totalityprinciple should be applied to the total sentence thereby arrived at to ensure that the total sentence is not excessive for this offender as anindividual. In effect, the sentence must be given a “last look”.

Fourth, if the judge decides that it is excessive, then the sentence mustbe adjusted appropriately. In some cases that might require a significant adjustment. 31 In R. v. Reader (M.), 2008 MBCA 42, 225 Man.R. (2d) 118, Chartier J.A. confirmed that this was the approach suggested by theSupreme Court in R. v. M. (C.A.) when it explained the totality principle found in s. 718.2(

c) of the Criminal Code. He explained at para.27 that at this stage of the sentencing process, the purpose of this last look is to ensure that the total sentence respects the principle ofproportionality (set out in s. 718.1 of the Criminal Code) by not exceeding the overall culpability of the offender. The "last look" requiresan examination of the gravity of the offences, the offender's degree of guilt or moral blameworthiness with respect to the crimescommitted and the harm done to the victim or victims. …

[61] The gravity of the offence is reflected by the fact that Parliament has enacted a mandatory minimum penalty for s. 344. TheQuebec Court of Appeal in R. v. Lapierre, 1998 CarswellQue 4899, said the following in relation to firearms: 22 There is no need to do an exhaustive study of the Canadian jurisprudence in order to be able to state that for quite some time now theperpetrator of a robbery committed using a firearm must expect a very severe sentence.

Although the courts over the years may haveadjusted the acceptable limits of an appropriate sentence for this type of offence, they have however had to reconcile themselves withlegislation which reflects the aggravating nature of the use of a firearm in the course of a robbery, apart from the fact that it is in and ofitself a violent crime. [62] In considering the degree of responsibility of the offender, I note that Mr. Cleary acted with other individuals, but he was theone who brandished the firearm and put it to the head of the victim. He accepts responsibility for his actions.

His age does reduce his moral blameworthiness somewhat, because at the time of the offence he was just past his 18th birthday. Mr. Cleary was also sufferingfrom mental health issues at the time, although there is nothing before the Court to indicate that this was the impetus for his crimes. [63] In reviewing the gravity of the offence and the degree of responsibility of the offender the mandatory minimum sentence forthis offender is proportionate. A five-year period of incarceration for a youthful, first time offender, is a significant sentence.

It willhave repercussions on him should he wish to travel internationally, and it may hamper his employment prospects upon his release. Thereis no doubt in my mind that being a youthful offender sentenced to a federal penitentiary will have lasting effects on Mr. Cleary that willgo beyond this sentence. Rehabilitation [64] Even in cases requiring that denunciation and deterrence be emphasized, rehabilitation continues to be a relevant objective inCanadian criminal law. It helps the courts impose just and appropriate sentences. (R. v.

Lacasse, supra, at para. 4). [65] Our Court of Appeal has recognized the importance of rehabilitative sentencing of youthful offenders. In R. v. Bratzer, 2001NSCA 166, a youthful offender convicted of three counts of robbery was given a conditional sentence. The Court of Appeal upheld thesentence and said at para. 40: There is ample authority for the proposition that sentences for youthful offenders should be directed at rehabilitation and reformation, notgeneral deterrence. (R. v. Leask, [1996] M.J. No. 587 (Man. C.A.); R. v. Demeter (1976), (ON CA), 32 C.C.C. (2d)379 (Ont. C.A.); R. v. Casey, [1977] O.J.

No. 214 (Ont. C.A.)). This is common sense. A youthful offender, particularly one such as Mr.Bratzer, who has an interest in a vocation and can be equipped with the tools to earn an honest living, is more likely to be diverted from alife of crime than would a career criminal. [66] Sentencing is not an exact science, and it is incumbent upon the Court to view the circumstances of each offender and thecircumstances of the offence. Each case is different. In Mr.

Cleary’s circumstances, after taking into consideration deterrence anddenunciation as the primary factors for his violent crime, I am still required as a secondary factor, to consider rehabilitation regarding thisyouthful offender. As stated by Judge Buckle in Rushton, supra, at para. 66: …In the case of a youthful offender, rehabilitation has to be given real consideration; in many cases, it is more than a theoreticalobjective, it is a reasonable and viable hope. Range of Sentence [67]

Section 718.2 requires consideration of the principle of parity. Within reason, a sentence should be similar to sentences imposedon similar offenders for similar offences committed in similar circumstances. This requires an examination of the range of sentencesimposed for each of the offences, taking into consideration that each sentence must reflect the unique circumstances of the offence andthe offender. [68] In discussing sentencing ranges, Judge Buckle in Rushton, supra, said at para. 87: Sentencing ranges are important.

They are intended to encourage greater consistency between sentences and respect for the principle ofparity. However, "they are guidelines rather than hard and fast rules" (R. v. Nasogaluak, 2010 SCC 6 (S.C.C.) at para. 44). This wasrecognized by Scanlan, J.A. in Oickle (supra) at para. 40 when he said “it is not appropriate to set a bottom range or a top range for aparticular offence without regard for the offender or other sentencing principles”. He went on to quote Justice Farrar in R. v. Phinn, 2015NSCA 27 (N.S. C.A.) where he refers to R. v. N. (A.), 2011 NSCA 21 (N.S.

C.A.): [34] Unless expressed in the Code, there is no universal range with fixed boundaries for all instances of an offence: [Authoritiesomitted].

The range moves sympathetically with the circumstances, and is proportionate to the Code's sentencing principles that includefundamentally the offence's gravity and the offender's culpability. ... [69] Judge Buckle continued the discussion of sentencing ranges at paragraph 88: Sentencing judges are permitted to go outside the established range for a given offence as long as the sentence imposed is a lawfulsentence that adequately reflects the principles and purposes of sentencing (Nasogaluak (supra), at para. 44).

This was recently affirmedby the Supreme Court of Canada in Lacasse (supra), where Wagner, J., writing for the majority, said as follows: 58 There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself adesirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be

disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purelymathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that asentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is notdemonstrably unfit.

Once again, everything depends on the gravity of the offence, the offender's degree of responsibility and the specificcircumstances of each case. ... [70] I have spent a significant amount of time, rightly so, discussing the most serious offence, being the robbery, but that is not allMr. Cleary has pled guilty to. I must also review caselaw regarding the s. 95(1) and s. 86(1) offences. [71] Section 95(1) of the Criminal Code was discussed in Nur, supra, at para. 82, where the Court said: Section 95(1) casts its net over a wide range of potential conduct.

Most cases within the range may well merit a sentence of three yearsor more but conduct at the far end of the range may not. At one end of the range, as Doherty J.A. observed, ‘stands the outlaw whocarries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade. … [T]his person is engaged in trulycriminal conduct and poses a real and immediate danger to the public’ (para 51). At this end of the range – indeed for the vast majorityof offences – a three-year sentence may be appropriate.

A little further along the spectrum stands the person whose conduct is lessserious and poses less danger; for these offenders three years’ imprisonment may be disproportionate, but not grossly so. At the far endof the range, stands the licensed and responsible gun owner who stores his unloaded firearm safely with ammunition nearby, but makes amistake as to where it can be stored. For this offender, a three-year sentence is grossly disproportionate to the sentence the conductwould otherwise merit under the sentencing provisions of the Criminal Code. [72] Mr. Nur was a 21-year-old first offender.

The police caught and arrested him for acting in a threatening manner outside aYouth Centre, finding in the process a loaded prohibited firearm with an oversized ammunition clip. Code, J. at trial considered close toa dozen Ontario cases to establish that the range under s. 95 for a first-time offender like Mr. Nur, would be two years less a day to threeyears (R. v. Nur, 2011 ONSC 4874). Doherty, J.A. in the Court of Appeal agreed (R. v.

Nur, 2013 ONCA 677, at paras. 108-109). [73] The accused in this matter before me is not at the far end where the licensed and responsible gun owner sits, but he is not theoutlaw either. He would fit somewhere on the spectrum for the impulsive, young adult, who makes an incredibly poor decision. [74] The Court of Appeal addressed the seriousness of s. 95(1) offences in R. v. MacDonald, 2014 NSCA 102 at paragraphs 14 and15: 14 As to the gravity of the offence, I begin with this basic premise. In today’s Society, loaded guns have become dangerously prevalent.

For decades now, successive Parliaments have been trying to protect us from their scourge. … … 15 Thus, it is clear that s. 95 represents a significant component of Parliament’s response to the extreme danger of loaded firearms. They put lives at serious risk, plain and simple. As the Supreme Court of Canada nicely put it in R. v. Felawka, (SCC),[1993] 4 S.C.R. 199 at p. 211; [1993] S.C.J. No. 117 at ¶21: “No matter what the intention may be of the person carrying a gun, thefirearm itself presents the ultimate threat of death to those in its presence.” [75] In R. v.

Crathorne, 2015 NSPC 1, Chisholm J. adopted the Alberta Provincial Court’s reasoning concerning sawed-off shotgunsand stated at para. 54: 54 As to the seriousness of the s. 92 offence, in R. v. Wilkening, 2007 ABPC 299 (Alta. Prov. Ct.), Cummings PCJ at para. 7 quotedAllen J in R. v. Raglon, wherein 2001 ABPC 117 (Alta. Prov. Ct.) wherein he stated: ...The possession of such firearms have always been tightly controlled in Canada. Weapons of this nature are generally devoted to dealingwith other humans.

They are not firearms that are generally used for hunting or other sport...Young men in urban landscapes do not needweapons of this nature to wander the streets. His possession in these circumstances was indicative that the weapon would be produced toconfront others as a weapon if necessary... [76] The final offence to which Mr. Cleary has pled guilty is s. 86(1), which carries a maximum term of two years’ imprisonment.

The range of circumstances captured under this offence is vast as it captures circumstances ranging from an inadvertently securedfirearm to circumstances such as this where an offender is carrying a sawed off shotgun through a residential neighborhood and,ultimately, pointing it at another man’s head. This is the least serious of the offences with which Mr. Cleary is charged and the sentencefor this offence will run concurrently to the sentences for the more serious offences. Consecutive v.

Concurrent [77] I have reviewed the Crown brief and accept their position with respect to consecutive versus concurrent sentences. In R. v.Skinner, 2016 NSCA 54, the Court of Appeal reiterated that multiple offences will often warrant consecutive sentences unless there is areasonably close nexus between the offences in time and place. The Court also warned that the “unthinking use of concurrent sentencesmay obscure the cumulative seriousness of multiple offences”.

As such, the Court stated the proper approach to be followed whensentencing offenders for multiple offences: 43 … was for the judge to turn his or her mind to the appropriate sentence for each individual conviction and then go on to decidewhether the sentence(

s) should be consecutive or concurrent before ultimately taking a last look at the aggregate sentence and temperingit, if need be, on account of totality and proportionality. [78] In R. v. Clarke, 1994 NSCA 200 , 137 N.S.R. (2d) 249, which was later distinguished somewhat by R. v. Banfield,2012 NSCA 98, the Court of Appeal said at para. 27:

In my view, the Crown’s position that consecutive sentences should always be imposed whenever drugs and weapons are part of the same incident is too stringent. It would severely limit a sentencing judge’s exercise of discretion in determining the appropriate sentence and in deciding whether to impose consecutive or concurrent sentences.

Furthermore, this requirement is not firmly established in the law. [ 79 ] I have taken those cases into consideration in determining the sentence in this case. [ 80 ] I agree with the position of the parties that the sentences for the offences under s. 95(1), s. 86(1), and s. 344(1) should run concurrently to each other, given that the applicable mandatory minimum under s. 344(1) relies on possession of a prohibited or restricted category firearm and its unsafe use. The nexus is established by the failed “drug rip” and therefore the sentences should run concurrently.

Conclusion [ 81 ] In conclusion, this is a grave offence and the circumstances of its commission were serious. Mr. Cleary’s moral blameworthiness is high. A sentence that emphasizes denunciation and deterrence is warranted in the circumstances. Considering Mr. Cleary’s mitigating circumstances, it cannot be said that a five-year mandatory minimum sentence is grossly disproportionate to a fit and proper sentence for Mr. Cleary. [ 82 ] The range for offences of this nature is seven years or more if this situation were to be considered a “home invasion”.

I find that there are numerous mitigating factors described above which push the sentence to the mandatory minimum. I find Mr. Cleary’s circumstances to be more in line with an armed robbery rather than a home invasion because the circumstances are missing two of the essential features from Matwiy . [ 83 ] Bearing in mind the mitigating circumstances, Mr.

Cleary’s character and personal circumstances, I find an appropriate total sentence in this matter to be the mandatory minimum of five years’ imprisonment. [ 84 ] This may not be within the general range for this offence in Nova Scotia, but I must look at the circumstances of each offender and after applying the relevant sentencing principles, I am satisfied that this is a fit and proper sentence for this individual. [ 85 ] The breakdown is as follows: • Count 1 - Robbery, contrary to s. 344(1) of the Criminal Code – five years. • Count 7 - Possession of a prohibited or restricted firearm with ammunition, contrary to s . 95(1) of the Criminal Code – three years, to run concurrently to Count 1; and • Count 6 - Careless use of a firearm, contrary to s. 86(1) of the Criminal Code – six months, to run concurrently to Count 1. [ 86 ] I have considered the principle of totality and, in my view, this sentence is not unduly long or harsh given all the circumstances. [ 87 ] The combined circumstances of these offences are disturbing, and Mr.

Cleary will pay for this with a significant period of incarceration. This will address both deterrence and denunciation. It will rob Mr. Cleary of his youthfulness. Significant time in a federal penitentiary awaits. This sentence meets the sentencing principles. [ 88 ] It is the Court’s understanding that the Crown and Defence agree Mr. Cleary has remand credit from May 3, 2018 to July 7, 2018 which is 66 days. Applying the maximum ratio of 1.5:1 pursuant to s. 719(3.1) of the Criminal Code , he is entitled to 99 days of enhanced remand credit. I find this to be reasonable and grant the full enhanced credit.

Therefore, Mr. Cleary’s total global sentence will be 1,726 days or equivalently four years and 266 days. [ 89 ] The Crown has provided the court with the following ancillary orders which I will grant: • A mandatory primary DNA Order in accordance with s. 487.051 of the Criminal Code ; • A lifetime Firearms Prohibition Order; and • A Forfeiture Order for the firearm and ammunition seized. [ 90 ] The remaining counts are dismissed. Bodurtha, J.