R. v. O’Brien, 2011 NSCA 112

NOVA SCOTIA COURT OF APPEAL Citation: R. v. O’Brien , 2011 NSCA 112 Date: 20111206 Docket: CAC 310964 Registry: Halifax Between: Marty David O’Brien (No. 2) Appellant v. Her Majesty the Queen Respondent Judges: The Honourable Justice Joel E. Fichaud with Farrar, J.A. concurring; and Beveridge, J.A. dissenting. Appeal Heard: April 8, 2010 Subject: Sentencing - Robbery - Totality Principle

Summary: Mr. O’Brien robbed a convenience store at night by threatening a solitary clerk with a large knife while wearing a mask. He was convicted of robbery, disguise with intent and possession of a weapon contrary to ss. 344 , 351(2) and 88 of the Criminal Code . The trial judge sentenced him to six years, six months incarceration for the robbery, two years concurrent for the disguise, and three years concurrent for the weapon. He had a record of approximately 70 convictions over many years. These included previous convictions for break and enter and a robbery.

At the time of the sentencing under appeal, he was serving time for other offences. Mr. O’Brien applied to the Court of Appeal for leave to appeal his sentence. He submitted that the sentencing judge failed to apply the totality principle. Issue: Did the sentencing judge commit an appealable error, in particular respecting the totality principle? Result: The Court of Appeal granted leave to appeal, but dismissed the appeal. The majority concluded that Mr. O’Brien’s sentence was within the range, given the circumstances and his record, was not unfit, and did not offend the totality principle under s. 718.2 (

c) of the Criminal Code . Beveridge J.A. (dissenting) would grant leave and allow the appeal, substituting a sentence of four years for the robbery consecutive to the sentences the appellant was serving. The trial judge did not discuss the principle of totality, nor show any appreciation that the offences the offender was being sentenced for were committed in the same time period, and that a sentence of 6.5 years would amount to an effective sentence of 12.5 years.

This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 15 pages. NOVA SCOTIA COURT OF APPEAL Citation: R. v. O’Brien , 2011 NSCA 112 Date: 20111206 Docket: CAC 310964 Registry: Halifax Between: Marty David O’Brien (No. 2) Appellant v.

Her Majesty the Queen Respondent Judges: Fichaud, Beveridge, Farrar JJ.A. Appeal Heard: April 8, 2010, in Halifax, Nova Scotia Held: Leave to appeal sentence is granted, but the sentence appeal is dismissed per reasons for judgment of Fichaud, J.A., Farrar, J.A. concurring; Beveridge, J.A. dissenting Counsel: Robert M. Gregan, for the appellant Kenneth W. Fiske, Q.C., for the respondent Reasons for Judgment: [ 1 ] After a trial before a judge without a jury, the Supreme Court of Nova Scotia convicted Mr.

O’Brien of robbery, disguise with intent and possession of a weapon contrary to ss. 344 , 351(2) and 88 of the Criminal Code . The judge, Justice John Murphy, sentenced Mr. O’Brien to six years, six months imprisonment. [ 2 ] Mr. O’Brien appealed his convictions and sentence to this court. By a decision dated July 14, 2010 ( 2010 NSCA 61 ), this court overturned the convictions and ordered a new trial. The majority’s reasons did not comment on the sentence appeal.

My reasons, dissenting on the conviction appeal, expressed the view that the sentence appeal should be dismissed (paras. 154-63). [ 3 ] The Crown appealed the conviction issue to the Supreme Court of Canada. By a decision dated June 9, 2011 ( 2011 SCC 29 ), the Supreme Court of Canada allowed the appeal and restored the convictions, saying nothing about sentence. [ 4 ] It now remains for this court to deal with Mr. O’Brien’s outstanding sentence appeal. [ 5 ] My conclusion, that Mr. O’Brien’s sentence appeal be dismissed, and reasons remain as stated in paras. 154-63 of this court’s judgment of July 14, 2010.

For reading convenience I repeat those reasons verbatim . [ 6 ] The judge sentenced Mr. O’Brien to six years and six months for the robbery, two years concurrent for the mask, and three years concurrent for the weapon. The sentence was consecutive to the term of imprisonment Mr. O’Brien was already serving for other unrelated offences. [ 7 ] Mr. O’Brien submits that the six years and six months violated the totality principle. The following extract from his factum summarizes the submission:

The Appellant was serving prisoner at the time charges were laid. On December 12, 2004 the Appellant was convicted of the followingoffences: impaired driving contrary to s. 253(

b) of the Criminal Code of Canada, 2 counts of theft under $5,000 contrary to s. 334(

b) ofthe Criminal Code of Canada, possession of drugs for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs andSubstances Act, 2 counts of break and enter contrary to s. 348(1) of the Criminal Code of Canada, 3 counts of driving while disqualifiedcontrary to s. 259 of the Criminal Code of Canada, and 2 counts of theft contrary to s. 334 of the Criminal Code of Canada. The totalsentence imposed was 60 month[s]. On May 15, 2006 the Appellant was convicted of counseling to commit robbery contrary to s. 344 ofthe Criminal Code of Canada.

The sentence imposed was 2 years consecutive to sentence serving. On April 21, 2009 the Honourable Justice John Murphy imposed a total sentence of 6 and a half years for the offences currently underthis appeal, which makes the total period the appellant has to spend in custody thirteen and a half years. In my respectful submission, as the appellant was serving prisoner at the time of the sentence, the totality principle should have aninfluence. The appellant was sentenced three times over the past five years.

The total time of thirteen and a half years in custody wouldimpose a crushing effect on the appellant. [8] I am unable to agree. [9] Mr. O’Brien, wearing a mask and wielding a large knife, robbed a solitary defenseless clerk at night. [10] The judge’s sentencing decision noted (¶ 9) that Mr. O’Brien “has been in constant conflict with the law for approximately 30years with approximately 70 convictions for various offences, many of them serious, including a previous robbery conviction and breakand enter convictions”.

The judge (¶ 7) properly referred to this record as an aggravating factor. [11] As to mitigating factors, the judge said: [8] Frankly, there are no mitigating circumstances which have been pointed out in this case. None were pointed out on appeal either. [12] The sentence was within the range, given the circumstances of the offences and Mr. O’Brien’s record. The judge properlyreferred to the decision of this court in R. v.

Longaphy (2000), 2000 NSCA 136 , 189 N.S.R. (2d) 102 (C.A.), which said: [27] In my view, the sentencing judge erred in concluding that here a penitentiary term of two years or more imprisonment was notappropriate. The considerations to be taken into account when determining sentence for robbery have been reviewed by this court innumerous cases. It has emphasized that the primary consideration in cases of armed robbery must be protection of the public: see, forexample, R. v. Brewer (1988), (NS CA), 81 N.S.R. (2d) 86 at § 8. The judge also properly referred to R. v.

Leet (1989), (NS CA), 88 N.S.R. (2d) 161 (C.A.): [14] Robbery is a very serious offence, carrying a maximum punishment of imprisonment for life. The sentencing court is thus left witha very wide discretion as to the penalty in any given case. Rarely is a sentence of less than two years seen for a first offence and termsranging up to six years are commonly imposed. In the more serious robberies, including those committed in financial institutions andprivate dwellings, the range has generally been from six to ten years.

[ 13 ] At the sentencing, the Crown recommended 9 to 12 years, and the defence recommended 5 to 6 years. The judge’s sentence was much closer to the defence’s request than to the Crown’s. [ 14 ]

Section 718.2(

c) of the Code cites a totality principle respecting consecutive sentences. The sentences for the three offences here were concurrent. So Mr. O’Brien’s submission relates to totality between his sentence of six years plus six months here and his existing sentences for prior convictions, to which the sentence here was consecutive. The submission effectively would turn Mr. O’Brien’s prior record, for which he was serving time, into a mitigating factor instead of an aggravating factor. [ 15 ] This court recently discussed sentencing totality in R. v. Adams , 2010 NSCA 42 , ¶ 19-30 and 65-69 .

I adopt, without repeating, Justice Bateman’s statement of principles in Adams . Mr. O’Brien’s sentence is within the range, given the circumstances and his record, is not unfit, and does not offend any principle of totality under s. 718.2(

c) of the Code or the authorities. Fichaud, J.A. Concurred: Farrar, J.A. Dissenting reasons for judgment : BACKGROUND [ 16 ] The appellant was convicted of robbing a convenience store and was sentenced to six and one-half years. He appealed conviction and sentence. His conviction was quashed and a new trial was directed by a majority decision of this Court on July 14, 2010 ( 2010 NSCA 61 ). [ 17 ] Our Court was unanimous that the trial judge erred in permitting the Crown to adduce bad character evidence of the appellant at trial.

I wrote the majority reasons for judgment, and would not apply the proviso set out in s. 686(1)(b)(iii) of the Criminal Code to save the conviction. Justice Fichaud would have applied the proviso and therefore dissented. Based on that dissent, the Crown secured the right to appeal to the Supreme Court of Canada. It did so, and the appeal was successful ( 2011 SCC 29 ). As a result, the conviction was reinstated. [ 18 ] Sentence was not before the Supreme Court of Canada.

The appellant has since written to this Court on October 2, 2011 requesting consideration of his sentence appeal, since the effect of the reinstatement of the robbery conviction is to send him back to prison. Counsel for the Crown and the appellant were subsequently contacted. Both are content to rely on their earlier submissions. [ 19 ] Justice Fichaud has already addressed the appellant’s appeal from sentence (see 2010 NSCA 61 , paras. 154-64 ). He would have granted leave, but dismiss the appeal. Justice Fichaud maintains that view. With respect, I do not agree.

For the following reasons, I would grant leave and allow the appeal from sentence. [ 20 ] The appellant contends that the trial judge erred in not properly considering the principle of totality. He argues that the imposition of the 6.5-year consecutive sentence, when coupled with the other sentences he was then serving, amounted to a total sentence of 13.5 years, which he says is excessive. To provide the necessary context to the appellant’s argument factual background is required. FACTS

[ 21 ] Shortly after 10:00 at night on October 11, 2004 the clerk in the Top of the Hill convenience store turned to face a person. That person was wearing a Halloween mask and holding a knife. Money was demanded. The clerk went to the cash register, opened it and retreated six feet. The person with the knife leaned over the cash register and scooped bills from the till and fled. Mr. O’Brien was found to be the person wearing the mask and in possession of the knife. [ 22 ] The police were called. The store’s security camera had recorded the robbery.

The mask, knife and a piece of the cash register were found a short distance away. A red car was observed parked in the vicinity of the items found. It was seen to speed away shortly after the time of the robbery. [ 23 ] The mask and knife were sent to the crime lab for DNA testing on December 13, 2004. The police suspected the appellant was the robber. He had access to a red car and they were aware that he was involved in convenience store robberies in the Amherst area. The police knew he was in custody. They interviewed him in the county jail where he was on remand.

The appellant denied involvement in the robbery of the Top of the Hill convenience store. [ 24 ] The police were aware that the appellant was sentenced on December 22, 2004 for a slew of offences committed in the Amherst area, mostly from August to December 9, 2004. He received a total sentence of four years, along with an order to provide bodily samples for analysis and inclusion in the DNA data bank. The appellant provided a sample as required, but it was not entered in the DNA data bank until January 2006. [ 25 ] In the meantime, the crime lab had completed its testing of the mask and knife.

A report was sent to Sgt. Blakeney dated April 25, 2005. A DNA profile was obtained from the mask but not from the knife. The profile was of an unidentified male. When the appellant’s DNA profile from the December 2004 sentencing was entered into the DNA data bank, it matched the unidentified male DNA profile from the mask. [ 26 ] Sgt. Blakeney then obtained a blood sample from the appellant pursuant to a warrant. That sample was then sent to the crime lab for comparison to the DNA profile from the mask.

The crime lab prepared a report dated December 12, 2007 confirming a match of the appellant’s DNA profile to the one found on the mask that was said to have been used in the robbery. Charges were laid on February 8, 2008. The appellant was committed to stand trial. The trial commenced on April 8 and concluded with reasons for conviction on April 9, 2009.

Sentence was adjourned to April 21, 2009. [ 27 ] On April 21, 2009 the appellant was sentenced to 6.5 years for the robbery consecutive to any other sentence he was then serving, two years concurrent for having his face masked, and three years concurrent for possession of a weapon for the purpose of committing an offence. [ 28 ] What then was the sentence he was serving when sentenced on April 21, 2009? Tendered as exhibits at the sentence hearing were two versions of the appellant’s criminal record. Impressive or appalling would be apt adjectives for it.

I have already referred to the proceedings in provincial court on December 22, 2004 when the appellant was sentenced for numerous offences. The exhibits demonstrate that he was sentenced on that day on 11 offences to a total period of incarceration of four years, or 48 months. There were other ancillary orders, but they are of no consequence to the issues on this appeal. Ten of the offences occurred between August and December 9, 2004.

The other was a driving offence from December 2003, for which he received one month consecutive. [ 29 ] The offences he was sentenced for on December 22, 2004 were described in the appellant’s factum as: 44. The Appellant was serving prisoner at the time charges were laid. On December 12, 2004 the Appellant was convicted of the following offences: impaired driving contrary to s. 253 (

b) of the Criminal Code of Canada , 2 counts of theft under $5,000 contrary to s. 334 (

b) of the Criminal Code of Canada, possession of drugs for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, 2 counts of break and enter contrary to s. 348(1) of the Criminal Code of Canada, 3 counts of driving while disqualified contrary to s. 259 of the Criminal Code of Canada, and 2 counts of theft contrary to s. 334 of the Criminal Code of Canada. The total sentence imposed was 60 month(s). … [ 30 ] The description is not quite accurate: the date of sentence was December 22, not December 12; and the total sentence imposed was 48, not 60 months.

[31] To complete the factual background, there were also charges of being a party to two robberies on November 16 andDecember 10, 2004. The record does not disclose when the charges were laid or any of their procedural history. What is known is thatthe appellant was found guilty by Scanlan J. of the second offence on April 12, 2006 (see 2006 NSSC 186). Scanlan J. imposed asentence of two years consecutive to the appellant’s previous sentence on May 15, 2006 (2006 NSSC 153). ISSUE [32] The issue presented is whether the trial judge correctly applied the principle of totality. ANALYSIS [33] Appeals by an offender from sentence are pursuant to s. 675(1)(

b) of the Criminal Code. On such an appeal, s. 687 of theCode empowers the Court to “consider the fitness of the sentence appealed”. This does not give carte blanche to an appeal court tosubstitute its views as to the appropriate sentence in lieu of that of the trial judge. Considerable deference is owed to the trial judge. Thecorrect approach was authoritatively restated in R. v.

M. (C.A.), (SCC), [1996] 1 S.C.R. 500 where Lamer C.J., for thefull Court, succinctly wrote: [90] Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, acourt of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. [34] The focus of the appellant’s complaint is that the trial judge failed to articulate and properly apply the totality principle. Whatis that principle and did the trial judge commit the error described? [35] Totality has long been accepted as a principle of sentence.

It is now found in the Criminal Code as one of a number ofprinciples a court is required to take into consideration.

Section 718.2 provides: (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; [36] In R. v. M. (C.A.), supra, Chief Justice Lamer expressed the principle as follows: 41 Within broader parameters, the principle of proportionality expresses itself as a constitutional obligation. As this Court hasrecognized on numerous occasions, a legislative or judicial sentence that is grossly disproportionate, in the sense that it is so excessive asto outrage standards of decency, will violate the constitutional prohibition against cruel and unusual punishment under s. 12 of theCharter.

See Smith, supra, at p. 1072; R. v. Luxton, (SCC), [1990] 2 S.C.R. 711, at p. 724; R. v. Goltz, (SCC), [1991] 3 S.C.R. 485, at pp. 498-99.

However, as I noted in Smith, at p. 1072, "[w]e should be careful not to stigmatize everydisproportionate or excessive sentence as being a constitutional violation", and thus the review of the proportionality of sentences shouldnormally be left to the "usual sentencing appeal process" directed at the fitness of sentence. 42 In the context of consecutive sentences, this general principle of proportionality expresses itself through the more particular formof the "totality principle".

The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutivesentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender.As D. A. Thomas describes the principle in Principles of Sentencing (2nd ed. 1979), at p. 56: The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation tothe offence for which it is imposed and each properly made consecutive in accordance with the principles governing 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, supra, at pp. 44-45: The purpose is to ensure that a series of sentences, each properly imposed in relation to the offence to which it relates, is in aggregate"just and appropriate".

A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above thenormal level of a sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender "a crushingsentence" not in keeping with his record and prospects. [37] The correct approach to the application of the principle is well settled. As noted by Fichaud J.A. in his reasons (para. 163),the principle of totality and how it ought to be applied was reviewed recently by Bateman J.A. in R. v. Adams, 2010 NSCA 42.

BatemanJ.A., there wrote: [23] In sentencing multiple offences, this Court has, almost without exception, endorsed an approach to the totality principleconsistent with the methodology set out in C.A.M., supra. (see for example R. v. G.O.H. (1996), (NS CA), 148 N.S.R.(2d) 341 (C.A.); R. v. Dujmovic, [1990] N.S.J. No. 144 (Q.L.) (C.A.); R. v. Arc Amusements Ltd. (1989), (NS CA), 93N.S.R. (2d) 86 (S.C.A.D.) and R. v. Best, 2006 NSCA 116 but contrast R. v. Hatch (1979), (NS CA), 31 N.S.R. (2d)110 (C.A.)).

The judge is to fix a fit sentence for each offence and determine which should be consecutive and which, if any, concurrent.The judge then takes a final look at the aggregate sentence. Only if concluding that the total exceeds what would be a just andappropriate sentence is the overall sentence reduced. (See for example, R. v. G.O.H., supra at para. 4 and R. v. Best, supra, at paras. 37and 38) See also R. v. Rowe, 2008 NLCA 3. [38] The trial judge did not refer to the principle of totality in his reasons. He did refer to s. 718 and 718.1 of the Criminal Code. He also referred to s. 718.2(

b) and (

d) that direct consideration of imposing a similar sentence based on similar offences committed insimilar circumstances and of restraint. The trial judge concluded there was no reasonable availability of less restrictive sentence thantime in custody. This was correct, but with respect, does not tell the whole story of the principle of restraint embodied in s. 718.2(d). This principle is also not new (R. v. C.N.H., (ON CA), [2002] O.J. No. 4918 (C.A.), at para. 29). Neither does it endat the doorstep of the prison. Doherty J.A. wrote in R. v.

Hamilton,(2004), (ON CA), 189 O.A.C. 90, it also informsthe issue of quantum (para. 96). [39] The trial judge observed there were no mitigating factors or circumstances. He also properly noted the aggravating featuresof the robbery; that it was committed with a weapon against a lone employee, and the impact the offence had on her. The judge alsoviewed the lengthy (70 convictions) over almost 30 years as an aggravating factor. [40] The trial judge also recognized that denunciation and deterrence are very important considerations in imposing a sentence forrobbery. He referred to the decisions of this Court in R. v.

Longaphy (2000), 2000 NSCA 136 , 189 N.S.R. (2d) 102, R. v.Brewer (1988), (NS CA), 81 N.S.R. (2d) 86 and R. v. Leet (1989), (NS CA), 88 N.S.R. (2d) 161(C.A.). His reasons for selecting 6.5 years are as follows: [15] For the robbery offence, the

section 344 offence, bearing in mind all of the considerations that I have referred to, I haveconcluded that the nine to 12 year range which the crown asks for is more than is appropriate in this situation, given that Mr. O’Brienhas not been involved in any criminal activity for more than four years, that he as been serving sentences for the last five years.

Butconsidering also the admonition that crimes of this nature attract sentences of six to ten years, even for people without a significantcriminal record, in my view the five to six years which the defence asked for is too low, and I have concluded, with respect to therobbery charge, that a sentence of six years and six months will be imposed, to be served in a federal institution, to be served consecutiveto any time presently being served. [41] The trial judge then added:

[17] The only comment I’m going to make in making the six year, six month sentence with respect to the robbery, I’ve considered thetotal situation with respect to Mr. O’Brien and the fact that he is in custody, and has been in custody for five years, and this will be addedto the end of that sentence. I have also considered that it’s, although I’m not giving any credit for remand time, it’s possible that in a verybest case scenario, he might have been out of custody for the last month or two.

So I’ve considered all of those factors and reached thedecision which I have just indicated. [42] With great respect for the trial judge, I am persuaded that he failed to properly consider the principle of totality and imposed asentence that, when coupled with his other sentence, amounted to an excessive sentence. I will explain. [43] Although the judge referred to the “total situation” of the appellant, I see no recognition that in fact the aggregate sentence hewas imposing would amount to an aggregate sentence of 12.5 years incarceration.

Nor, did the trial judge appreciate that all of theoffences involved were related in time and place. A consecutive sentence for the robbery of October 11, 2004 was certainly appropriate,but the commission of that offence was part of a string of offences committed by the appellant in the fall of 2004, all apparently linked tohis drug addiction.

There was no last, long hard look at the effect of the sentence being imposed to see if it was excessive in thecircumstances. [44] In isolation, the sentence of 6.5 years was at the very upper limit, if not over it, for the range of sentence in thesecircumstances and for this offender. The cases referred to by the trial judge are referred to in part by my colleague. Longaphy, supra hasstrong parallels to the case under appeal. The offender had a history of substance abuse. He was no youthful offender. He had 12 priorconvictions including four for robbery.

He had been sentenced to multiple penitentiary terms, including three and seven year terms. Herobbed a convenience store at knifepoint. The trial judge imposed a conditional sentence. The Crown appealed. The offender had bythen breached his conditional sentence order twice, and had been on parole at the time of the robbery offence. On appeal, a sentence offive years was imposed. [45] In R. v. Leet, supra, the first time offender had been a probation officer. He committed a series of robberies of banks fromOctober 1987 to February 1988 while masked and using an imitation handgun.

He made off with large amounts of cash. The motivewas he had been short of money. By the time of sentence, full restitution had been made. He was sentenced at trial to a total of threeyears. On appeal, the sentences were increased to a total of 6.5 years. It was in this context, Chipman J.A., offered the following: [14] Robbery is a very serious offence, carrying a maximum punishment of imprisonment for life. The sentencing court is thus left with avery wide discretion as to the penalty in any given case.

Rarely is a sentence of less than two years seen for a first offence and termsranging up to six years are commonly imposed. In the more serious robberies, including those committed in financial institutions andprivate dwellings, the range has generally been from six to ten years. See R. v. Brewer (1988), (NS CA), 81 N.S.R.(2d) 86. [46] R. v. Brewer (1988), (NS CA), 81 N.S.R. (2d) 86 (C.A.) also involved a robbery of a financial institution. The offender was 39 years of age with a lengthy criminal record including a previous conviction for robbery.

He entered the ProvincialCredit Union on the 8th floor of the Provincial Building, and armed with a sawed off shotgun, which he used to threaten and prod theteller, made off with almost $16,000. Jones J.A. commented: Turning to the appeal against sentence: This was a very serious offence. The appellant is thirty-nine years of age and has a considerablerecord for theft-related offences, commencing in 1963 and including a conviction for robbery in 1972. Counsel have carefully reviewedin their factums sentences imposed by this Court in similar cases.

In the more serious robberies, which include robberies committed infinancial institutions and private dwellings, the range has generally been from six to ten years. [47] Although the offence here was serious, it was not in a private dwelling nor a financial institution. The robbery lasted less thana minute. No firearm nor actual violence was used.

However, even if the dictum by Chipman J.A. is accepted that terms up to six yearsare commonly imposed, all of the circumstances and principles of sentence must be considered in arriving at a fit and proper sentence,including that of totality. [48] My colleague reasons that the appellant’s submissions on totality would “effectively turn Mr. O’Brien’s prior record, forwhich he was serving time, into a mitigating factor instead of an aggravating factor” (para. 162). I make two observations.

First, theoffences for which the appellant was serving a sentence, were not prior to the present offence, and hence could never be an ‘aggravating

factor’. To be aggravating in the sense of cogent evidence of a need to more meaningfully stress specific deterrence, he would have hadto have been charged, convicted and sentenced prior to the commission of the robbery. That was not the case. [49] Secondly, the reality is, the principle of totality does reduce what might otherwise be a fit and proper sentence because ofother crimes an offender has committed. In that sense it can be said it does mitigate in the sense that it lessens the total sentence thatwould otherwise be imposed. Southin J.A. in R. v. Mulvahill, (BC CA), [1991] B.C.J.

No. 3516, (1991), 69 C.C.C.(3d) 1 referred to it succinctly as follows (p. 13): 1. The “totality” principle. This means that if a man commits say ten break ins and enterings for any one of which he might receivea sentence of one-year’s imprisonment, he ought not to be sentenced to one year on each to be served consecutively as 10 years is toomuch. [50] The principle also applies where the offender is serving a sentence for other offences. The following cases demonstrate. In R.v. Raymond (1982), (NS CA), 53 N.S.R. (2d) 438 (C.A.), the Crown appealed a two-year sentence imposed at trial.

The offender robbed a convenience store while masked and armed with a knife. He had previously been convicted of robbery and rape,and was on day parole when he committed the robbery. Macdonald J.A. considered the two year consecutive sentence to be inadequate,since a sentence of three years imprisonment is usually called for in relation to such an offence. The sentence was increased to fouryears, and would have been somewhat higher if it were not for the totality principle. [51] In R. v.

Gertz (1983), (NS CA), 57 N.S.R. (2d) 279 (C.A.), the offender entered a convenience store,pulled a knife out and demanded money. The clerk screamed for her husband, and the offender fled. The offender was on parole at thetime of the offence. He had an alcohol problem, but his presentence report was not favourable. The trial judge imposed a three-yearconcurrent sentence. The Crown appealed, seeking a lengthier term. This Court upheld the sentence, but corrected the oversight in notmaking the three-year sentence consecutive. [52] In R. v.

Francis (1984), (NS CA), 63 N.S.R. (2d) 352 (C.A.) the appellant had a damaging record. He wasserving a four-year sentence for robbery. Out on leave for Christmas, he failed to return to jail as directed. On January 10, 1984 heentered a convenience store wearing a mask, armed with a rifle, and robbed the thirteen-year old clerk. When initially confronted by apolice officer, he pointed the rifle at the officer, disarmed that officer, and then fled with the officer’s sidearm. His presentence reportwas not favourable. At trial, sentences totaling 10 years consecutive were imposed.

This was broken down to six years for the robbery,three years for pointing the firearm at the police officer, and the mandatory one year minimum for use of a firearm in the commission ofthe robbery. His total sentence to be served was one of approximately 13 years.

On appeal, this Court applied the totality principle,reduced the total sentence to one of nine years, to be served concurrently to the prison sentence being served by the appellant at the timethe offences were committed. [53] In my opinion, in this case, the trial judge failed to take a last, long look at the total sentence of 12.5 years in imposing thesentence of 6.5 years consecutive. In these circumstances, it is excessive in light of the sentence the appellant was already serving foroffences committed in and around the same time frame.

Having found an error in principle, the normal substantial deference owed to thediscretion exercised by the trial judge evaporates and this Court must impose a sentence it thinks fit (see R. v. Bernard, 2011 NSCA 53,at paras. 25-30). [54] It is obvious that the appellant has struggled with a drug addiction throughout his adult life. No dispute was taken with thatfact at the sentencing hearing. As noted by Scanlan J. in May 2006, the appellant had by that time, completed two community collegecourses and undergone high intensity drug rehabilitation.

The longest sentence the appellant had received prior to December 22, 2004was three years in 1985 for a robbery. All of the other sentences were fines, suspended sentences, and periods of incarceration inprovincial institutions. [55] Counsel for the appellant on appeal (not counsel at trial) argues that an appropriate sentence in the circumstances would beone of two to four years consecutive. I agree, and would impose a sentence of four years consecutive for the robbery to the sentences theappellant was then serving. The other sentences for wearing a mask and possession of a weapon would remain the same.

Beveridge, J.A.