John Michael Hurley Applicant v. Her Majesty the Queen Respondent Decision on Summary Conviction Appeal Judge: The Honourable Justice Robin C. Gogan, 2015 NSSC 54

Supreme Court of Nova Scotia Citation: R. v. Hurley, 2015 NSSC 54 Date: 2015-02-20 Docket: Syd 427099 Registry: Sydney Between: John Michael Hurley Applicant v. Her Majesty the Queen Respondent Decision on

Summary Conviction Appeal Judge: The Honourable Justice Robin C. Gogan Heard: December 9, 2014, in Sydney, Nova Scotia Written Decision: February 20 , 2015 Counsel: Darlene MacRury, for the Applicant Mark Gouthro, for the Respondents By the Court: Introduction [ 1 ] This is an appeal from a sentence imposed by The Honourable Judge Brian Williston. On April 7, 2014, John Michael Hurley (the “ Appellant ”) was sentenced to a total of 6 years in relation to a number of offences. A Notice of

Summary Conviction Appeal was filed on May 8, 2014. The Appeal was heard on December 9, 2014. [ 2 ] The offences for which the Appellant was sentenced include the offence of attempted robbery contrary to

section 344 (

b) and 463 of the Criminal Code of Canada . The sentence imposed for that offence is not under appeal. Decision under Appeal [ 3 ] The Appellant was sentenced by Judge Williston on April 7, 2014. The offences before the court for sentencing on that date (as well as the sentences imposed) are summarized as follows: Offence Date of Offence Sentence 344(

b) Jan 8, 2013 5 years 145(3) Jan 2, 2013 2 months – Consecutive 334(b)(ii) Jan 10, 2012 2 months – Consecutive 334(b)(ii) Jan 17, 2012 2 months – Consecutive

334(b)(ii) Jan 17, 2012 2 months – Consecutive 354(1)(

a) Apr 30, 2012 2 months – Consecutive 334(b)(ii) Apr 30, 2012 2 months – Concurrent 334(b)(ii) May 25, 2012 2 months - Consecutive 733.1 Nov 5-23, 2012 2 months - Concurrent 334(

b) Aug 5, 2012 2 months – Concurrent [ 4 ] The Appellant entered guilty pleas respecting all of the offences on December 3, 2013. The sentencing facts were not contested. There were no victim impact statements. The sentencing judge heard the submissions of counsel as to sentence and considered the content of a Pre-Sentence Report dated March 20, 2014. The sentencing judge also had the benefit of an extensive sentencing brief filed by the Crown. [ 5 ] The sentencing judge approached his task by beginning with sentence on the attempted robbery offence.

He referenced his consideration of the circumstances of the offence and the offender. A sentence of 5 years was imposed before remand credit. The remaining sentences were then imposed as set out above and resulted in additional 12 months in custody. Judge Williston granted the Appellant a 1.5 credit for remand time resulting in an overall credit of 23 months. The remaining sentence after credit for remand time was 4 years and 1 month. [ 6 ] In passing sentence, Judge Williston made repeated reference to his consideration of the totality of the sentence being imposed.

Issues [ 7 ] Did the sentencing judge err by failing to consider the totality principle when imposing sentence? Position of the Parties John Michael Hurley [ 8 ] The Appellant submits that the sentence imposed is excessive and that a fit and proper sentence is 5 years less remand credit for a remaining period of 3 years and 1 month in custody. [ 9 ] The Appellant acknowledges that his sentence in relation to the offence of attempted robbery is not under appeal.

Nevertheless, he asks the Court to consider that he received, in his view, the “strictest sentence possible in these circumstances” for the attempted robbery and that his sentence for the remaining offences should be served concurrently to that sentence. [ 10 ] In making this submission, the Appellant says that the total sentence imposed offends the totality principle. The Crown [ 11 ] The Crown says that the sentence imposed was fit and just and does not offend the totality principle. It submits that the real issue on this appeal is whether the one year sentence for the

summary conviction offences should be served consecutive to the sentence for attempted robbery or served concurrently. In response to that issue, the Crown says that the sentencing judge properly applied the relevant principles and that due consideration was given to the Appellant’s criminal record, the nature of the offences before the Court for sentence, and the personal circumstances of the offender. Analysis Standard of Review [ 12 ] This is a

summary conviction appeal brought by the Appellant pursuant to

Section 813 of the Criminal Code which provides: 813. Except where otherwise provided by law, (

a) the defendant in proceedings under this Part may appeal to the appeal court: … (ii) from a sentence passed on him… [ 13 ] By virtue of Section 822(1) of the Criminal Code , the provisions dealing with appeals for indictable offences generally have application to

summary conviction appeals. Section 822(1) states: 822(1) Where an appeal is taken under

section 813 in respect of any conviction, acquittal, sentence, verdict or order, sections 683 to 689, with the exception of subsections 683(3) and 686(5), apply, with such modifications as the circumstances require. [ 14 ] The powers of an appellate court as to sentence are set out in

Section 687. (1) of the Criminal Code : 687.

(1) Powers of court on appeal against sentence – Where an appeal is taken against sentence the court of appeal shall, unless the

sentence is one fixed by law, consider the fitness of the sentence appealed against, and may on such evidence, if any, as it thinks fit torequire or receive. (

a) vary the sentence within the limits prescribed by law for the offence of which the accused was convicted; or (

b) dismiss the appeal. [15] The standard of review on sentence appeals is a deferential one. It was recently and succinctly addressed in R. v. Murphy, 2015NSCA 14 at para. 15: Standard of Review [15] The standard of review on a sentencing appeal is well-known and is not in dispute here. It is a deferential one. Absent an error inprinciple, failure to consider a relevant factor or an over-emphasis of appropriate factors a sentence should only be varied if this Court isconvinced that it is demonstrably unfit (R. v. Knockwood, 2009 NSCA 98, p. 22) [16] In R. v. L.M., [2008] 2.

S.C.R. 163, LeBel J. articulated the standard in the following way: [14] In its past decisions, this Court has established that appellate courts must show great deference in reviewing decisions of trialjudges where appeals against sentence are concerned. An appellate court may not vary a sentence simply because it would have ordereda different one. The court must be “convinced it is not fit”, that is “that…the sentence [is] clearly unreasonable” (R v. Shropshire, (SCC), [1995] 4 S.C.R. 227, at para. 46, quoted in R. v.

McDonnell, (SCC), [1997] 1 S.C.R. 948, at para.15)… [15] Owing to the profoundly contextual nature of the sentencing process, in which the trier of fact has broad discretion, the standardof review to be applied by an appellate court is one based upon deference. The sentencing judge has “served on the front lines of ourcriminal justice system” and possesses unique qualifications in terms of experience and the ability to assess the submissions of theCrown and the offender ( M.(C.A.), at para. 91)…. [17] Neither party takes issue with the standard of review.

An appellate court is required to show great deference to the decisions ofsentencing judges and is not at liberty to substitute its view as to the appropriate sentence absent legal error. (See: R. v. L.M, supra andalso R. v. Nagle, 2011 NSCA 33). [18] The real issue in this appeal is whether the Appellant has demonstrated, under the requisite standard, that the sentence imposedby the trial judge was not fit and just as a result of a failure to apply the totality principle. [19] For the reasons that follow, I dismiss the appeal.

Did the sentencing judge err by failing to consider the totality principle in imposing sentence? (

a) General Principles [20] This appeal raises the application of the totality principle. The statutory source for this principle is found in

section 718 of theCriminal Code and in particular: Fundamental Principle 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. … Other Sentencing Principles 718.2 A court that imposes a sentence shall also take into consideration the following principles: … (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. [21] In R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500, Lamer, C.J.C. speaking for a unanimous Court, described thetotality principle as follows: 42 In the context of consecutive sentences, this general principle of proportionality expresses itself through the more particular formof the “totality principle” The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutivesentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender.

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

Clayton Ruby articulates the principle in the following terms in his treatise, Sentencing, supra, at pp. 44-45: The purpose is to ensure that a series of sentences, each properly imposed in relation to the offence to which it relates, is in aggregate“just and appropriate”.

A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above thenormal level of a sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender “a crushingsentence” not in keeping with his record and prospects. [22] The Appellant argues that the total sentence imposed in this case offends the totality principle. As I understand the Appellantssubmissions, no issue is taken with the judge’s application of the remaining sentencing principles.

The Appellant simply argues that thepenalty imposed was manifestly excessive by virtue of the failure of the sentencing judge to give effect to the totality principle. Specifically, the Appellant says that his sentences for the multiple

summary conviction offences should be served concurrently with hissentence for attempted robbery. [23] The totality principle has been extensively considered. In R. v. Adams, 2010 NSCA 42, Bateman J. A. thoroughly reviewed theconcept of totality in sentencing and, at para. 23, set out the appropriate method for a sentencing judge to employ: [23] …The judge is to fix a fit sentence for each offence and determine which should be consecutive and which, if any, concurrent. Thejudge then takes a final look at the aggregate sentence.

Only if concluding that the total exceeds what would be a just and appropriatesentence is the overall sentence reduced… [24] In adopting this method, the Court considered and rejected other approaches to the consideration of the totality principle. Atpara. 24, Justice Bateman clarified further: [24] This Court has addressed and rejected any approach that would suggest that, when sentenced for a collection of offences, theaggregate sentence may not exceed the “normal level” for the most serious of offences (see R. v. Markie, 2009 NSCA 119 at paras 18-22, per Hamilton J.

A.) [25] Reference is also made to the decision of the Newfoundland & Labrador Court of Appeal in R. v. Hutchins, 2012 NLCA 2which contains a succinct 3 step approach to sentencing for multiple offences. [26] The arguments in the present case bear similarity to those in R. v. Naugle, 2011 NSCA 33. In that case, the Appellant had beensentenced to the maximum sentence of 5 years for driving while impaired and further consecutive sentences of 3 years for driving whileprohibited and 6 months for leaving the scene of an accident. The total sentence was 8 ½ years.

The Appellant complained that his totalsentence reflected an error in principle and was manifestly excessive. [27] The Court of Appeal disagreed. As to the error in principle, Beveridge, J.A. reviewed the predominant principles: [19] The appellant concedes that the imposition of the maximum sentence of 5 years for the offence of impaired driving isunassailable…It is the imposition of any sentence in excess that attracts his criticism.

It is therefore important to focus on what causedany additional incarceration. [20] Obviously, the sentence beyond 5 years was the result of selection by the sentencing judge of consecutive sentences for theoffences…The sentencing judge referred to the principle of totality but nonetheless declined to make any of the sentences concurrent orotherwise reduce the overall sentence. [21] There are no specific provisions in the Criminal Code to guide a sentencing judge on when to select a consecutive as opposed toa concurrent sentence.

The Code does direct that a Court that imposes a sentence shall take into consideration a number of principles, oneof which is that of totality.

Section 718.2 provides: (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; [22] The discretion to order consecutive or a concurrent sentence is also afforded deference. Sopinka J. for the majority in R v.McDonnell, (SCC), [1997] 1 S.C.R. 948 wrote: 46 In my opinion, the decision to order concurrent or consecutive sentences should be treated with the same deference owed byappellate courts to sentencing judges concerning the length of sentences ordered.

The rationale with respect to the length of sentence,clearly stated in both Shropshire and M. (C.A.), applies equally to the decision to order concurrent or consecutive sentences. In bothsetting duration and type of sentence, the sentencing judge exercise his or her discretion based upon his or her first- hand knowledge ofthe case; it is not for the appellate court to intervene absent an error in principle, unless the sentencing judge ignored factors or imposed asentence which, considered in its entirety, is demonstrably unfit.

The Court of Appeal in the present case failed to raise a legitimatereason to alter the order of concurrent sentences made by the sentencing judge; the court simply disagreed with the result of thesentencing judge’s exercise of discretion, which is insufficient to interfere.

[ 28 ] After reviewing the foregoing authority and then referring to the decisions in R. v. Adams , supra and R v. M. (C.A.) , supra , Justice Beveridge concludes: [26] With respect, I find nothing in the above statement of principle that equates to anything more than requiring a sentencing judge, or a reviewing court, to address whether the offences being considered should properly be ordered to be served consecutively, and, having done so, to ask if the sentence offends the totality principle. [ 29 ] Having reviewed the general principles applicable to this appeal, what remains the application of those principles in the present case. (

b) Application of the General Principles [ 30 ] In the present case, the sentencing judge begins his reasons by noting that the Appellant had entered guilty pleas and taken responsibility for the offences committed. He goes on to note that the most serious offence was that of attempted robbery. He refers to some of the details of that offence. He then reviews the content of the Pre-Sentence Report and notes that the Appellant is only 29 years of age, has accumulated a serious criminal record and acknowledges a drug addiction. He then summarizes the positions of the parties as to the appropriate sentence.

He concludes by imposing sentence for the attempted robbery offence: I am going to, first of all, deal with the sentence now with respect to this, and with respect to, with respect to the attempted robbery, I have considered the submissions of counsel, your previous record, the presentence report, and the fact that you want to turn your life around, and that, that is important.

The longest time you have spent, the total sentence that you received last time was six years…with respect to the seriousness of the offence…this is an offence in which you were armed with a knife…This is an attempted robbery…the sentence that I feel is a fit and proper sentence, taking into account all of the circumstances here, and this is before I look at the remand time, the sentence is 5 years for that attempted robbery. [ 31 ] Judge Williston moves on to impose sentence for the remaining offences, noting his consideration of the totality principle: I’ve also taken into account the totality of sentencing here with respect to these offences …The Crown proceeded summarily on all of those.

I, I am going to sentence you on those remaining offences…so with respect to the January 2, 2013 offence, the breach of curfew, I sentence you to 2 years (later corrected to be 2 months). That’s going to be consecutive to the sentence…some of these are going to be concurrent, but I am looking at the total sentence here . For the January 10, 2012 offence is the theft from Zellers…So I sentence you to 2 months consecutive for that. For the January 17, 2012 theft from the Nova Scotia Liquor Commission…I sentence you to 2 months consecutive. The theft from Home Hardware, April 30, 2012…I sentence you to 2 months.

I realize that with respect to that there’s another offence for April 30, 2012, that is the offence from Zellers…I sentence you to 2 months concurrent on that. For the May 26, 2012 theft from Hudson Bay…I sentence you to 2 months. That’s, that’s consecutive. For the remaining offences, I sentence you to 2 months concurrent. That’s for August 5, 2012, theft from hair products from Shopper’s Drug Mart, 2 months concurrent, breach of probation, 2 months concurrent. That should add up to 12 months on that.

I am looking at this because I am looking at the total sentence here. (Emphasis added and some remarks about the details of each offence are deleted) [ 32 ] In my view, the sentencing judge employed the appropriate method in imposing sentence for multiple offences. He began with the most serious offence and imposed a 5 year sentence. In doing so, he referenced the circumstances of the offence and the offender and put particular emphasis on the Appellant’s prior criminal record.

The portion of the Appellant’s total sentence is not under review. [ 33 ] Judge Williston then went on to determine the appropriate sentences for the

summary conviction offences. He stated the length of sentence for each additional offence and determined as he moved through the various offences whether the sentences would be served consecutively or concurrently. It was his view that some sentences would be consecutive and some concurrent to the sentence for armed robbery. [ 34 ] The Appellant in the present case submits that the total sentence imposed should have been no longer than the sentence of 5 years imposed for the offence of armed robbery. Based upon the direction of our Court of Appeal in R. v. Adams , supra , and R. v.

Markie , supra , I must conclude that the sentencing judge committed no error in principle simply because he imposed a total sentence which exceeded the sentence for the most serious offence. [ 35 ] Moreover, I am not persuaded that the sentencing judge’s decisions as to the type of sentence being imposed should not be afforded the required deference. It is clear from his reasons that he gave consideration to the circumstances of the offences and the offender and was not satisfied that having all

summary conviction sentences served concurrent to the armed robbery sentence was appropriate in the circumstances. Rather, the sentencing judge was of the view, having considered all the relevant information, that something more was required to give proper effect to the sentencing principles. [ 36 ] Finally, it is clear from the approach of the sentencing judge that he was mindful of the total sentence being imposed as he moved his way through the sentencing process. First, he noted consideration of the principle before imposing sentence in relation to the

summary conviction offences. He then addressed it as he moved through the various sentences as an explanation as to why some sentences were consecutive and some concurrent. Then, after imposing sentence for all of the offences, but before addressing the remand credit, he once again noted his consideration of the total sentence being imposed. After addressing the appropriate remand credit, the

judge concluded: …In fact, I believe you justified having earned your 1.5 credit here. Okay. So it is 1.5. That’s the most that I can give. And, so that is the total sentence. And I, I’ve broken these down….but this should not exceed 6, 6 years… …So, the total sentence is, was six years, but…its less 23 months, which means that you are going to serve 4 years and 1 month. [ 37 ] In my view, there can be no dispute that the sentencing judge had the totality principle in his mind and that he considered it in deciding that the total sentence before remand credit should not exceed 6 years.

The total of 6 years was clearly the outcome of Judge Williston’s “last look” at the total sentence being imposed. It is the last look of an experienced sentencing judge. His decisions are entitled to great deference. I am not persuaded that there is any basis to interfere. The Appellant has not demonstrated any error in principle or that the total sentence imposed is manifestly unjust. Conclusion [ 38 ] I am satisfied that the sentencing judge properly considered the totality principle.

The sentencing judge fixed a sentence for each of the offences and determined which would be served consecutively and concurrently. He concluded by finding that a fit and proper sentence should not exceed 6 years with specific reference to the totality principle.

It is clear that the totality principle was considered by the sentencing judge throughout his sentencing reasons. [ 39 ] Having found no error by the sentencing judge in his consideration of the totality principle, I am not satisfied that the sentences imposed are excessive for the Appellant given his circumstances, the circumstances of the offences and the interest of the wider community. The decision of the sentencing judge is entitled to great deference. I find no basis to interfere. [ 40 ] The appeal is dismissed. Gogan, J.