R. v. Wozny, 2010 MBCA 115

Citation: R. v. Wozny, 2010 MBCA 115 Date: 20101222 Docket: AR 09-30-07283 IN THE COURT OF APPEAL OF MANITOBA Coram : Chief Justice Richard J. Scott Mr. Justice Martin H. Freedman Mr. Justice Alan D. MacInnes B E T W E E N : HER MAJESTY THE QUEEN ) A. Y. Kotler ) for the Appellant Appellant ) ) ) T. L.

Mariash ) for the Respondent - and - ) ) ) Appeal heard: ) May 13, 2010 ) CHRISTOPHER PHILLIP WOZNY ) ) Judgment delivered: (Accused) Respondent ) December 22, 2010 MacINNES J.A. 1 The Crown seeks leave to appeal and, if leave is granted, appeals the sentence imposed upon the accused of four years’ incarceration, less credit for pre-sentence custody. At the commencement of the appeal hearing, the Crown sought leave to introduce fresh evidence. The court concluded that the necessary criteria for the introduction of fresh evidence were not met, and the Crown’s application was dismissed.

Argument of the appeal proceeded. Facts 2 The accused pled guilty to 17 gas station robberies which he committed over a period of one and one-half months in the summer of 2007. One was committed July 28. Five were committed between August 17 and August 26. The remaining 11 were committed September 2 to September 10, and the accused was arrested September 13. Twelve of the robberies were committed while the accused was armed with a knife and two while he was armed with a screwdriver. Nine of the robberies were committed while the accused was wearing a disguise or had his face covered.

The robberies occurred at all hours of the day and night. Several gas stations were robbed more than once, as were three employees. 3 The accused, who was a few months short of his 25th birthday when the offences occurred, had no previous record. A pre-sentence report was prepared for the sentencing judge. In the report, the accused took responsibility for his offences and said that he had committed them in order to obtain money to purchase drugs for personal use by reason of his crack cocaine addiction.

The pre- sentence report stated that the accused had a normal upbringing with a supportive family, but notwithstanding, had began using drugs as a teenager, using them regularly by his early 20s. The accused underwent treatment for his drug addiction in December 2005 and stopped using drugs for approximately one year. He then regressed and began his drug usage again. Following his arrest, the accused

completed a number of treatment programs, including in-patient programs. He has a strongly supportive family and a new girlfriend, who likewise is strongly supportive. He has a completed Grade 12 education and has been, and has the ability to be, employed. He was assessed as a medium risk to reoffend. 4 At the sentence hearing, the Crown argued that these offences should be treated as spree offences, that the sentence imposed should be a concurrent sentence on all counts and that after application of the principle of totality, a sentence of eight years should be imposed, minus credit for time in custody.

The accused sought a sentence of three years, minus pre-sentence custody credit. 5 The sentencing judge accepted the Crown’s characterization of the 17 robberies as a “spree” and that the sentence should be imposed concurrently. The sentencing judge applied the principle of totality and imposed a sentence of four years concurrent, less 17 months’ credit for pre-sentence custody, the remaining sentence thus being 31 months. 6 The points in issue raised by the Crown on its leave application and on the appeal are:

(1) Did the learned sentencing judge err in imposing concurrent sentences for 17 robberies carried out over a period of a month and a half?

(2) Was the accused’s sentence unfit? Standard of Review 7 The Crown argues that the standard of review is fitness of sentence. It says, relying upon R. v. Reader (M.) , 2008 MBCA 42 , 225 Man.R. (2d) 118, that the same deferential standard applies to the decision whether to impose concurrent or consecutive sentences as to the decision respecting the length of sentence. 8 The accused asserts that the standard of review is that of fitness of sentence, relying upon R. v. Shropshire , 1995 CanLII 47 (SCC) , [1995] 4 S.C.R. 227, R. v. M. (C.A.) , 1996 CanLII 230 (SCC) , [1996] 1 S.C.R. 500, and R. v.

Arbuthnot (S.M.) , 2009 MBCA 106 , 245 Man.R. (2d) 244, where Chartier J.A., at para. 4, relied principally upon R. v. L.M. , 2008 SCC 31 , [2008] 2 S.C.R. 163. 9 The accused does not address the standard of review relative to the question of type of sentence imposed, that is, concurrent or consecutive. 10 In my view, it is clear that an appellate court must show great deference when reviewing a sentencing decision, both as regards the decision to order a concurrent or consecutive sentence and concerning the length of sentence ordered.

An appellate court should not intervene in either the type of sentence ordered or its duration absent an error in principle or unless the sentence is unfit. An error in principle includes failing to consider a relevant factor, taking into account an irrelevant factor, failing to give sufficient weight to a relevant factor or overemphasizing an appropriate factor. See Shropshire , M. (C.A.) , L.M. , Arbuthnot and R. v. McDonnell , 1997 CanLII 389 (SCC) , [1997] 1 S.C.R. 948.

Argument Issue No. 1 11 The Crown argues, as is the case, that the sentencing judge found that the accused’s robberies were “separate and apart, distinct from each other,” but nevertheless concluded that because they were “interconnected as part of the same spree,” they called for concurrent sentences. Crown counsel acknowledges, however, that the Crown (a different counsel), at sentencing, advocated this position, that is, that the offences were part of a spree and thus called for a concurrent sentence. 12 The Crown argues on appeal that the sentencing judge erred in imposing a concurrent sentence.

It relies upon R. v. Munilla and Santorelli (1986), 1986 CanLII 4879 (MB CA) , 38 Man.R. (2d) 79 (C.A.), that when offences are committed in separate and distinct transactions, consecutive sentences should be imposed in order to deter continued offending. Indeed, it says that more recently, in R. v. Traverse (L.) et al. , 2008 MBCA 110 , 231 Man.R. (2d) 123, the court followed Munilla and Santorelli , stating (at para. 47 ): ….

It is trite to say that offences that are separate and distinct should normally attract consecutive sentences, while offences that are sufficiently interrelated and occur during the same incident should generally receive concurrent sentences. 13 Accordingly, the Crown asserts that having found the robberies to be separate and apart, distinct from each other, the sentencing judge ought to have imposed consecutive sentences, at least initially, and subject to taking the “last look” required by the principle of totality. 14 The Crown argues, notwithstanding Arbuthnot and other cases which have stated that where an offender commits a series of crimes within a sustained and relatively short period of time concurrent sentences may be appropriate, that in a case such as this, where the robberies were committed over the course of a month and a half, and sometimes with weeks between robberies, it is an error to impose a concurrent sentence. 15 As regards the description of these offences as constituting a “spree,” the Crown asserts that these offences were not a spree, but rather a lifestyle, that is, a series of separate and distinct choices made by the accused to live the way he was living at the time, namely, taking drugs and committing crimes.

16 The Crown says that the sentencing judge placed too much weight on the fact the accused’s crimes were similar to one another, which it asserts is not determinative, and, in fact, says little as to whether concurrent or consecutive sentences are appropriate.

The Crown argues that as in Traverse , an offender may commit very similar crimes, even carrying them out the same way and attacking the same victim, weeks or months apart, but which call for consecutive sentences. 17 The important point, argues the Crown, is not the nature of the offence committed by the offender, but the nature of the choice the offender makes and the opportunity he has to reflect on it.

The Crown says that here, where the accused adopted a pattern over a significant period of time (one and a half months) of taking drugs and committing robberies in order to buy them, it does not make sense to think of his conduct as one transaction, no matter how similar the robberies may be. 18 The Crown expresses concern at the description of the offences as a “spree,” saying that label adds little to the analysis. Such a term is not rooted in principle and simply serves to confuse sentencing judges.

What matters, says the Crown, is the nature and quality of the choice made by an offender, and where, as in this case, the accused had chances to reflect on his situation and chose to reoffend, a concurrent sentence is not appropriate. 19 The accused reiterated that the Crown’s position before the sentencing judge was that the offences ought to give rise to a concurrent sentence because such offences were characterized by law as a spree.

He says the Crown there argued that it was the gravamen of the offence that points out that the offences should be dealt with in a concurrent rather than consecutive manner and that then the principle of totality should be applied, with the court taking one last look.

He asserts that the Crown never put to the sentencing judge that it thought the accused should receive consecutive sentences or mixed consecutive/concurrent sentences, as now suggested by the Crown on this appeal. 20 The accused points to the highly deferential standard of review applicable to the decision of the sentencing judge to order concurrent rather than consecutive sentences and says that it was open to the sentencing judge to determine on the facts before him whether the offences were sufficiently interrelated to merit a concurrent sentence rather than consecutive sentences. 21 Relying upon Arbuthnot , the accused argues that concurrent sentences are especially appropriate when the gravamen of the offences was the same, robbing vulnerable targets to feed an addiction, and when one is dealing with offenders who commit a series of robberies over a relatively short period of time to feed an addiction. 22 The accused says that the sentencing judge found on the facts that the offences were interconnected as part of the same spree, notwithstanding that he also stated the offences were separate and apart, distinct from each other. 23 The accused submits that the sentencing judge properly applied the law in imposing a concurrent rather than a consecutive sentence.

He says there was no error committed in that regard, especially when the Crown argued that a concurrent sentence was called for. Issue No. 2 24 The Crown argues that in imposing a concurrent sentence, the sentencing judge erred in applying the principle of totality. It asserts that the principle of totality has no application except when consecutive sentences are being imposed. 25 More fundamentally, the Crown argues that the nature and number of the accused’s offences make a four-year sentence unfit.

That sentence fails to reflect the gravity of the many crimes committed by the accused and the need to prevent similar victimizations of vulnerable employees in the future. 26 The Crown asserts a steady increase in the number of appeals concerning robberies of small convenience stores, gas bars and the like.

It has argued in recent previous cases, and argues again, that the number of such appeals indicates a need for sentencing judges to have clear rules for dealing with these kinds of offences and, as well, demonstrates, by reason of the prevalence of these offences in the community, the need for the justice system to respond strongly to them. 27 In this case, says the Crown, the accused pled guilty to 17 robberies. Fourteen of them involved a weapon. Some of the gas bars were robbed more than once, and three of the clerks were each robbed twice.

The Crown says that the courts must respond appropriately where there is a demonstrated need for these businesses and their employees, who often work alone late at night, to receive the protection of the law. 28 The Crown asserts that in cases of this kind, deterrence and denunciation are especially pressing, particularly where multiple offences are involved. 29 The Crown candidly highlights both the aggravating and mitigating circumstances relevant in this case and argues that in all of the circumstances, the sentence of four years is wholly unfit.

It submits that, at the very least, there were three separate and distinct transactions at issue, namely, the July robbery, the August robberies and those committed in September. At minimum, says the Crown, the offences which occurred during those three periods should call for consecutive sentences, one period to the others. 30 It submits that leave should be granted, its appeal allowed and the sentence of four years increased to one of eight years.

It suggests the eight-year sentence might be arrived at by imposing a sentence for the July robbery, a concurrent sentence for the group of August robberies, but that sentence consecutive to the sentence for the July robbery, and a concurrent sentence for the group of September robberies, but that sentence consecutive to the sentences for the August and July robberies. 31 The Crown describes what it submits would be an appropriate sentence for each offence after taking into account the application of the totality principle, resulting in a reduction in the cumulative or overall sentence, thus resulting in the following sentence: – the July robbery – one year;

– the August robberies – three years, concurrent to each other, but consecutive to the sentence for the July robbery; – the September robberies – four years, concurrent to each other, but consecutive to the sentences for the July and August robberies; and – the overall total sentence being eight years, less time in custody prior to sentence. 32 The accused submits that the sentencing judge was fully aware of all of the aggravating factors in the accused’s crimes.

As well, he was aware of the mitigating factors, particularly that the accused was 24 years of age at the time of the offences and had no previous record. Thus, he was a youthful first offender.

In such circumstances, the accused asserts that the court must follow the principle of restraint as much as possible and that the term of incarceration should be as short as possible and tailored to the accused’s individual circumstances. 33 The accused argues that while deterrence and denunciation are significant factors to be considered in cases of the kind here, substantial consideration should be given to rehabilitation when determining the appropriate length of sentence given the accused’s prospects and, in particular, that he is a youthful first offender.

He asserts that the fact his crimes were driven not by greed, but by a need to feed an addiction, is one which tends to reduce the accused’s moral blameworthiness for the crimes committed. While acknowledging that his actions cannot be excused, even though driven by addiction, he says that fact is one which must be taken into account and weighed along with other factors in arriving at an appropriate sentence. 34 The accused submits that the sentence imposed was well considered and consistent with the principles of sentencing.

He asserts it is thus entitled to deference, that appellate intervention is not warranted and that leave to appeal ought not to be granted or, alternatively, that the appeal of sentence ought to be dismissed. Analysis 35 Sentencing is a delicate art. The law is clear that sentencing judges are permitted a substantial discretion in the imposition of sentence, both as regards duration of the sentence and the type of sentence (that is, consecutive or concurrent) imposed.

See M. (C.A.) , L.M. and McDonnell . 36 Lamer C.J.C. explained the rationale for this substantial discretion in M. (C.A.) when he wrote (at para. 91 ): …. A sentencing judge still enjoys a position of advantage over an appellate judge in being able to directly assess the sentencing submissions of both the Crown and the offender. A sentencing judge also possesses the unique qualifications of experience and judgment from having served on the front lines of our criminal justice system.

Perhaps most importantly, the sentencing judge will normally preside near or within the community which has suffered the consequences of the offender ’ s crime. As such, the sentencing judge will have a strong sense of the particular blend of sentencing goals that will be “just and appropriate” for the protection of that community.

The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community.

The discretion of a sentencing judge should thus not be interfered with lightly. 37 My comments which follow are not intended to diminish that broad discretion in any way, but are intended, hopefully, to assist sentencing judges in determining a fit sentence, which many judges describe as their most difficult task, particularly as that task pertains to sentencing in respect of multiple offences. 38 The law is clear that the overarching principle of sentencing is that of proportionality. This is made clear in many cases, to only a few of which I will refer. 39 In M. (C.A.) , Lamer C.J.C. wrote (at para. 40): ….

It is a well-established tenet of our criminal law that the quantum of sentence imposed should be broadly commensurate with the gravity of the offence committed and the moral blameworthiness of the offender. As Wilson J. expressed in her concurring judgment in Re B.C. Motor Vehicle Act , 1985 CanLII 81 (SCC) , [1985] 2 S.C.R. 486 , at p. 533 : It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a “fit” sentence proportionate to the seriousness of the offence.

Only if this is so can the public be satisfied that the offender “deserved” the punishment he received and feel a confidence in the fairness and rationality of the system. Cory J. similarly acknowledged the importance of “the principle of proportionality” in speaking for the Court in R. v . M. (J.J.) , 1993 CanLII 91 (SCC) , [1993] 2 S.C.R. 421 , at p. 431, noting that “[i]t is true that for both adults and minors the sentence must be proportional to the offence committed”.

Indeed, the principle of proportionality in punishment is fundamentally connected to the general principle of criminal liability which holds that the criminal sanction may only be imposed on those actors who possess a morally culpable state of mind. In discussing the constitutional requirement of fault for murder in R. v .

Martineau , 1990 CanLII 80 (SCC) , [1990] 2 S.C.R. 633 , at p. 645, I noted the related principle that “punishment must be proportionate to the moral blameworthiness of the offender”, and that “those causing harm intentionally [should] be punished more severely than those causing harm unintentionally”. On the principle of proportionality generally, see R. v. Wilmott , 1966 CanLII 222 (ON CA) , [1967] 1 C.C.C. 171 , at pp. 178-79 (Ont. C.A. ) ; Sentencing Reform: A Canadian Approach , [ Canadian Sentencing Commission (Ottawa: The Commission, 1987)] , at p. 154. Lamer C.J.C. wrote further (at para. 82):

…. In the final analysis, the overarching duty of a sentencing judge is to draw upon all the legitimate principles of sentencing to determine a “just and appropriate” sentence which reflects the gravity of the offence committed and the moral blameworthiness of the offender. 40 More recently, in R. v. Nasogaluak , 2010 SCC 6 , [2010] 1 S.C.R. 206, LeBel J., under the heading “The Principles of Sentencing,” wrote (at paras. 39-45): …. In addressing this issue, it is necessary first to review the principles that guide the sentencing process under Canadian law.

The objectives and principles of sentencing were recently codified in ss. 718 to 718.2 of the Criminal Code to bring greater consistency and clarity to sentencing decisions. Judges are now directed in s. 718 to consider the fundamental purpose of sentencing as that of contributing, along with crime prevention measures, to “respect for the law and the maintenance of a just, peaceful and safe society”.

This purpose is met by the imposition of “just sanctions” that reflect the usual array of sentencing objectives, as set out in the same provision: denunciation, general and specific deterrence, separation of offenders, rehabilitation, reparation, and a recent addition: the promotion of a sense of responsibility in the offender and acknowledgement of the harm caused to the victim and to the community. The objectives of sentencing are given sharper focus in s. 718.1, which mandates that a sentence be “proportionate to the gravity of the offence and the degree of responsibility of the offender”.

Thus, whatever weight a judge may wish to accord to the objectives listed above, the resulting sentence must respect the fundamental principle of proportionality. …. It is clear from these provisions that the principle of proportionality is central to the sentencing process ( R. v. Solowan , 2008 SCC 62 , [2008] 3 S.C.R. 309 , at para. 12 ). This emphasis was not borne of the 1996 amendments to the Code but, rather, reflects its long history as a guiding principle in sentencing (e.g. R. v. Wilmott (1966), 1966 CanLII 222 (ON CA) , 58 D.L.R. (2d) 33 (Ont. C.A.) ).

It has a constitutional dimension, in that s. 12 of the Charter forbids the imposition of a grossly disproportionate sentence that would outrage society’s standards of decency. But what does proportionality mean in the context of sentencing? For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. In this sense, the principle serves a limiting or restraining function.

However, the rights-based, protective angle of proportionality is counter-balanced by its alignment with the “just deserts” [ sic ] philosophy of sentencing, which seeks to ensure that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused ( R. v. M. (C.A.) , 1996 CanLII 230 (SCC) , [1996] 1 S.C.R. 500 , at para. 81 ; Re B.C. Motor Vehicle Act , 1985 CanLII 81 (SCC) , [1985] 2 S.C.R. 486 , at pp. 533-34 , per Wilson J., concurring).

Understood in this latter sense, sentencing is a form of judicial and social censure (J. V. Roberts and D. P. Cole, “Introduction to Sentencing and Parole”, in Roberts and Cole, eds., Making Sense of Sentencing (1999), 3, at p. 10). Whatever the rationale for proportionality, however, the degree of censure required to express society’s condemnation of the offence is always limited by the principle that an offender’s sentence must be equivalent to his or her moral culpability, and not greater than it.

The two perspectives on proportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary. The language in ss. 718 to 718.2 of the Code is sufficiently general to ensure that sentencing judges enjoy a broad discretion to craft a sentence that is tailored to the nature of the offence and the circumstances of the offender.

The determination of a “fit” sentence is, subject to some specific statutory rules, an individualized process that requires the judge to weigh the objectives of sentencing in a manner that best reflects the circumstances of the case ( R. v. Lyons , 1987 CanLII 25 (SCC) , [1987] 2 S.C.R. 309 ; M. (C.A.) ; R. v. Hamilton (2004), 2004 CanLII 5549 (ON CA) , 72 O.R. (3d) 1 (C.A.) ). No one sentencing objective trumps the others and it falls to the sentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case.

The relative importance of any mitigating or aggravating factors will then push the sentence up or down the scale of appropriate sentences for similar offences. The judge’s discretion to decide on the particular blend of sentencing goals and the relevant aggravating or mitigating factors ensures that each case is decided on its facts, subject to the overarching guidelines and principles in the Code and in the case law. The wide discretion granted to sentencing judges has limits.

It is fettered in part by the case law that has set down, in some circumstances, general ranges of sentences for particular offences, to encourage greater consistency between sentencing decisions in accordance with the principle of parity enshrined in the Code . But it must be remembered that, while courts should pay heed to these ranges, they are guidelines rather than hard and fast rules. A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing.

Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred. The discretion of a sentencing judge is also constrained by statute, not only through the general sentencing principles and objectives enshrined in ss. 718 to 718.2 articulated above but also through the restricted availability of certain sanctions in the Code . …. Absent a declaration of unconstitutionality, minimum sentences must be ordered where so provided in the Code .

A judge’s discretion does not extend so far as to override this clear statement of legislative intent. 41 This court has written frequently over the last three and one-half years on the subject of the imposition of sentence for multiple offences. See R. v. N.A.S. , 2007 MBCA 97 , 220 Man.R. (2d) 43, R. v. Reader (M.) , 2008 MBCA 42 , 225 Man.R. (2d) 118, R. v. Traverse (L.) et al. , 2008 MBCA 110 , 231 Man.R. (2d) 123, R. v. Lagimodiere (S.M.E.) , 2008 MBCA 137 , 231 Man.R. (2d) 261, R. v. Grant (I.M.) , 2009 MBCA 9 , 236 Man.R. (2d) 54, R. v. Arbuthnot (S.M.) , 2009 MBCA 106 , 245 Man.R. (2d) 244, R. v.

Golden (B.R.) , 2009 MBCA 107 , 245 Man.R. (2d) 254, R. v. Draper (T.G.) , 2010 MBCA 35 , 251 Man.R. (2d) 267, R. v. Maroti (M.) , 2010 MBCA 54 , 255 Man.R. (2d) 115, and R. v. Taylor , 2010 MBCA 103 . This decision will add to the collection. Many, but not all, of these cases relate to the sentencing for what has been described as “spree” offences involving robberies by an accused for the purpose of obtaining funds with which to feed a drug addiction. 42 In this case, as in Maroti , the Crown argued that the continuing appeals provide some evidence that the court should

provide sentencing judges and counsel greater clarification with respect to sentencing for multiple offences, particularly in respect of those which the courts have come to describe as spree offences. The suggestion was rejected in Maroti , per Steel J.A., at paras. 14-20, where the specific issue for which better direction was sought pertained to the sentencing for “spree offences” and the question whether the sentence should be a concurrent or consecutive sentence. 43 Doubtless there are occasions when a need for clarification or better direction exists. Here, however, I too would reject the Crown’s submission.

In my view, this court has more than adequately explained the required process for sentencing in respect of multiple offences and, in particular, of the kind of offences present in this case. I must reluctantly conclude that the cause for these continuing appeals is not a lack of clarity in the direction being given, but a failure to consider, understand and properly apply the directions or rules which have been expounded.

The present case, as will be seen, is, in my view, a perfect example of this. 44 In my opinion, there are three important factors which must be at the forefront of consideration by a sentencing judge when determining and imposing sentence in respect of multiple offences:

(1) Whether the sentence imposed will be a consecutive sentence, a concurrent sentence or a combination of both. Included within this is the need to ensure that whatever the sentence, there will be no free ride given in respect of any offence.

(2) The sentencing principles of proportionality and totality. Within this, one must consider the more recent phenomenon of what is described as “spree” offences fuelled by addiction.

(3) Transparency, which must be included in factors (1) and (2) and the sentencing process as a whole. Whether a Concurrent or Consecutive Sentence or a Combination of Both 45 The first step a sentencing judge must take when required to sentence on multiple offences is to determine whether any or all of the sentences are to be served concurrently or consecutively. This question and the decision does not relate to the overall length of sentence. Rather, they pertain to the nature and circumstances of the criminal activity under consideration and the connectedness of two or more offences to each other.

As Steel J.A. wrote in Maroti (at para. 22 ): First, the courts use a multitude of phrases to express the same concept.

See, for example, Ruby et al . [ Sentencing , 7th ed. (Markham: LexisNexis Canada Inc., 2008)], at para. 14.10 – “ ‘a break in the transaction’; ‘really separate invasions of the community’s right to peace and order, notwithstanding that they are historically interdependent’; ‘one multi-faceted course of criminal conduct’; ‘one transaction’; ‘part of the same transaction or endeavour’; ‘closely linked together’; ‘one continuous criminal act’; ‘one single enterprise’; ‘single criminal adventure’; and ‘reasonably close nexus’ ”.

Although different courts have at different times used each of these phrases, I believe that they were all attempting to answer the same question – Is the connection between two offences sufficiently close to order the sentences imposed to be served concurrently as opposed to consecutively? 46 While this is often not a simple issue to decide, the general rule is that if the offences are sufficiently interrelated to form part of one single, continuous criminal transaction, a concurrent sentence is called for. However, if the offences are separate and distinct, then a consecutive sentence is to be imposed.

Many of the aforementioned cases ( Grant , Golden , Draper , and Maroti ) make this clear. But this is only the general or basic rule. 47 The law is clear that whether to impose a concurrent sentence, a consecutive sentence or a combination of both is open to the sentencing judge as a part of the broad discretion accorded him or her in sentencing. As my colleague Chartier J.A. wrote in Arbuthnot (at para. 22 ): This court stated in R. v.

Munilla and Santorelli (1986), 1986 CanLII 4879 (MB CA) , 38 Man.R. (2d) 79 (C.A.) , at para. 3 , that sentences should generally be served consecutively when they arise “out of separate and distinct transactions”. The word “transaction”, or the term “single transaction”, was commented upon by D.A.

Thomas in his text, Principles of Sentencing , 2nd Ed. (London: Heinemann Educational Books Ltd., 1979) (at p. 54): The concept of “single transaction” may be held to cover a sequence of offences involving a repetition of the same behaviour towards the same victim, such as a series of sexual offences with the same partner, a number of frauds on the same victim or several perjured statements made in the course of the same trial, provided the offences are committed within a relatively short space of time. ... 48 However, Chartier J.A. also referred (see para. 20) to R. v.

E.T.P. , 2001 MBCA 194 , 163 Man.R. (2d) 113, where Philp J.A. noted (at para. 24): Principles to guide the sentencing judge in determining whether to order sentences to be served concurrently or consecutively are not readily discernible from the jurisprudence. …. 49 And, Chartier J.A. continued (at para. 21): Indeed, Clayton C.

Ruby et al., Sentencing , 7th Ed. (Markham: LexisNexis Canada Inc., 2008) comments on the inadvisability of listing factors with respect to this “thorny problem” (as to when to order concurrent or consecutive sentences), recognizing that it is fact- driven and therefore must be adapted to each case (at paras. 14.9-14.10, 14.12): ... Indeed, it has been thought “impracticable and undesirable” to attempt to lay down comprehensive principles according to which a

sentencing judge may determine, in every case, whether sentences should be ordered to be served concurrently or consecutively. One cannot minimize the difficulty of deciding when there is a sufficiently close nexus to fit within the rule [regarding when concurrent or consecutive sentences should be ordered].

That thorny problem has not been made easier by the judicial use of a multitude of phrases to express the same concept: “a break in the transaction”; “really separate invasions of the community’s right to peace and order, notwithstanding that they are historically interdependent”; “one multi-faceted course of criminal conduct”; “one transaction”; “part of the same transaction or endeavour”; “closely linked together”; “one continuous criminal act”; “one single enterprise”; “single criminal adventure”; and “reasonably close nexus”.

Ultimately, the tests are very flexible, and it becomes a fact-specific inquiry whether the connection between two offences is sufficiently or insufficiently close to merit either consecutive or concurrent sentences. (Emphasis added) And to the same effect, see the comments of Steel J.A. in Maroti , at paras. 16-20 . 50 Dealing more specifically with what this and other courts have described as a crime spree carried out for the purpose of feeding an addiction, Chartier J.A. wrote in Arbuthnot (at paras. 24-25 ): In my view, in light of the fact that there were a series of similar, continuous and recurring offences with the same gravamen within a sustained and relatively short period of time, the accused’s offending conduct with respect to the robbery offences can be viewed as sufficiently interconnected to form a single criminal transaction or crime spree and thereby attract concurrent sentences.

This court, as well as other appellate courts, has reached similar conclusions with respect to interrelatedness when dealing with offenders who commit a series of robberies to feed an addiction. For the most recent examples, see R. v. N.A.S. (2007), 2007 MBCA 97 (CanLII) , 220 Man.R. (2d) 43 ; 407 W.A.C. 43; 2007 MBCA 97; R. v. Thompson (J.M.) (2008), 2008 BCCA 350 (CanLII) , 259 B.C.A.C. 160 ; 436 W.A.C. 160; 2008 BCCA 350, and R. v.

Lagimodiere (S.M.E.) (2008), 2008 MBCA 137 (CanLII) , 231 Man.R. (2d) 261 ; 437 W.A.C. 261; 2008 MBCA 137. 51 The rationale for permitting a sentencing judge to impose in his/her discretion a concurrent sentence, notwithstanding the fact that “spree offences” appear to be separate and distinct, is that the sentencing judge may conclude that the accused was acting under an unbroken influence of addiction, such that the offences could be seen or interpreted as forming a single, continuous transaction. 52 While there has been no uniform definition of what is meant by a crime spree fuelled by or carried out to feed an addiction, it would seem that it is a series of similar and recurring offences which are committed, if not continuously, within a sustained and relatively short period of time, for the purpose of obtaining resources necessary to feed an addiction. 53 I would remind sentencing judges that in deciding whether to impose a concurrent or consecutive sentence, it is open, in the exercise of their discretion, to impose an overall sentence which includes both concurrent and consecutive components.

I will say more about this later in these reasons. The Sentencing Principles of Proportionality and Totality 54 As is clear, the principle of proportionality is the fundamental or overarching principle of sentencing. Compliance with the principle of proportionality is essential to the imposition of a fit and proper sentence. While the principle is not new (see Nasogaluak , at para. 41 ), it is now expressly codified in s. 718.1 of the Criminal Code (the Code ). So, too, is the principle of totality in s. 718.2 (

c) of the Code . There is, however, a fundamental difference between the two in terms of their application. 55 Once having decided whether to impose a concurrent or consecutive sentence or a combination of both, a sentencing judge will turn to consider duration or term of sentence, if a period of incarceration is being contemplated. 56 Whether imposing a concurrent sentence, a consecutive sentence or a combination of both, the principle of proportionality must be considered.

In respect of a concurrent sentence, proportionality, along with all of the other sentencing objectives and principles set out in s. 718 to s. 718.2 of the Code , except for the principle of totality, must be taken into account at the outset of the consideration of the duration or term of the concurrent sentence. In a particular sense, the proportionality principle necessitates an examination of the gravity of the offence(s), the harm done as a result and the accused’s degree of guilt or moral blameworthiness with respect to the offence(

s) committed for the purpose of ensuring that the sentence imposed is in line with the accused’s moral culpability and not greater than that.

In so doing, as Lamer C.J.C. stated in M. (C.A.) , the assessment of an accused’s moral culpability in any particular case requires that due regard be given to “the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender’s conduct” (at para. 80). 57 The very same analytical process is followed by the sentencing judge in a consecutive sentence scenario, that is, the principle of proportionality, along with all of the other principles of sentencing, but for totality, are considered at the outset in determining what a fit and proper term of sentence is for each of the offences being sentenced. 58 It is only then, as the final step of the sentencing exercise where consecutive sentences are involved (and not at all regarding concurrent sentences), that the totality principle comes into play.

Application of the totality principle does not require reapplication of the sentencing principles (including proportionality) undertaken at the outset of the analytical process to determine term or duration of the sentence.

59 Rather, the totality principle requires that a “last look” be taken to ensure that the total or cumulative sentence is a fit sentence in that it does not exceed the overall culpability of the offender.

Again, due regard is to be given to the “intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender’s conduct” (see M. (C.A.) , at para. 80 ). 60 In addition, the intended total or cumulative sentence may offend the totality principle if it is substantially above the maximum sentence available for that type of crime or if its effect is a “crushing sentence,” that is, a sentence not in keeping with the offender’s record and future prospects. 61 It is also important to remember that a consecutive sentence includes not just a series of offences sentenced on an individual basis consecutive to one another, but, as well, a series of offences where part are sentenced on a consecutive basis and others are sentenced on a concurrent basis, but consecutive to others forming part of the overall series of offences.

This manner of sentence also requires the application of the totality principle. 62 As I have stated, the totality principle does not apply when imposing a concurrent sentence. It applies only when imposing consecutive sentences. As Lamer C.J.C. wrote in M. (C.A.) (at para. 42 ): In the context of consecutive sentences, this general principle of proportionality expresses itself through the more particular form of the “totality principle”.

The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutive sentences 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 to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, 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 , [ 4th ed. (Toronto: Butterworths, 1994) ] , 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 the normal level of a sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender “a crushing sentence” not in keeping with his record and prospects. 63 It is essential to remember that a sentence must be imposed for each offence. Failure to do so may amount to reversible error.

In so doing, it may be that in order to comply with the proportionality principle in the case of a concurrent sentence or with the totality principle in the case of a consecutive sentence, a sentence which would ordinarily be ascribed to an individual offence will have to be adjusted. 64 An example of this, as it pertained to a concurrent sentence, was seen in N.A.S.

There, the sentencing judge, who sentenced on a concurrent basis, had imposed a conditional sentence of 22 months upon the accused who had pled guilty to five counts of robbery, each while armed with a knife and masked, the last of which occurring while he was on bail for the previous four.

Though the accused was only 17 and 18 at the time of the offences, Freedman J.A. wrote (at paras. 21-22): I am driven to conclude that the sentence imposed, although possibly appropriate if this offender had committed one, or even perhaps two of these offences, is so low for these five armed robberies that it must be considered unfit. In striving to achieve the balance described in Johnas [ (1982), 1982 ABCA 331 (CanLII) , 32 C.R. (3d) 1 (Alta. C.A.) ], the judge tilted the scales too far in favour of the accused, influenced, as she said, by her assessment of his rehabilitative prospects.

The consequence of her misplaced emphasis is that no, or seriously insufficient, weight was given to the factor of multiplicity of offences. So, in brief, the sentence is, with respect, flawed in two respects. First, a sentence of 22 months gives inadequate consideration to the number and seriousness of these five armed robberies, one of which was committed while the accused was on bail. Second, too much credit was given to the accused for past and prospective rehabilitative achievements (which led to the first error).

The Crown appeal was allowed, and a sentence of 36 months’ imprisonment was substituted, less credit for time already served on the conditional sentence. 65 The adjustment of sentence made in N.A.S. was in fulfillment of the principle of proportionality, but, as well, of the legitimate sentencing concern that no conviction go unpunished.

The court must, in imposing sentence, address the legitimate concern that an accused not go unpunished in respect of any criminal offence or be allowed what has been described as a free ride or freebie in connection with criminal conduct. 66 Examples of adjustment of sentence pursuant to the totality principle are numerous and include, for example, Reader and Arbuthnot . Transparency 67 The need for transparency is essential to the sentencing process. It makes clear to the accused being sentenced, to the

victim(

s) of the crimes and to the community that the accused has been sentenced for the entirety of his criminal misconduct and has thereby been held to account and has received a sentence that is proportionate, i.e., fit and proper taking into account the seriousness of the offence(s), the harm done as a result and the moral blameworthiness of the accused for that conduct, together with his rehabilitative prospects for the future.

Transparency is also essential to permit legitimate appellate review, if required. 68 While there would appear to be a discretion permitted sentencing judges to impose one sentence for a series of offences (see s. 728 of the Code ), it is preferable that a separate sentence be imposed for each conviction, and the sentences may, of course, be made concurrent. See this court’s decision in R. v. Thorpe (1976), 1976 CanLII 1403 (MB CA) , 32 C.C.C. (2d) 46. In Manitoba, it is not enough to simply impose a “global” sentence for a series of offences.

Rather, the sentencing judge must indicate the specific penalty for each offence.

The reason for this was explained by Chartier J.A. in Traverse , at paras. 36-41 , and by Steel J.A. in Draper , at paras. 32- 33 . 69 It also is necessary for the sentencing judge to make clear what, if any, adjustments have been made in order to comply with the principle of proportionality or the principle of totality. 70 As I have already stated, it is a legitimate sentencing requirement when imposing a concurrent sentence to impose a more severe penalty given multiple offences and their number than one might give for the same offence individually or as compared with a couple or a few offences. 71 Likewise with respect to the principle of totality (which, as I have said, applies only with respect to consecutive sentences), if upon taking the last look the sentencing judge is of the view that there should be a reduction of the total sentence in order to comply with the principle of totality, that should be done in a transparent fashion. 72 In fact, in addition to transparently reducing the length of an individual sentence which would otherwise be fit so as to take into account the totality principle, another way of invoking the totality principle is, after taking the last look, to transparently impose a concurrent sentence rather than what would otherwise properly have been consecutive sentences for the offences in question. 73 Lastly, of course, when the sentence is finally imposed, which, of course, would be post any adjustment, the actual penalty pertaining to each individual offence must be ascribed. 74 I now turn to the present case.

As I have stated, the sentencing judge accepted the Crown’s submission as to the kind of sentence to be imposed (concurrent) and the application of the totality principle. After so doing, he imposed a sentence of four years’ incarceration, less credit for time served. 75 In doing so, he erred. The law is clear. The totality principle does not apply in respect of a concurrent sentence.

It applies only in respect of consecutive sentences, including, as I have said, a sentence which, while concurrent as a group, is made consecutive to another sentence for one or more than one other offence(s). 76 As the sentencing judge clearly erred, no deference need be accorded his decision. I will therefore proceed to impose sentence afresh. 77 The Crown argues that the sentencing judge erred in imposing a concurrent sentence for the offences here, 17 robberies which occurred over one and a half months. I have already indicated generally the dates of those offences.

That the Crown so argues on appeal is troubling, and in my view inappropriate, given that the Crown advanced a principled argument for a concurrent sentence before the sentencing judge. 78 While there are general rules as to when one might impose a concurrent sentence or a consecutive sentence, in the end, the kind of sentence imposed is within the discretion of the sentencing judge. It is essentially fact-driven based upon the circumstances of the given case.

In this case, the sentencing judge concluded that these were spree offences, as they have come to be described. “Spree” is a descriptor only, but, in my view, an apt descriptor of the kind of offences which occurred in this case and in many others to which the term has been applied. 79 As will be seen, I would not have imposed a concurrent sentence for all of the offences as did the sentencing judge, but absent error, I would not have interfered with the exercise of his discretion to do so as he did, particularly in light of the Crown’s submission before him. 80 On appeal, the Crown, as it did in Maroti , argued that the description “spree offences” is not one rooted in principle and indeed is misleading or confusing to sentencing judges.

Rather, the Crown argued, as Steel J.A. described in Maroti , that (at para. 15 ): … [T]he judge conduct a normative inquiry as to the moral culpability of the offender with respect to each offence. Did the offender make a separate decision to re-offend with respect to each new offence? What is the nature of the decision being made by the offender?

If the offender made a new decision to re-offend, then the court is looking at a new moral inquiry and the offence would be considered consecutive as opposed to concurrent. 81 Aside from the law which I have expressed in these reasons (see paras. 48-49), there continues to be a practical concern expressed by Steel J.A. in Maroti (at para. 18 ): As well, the Crown’s suggestion of inquiring into the question of whether the accused made a new and separate choice to offend with respect to each offence would require evidence to be adduced to allow the sentencing judge to make that decision.

Given a guilty plea to multiple offences (for example, in Arbuthnot , the accused pled guilty to 11 robbery offences), that seems, at a minimum, impractical.

I agree. I would also add that as such evidence would doubtless be expert evidence, there is an open question whether it would be admissible under the Mohan principles ( 1994 CanLII 80 (SCC) , [1994] 2 S.C.R. 9). This, of course, would be a question for another day. 82 The Crown argues that an incarceratory sentence of four years is unfit.

While it is not necessary to specifically decide this issue in light of the error respecting the application of the totality principle, my reasons which follow will indicate that I agree with the Crown’s submission. 83 In my view, the sentence imposed is an example of that which occurred in N.A.S. and to which the comments of Freedman J.A., at paras. 21-22, aptly apply. 84 Here, there were 17 robberies, 14 of which were committed while the accused was armed and nine of which were committed while he was wearing a disguise or had his face concealed. 85 It is true that the accused was a youthful first offender who committed the offences over a relatively short period of time, not for the purposes of greed or profit, but to support his addiction.

As well, he appears to have strong family and other support and reasonable future prospects. These facts, together with the fact that the accused is rated not as a high, but as a medium risk to reoffend, are significant in consideration of the proportionality principle and the imposition of a fit sentence. 86 But the proportionality principle calls for more than simply consideration of the circumstances of the accused.

It calls for the imposition of a sentence which reflects the gravity of the offences, the harm done and the moral blameworthiness of the offender, resulting ultimately in a sentence which, in all of the circumstances, “speaks out against the offence and punishes the offender no more than is necessary” ( Nasogaluak , at para. 42 ). It calls for a delicate balancing act which is fact-driven in each particular case. 87 It requires that the sentencing judge be mindful of the admonition expressed in R. v.

Hamilton (2004), 2004 CanLII 5549 (ON CA) , 72 O.R. (3d) 1 (C.A.), that “factors which may accentuate the gravity of the crime cannot blind the trial judge to factors mitigating personal responsibility.

Equally, factors mitigating personal responsibility cannot justify a disposition that unduly minimizes the seriousness of the crime committed” (at para. 93). 88 As has been stated, the sentencing judge must perform a delicate balancing act in crafting a fit sentence consistent with the sentencing principles and the particular facts of the case before him/her. 89 As no two cases are exactly alike, neither will be any two sentences.

Having said that, sentencing judges must be aware of the principle of parity that similar sentences should be imposed on similar offenders for similar offences committed in similar circumstances. 90 Recent decisions of this court, particularly Lagimodiere , Arbuthnot , Draper and Maroti , provide helpful insight for sentencing in this case. While, as I have stated, no two cases are absolutely alike, Arbuthnot is indeed quite similar. 91 There, the accused committed ten robberies and one attempted robbery involving gas stations. He was armed with a knife and disguised on each occasion.

On two occasions he held the knife against the victim’s throat. The offences were committed over a period of 17 days and were driven by the accused’s need to get money to feed his drug addiction. Although 32, and thus not a youthful offender, he had no criminal record, save for a dated conviction for impaired driving, and his conduct was described as completely out of character. He received a six-year sentence for the robbery offences. 92 I have already outlined the relevant circumstances of this case where the accused committed 17 robberies.

In 14 of them, he was armed, and in nine, he was disguised. 93 While there are some differences between this case and Arbuthnot , including the age of the respective offenders, on what basis should the sentence here be less than six years? In my view, it should not; in fact, it should be more. 94 In this case, I would impose a combination of both consecutive and concurrent sentences.

Applying the principles of sentencing, but at this stage excluding the totality principle, it is my view that a fit and proper sentence would be as follows: • For the July 28, 2007 robbery committed while the accused was armed with a knife – two and one-half years. • For the August 2007 robberies. Five robberies were committed between August 17 and August 26. In four of the five, the accused was armed, twice with a knife and twice with a screwdriver, and on two of the five (those while he was armed with a knife) he also was disguised. I would impose a concurrent sentence with respect to these five offences.

For each of the four where the accused was armed, I would impose a sentence of two and one-half years. For the one robbery where he was neither armed nor disguised, I would impose a sentence of two years. Taking into account, however, the number of offences, I would impose a concurrent sentence of three and one- half years. Thus, the sentence will be one of three and one-half years for the August 17, 2007 robbery (the first robbery), and the remaining four will be concurrent to the first, the length of each remaining the same, as originally ascribed.

The sentence of three and a half years for this group of five will be consecutive to the sentence of two and a half years for the July 28 offence. • For the September 2007 offences. There were 11 offences committed between September 2 and September 10, 2007. Two were committed on September 4, two on September 6 and three on September 10. Of the 11, two were committed while the accused was disguised, but unarmed, four were committed while the accused was armed with a knife, but not disguised, and five were committed while the accused was armed with a knife and disguised.

I would impose a concurrent sentence with respect to each of these 11 robberies. I would ascribe a sentence of two years for each of the two robberies where the accused was unarmed and two and one-half years for the offences where the accused was armed and, in some instances, disguised. Taking into account, however, the number of robberies committed in this September spree (11), I would impose a concurrent sentence of four and one-half years. Thus, I would increase the sentence for the September 3 robbery committed while armed with a knife and under disguise to four and a half years.

I would leave the sentences with respect to the other September offences as originally ascribed. I would make the concurrent sentence of four and one-half years for the September group of robberies consecutive to the sentences imposed for the August group of robberies and

for the July robbery. 95 The cumulative effect of the sentences totals ten and one-half years. 96 Upon taking the last look before finalizing sentence, I would conclude that a sentence of ten and one-half years would amount to a crushing sentence for this accused given his age, circumstances and prospects.

In my view, after applying the totality principle, a total fit and proper sentence in this case, excluding any credit for pre-sentence custody, would be seven years’ incarceration. 97 Accordingly, I would reascribe the sentences that I would impose as follows: • For the July robbery, one and one-half years. • For the August robberies, two and one-half years. The first August robbery (August 17) would be ascribed two and one-half years.

Of the remaining four, I would ascribe one and one-half years for each of the three robberies where the accused was armed and one year for the robbery where he was neither armed nor disguised. The sentence of two and one-half years concurrent for the group of five will be consecutive to the sentence of one and one-half years for the July robbery. • For the September robberies, three years. For the September 3 robbery committed while armed with a knife and disguised, I would ascribe a sentence of three years.

Of the remaining ten, I would ascribe a sentence of one year for each of the two robberies where the accused was unarmed and one and one-half years for the remaining eight robberies where the accused was armed and, in some instances, disguised. The sentence of three years concurrent for the group of 11 September robberies will be consecutive to the sentence of two and one-half years for the August robberies and one and one-half years for the July robbery. 98 In R. v.

Wright , 2010 MBCA 80 , Chartier J.A. wrote (at para. 24): The Code was recently amended to require the sentencing judge to state in the record 1) the term of imprisonment that would have been imposed before any credit was granted for pre-sentence custody; 2) the amount of time spent in pre-sentence custody; 3) the amount of time credited, if any, for that pre-sentence custody; and 4) the sentence imposed (see s. 719(3.3) ). 99 In the result, I would grant leave and allow the Crown appeal as to sentence.

I would substitute a sentence of seven years’ incarceration for the sentence appealed from, less credit for the time served prior to imposition of the original sentence. The pre- sentence custody was eight and one-half months, for which the accused received 17 months’ credit. I would grant the same 17 months’ credit as did the sentencing judge. 100 I would ascribe the 17 months’ credit proportionally to each of the three groups of offences for which consecutive sentences have been imposed.

In the result, I would impose a sentence of five years, seven months, apportioned as follows: • for the July 2007 robbery – one year, two and one-half months; • for the August 2007 robberies – two years; and • for the September 2007 robberies – two years, four and one-half months. __________________________ J.A. I agree: ________________________ C.J.M. I agree: __________________________ J.A.