R. v. Taylor, 2010 MBCA 103

Citation: R. v. Taylor, 2010 MBCA 103 Date: 20101129 Docket: AR 10-30-07307 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Scott Madam Justice Freda M. Steel Mr. Justice Richard J. Chartier BETWEEN : HER MAJESTY THE QUEEN ) P. A. Tonge ) for the Appellant Respondent ) ) A. Y. Kotler ) for the Respondent - and - ) ) Appeal heard and ) Decision pronounced: ) October 29, 2010 MARK ANTHONY TAYLOR ) ) Written reasons: (Accused) Appellant ) November 29, 2010 CHARTIER J.A. Introduction 1 This is a sentence appeal by the accused.

The accused pled guilty to six robbery-related offences that occurred over a two- month period: specifically, four counts of robbery with a weapon, one count of robbery simpliciter and one count of attempted robbery with a weapon. He received a total sentence of eight years less credit for pre-sentence custody. After granting leave, we dismissed the appeal with brief reasons to follow . These are those reasons . Issues and Analysis 2 The accused raised two grounds of appeal. 3 First, he argued that as a result of the sentences imposed in R. v. Arbuthnot (S.M.) , 2009 MBCA 106 , 245 Man.R. (2d) 244, R. v.

Lagimodiere (S.M.E.) , 2008 MBCA 137 , 231 Man.R. (2d) 261, and R. v. N.A.S. , 2007 MBCA 97 , 220 Man.R. (2d) 43 , his sentence was harsh and excessive. Those cases are easily distinguishable. Unlike the offenders in those cases, this accused has a prior record of property crimes, including a fairly recent robbery conviction. In addition, and again unlike the other offenders, he did not present as a promising candidate for rehabilitation. In fact, he was assessed as a very high risk to re-offend.

Finally, this accused, at 34 years of age, was not a youthful offender and therefore did not engage the emphasis on rehabilitation that the other offenders did in the above-noted cases. 4 The accused also argued that the judge erred by failing to recognize that these offences were fuelled by a drug addiction and, thus, a lesser degree of responsibility. The reasons for sentence show otherwise.

The judge expressly acknowledged that “the robberies were not for greed but they were to feed a drug habit.” T he fact that offences are driven to feed an addiction is a relevant consideration when taking into account the “degree of responsibility” element found in the principle of proportionality under s. 718.1 of the Criminal Code (the Code ). This court stated in Arbuthnot , at para. 33 , and R. v.

Draper (T.G.) , 2010 MBCA 35 , 251 Man.R. (2d) 267 at para. 24 , that one cannot escape the reality that the degree of responsibility of an accused who robs to fuel an addiction will generally not be as high as for an offender who robs solely for greed. However, this lesser “degree of responsibility” must be balanced against the seriousness of these robbery offences. As Steel J.A. explained in Draper (at para. 24 ): .... A drug addiction is not an excuse, but it is a fact to be taken into account and weighed along with many other factors in sentencing. As indicated in R. v.

Priest (J.) (1996) ... 1996 CanLII 1381 (ON CA) , 110 C.C.C. (3d) 289 ([Ont.] C.A.), factors which may accentuate

the gravity of the crime cannot blind the judge to factors mitigating personal responsibility. Equally, factors mitigating personal responsibility cannot justify a disposition that unduly minimizes the seriousness of the crime committed. 5 In this case, the judge was alive to the delicate balancing between the accused’s degree of responsibility and the gravity of the crimes he committed.

He correctly found that the circumstances surrounding these offences and this offender brought to the forefront the sentencing principles of deterrence, denunciation and protection of the public. 6 In the result, we have not been persuaded that there is merit to any of the grounds raised in this appeal. In the end, while the sentence may be at the high end of the range, it does not fall outside an acceptable range of sentences for this offender and these offences. 7 However, we do feel obliged to comment on the approach used by the judge to arrive at the sentence.

He stated: In this province the practice is not to do multiple sentencings by way of consecutive sentence … the practice is to consider the totality principle up front and impose a total global sentence concurrent on all matters. 8 With all due respect, that is not the law in this province. First, depending on the circumstances, a judge may, and sometimes must, impose consecutive sentences for multiple offences.

Second, when imposing consecutive sentences, the totality principle is not to be considered “up front,” but rather when taking the “last look” at the total sentence to ensure that it is not unduly long or harsh. See s. 718.2(

c) of the Code and R. v. Reader (M.) , 2008 MBCA 42 , 225 Man.R. (2d) 118 at paras. 25-28 ; R. v. Traverse (L.) et al., 2008 MBCA 110 , 231 Man.R. (2d) 123 at paras. 32-45 ; R. v. Grant (I.M.) , 2009 MBCA 9 , 236 Man.R. (2d) 54 at paras. 97-98 ; Arbuthnot , at para. 18 ; R. v. Golden (B.R.), 2009 MBCA 107 , 245 Man.R. (2d) 254 at paras. 85-87 ; Draper , at paras. 29-34 ; and R. v. Maroti (M.) , 2010 MBCA 54 , 255 Man.R. (2d) 115 at paras. 12-24 . 9 This error in approach by the sentencing judge was not raised as a ground of appeal. Had it been, it would not have changed the ultimate outcome of this sentence appeal. Approaches for Sentencing on Multiple Offences

a) Opening observations 10 This case provides an opportunity to succinctly summarize the various approaches to follow when sentencing on multiple offences. A more thorough explanation can be found in the cases listed in para. 8 hereof. This case also serves to remind judges of the Code requirement that a sentence needs “to be imposed for each of those offences” ( s. 725(1) ( a )). This is so irrespective of whether the sentences are to be served consecutively or concurrently (see R. v. Thorpe (1976), 1976 CanLII 1403 (MB CA) , 32 C.C.C. (2d) 46 at 49 (Man. C.A.)).

In Thorpe , this court also concluded that although a sentencing judge can, pursuant to s. 728 of the Code , impose a single sentence for multiple offences, it would be preferable if, in the end, “ one sentence is imposed for each conviction” (at p. 49). See also, Clayton C. Ruby et al. , Sentencing , 7th ed. (Markham: LexisNexis Canada Inc., 2008) at para. 3.75.

b) Concurrent or consecutive sentences 11 When sentencing on multiple offences, the judge must first determine whether any or all of the sentences are to be served concurrently or consecutively. This determination has nothing to do with the overall length of the sentence and more to do with the nature and the quality of the criminal activity. If the offences are sufficiently interrelated or have a reasonably close nexus, the judge will impose a sentence with concurrent dispositions. If the offences are separate and distinct, then consecutive sentences are to be imposed. It must be remembered that the totality principle considerations under s. 718.2 (

c) of the Code apply only when consecutive sentences are imposed. When a judge sentences an accused to concurrent sentences, no such considerations arise.

c) The concurrent approach 12 When a judge decides to impose concurrent sentences for all offences, it will be because they were found to be sufficiently interrelated to merit concurrent dispositions.

I n accordance with the appropriate sentencing principles, including proportionality, the judge will either determine the fit sentence for the most serious of the offences, and make the other sentences lesser in length, but concurrent, or a fit period of imprisonment (or other type of disposition as the case may be) will be determined for that one set of offences. 13 For example, where an accused is convicted of six robberies, the number of offences is a relevant sentencing factor. More offences will tend to cause the judge to increase the sentence along the appropriate range of sentences .

If, for instance, the judge decides to impose an eight-year sentence, making it clear that the sheer number of robberies was a critical factor in causing the sentence to be increased to that level, the judge must then allocate individual sentences for each offence. This can be done either by simply imposing the same concurrent sentence for each of the robberies or by imposing less lengthy concurrent sentences on some of them.

Here, the apportionment of the sentence to each offence is made only after the judge determined the sentence for that set of offences. 14 If this procedure is followed and should two of the convictions be overturned on appeal, this court would know that the reason the judge imposed eight years concurrent for each robbery was, in part, because of the multiplicity of offences. This court would be able to recognize that, although considered in isolation, none of these robberies merit eight years; considered together, the four remaining robberies could.

Alternatively, the appeal court might conclude that less lengthy concurrent dispositions would be appropriate to better reflect the lesser degree of moral culpability attached to the fewer robbery convictions.

d) The consecutive approach 15 When a judge decides to impose consecutive sentences for all of the offences, it will be because they were each found to be separate and distinct from the others. The judge will then determine a fit sentence for each one of the offences, in accordance with the appropriate sentencing principles, including proportionality.

16 Again, assume an accused is convicted of six robberies, but this time the judge finds all of these robberies to be separate and distinct criminal transactions and merit consecutive sentences. If the judge decides that a fit sentence for each robbery would be two years, the total sentence would be 12 years. At that point, a “last look” is given to the total sentence to ensure that it is not unduly long or harsh ( s. 718.2 ( c )).

If the judge finds the total sentence of 12 years to be excessive and ten years to be more appropriate, the judge could order that this reduction be allocated proportionally to each robbery. Alternatively, the judge could have carried out this reduction by reducing only some of the individual sentences or by making some concurrent to others. 17 If, on appeal, two of the robbery convictions are overturned, this court would know that the remaining four convictions would have resulted in a total sentence of eight years.

At that point, the appeal court would review the total sentence to ensure that it respects the totality principle. If it finds that it does, the eight-year sentence would be confirmed. If not, the necessary adjustments would be made.

e) The hybrid approach 18 When a judge decides that some of the offences are sufficiently interconnected to impose concurrent sentences while others call for consecutive sentences, the judge would apply the concurrent approach to the set of concurrent offences and the consecutive approach to the other offences.

The sentence imposed for the concurrent offences would be totalled with the other sentences and a last look would be given to again ensure that it does not offend the totality principle. 19 Assuming again an accused is convicted of six robberies, but on this occasion, the judge finds that three of the robberies are sufficiently interrelated to merit concurrent sentences while the remaining three are separate and distinct robberies.

If the judge determines that a fit sentence for the three offences that formed part of the continuous, single criminal transaction is four years concurrent on all and that the other three merit two years each, the combined sentence would be ten years. If, after taking the “last look,” the judge decides to reduce the total sentence to nine years, the judge could allocate the one-year reduction to each of the concurrent offences. Alternatively, the judge could have carried out this reduction by reducing only some of the individual sentences or by making some concurrent to others.

f) Closing observations 20 As was explained in Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235, “the primary role of appellate courts is to delineate and refine legal rules and ensure their universal application” (at para. 9). The aforementioned approaches to sentencing are not new. They aim to provide judges with a helpful

summary of the applicable principles when sentencing an offender on multiple offences. They are not intended to in any way fetter a judge’s broad discretion to tailor a fit and appropriate sentence for the offences and the offender. It is hoped that by following these comments, there will be more c larity and transparency to the sentencing process to ensure that the sentence imposed bears some relationship to the offences and the offender. Moreover, they will allow for proper appellate review of the sentence. Conclusion 21 For these reasons, leave to appeal was granted, but the appeal was dismissed. J.A. I agree: C.J.M. I agree: J.A.