R. v. Gibbons, 2018 NSSC 202

SUPREME COURT OF Nova Scotia Citation: R. v. Gibbons , 2018 NSSC 202 Date: 20180801 Docket: CRH473897 Registry: Halifax Between: Her Majesty the Queen v. Michael James Ross Gibbons Sentence Decision Corrected Decision: The text of the original decision has been corrected according to the attached erratum dated February 19, 2019 . Judge: The Honourable Justice Patrick J.

Duncan Heard: August 1, 2018, in Halifax, Nova Scotia Counsel: Ronald Lacey, for the Her Majesty the Queen Joel Pink QC, for the Accused By the Court (Orally): The Charges [ 1 ] The accused has entered pleas of guilty to Counts 1, 2, 3, 4, 5 and 15 of an Indictment which alleges that on the 10 th of January 2017, in Halifax, he, together with a co-accused: 1. broke into a dwelling house and committed theft therein, contrary to Section 348(1) (

b) of the Criminal Code : 2. and on the same date and in the same place, robbed four named occupants of the residence, all contrary to

Section 344 of the Criminal Code ; and 3. on the 11 th of January 2017, in Halifax, did break into the same dwelling house and committed theft therein, contrary to Section 348(1) (

b) of the Criminal Code .

The Facts (

a) Circumstances of the offences [ 2 ] At around 3:30 PM in the afternoon of January 10, 2017, Mr. Gibbons was observed in the company of two others at Canadian Tire where the offender was buying latex gloves and sensory irritant (Saber dog and coyote spray). A surveillance video showed a vehicle, later determined to belong to Mr. Gibbons’ mother, turning right onto Morris Street from Queen Street in Halifax at about 4:20 PM. [ 3 ] At about 4:30 PM the offender, together with two others, forced their entry into a house located at 5254 Harvey Street, Halifax.

All had their faces covered except for one intruder identified as Alex Balfe. They were armed with knives. [ 4 ] Their intent was to rob Nicholas Power-Grimm, a person believed to be a drug dealer. In the home at the time of the incident were Mr. Power-Grimm, Cullen Phillips, Mike Meaney, Leia Richardson, Sydney Wreaks and Chloe LNU . [ 5 ] Ms. Wreaks was at the location to buy marijuana. The three intruders took her cell phone. Mr. Meaney’s cell phone was also taken. These were recovered shortly after this incident concluded. [ 6 ] Having heard a voice saying, “Give me that phone”, Mr.

Power-Grimm, who was upstairs at the time, opened the door of his room and observed a masked male in the hallway. Mr. Power-Grimm shut his door and locked it. He grabbed his BB gun from the closet and yelled at the intruder. When the intruder ran back downstairs Mr. Power-Grimm followed him. According to Ms. Wreaks, Mr. Power-Grimm was shooting an Airsoft assault rifle gun with white pellets as he was chasing the intruder. A photo of the weapon indicates that it would be very intimidating. The intruders fled outside. Mr. Power-Grimm recognized Alex Balfe. [ 7 ] Police were called and statements were taken.

An investigation was initiated. The house appeared to have been ransacked. Police reports indicated that the residence was known as a place for the distribution of marijuana and cocaine. [ 8 ] At approximately 1:05 AM on January 11 th , the police received a second call from the same location indicating that there was another break and enter in progress at the house. Upon arriving at the location, they found Mr. Gibbons inside the residence together with Mr. Balfe. Mr. Balfe jumped out of a second floor window and attempted to escape but was apprehended. The offender, Mr.

Gibbons, was wearing clothes that fit the description provided by Ms. Wreaks in her statement as to the events that took place earlier in the day. [ 9 ] Subsequent investigation located a surveillance video from a Dalhousie University residence that placed Mr. Balfe and Mr. Gibbons together on January 10 th . A search of Mr.

Balfe’s room on January 13 th located a notebook with the following list of what were described as “action items”: • rally bottom to the top • hold • take phones • isolate Nick • beat till answers [ 10 ] In addition, there was a hand-drawn outline of the house plan and exterior as well as a five-point plan which stated: • step 1 - enter house • step 2 - collect everyone on the bottom • step 3 - bring everyone upstairs • step 4 - sit them on couch • step 5 - hold hostage [ 11 ] Marijuana and cocaine were located in baggies on the desk in this room.

There was also a piece of paper with the name “Nick Grimes” written on it, which it is reasonable to infer was referring to Mr. Power-Grimm. As well, identification belonging to Mr. Gibbons was located in the room. [ 12 ] Mr. Gibbons was identified to the police by one of the victims who knew him from Newfoundland. When arrested he was armed with a knife and a mask, as were his accomplices. [ 13 ] There are many aggravating circumstances about the offences. Mr.

Gibbons was an active participant having purchased the gloves and spray, using his car for transportation to and from the scene, and having entered the property on each occasion to effect the robberies. [ 14 ] This was a forced entry and robbery of persons in a residence. The offenses were premeditated and involved planning that included a willingness to use violence and unlawful confinement to achieve the objectives of the crime. There were multiple victims and the intruders were armed and masked.

Threats were made, items were stolen and there was a confinement of the victims. [ 15 ] The accused had an opportunity to reflect before deciding to return to the house, but chose to go ahead with a second attempt.

The second break and enter, though intercepted by police arrival on scene, aggravated the fear that had been initially instilled by the first intrusion. The police advise that witness statements they received indicated that all victims were very frightened by these incidents. [ 16 ] Factors relating to the circumstances of the offences and which tend to mitigate include that the actual violence was minimal and no physical harm resulted to the victims. No items were actually taken away by the intruders. The period of confinement was very brief. There is some indication that Mr.

Balfe was the leader in this plan, and of course Mr. Gibbons does not appear to have resisted his arrest, unlike Mr. Balfe. [ 17 ] Counsel for Mr. Gibbons points out that this offense occurred shortly after the offender moved to Halifax. He was a drug addict. At the time he was using OxyContin, Dilaudid, and marijuana. In addition, he was on an antidepressant drug called Cipralex. On the day of the first offense Mr. Gibbons also took Xanax, an antipsychotic drug, which he had apparently purchased on the street. [ 18 ] The offender met Mr. Balfe for the first time on January 10 th . Mr.

Balfe told the accused that they would go to a drug dealer’s house and take some pot or cocaine from the house. The offender acknowledges that he entered the residence wearing a neck warmer which partially covered his face. [ 19 ] Upon entering the residence, Mr. Gibbons asked the occupants for their cell phones and once he received them he turned them over to Mr. Balfe. Mr. Gibbons acknowledges having had a pocket knife in his possession. Mr. Balfe and a third person were armed with a baton and pepper spray. Mr. Gibbons left the residence, shortly after a person, who we now understand to be Mr.

Power-Grimm, pointed what appeared to be a rifle at the intruders. [ 20 ] After leaving the residence, the offender ingested more Dilaudid and Xanax. Mr. Balfe wanted to return to the Harvey Street address. Mr. Gibbons agreed, and they went to the residence where Mr. Balfe broke a window and unlocked the door, following which the two of them entered. The police as the Crown has indicated, arrived shortly thereafter resulting in Mr. Gibbons’ apprehension. (

b) Circumstances of the offender [ 21 ] I have had the benefit of a presentence report together with extensive supporting documentation provided to the Court by counsel for Mr. Gibbons. I will not review it in detail. [ 22 ] The presentence report is a positive document. It indicates that Mr. Gibbons is 23 years of age, is single and has no dependents. He has no criminal record. [ 23 ] The offender was raised in a positive environment by his mother, a physician, who is a single parent. Unfortunately, she often worked long hours and he was alone a lot. He had limited contact with his biological father. [ 24 ] Mr.

Gibbons did not finish grade twelve, however in 2014 he obtained a high school diploma through an alternative school program. He attempted a program at a flight training school but left after a swimming accident claimed the life of his roommate. He has had a number of short-term positions in the restaurant industry. [ 25 ] Mr. Gibbons indicates that he began using cannabis at the age of thirteen and by the age of fifteen he was using it daily. In high school, he was using opiates and by the age of twenty he was a heroin addict.

He has been diagnosed with ADHD and is currently under medical care for anxiety and depressive symptoms. In this regard, I note, in particular, the report of Dr. Anna Jasinska found at Tab 5 of the materials filed by the defence on April 10, 2018, which I believe is Exhibit 4. That report provides very helpful information in understanding Mr. Gibbons’ mental illnesses, substance abuse history, treatment and prognosis. The report notes that he has “excellent insight into his difficulties”.

He does not exhibit traits of anti-social personality and “does not externalize blame for his actions but rather accepts full responsibility for them”. [ 26 ] There is considerable evidence that demonstrates he is committed to his rehabilitation. Since his apprehension he attended a four-week residential substance abuse program at the Crosby House, a well-known and respected program for persons with substance abuse issues. The Director of that program was interviewed for the presentence report and described Mr. Gibbons as in “active participant in the program and overall did exceptionally well”.

It was noted that Mr. Gibbons has maintained contact with his counsellor since leaving the facility and appears to be committed to maintaining his sobriety. Similarly, John Fuller, of the same program, provided a letter found at Tab 6 of defence materials opining that if Mr. Gibbons continues with his aftercare plan as laid out, he should be able to live a clean, sober and productive life. [ 27 ] The offender confirmed this information by noting that he has taken advantage of the aftercare program offered by Crosby House, as well as the assistance of his counsellor, and the support of daily AA/NA meetings.

He has been under the treatment of a psychiatrist and attended an eight-week recovery program offered by Eastern Health. The presentence report author acknowledges the importance of his continuing need to engage with such support services as part of his long-term reintegration to the community. [ 28 ] The presentence report offered the view that Mr. Gibbons is a suitable candidate for supervised probation or other community supervision. Having said that, the report acknowledges the reality that the violent nature of these offenses renders Mr. Gibbons inappropriate for community service work.

In short, it is not suggested by anyone that probation or a conditional sentence is an appropriate disposition. Instead, the author’s opinion is a reflection of the offender’s success in turning his life around to the point that he would be otherwise considered a suitable for probation supervision. [ 29 ] In addition to the written material, I have heard evidence from Dr. Maureen Gibbons and from Mr. Gibbons, the offender. Both presented as sincere and credible in their descriptions of the lifestyle issues of Mr. Gibbons before and after his apprehension for these offences. (

c) Impact on the Victim and/or Community [ 30 ] There are no victim impact statements.

[ 31 ] As a general proposition, the home is considered a place of safety, for individuals and families. It is where we entertain, raise our families, enjoy private moments or simply relax. We keep our valuable possessions in our homes, especially those which have sentimental value.

Courts have repeatedly insisted on lengthy periods of incarceration for home invaders to reinforce the notion that a breach of our places of retreat are not going to be tolerated. [ 32 ] This case presents a bit of a deviation from the underlying principles of this concept in as much as the house was being used to retail illegal drugs. At least one person who was present during the first intrusion was a customer. There was a lengthy delay apparently, according to the Crown materials I was provided with, between the end of the first intrusion and the call to police.

One might speculate why this was the case – one might ask whether it was to ensure that that any evidence of the occupant’s illegal activity was removed first. To answer that question would be speculation. [ 33 ] The problem with the drug trade was clearly evidenced in this case. First, it makes the dealer and wherever he or she is, a target for theft and violence. It also puts other occupants of the premises in the same danger. In this case, the offender was seeking drugs. Second, drug dealers, being aware of their vulnerability to attack are often armed. Mr. Gibbons and his accomplices are fortunate that Mr.

Power-Griffin was only armed with an air rifle, otherwise they may have been seriously wounded or killed. [ 34 ] Notwithstanding these circumstances as I have laid them out, there is no evidence to suggest that the many other occupants of the house were anything other than innocent bystanders, and so the fear they endured is every bit as serious as that which anyone else would suffer in any similar event. To put it another way, a home invasion is still a home invasion. Legal Parameters [ 35 ] These offences are all punishable by a maximum period of life imprisonment.

They are among the most serious offences in the Criminal Code . [ 36 ]

Section 348.1 of the Criminal Code deems that it is an aggravating factor where: 348.1 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. [ 37 ] This

section clearly applies as an aggravating circumstance in the imposition of penalty in this matter. [ 38 ] The Criminal Code sections describing the offences do not prescribe minimum sentences. The court must, having regard to the applicable law, arrive at a fit and proper sentence that is within an established range of sentences for persons who have committed the same crimes in similar circumstances and where the circumstances of the offenders are similar.

Positions of Crown and Defence [ 39 ] The Crown submits that a fit and proper sentence, having regard to all of the circumstances, should be a five to six year term of imprisonment to be served on a go forward basis. Counsel submits that the principles of protection of the public as reflected in a sentence that emphasizes denunciation and deterrence is called for in the circumstances of these offenses. The Crown has presented case law showing the broad range of penalties that are available to the court in the circumstances.

Notwithstanding the breadth of the range it is clear that sentences of lengthy periods of federal imprisonment are typical. In making this recommendation, the Crown notes that a six to eight year range of sentence would be justified but have taken into account the mitigating circumstances in recommending a penalty which they view as somewhat below the normal range of sentence. [ 40 ] Counsel for Mr.

Gibbons takes the position that the sentence imposed should be a period of two to three years however with a reduction of the sentence imposed to reflect the mitigation resulting from the lengthy period of house arrest that he has been subject to while this matter was pending. [ 41 ] In making this submission counsel cites the approval of the appellate courts for moving below the range of benchmark sentences in drug cases where the sentencing court has found “exceptional circumstances”. Benchmarks referred to in those cases would be in the two to three year range. [ 42 ] Mr.

Pink submits that notwithstanding the much higher benchmark sentences set by the Courts of Appeal in home invasion robberies, being sometimes stated to be six to eight years, it is still appropriate to reduce the sentence in this case to the two to three year range. Principles of Sentencing [ 43 ] The principles of sentencing are well understood. The fundamental purpose of sentencing of course is to protect society. I have reviewed the provisions of

Section 718 of the Criminal Code . I am well familiar with them. [ 44 ] This is a case where, having regard to those principles, emphasis must be placed on denunciation and general deterrence, that is the deterrence of other people who might be inclined to commit the same crime, must be reflected in the penalty. [ 45 ] Specific deterrence, that is the imposition of a penalty that has as an objective the deterrence of Mr. Gibbons from committing a future criminal act is something that must be addressed, however I note that any sentence to be imposed of a federal prison term,

whether it be two years, four years, six years or more would be more than sufficient in my view to fulfill this goal for Mr. Gibbons. Oncehe has served a prison term, and if he maintains his sobriety, he is unlikely to be before the courts again.

If anything, his conduct sinceapprehension is consistent with a person who is unlikely to recommit a crime. [46] This point is also relevant to the weight that I must attach to the potential for the rehabilitation of the offender. [47] Any sentence imposed must be seen, as well, as a measure of reparation for the harm done to the victims and promote a senseof responsibility in Mr. Gibbons. [48] I am also familiar with the proportionality principle set out in

Section 718.1 and the provisions of 718.2(b), (c), (d), and (e), allwhich speak to the factors I must consider. This includes being mindful of what sentences have been imposed on other offenders insimilar circumstances. Case Law [49] When we speak of an acceptable range of sentence, or a fit and proper sentence, we are trying to determine where, between theextremes that may be permitted in imposing a sentence, the circumstances of the offender and of the offences fall relative to other casesof a similar nature.

For example, the most serious offence in this case carries a maximum punishment of life imprisonment but nominimum period of imprisonment is mandated. The issues for the court are: • Where should Mr.

Gibbons’ punishment fall within that range so as to be consistent with the general approach that courtstake to sentencing for these offences? • And how does that sentence reflect consistency with what has taken place in other cases with other persons who havecommitted the same offence in a similar way and with similar backgrounds? [50] To assist in assessing the fit and proper range of sentences we look to the sentences that have been given out and the principlesthat have been applied by other courts in other cases.

In particular, we look to the decisions of Courts of Appeal and more specifically tothe Court of Appeal in this province, for the authorities that we have to, as trial judges, rely on in deciding what is an appropriatesentence that would fall within a range considered to be fit and proper. [51] In theory, any period of incarceration should have a deterrent effect, both to the offender and to other persons who might be oflike mind and in similar circumstances. The longer the term of imprisonment, presumably, the greater the deterrent effect.

Clearly, ifincarceration is to operate as a deterrent then the recommendations of both the Crown and of the defence would fulfil that criteria.

Therespective recommendations of counsel in this case, constitute significant periods of incarceration. [52] The factors that distinguish one case from another include the seriousness of the circumstances of the offence and anassessment of the roles played by the offenders in the commission of the offence as well as their personal circumstances, especially as itmay relate to past criminality for related offences, and the potential for rehabilitation. [53] The absence of a criminal record and a genuine acceptance of responsibility and remorse are factors that speak to rehabilitation. [54] The length of incarceration in a federal institution makes it very difficult for the court to consider what Mr.

Gibbons’ futurepath will be as it relates to his own rehabilitation, and for the prospects of ultimately becoming a productive and law-abiding member ofthe community. Whether he can turn the page on these acts of criminality is up to him, and the availability and success of programmingoffered through the correctional services. It is a significant impediment to rehabilitation when someone has a serious drug addiction -which is said to have fueled Mr. Gibbons’ participation in these offences.

We can sincerely hope that going to prison will not set hisrehabilitation back, in the name of a penalty primarily focused on denunciation and general deterrence. This dichotomy is sometimesreferred to as “sacrificing the rehabilitation of the offender on the altar of deterrence”. The criminal law has few tools to meet all of thesocietal interests at issue and so the balancing in these matters is often inexact and sometimes seems unfair. [55] In this case, as in all cases, the court is left with a range of sentences to consider.

For example, sentencing ranges, andbenchmark sentence principles set out in Alberta, Manitoba, Saskatchewan, and Newfoundland favour sentences that would be roughlyin the range of seven to ten years. Ontario takes a more nuanced approach and seems to suggest the range might be as low as four yearsbut as high as thirteen years. [56] In Nova Scotia, from which I draw my guidance in particular, the case of R. v.

Fraser, 1997 NSCA 210 , 1997 158NSR (2d) 163, had been argued to stand for the proposition that the range begins at six years and ends at ten years for home invasion.That was explicitly rejected by the Nova Scotia Court of Appeal in R. v. P.J.H., 2000 NSCA 7, specifically at paragraphs 56 and 62. [57] In that case of a home invasion, the trial judge imposed a sentence of fifteen years, which I think, without having looked, wasprobably the most significant sentence of that nature at the time - but the facts were disturbing, as you can appreciate.

There was anelderly couple in Halifax - the wife was pushed and broke her hip. The husband was disarmed, he was struck in the head causingbleeding. Further assaults led to some loss of consciousness, a fractured left cheek, hearing loss, bruising to his brain and chest injuries.He was left with neurological problems, and became unable to live independently after the assault. The court referred to the fact that theaccused persons left the victims in their home seriously injured, indifferent to their suffering.

Even though this was a young person whohad entered a guilty plea and had been cooperative with police the trial judge, overall, was not prepared to put any weight on expressionsof remorse. That case is considered to be at the higher end of the range in the province. [58] The Court of Appeal, in PJH cited with approval the decision of the Alberta Court of Appeal in R. v. Matwiy and Langston,(1996) 1996 ABCA 63 , 178 A.R. 356, which set a benchmark of eight years and included an upper range of fifteen years. Seeat paragraph 70, et seq. [59] At paragraph 81 of P.J.H., Glube, then Chief Justice of Nova Scotia said:

[81] These types of offences (home invasion) require denunciation by society, deterrence of the accused and others from committing this type of offence, and protection of the public as the primary considerations of sentencing those who choose to invade the sanctity of the home of another and do violence through intimidation, terrorism or actual assault. [ 60 ] I will refer to two Nova Scotia cases that postdate the decision in PJH . The first was R. v. Doyle , 2008 NSSC 380 , a 2008 case of this court in which Justice Robertson, sentenced Mr. Doyle to a period of six years following a jury trial.

At paragraphs 6 and 7, Justice Robertson concluded that the jury had not found, beyond a reasonable doubt, that Mr. Doyle was one of the intruders into the victim's home. Instead, Justice Robertson concluded that the jury had accepted evidence that he had been an active participant in the break, enter and theft. In short, she characterized him as an "active participant aiding and abetting, counselling and helping Mr. MacIsaac plan this home invasion." [ 61 ] In R. v.

Shea , 2011 NSCA 107 , a 2011 decision of the Nova Scotia Court of Appeal, the accused were sentenced to six and a half years in custody, for two counts of extortion, one count of forcible confinement and a breach of recognizance. The Court of Appeal described the offences as a premeditated home invasion wherein the accused were armed. Both had lengthy, violent criminal records and were subject to weapons prohibitions at the time.

This decision supported a proposition that a sentence of six and a half years would be within a range of available dispositions for the offences involving a violent home invasion. [ 62 ] In my review of the cases presented to me, it seems to me that the position advanced by the defence would place these offences below the range of sentences typically meted out in this province. Having regard to the circumstances of the offences, I take the view that the Crown has not sought the highest end of the range of sentences that would be possible in this case.

The Crown has been candid in acknowledging that the guilty pleas were a significant factor in its decision to make a recommendation for a penalty that was somewhat less than what might otherwise have been justified from a Crown perspective. As I have indicated as well the Crown represents that the recommended penalty of five to six year reflects other mitigating circumstances. Mitigating and Aggravating Factors [ 63 ] I have previously outlined the aggravating and mitigating circumstances in relation to the circumstances of the offence itself. There are some further mitigating factors to consider.

These include the guilty plea entered by Mr. Gibbons and his expression of remorse which I accept as genuine. [ 64 ] Mr. Gibbons has no prior criminal record and, while not an excuse for his very serious misconduct in this case, it is uncontested that he was in the throes of serious drug addiction at the time. Most importantly, he has used the time since his apprehension to focus on getting control of his life, seeking out positive peers, and participating in a meaningful way in addiction treatment and follow-up programming.

Pretrial Detention as a mitigating factor [ 65 ] A sentence of five years imprisonment, as recommended by the Crown, is at the low end of the range, but having regard to all of the circumstances it is within the range of penalties the law may support. Counsel for the accused recommends a much lower sentence. The parties’ also have a disagreement as to whether the sentence should be further mitigated by the terms of the offender’s judicial interim release between his apprehension in January 2017 and today, some eighteen months later. [ 66 ] In Lever v.

The Queen , 2014 SKCA 58 , Chief Justice Richards provided a concise

summary of the key factors in determining what effect pre-sentence release conditions should have, if any, on the determination of an appropriate sentence: [9] … the extent to which the terms and duration of pre-sentence release might mitigate a sentence is something which falls to be determined according to the discretionary judgment of the sentencing judge. See, for example: R. v. Nghiem , 2009 BCCA 170 at para. 11 ; R. v. Dragos , 2012 ONCA 538 , 291 C.C.C. (3d) 350 at para. 84 .

That said, the cases also reveal a number of principles which guide the exercise of a trial judge’s discretion in relation to this issue. [10] First, pre-sentence release should not be seen as the necessary equivalent of pre-sentence custody and it obviously does not automatically reduce what would otherwise be a fit sentence. See, for example: R. v. Walsh , 2011 ONCA 325 at para. 10 ; R. v. Voeller , 2008 NBCA 37 , 335 N.B.R. (2d) 143 at para. 21 . [11] Second, pre-sentence release does not generate sentencing “credits” in the same way as pre-sentence custody.

Rather, it is one of many potentially mitigating factors to consider when formulating an appropriate sentence. See: R. v. Irvine , 2008 MBCA 34 , [2008] 6 W.W.R. 438 at para. 27 ; R. v. Knockwood , 2009 NSCA 98 , 283 N.S.R. (2d) 156 at para. 33 ; R. v. Nghiem , supra at para. 16 . [12] Third, the harsher and more burdensome the pre-sentence release conditions, the more likely they are to have a valid mitigating effect.

The factors to be taken into account in this regard include (but are not limited to) the length of time spent on release, the stringency of the release conditions, and the impact of those conditions on the offender’s ability to carry on normal personal relationships, employment and the like. See, for example: R. v. Irvine , supra at para. 29 . [13] Fourth, and speaking generally, time spent on pre-sentence release can reduce an otherwise appropriate sentence only if it involves meaningful hardship or important limitations on the offender’s liberty.

Those kinds of impacts should be clearly explained or demonstrated to the sentencing judge. Scott C.J.M. said this in R. v. Irvine , supra : 30 While the accused's counsel referred on a number of occasions at the sentencing hearing and before this court to the "strict" terms of bail constituting "effectively house arrest," no further details with respect to any alleged undue hardship were provided. For bail conditions to be considered as a mitigating factor they must impose significant custodial and penal attributes. As this court said in R. v. Higgins , 2001 MBCA 177 , 160 Man. R. (2d) 105 (Man.

C.A.), when the terms "merely mimic the conditions of ordinary life for the accused ... [they] do not contain any punitive sanction" (at para. 17), nor do they if the "house arrest required duplicates the hours when most working people are at home in any case" (at para. 20).

See also: R. v. Knockwood, supra at para. 34; R. v. Kane, 2012 NLCA 53 , 325 Nfld. & P.E.I.R. 78 at para. 36; R. v. Ijam, 2007ONCA 597 , 226 C.C.C. (3d) 376 at para. 29. [67] Mr. Gibbons was under a period of full house arrest subject to conditions that permitted him to attend for necessary medicalprogramming and treatment, to meet with legal counsel and otherwise to fulfill his legal responsibilities. He has also been permitted toattend to his personal needs when accompanied by his mother for four hours a week. I am told that she was not always available to allowhim to exercise this option.

These conditions constituted a significant limit on his liberty. They would be stringent conditions in aConditional Sentence Order, which the courts accept has, when imposed as a penalty, penal consequences that addresses issues ofdeterrence.

In saying this, I am not equating the calculation of pre-sentence restrictions on liberty with the effects of a conditionalsentence order. [68] To borrow from the language in Lever, I am satisfied that: • Eighteen months is a lengthy time spent under these conditions; • The conditions have been stringent - they do not mimic the conditions of ordinary life; • The conditions limited the offender’s ability to carry on the normal activities of a person not under such conditions. e.g.,Even when out of the house, he was required to be in the presence of a responsible party, being his mother, and only to carry outnecessary and court approved programming or attendances. • Being at Crosby House for a period of four weeks is not a reduction in the limitations of his liberty.

That in-house programrestricted his liberty, in advancing his rehabilitation. • The period of house arrest was a meaningful hardship which Mr. Gibbons’ discussed with the probation officer and wasreported in the Presentence report. It created emotional issues, and was a factor in his depressive symptoms for which he is being treated. [69] I do not agree with the Crown view that Mr. Gibbons enjoyed very limited interference with his liberty. While it is correct tosay that he was out of the house regularly, it was always in furtherance of medical and rehabilitative therapies.

He was not out of thehouse to carry on the ordinary and everyday activities of life that others enjoy. He had visits from friends but I accept that this was notfrequent, that it was done as a supportive gesture but that these friends would leave to go about their regular activities which he was notfree to do. [70] Unlike many of the cases I have been referred to, evidence has been lead through the testimony of Mr. Gibbons, and hismother, together with the documentary evidence of friends, and treatment providers that speak to this issue.

It is noteworthy that, in someof the cases provided, courts reduced the sentence to be imposed by several months where there was no evidence adduced - simply arecognition that being under the terms of a house arrest implicitly imposes a restriction on liberty.

There is evidence therefore whichsatisfies me on the balance of probabilities that the terms of judicial interim release were burdensome, and contributed to his ongoingstruggles with depression and anxiety. [71] There is a spectrum of forms of judicial interim release from a Promise to Appear in which there are no conditions, through to aRecognizance with many and very strict conditions of release.

The terms of this offenders’ release are much closer to that of incarceration than the conditions typically found in Undertakings and many Recognizances, the conditions of which would not involve afull house arrest or if so, had much more generous exemptions to the house arrest condition. [72] Mr. Gibbons could have sought a relaxation of his conditions but he did not. He was asked about this in cross examination.Given his periods of treatment programming and the uncertainty of when the matter would be brought to a conclusion, he did not makesuch application.

In my assessment, this factor does not impact on my ultimate conclusion. [73] I have not been pointed to cases where the mitigation of sentence to recognize pretrial detention approaches even 1:1 let alone1.5:1, as was urged on me by counsel for Mr. Gibbons. To accept the offender’s proposition would suggest there is no qualitativedifference between remand to jail and staying at home in one’s own bed. This proposition, in my view, is not tenable.

Sentence [74] Having regard to all of the circumstances, and in consideration of the principles of totality, where otherwise consecutivesentences might be called for, I have concluded that sentences will all run concurrent one to the other. [75] I agree with the Crown that a period of five years incarceration is a fit and proper sentence. I agree with the defence that thesentence should be mitigated further to reflect the period of eighteen months under house arrest. I set that time at nine months based onthe evidence I have heard and read.

Therefore the sentence of the court is that you serve four years and three months on each charge, oneconcurrent to the other. [76] To be clear, and without limiting my overall assessment of the circumstances before me, evidence of mitigation by way of lackof criminal record, guilty plea, successful rehabilitative efforts, and other positive aspects of the circumstances of the offender, togetherwith some of the facts of the offence such as the lack of injury to the victims, are reflected in the five year penalty, which on it own is inmy view a fit and proper sentence. [77] Mitigation for the eighteen months spent under house arrest is a separate factor based on considerations such as outlined inLever and the cases cited therein, and how I have viewed the circumstances when assessed in the context of applicable legal principles.

Ancillary Orders [78] With respect to the ancillary Orders there will be an Order pursuant to

Section 109 of the Criminal Code for a mandatory

prohibition of firearms, as a result of the conviction for the four counts of robbery. The term is for life in relation to the prohibited and restricted firearms, weapons and devices. It is for ten years beginning on release from imprisonment for other weapons as set out in the

section and the Order which I will sign. [ 79 ] There will be a

Section 487.051 of the Criminal Code to require you to submit to the taking of a DNA sample. [ 80 ] There will also be a order under

Section 743.21(1) of the Criminal Code that during the period of your incarceration, you are to have no contact directly or indirectly with the persons named by the Crown in their submissions, Mr.

Power-Grimm, Colin Phillips, Mike Meaney, Leah Richard, Sydney Wreaks, and Claire Hickey, Gabrielle Skinner, Alexander Balfe. [ 81 ] There is a mandatory requirement to impose a Victim Fine Surcharge in the amount of $200 for each count, which will be a total of $1200, which sum is payable twelve months after your warrant of committal expires, which is the end date of the four year three months, irrespective of whether you are granted earlier release. Duncan, J. SUPREME COURT OF Nova Scotia Citation: R. v. Gibbons , 2018 NSSC 202 Date: 20180801 Docket: CRH473897 Registry: Halifax Between: Her Majesty the Queen v.

Michael James Ross Gibbons ERRATUM Dated February 19, 2019 Judge: The Honourable Justice Patrick J. Duncan Heard: August 1, 2018, in Halifax, Nova Scotia Counsel: Ronald Lacey, for the Her Majesty the Queen Joel Pink QC, for the Accused

Erratum In paragraph 80, the spellings of the names Cullen Phillips, Leia Richardson and Sydney Weaks, have been changed to Colin Phillips, Leah Richard, Sydney Wreaks.