R v Gladue, 2018 MBCA 89

Citation: R v Gladue, 2018 MBCA 89 Date: 20180910 Docket: AR18-30-09021 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Madam Justice Diana M. Cameron Madam Justice Jennifer A. Pfuetzner BETWEEN : HER MAJESTY THE QUEEN ) T. L. Mariash ) for the Appellant Respondent ) ) A. C.

Bergen - and - ) for the Respondent ) randal waylon mathew gladue ) Appeal heard and ) Decision pronounced: (Accused) Appellant ) September 10, 2018 On appeal from 2018 MBPC 9 Cameron JA (for the Court): [ 1 ] The accused applied for leave to appeal and, if granted, appeals his sentence of four years’ imprisonment less 540 days of credit for pre-sentence custody concurrent for two counts of armed robbery ( sections 343 - 344(1) (

b) of the Criminal Code ) and one count of possession of property obtained by crime ( section 354(1) ). Since the outset of these proceedings, the Crown has conceded that the four-year sentence imposed regarding the count of possession of property obtained by crime was an illegal sentence and asked that the sentence be varied to one of two years’ imprisonment concurrent.

Counsel for the accused submitted that a sentence of six months concurrent for that count would be appropriate. [ 2 ] At the conclusion of the oral hearing of the appeal, we granted leave to appeal the sentence and allowed the appeal to the extent that we varied the sentence for the count of possession of property obtained by crime to one of 12 months’ imprisonment to be served concurrently. We dismissed the balance of the appeal with brief reasons to follow.

These are those reasons. [ 3 ] On the date of the incident, the accused, along with a co-accused, committed a number of robberies during the late afternoon and early evening hours near the University of Winnipeg (the University) downtown campus. Later that same night, they were detained when police stopped a vehicle in which they were passengers. Subsequent searches revealed that they were in possession of items that had been stolen during the robberies. As a result, they were each charged with five counts of armed robbery. [ 4 ] The co-accused gave a statement admitting her involvement.

She entered guilty pleas to all five counts of robbery. She was sentenced concurrently on all counts to 30 months’ imprisonment less 11 months of pre-sentence custody for a total of 19 months going forward to be followed by three years of supervised probation. [ 5 ] The accused elected to have a trial in the Provincial Court. On the date scheduled for trial, the Crown and defence counsel (the same defence counsel as in this appeal) reached an agreement that the accused would plead guilty to two counts of armed robbery and guilty to a lesser included offence of possession of property obtained by crime.

The foundation for the latter offence consisted of the fact that, at the time of his arrest, the accused was found in possession of items that came from the robberies, for which the co-accused was convicted but the accused was not. [ 6 ] The facts of the first robbery to which the accused pled guilty are that the accused and co-accused approached a student from the University at a nearby pizza place. They forced him into a corner of the store and the accused asked him if he had anything to provide them.

Upon the victim stating that he had nothing to give them, the co-accused produced a hunting knife and showed it to him. The victim subsequently produced his change purse. The accused then frisked the victim and stole his smartphone and wallet. The two fled the area. [ 7 ] The second robbery to which the accused pled guilty occurred a few hours later. At that time, the accused and co-

accused approached a young woman who had attended to her parked vehicle. They surrounded her and robbed her of her shoulder bag,including her iPhone, glasses, MacBook, wallet and textbooks. The accused punched the woman in the face. He then pulled out a knifeand stabbed her in the lower back, penetrating her winter parka and causing a two-inch laceration, which required eight staples to close. [8] Each victim was significantly psychologically affected by the respective robberies. [9] The standard of review of the sentencing judge’s decision is clear.

Absent an error in principle, failure to consider arelevant factor or the erroneous consideration of an aggravating or mitigating factor, the decision of the sentencing judge is affordeddeference. Even where such an error occurs, appellate intervention is only justified where such an error had an impact on the sentence inmore than just an incidental way. See R v Lacasse, 2015 SCC 64 at paras 43-44; and R v Houle, 2016 MBCA 121 at para 11. [10] The accused claims that the sentencing judge made two errors in principle that resulted in an unfit sentence.

First, heclaims that the sentencing judge applied the wrong range of sentencing for a “mugging” type of robbery. In this regard, he asserts thatthe sentencing judge erred in relying on sentencing ranges set out by this Court in circumstances where there are “vulnerable” victimssuch as taxicab drivers and convenience store workers. [11] We do not agree.

While it is true that the sentencing judge stated that in reaching his sentence he was considering thecases of R v Wozny, 2010 MBCA 115 (gas station robberies); and R v Charlette (JJ), 2015 MBCA 32 (robbery of a taxicab driver), healso considered the decision in R v Okemow, 2017 MBCA 59 (street mugging). In Okemow, Maniella JA defined a street mugging as “arobbery conducted in a public place, typically where the parties do not know each other, and where the motive of the assailant orassailants is to steal the victim’s property” (at para 116).

He noted that a starting point of 12 to 18 months’ imprisonment has beenrecognized in Alberta and British Columbia for such a crime. However, that is merely a starting point and it can be increased dependingon the degree of planning, the use of a weapon, the vulnerability of the victim or the existence of a lengthy or related criminal record. Mainella JA also emphasised that, where the “violence used is particularly serious in terms of the injuries caused or those foreseeablefrom the force used, a longer sentence will be called for” (at para 117).

He concluded that, in his view, in the cases of street muggingswhere serious harm is caused to the victim, denunciation and deterrence will “as a general rule, result in a penitentiary sentence, even fora youthful first offender with reasonable prospects for rehabilitation” (at para 119). [12] In this case, the sentencing judge was particularly concerned with the degree of violence inflicted on the victim of thesecond robbery. In his view, denunciation and deterrence were paramount factors to consider. Considering the circumstances of the tworobberies, he did not err in his application of the sentencing range.

The accused had a lengthy record with convictions for violence-related offences, a weapon was used in each robbery and serious violence was used in the second robbery. [13] Next, the accused argues that the sentencing judge erred by refusing to apply the principle of parity as required bysection 718.2(

b) of the Criminal Code. He argues that the sentence imposed on him was unjustifiably greater than that imposed on theco-accused, who had a similar criminal record and similar Gladue factors to his (see R v Gladue, (SCC), [1999] 1 SCR688). [14] The sentencing judge was aware of and considered the accused’s Gladue factors. As well, he was aware that the judgewho sentenced the co-accused placed significant weight on those factors in reaching her decision.

However, in refusing to impose asentence of 39 months’ imprisonment, as requested by counsel for the accused, the sentencing judge considered the case of R v Souter,1998 ABCA 346. He quoted with approval a portion of the case including the assertion that “where the court concludes that the sentenceto which parity is sought is demonstrably unfit . . . the rule of parity does not demand that a court impose a sentence which it findsdemonstrably unfit” (at para 24). In his view, the degree of violence perpetrated on the victim by the accused during the second robberywas significant.

He noted that the accused punched the victim of the second robbery in the face. Further, he emphasised that theaccused stabbed the victim in the back only after the robbery was complete (which he considered to be tantamount to an aggravatedassault). In his view, the sentence did not sufficiently address the principles of denunciation and deterrence and would, for this offender,therefore be unfit. [15] While it is incumbent on a sentencing judge to consider the principle of parity, it cannot eclipse other relevantsentencing principles. See R v Rocha, 2009 MBCA 26 at paras 60-63.

The principle of parity is not absolute and a disparate sentencewill not violate the parity principle as long as it is warranted. As noted by the sentencing judge, the principle of parity also involvesparity among the broader spectrum of similar offenders who have committed similar offences. [16] In this case, the level of moral blameworthiness of the accused in relation to the second robbery was considerablyhigher than that of the co-accused—he perpetrated significant violence on the victim.

As well, unlike the accused, the co-accusedprovided a statement and entered guilty pleas without having engaged the time and effort required to proceed to a trial. In our view, theaccused has not shown that the sentencing judge erred resulting in an unfit sentence. [17] In the result, for all of the above reasons, we granted leave to appeal, allowed the appeal of the sentence for the countof possession of property obtained by crime and imposed a sentence of 12 months’ imprisonment to be served concurrently and dismissedthe sentence appeal for the two robberies. JA JA JA