R. v. Johnson, 2015 MBCA 50

Citation: R. v. Johnson, 2015 MBCA 50 Date: 20150514 Docket: AR14-30-08105 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Mr. Justice Alan D. MacInnes Madam Justice Holly C. Beard BETWEEN : ) L. J. W. Tailleur and HER MAJESTY THE QUEEN ) J. G. Neufeld ) for the Appellant Respondent ) ) N. M. Cutler - and - ) for the Respondent ) ) Appeal heard: RONDELL McGARRETT JOHNSON ) December 3, 2014 ) (Accused) Appellant ) Judgment delivered: ) May 14, 2015 BEARD J.A. I. THE ISSUES [ 1 ] The accused has applied for leave to appeal and, if leave is granted, to appeal his sentence of seven years and two months’ incarceration for the offences of robbery ( s. 344(1) (

b) of the Criminal Code ), having his face masked with intent to commit an indictable offence (having his face masked) ( s. 351(2) of the Criminal Code ), public mischief ( s. 140(1) (

b) of the Criminal Code ) and using an imitation firearm in the commission of an indictable offence (using an imitation firearm) ( s. 85(2) of the Criminal Code ). The grounds of appeal are as follows: (

i) that the trial judge erred in addressing the credit for pre-trial custody; (ii) that the trial judge erred by failing to consider the totality principle; and (iii) that the sentence was harsh and excessive in all of the circumstances. [ 2 ] The accused has no issue with the sentences imposed for the offences of having his face masked with intent to commit an indictable offence and public mischief, so I will make no comments regarding those sentences. [ 3 ] The Crown has agreed that the trial judge erred as set out in the first two grounds, but it takes the position that the overall sentence was fit and should not be disturbed. [ 4 ] The accused was originally charged with robbery with a firearm under s. 344(1) (

a) of the Criminal Code . At the end of the trial, the Crown and defence agreed that that charge would be dismissed and the charges of robbery with an imitation firearm ( s. 344(1) ( b )) and using an imitation firearm in the commission of an offence ( s. 85(2) ) would be substituted. This change came about because, while security photos showed the robber carrying a handgun, the handgun was never recovered and, therefore, the Crown could not prove that it met the operational requirements for a firearm under the Criminal Code . II.

THE FACTS [ 5 ] The accused, dressed as a female clown, wearing a mask and carrying an imitation handgun, entered the Crosstown Civic Credit Union during the afternoon, while it was open. He robbed three tellers and fled. The robbery was captured on surveillance

video. [6] The accused was found a short time later in the vicinity of the credit union. Close to him was a bag that was buried inthe snow, which contained the disguise clothing and the stolen money. The gun was not located. Upon being apprehended, the accusedgave a false name to the police. [7] Following his trial, the accused was convicted of robbery using an imitation firearm, having his face masked, publicmischief and using an imitation firearm.

The Crown asked for a global sentence of eight to ten years, while the defence argued for threeto five years. [8] The accused was sentenced to seven years for robbery, one year consecutive for use of an imitation firearm, one yearconcurrent for wearing a mask and six months concurrent for public mischief.

The trial judge deducted ten months from the robberysentence as credit for the ten months of pre-sentence custody served by the accused, leaving a net sentence of seven years and twomonths. [9] At the sentence hearing, it was revealed that the accused had a lengthy criminal record in the United States, althoughmany of the convictions related to drugs and there were no robbery convictions. The details of the record were unclear, and the trialjudge said that he was not going to put a lot of weight on it.

The accused is wanted on an outstanding warrant in the United States andwill be deported upon the completion of his sentence in Canada. III. AGGRAVATING CIRCUMSTANCES [10] In his reasons for sentence, the trial judge stated as follows regarding the use of an imitation firearm: I agree with the Crown in the circumstances of this case that this is a serious robbery.

It is serious because of the firearm, imitationthereof, because the person on the receiving end, so to speak, is not aware of whether it is real or not and I think we had some very cleartestimony from the teller … what she thought on the circumstances and that is certainly a factor, an aggravating factor in thecircumstances. You can have all sorts of robberies with no firearms or whatever.

So that is obviously a very serious factor. [11] This was clearly an important circumstance for the trial judge. [12] At the appeal hearing, the panel raised with counsel the question of whether it was appropriate to consider the use of animitation firearm as an aggravating circumstance in the robbery under s. 344(1)(b), given that the accused was also convicted of theadditional offence using an imitation firearm under s. 85(2)(a).

Treating the use of an imitation firearm as an aggravating factor in therobbery and also sentencing for the use of an imitation firearm in the same robbery would result in the accused being sentenced twice forthis one factor.

This issue was not raised before the trial judge and was not addressed by him, so this court does not have the benefit ofhis analysis. [13] In response to this inquiry, the Crown on appeal (who was not the Crown for the trial) stated that, in light of the separateconviction for using an imitation firearm, he was not asking that the use of the imitation firearm be used as an aggravating circumstancein sentencing on the robbery.

At trial, the Crown had argued that the use of an imitation firearm was an aggravating circumstancerelevant to the robbery. [14] A review of the jurisprudence discloses that there has been a divergence of views as to the correct approach to sentencingin this situation, including the following: (

i) a sentencing judge should take the use of a firearm into account as an aggravating circumstance when sentencing and also impose atleast the minimum punishment under s. 85 (see R. v. St. Amand (1982), (ON CA), 67 C.C.C. (2d) 130 (Ont. C.A.); R.v. Flanders (1984), (NS CA), 65 N.S.R. (2d) 171 (C.A.); R. v. Warkentin (C.) (1994), (SK CA),125 Sask.R. 236 (C.A.); and R. v. Brewer (P.J.) (1999), (NL CA), 182 Nfld. & P.E.I.R. 14 (Nfld.

C.A.)); (ii) a sentencing judge should take the use of a firearm into account as an aggravating factor when sentencing for robbery, but limit itsweight as it has already been taken into account when sentencing under s. 85(2) (see R. v. McKinney (J.E.) (1994), (BC CA), 39 B.C.A.C. 233; R. v. Fearon (C.J.) (1995), (BC CA), 65 B.C.A.C. 223; and R. v. Abiodun, 2013 ABCA185 (QL)). [15] While not dealing with these specific offences, there is also jurisprudence that suggests that the use of a firearm shouldnot be considered twice in sentencing. (See R. v.

Araya (N.), 2013 ONCA 734 at paras. 52-55, 312 O.A.C. 284; and R. v. Wills (B.), 2014ONCA 178 at para. 62, 318 O.A.C. 99. See also the comments of the Supreme Court of Canada regarding “double dipping,” albeit inanother context, in R. v. Summers, 2014 SCC 26 at paras. 81-83, [2014] 1 S.C.R. 575.) [16] All of this underlines the fact that the interplay between ss. 344(1)(

b) and 85(2) to (4) in setting an appropriate sentenceraises complex questions about the application of the sentencing principles, and, in particular, those of proportionality and totality (ss.718.1 and 718.2(

b) and (

c) of the Criminal Code), to mandatory minimum sentences. Given that these issues were not raised by theparties or considered by the trial judge, and given that the Crown is not asking that the use of an imitation firearm be treated as anaggravating circumstance regarding the robbery offence, this is not an appropriate case for this court to undertake that review. IV.

STANDARD OF REVIEW [17] While appellate courts are required to show great deference for a sentence imposed by a trial judge, that deference doesnot extend to the situation where there is an error in principle in the sentencing process that justifies appellate intervention. In that lattercase, the appellate court can look at the matter from a fresh perspective and impose the sentence that it deems appropriate in the

circumstances. (See, for example, R. v. Proulx , 2000 SCC 5 at para. 123 , [2000] 1 S.C.R. 61; R. v. Foianesi (L.) , 2011 MBCA 33 at paras. 11 , 18, 262 Man.R. (2d) 312; R. v. Ipeelee , 2012 SCC 13 at paras. 89-93 , [2012] 1 S.C.R. 433; and R. v. Smoke (D.D.) , 2014 MBCA 91 at para. 43 , 310 Man.R. (2d) 123.) [ 18 ] In this case, the accused argues that the trial judge erred in principle by failing to review the total sentence after imposing consecutive sentences to ensure that that total sentence was not excessive for the offence and the offender, as is required in R. v.

Draper (T.G.) , 2010 MBCA 35 , 251 Man.R. (2d) 267. The Crown agrees, and I concur, that the trial judge erred in not making clear what, if any, adjustments were made to comply with the principle of totality and the reasons for his decision. [ 19 ] Further, the accused argues that the trial judge erred in failing to give reasons for the credit given for the pre-sentence custody, as is required by s. 719(3.2) of the Criminal Code .

He argues that, while this does not invalidate the sentence, this is an error in principle that means that the appellate court owes no deference to the sentencing judge’s decision. (See R. v. Stonefish (S.T.) , 2012 MBCA 116 at para. 100 , 288 Man.R. (2d) 103.) The Crown agrees with the accused’s position in this regard, as do I. [ 20 ] The trial judge’s errors in principle and, importantly, the Crown’s agreement that the use of an imitation firearm should not be treated as an aggravating circumstance in the robbery justifying appellate intervention.

In this case, the sentence imposed at trial is not entitled to deference, and this court can impose the sentence that it deems appropriate in the circumstances. V. THE PARTIES’ POSITIONS [ 21 ] The accused argues that a sentence for the robbery in the range of four years would be appropriate, with a consecutive sentence of one year for the use of an imitation firearm. He relies on the decisions of R. v. Nembhard , 2010 ONCA 420 (QL); and R. v.

D.R.Z. , 2011 BCPC 395 (QL), in which each accused was sentenced to four years on the underlying robbery that involved the use of an imitation firearm. [ 22 ] The Crown’s position is that the sentence that was imposed by the trial judge was not unfit and should not be disturbed. In support of his position, he relies on R. v. Doumont , [1984] B.C.J. No. 1838 (QL) (C.A.) , in which the accused was sentenced to eight years for two robberies committed on the same day, and R. v. Nadeau , 1999 ABCA 219 (QL), in which the accused was sentenced to nine years for one robbery.

In the former case, the accused simulated a gun but did not have one, while in the latter case the accused used an imitation gun. VI. ANALYSIS [ 23 ] Having found that appellate intervention is justified, it is necessary to consider what sentence is warranted in the circumstances. [ 24 ] Clayton C. Ruby, Gerald J. Chan & Nader R.

Hasan, Sentencing , 8th ed. (Markham: LexisNexis Canada Inc., 2012), states (at pp. 961-62, para. 23.404): Bank robbery tends to be regarded as more serious than robbery of individuals or of small commercial establishments, and as a class attracts some of the highest sentences imposed for the offence of robbery. Banks are “particularly exposed to crimes of this nature”, and harsh sentences expressive of general deterrence are often seen as the necessary antidote to the particular temptation held out by the availability of large amounts of currency.

The robbery of a bank in daylight is “a terrible violation of public security with a severe and obvious risk to the life and person of the innocent bystander or bank employees”. [ 25 ] The text states that sentences in the area of one to three years represent the lower end of the range, typically for the “threatening note” type of bank robbery (see para. 23.413), while a sentence above ten years usually requires that there be violence or a serious criminal record (see para. 23.422).

Thus, the range of sentence is wide and very dependent on the individual circumstances of the offence and the offender. [ 26 ] In this case, the court had little information about the accused, whom the defence counsel described as “a very private person.” He was 40 years old at the date of sentencing and, from the little information offered, he had an unremarkable childhood. I have referred to his criminal record at para. 9. There was no explanation offered for the commission of this offence and no pre-sentence report.

As the Crown argued, there was little that could be considered as mitigating circumstances. [ 27 ] In relation to the offence, the evidence was that the accused was not violent or abusive (beyond the violence inherent in a robbery) when he was in the credit union: the employees were, nonetheless, very upset at being robbed – some more than others.

The use of a disguise indicates that the offence was planned and deliberate, and committing the offence during the day puts more people at risk, as there is a greater likelihood of bystanders who could be injured. [ 28 ] While the Crown has agreed not to use the use of an imitation firearm as an aggravating circumstance, the fact that the accused was using a weapon increased the seriousness of the offence beyond that of an offence involving a robbery by way of a robbery note with no weapon.

Thus, the sentence should be higher than the one to three-year range. [ 29 ] Taking all of this into account, I would sentence this accused to five years for the robbery under s. 344(1) (

b) and one year consecutive for using an imitation firearm under s. 85(2) . I would confirm the trial judge’s sentences of one year concurrent for having his face masked under s. 351(2) and six months concurrent for public mischief under s. 140(1) ( b ). [ 30 ] This results in a sentence of six years’ incarceration. Applying the totality principle, I do not find this sentence to be excessive, so no adjustment is required. [ 31 ] Finally, I must determine the appropriate credit for the pre-sentence custody of ten months, which involves the

interpretation and application of ss. 719(3) and (3.1) of the Criminal Code . This was clarified by the Supreme Court of Canada in Summers , a decision released after the trial judge sentenced this accused and, therefore, not available for the trial judge’s consideration in this matter. In that decision, the Supreme Court of Canada stated (at para. 79): …. Generally speaking, the fact that pre-sentence detention has occurred will usually be sufficient to give rise to an inference that the offender has lost eligibility for parole or early release, justifying enhanced credit.

Of course, the Crown may respond by challenging such an inference. …. [ 32 ] Taking the Supreme Court of Canada’s comments into consideration, the Crown has agreed that this accused is entitled to enhanced credit for this pre-sentence custody on the basis of 1.5:1, and I concur. Thus, in accordance with the comments in Summers , I would give the accused credit for 15 months, to be deducted from the five-year sentence for the robbery. This leaves a net sentence of 45 months or three years and nine months for the robbery. VII.

DECISION [ 33 ] For the above reasons, I would grant the accused’s motion for leave to appeal. I would also grant his appeal, set aside the sentence imposed by the trial judge and substitute the following sentence: for the robbery, a sentence of five years’ incarceration, less 15 months for pre-sentence custody, for a net sentence of 45 months; for the use of an imitation firearm, a sentence of one year, consecutive to the robbery sentence; for wearing a mask, one year concurrent to the robbery; and for the public mischief, six months concurrent to the robbery.

This results in a net global sentence of 57 months or four years and nine months. J.A. I agree: J.A. I agree: J.A.