R. v. Downey, 2012 NSSC 351

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Downey, 2012 NSSC 351 Date: 20120925 Docket: Cr. 355507 Registry: Halifax Between: Her Majesty The Queen against Rodan Romeo Downey _________________________________________________________________ Sentencing Decision _________________________________________________________________ Judge: The Honourable Justice Patrick Duncan Heard: September 25, 2012, in Halifax, Nova Scotia Written Decision: September 26, 2012 Counsel: Michelle James and Perry Borden for the Crown, Trevor McGuigan for the Defence By the Court : Introduction

[1] Rodan Downey was charged in a multiple count Indictment alleging that in May of 2009, he conspired to, and did commit anarmed robbery, in which two people were abducted at gunpoint by masked men. The robbers forced one of those persons, AngelaCohoon, to provide access to her place of employment at Beazley Bowling Lanes, where the robbers stole approximately $10,000. Thevictims were released without physical harm to their persons. [2] Following a trial by judge alone, I found Mr. Downey guilty of 9 charges arising from this series of events.

The Crown inapplying the principles set out in the Kienapple (Kienapple v. The Queen (1974) (SCC), 15 C.C.C. (2d) 524) case hassought that convictions be entered on Counts 1, 3, 4 and 8 and that Stays be entered in relation to Counts 2, 5, 6, 9 and 10. Defencecounsel, Mr.

McGuigan, has agreed with that approach and I concur, and therefore Stays are entered as I have just indicated. [3] I remind the Court as well that Count 7 was dealt with in the trial decision with a not guilty finding, and so there are fourmatters before me today for sentencing, being robbery, kidnapping or unlawful confinement as the Code refers to it, and two counts ofthat, and one count of possession of an imitation firearm for a purpose dangerous to the public peace. Count 1: Robbery punishable pursuant to section 344(1)(

b) of the Criminal Code. Counts 3 and 4: Kidnapping/unlawful confinement punishable pursuant to section 279(2) of the Code.

Count 8: Possession of an imitation weapon to wit: an imitation firearm, for a purpose dangerous to the public peace contrary to section 88(1) ofthe Code and punishable under section 88(2)(a). [4] I would say at the outset as well, or I would note it, that while I am sentencing on those four counts only, the facts as I foundthem whether they are specifically tied to these offences or not are considered for the purposes of this sentencing where those facts arerelevant and material to the sentence that is to be imposed. Circumstances of the offences [5] In reaching my decision as to Mr.

Downey's guilt I extensively reviewed the circumstances of the offences. I have reviewedthose findings and they are fresh in my mind. I will not review them in detail today. [6] I note at the outset that these offences are among the most serious ones in the Criminal Code. Robbery and kidnapping, forexample, are punishable by a maximum sentence of life imprisonment. They are offences for which jail terms are a commonconsequence. [7] There are aggravating factors in the commission of these offences which are relevant to the imposition of a fit and propersentence. 1.

These were crimes of violence, aggravated by the use of what the victims thought to be handguns.

[ 8 ] Society abhors the commission of violent crimes. As a community Canadians are particularly endangered by the prevalence of the use of firearms in the commission of those crimes. Our courts, recognizing this extreme threat to the peace and enjoyment that our community seeks, have repeatedly emphasized that such crimes must attract strongly deterrent sentences; and ones that speak to society's denunciation of such offences. These fundamental principles of sentencing are explicitly set out in

section 718 (

a) and (

b) of the Criminal Code and they are factors that are relevant in this case. 2. The robbery was planned and premeditated . [ 9 ] These were not spontaneous events, carried out without a proper time for reflection. They were meticulously planned over a period of at least a few days. The planning sought to take advantage of any vulnerability that existed in the security of the premises and of its workers. It required transportation, weaponry, surveillance and elimination of security measures in place at the premises.

It appeared to be a reasonably sophisticated plan. [ 10 ] There is no evidence to suggest that it was committed while under the influence of duress, or any intoxicant. The video surveillance evidence from the Ultramar and Beazley's shows the robbers to be in command of their physical and mental faculties. [ 11 ] The Crown urges me to conclude that Rodan Downey was the leader of the conspiracy. While there is some evidence to suggest that is the case, such an allegation has not been established to my satisfaction.

However, there is no question that he was a fully committed participant having conducted surveillance at the premises prior to the robbery, and being the person who held Ms. Cohoon at apparent gunpoint while forcing her to give him access to the bowling lanes where the theft then took place. 3. Intimidation of vulnerable victims [ 12 ] Ms. Cohoon and Ms. Owen were young and vulnerable. Ms. Cohoon in particular, as the employee of Beazley's, was targeted as being more easily coerced than an older male might be.

In this regard, I refer to that evidence which leaves the clear inference that this was the conspirators' intention. [ 13 ] Being abducted at apparent gunpoint in a dark rural area; then hooded and threatened was terrifying, as it would be to anyone. [ 14 ] Ms. Cohoon's Victim Impact Statement speaks loudly to the terror of that night, and also to the aftermath – her feelings of fear and of pain. Ms. Owen relates her ongoing fear and resulting retreat into alcohol and drug abuse; with depression and panic attacks. She lost her schooling.

Then there is her anger and the impact of all of these emotional traumas on her friends and family. [ 15 ] So while there was no physical harm to these two young women, it would be wrong to say that there was no injury to them. We may not be able to see their scars, but they can be as debilitating as a physical injury. 4.

Loss to the business [ 16 ] The business that was the target of the robbery lost $10,000 and there has been no recovery of the monies, nor any offers of restitution. [ 17 ] Aside from the impact this offence has on the individuals robbed, there is the further negative impact that robberies have on business owners, and especially upon the businesses that stay open to serve the public into the late evening hours. Such later closing times make them and their employees more vulnerable to such attacks.

Because of their increased vulnerability the courts have again said that protection of late night shop keepers and others who similarly serve the public is to be stressed in the sentencing deliberations.

Mitigating Circumstances [ 18 ] I have heard nothing that I could characterize as being mitigating in this situation that would influence the assessment of a fit and proper sentence. Circumstances of the offender [ 19 ] Now I turn to your circumstances, Mr. Downey. I previously referred to

section 718 (

a) and (

b) the Criminal Code for its statement of the principles and purposes of sentencing. That

section also directs the court to consider the principles of specific deterrence to the offender (718(b)); whether it is necessary to separate an offender from society (718(c)); and the potential for rehabilitation of the offender through the sentencing regime (718(d). These factors are assessed by the circumstances of you Mr. Downey as presented through the presentence report and the submissions of counsel, but also as seen through the circumstances of the offences as I have found them and your role in it. [ 20 ] Before I turn to consideration, however, of that information I note that

section 718 also requires the court to consider the appropriateness of sanctions that: (

e) provide reparations for harm done to victims or to the community; and (f) ... promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. These latter two factors have no meaningful application in this sentencing. Mr. Downey does not accept responsibility for the commission of the offenses, as is his right to do.

However, in the absence of such an admission, the question of reparations or an acknowledgment of harm triggered by his actions has no reality. [ 21 ] As is well understood, it is not an aggravating circumstance that an accused puts the Crown to the proof of the offenses alleged; nor, is it an aggravating circumstance that Mr. Downey does not acknowledge responsibility. Instead, whatever mitigation that sometimes factors into a sentencing, where an offender does accept responsibility and expresses appropriate remorse, is simply not available in a case such as this. [ 22 ] I have reviewed Mr.

Downey's presentence report. It describes a 34-year-old man who presents himself to his family and friends as a likable, even-tempered, kind and respectful individual; one who is willing to help others. For some family members, his involvement in this incident came as a shock. [ 23 ] Mr. Downey is the father of five children by three women. The oldest of these children is now 13. He has been in a relationship with his current girlfriend, Katrina Beals, for approximately 4 years. Together they have his youngest child a 19-month-old daughter. Ms.

Beals was interviewed for the presentence report and spoke positively of her relationship. [ 24 ] The presentence report writer also interviewed a former girlfriend, Augusta Willis, with whom Mr. Downey had been in a relationship for in excess of nine years. She is the mother of an eight-year-old daughter by Mr. Downey. She, too, had positive comments to make about Mr. Downey, and described her shock upon learning of the offenses. [ 25 ] Regrettably, Mr. Downey's reputation with his family is inconsistent with his behaviour in the larger community. He was

raised in a somewhat unstable family situation, although he has had the support of his mother and his uncle, Archie Downey. He first came into conflict with the law at the age of 14. From December 25, 1992 until September 25, 1995 Mr. Downey was found guilty of 13 offenses which included two robberies, one assault, six property crimes, and four breaches of court orders. [ 26 ] At the age of 20, he was convicted of three robberies committed on three separate occasions in a short timeframe in July of 1998.

For these offenses he received three years of incarceration in a federal institution on each charge concurrent one to the other. [ 27 ] There is a gap in his record from 2001 (being the warrant expiry date for the three 1998 robberies) until the commission in 2006 of a breach of a court order for which he received a sentence of 20 days to be served intermittently. There are four further charges of breach of court orders, all of which, as I understand it, postdate the commission of these offences. He was sentenced on January 17, 2012 for the last three of these offences.

I accept that this intervening period of good behaviour operates to mitigate the effects of the criminal record. In this respect, see, the principles enunciated in R. v. Lockyer 2000 NJ 306 (NLCA), a decision of the Newfoundland and Labrador Court of Appeal and in particular at para 142. [ 28 ] However, in committing the current offenses, which constitute serious crimes of violence, Mr. Downey appears to have reverted to a pattern of conduct that first established itself with a robbery in 1994.

In short, his record of five prior robberies and a number of theft related offenses as well as an assault, all bring into serious question whether Mr. Downey will ever be able to lead a life in society without being a violent threat to his fellow citizens. It may be, as the Crown suggests, that he has simply escalated his method of operation by going for larger amounts of money with more sophisticated planning. Having said that, it is noteworthy that he was able to live in society, in his community, for a period of some eight or nine years during which time he committed one

summary conviction offence. As Mr. McGuigan would have it, that is some evidence that Mr. Downey does have the ability to live with his fellow citizens in a law-abiding manner. And so, rehabilitation is always a factor that the Court has to consider, it ’ s mandated by the Criminal Code . In this particular case, that is probably the most hopeful sign for Mr.

Downey ’ s eventual return to society - and he will be released into society in time - but that is the best opportunity that I can see to suggest that he has some hope for the future; that he can live in a law- abiding manner. [ 29 ] Now, typically, we look at the circumstances of an offender to determine whether there is, or has been, some particular difficulty in their life that is driving their criminal activity - such as addictions, or mental illness.

In such cases, the court tries to utilize the resources available to it to assist the offender in addressing those problems in the hopes of a return to society as a law-abiding member of it. Success in rehabilitating an offender furthers the goal of protecting the public. In this case, however, the presentence report suggests that Mr. Downey has no such identifiable disabilities. [ 30 ] Mr. Downey lacks a formal education and has a limited work history. He has no visible means of support and is dependent upon his mother.

He has incurred the extraordinary amount of over $36,000 in unpaid fines according to the presentence report, which he obviously has no means to pay. The report indicates that on one occasion he enrolled in a Grade Equivalency Diploma program, but that he did not complete it. There is no suggestion of his making attempts to improve his education or to seek out vocational skills training. Against this background, there is little in the way of resources that the court can offer to Mr. Downey.

He has not taken responsibility to this point for improving himself, choosing instead to commit himself, more laterally certainly, to a life of crime as he did earlier in his life. [ 31 ] It is always difficult to say if, or when, a person who has lived a life of crime will understand the hopelessness of that life and commit themselves to living among their neighbours as a law-abiding citizen. We can hope for your sake, Mr. Downey, and for the sake of the children that the report suggests that you love, and of course for society, that you will find it within yourself to change your path.

Sadly though, your failure to do that already, and your participation in this terrorizing event, causes me to conclude that the sentence I impose must send a message to you, Mr. Downey, that this behaviour is not acceptable and that there is a price to pay for it.

Hopefully, it will serve to deter you from future such conduct. [ 32 ] It is also one of those circumstances where I would say that separating the offender from society for a lengthy period of time, is the most appropriate manner in which to and I quote from the Code: "achieve respect for the law and the maintenance of a just, peaceful and safe society."

Analysis [33] Now, the question that I must answer then is, having regard to the principles of sentencing, the circumstances of these offenses,and the circumstances of Rodan Downey, what is a fit and proper sentence to impose? [34] In arriving at my conclusion, I have turned my mind to the provisions of sections 718.1 and 718.2 of the Criminal Code. Inote that the deemed aggravating circumstances set out in section718.2 (a) (i) –(

v) do not apply in this case. [35] In those cases where the Criminal Code offense sections do not set out a specific sentence, only a maximum sentence; or evenwhere there is a specific minimum sentence, but a range from that to a higher maximum sentence, then the court must seek out amechanism to determine an appropriate sentence that falls within that very broad discretion. E.g., robbery has no minimum period ofincarceration, notwithstanding the cases that have been referred here today. In theory, the Criminal Code would permit a person to geta Probation Order, to be put on probation for robbery.

However, it also carries the maximum possible punishment of imprisonment forlife. So how does the court find the right result in such a large range of options? [36] To meet this objective, I must consider not only the principles of sentencing I have previously outlined, but also the guidanceof other sentencing court decisions, and in particular appellate court decisions. In doing this the court seeks to determine what theappropriate range of sentence is, and then to determine where the particular offender should fall within that range.

The goal is to fashiona sentence that properly reflects the principles that I have previously outlined, while ensuring that there is some consistency andpredictability that is driven by the particular facts of the case before the court. Caselaw: Robbery [37] So turning to that caselaw, first with respect to robbery. The maximum punishment for robbery is incarceration for life. Thereis no minimum sentence prescribed by law for this offense.

However, the Nova Scotia Court of Appeal has consistently stated that theemphasis in sentencing persons convicted of robbery should be on deterrence and protection of the public as embodied in lengthy periodsof incarceration. Benchmark ranges have been plainly stated. [38] Justice Oland of the Nova Scotia Court of Appeal, writing on behalf of a unanimous court, in the case of R. v. Longaphy 2000NSCA 136, stated at paragraph 27: The considerations to be taken into account when determining sentence for robbery have been reviewed by this Court in numerouscases.

It has emphasized that the primary consideration in cases of armed robbery must be the protection of the public: see, for example,R. v. Brewer (1988), (NS CA), 81 N.S.R.(2d) 86 at paragraph 8. [39] Mr. Borden earlier referred to the R. v. Leet (1989), (NS CA), 88 N.S.R. (2d) 161 case. Chipman J.A.,writing in Leet, supra, says at para 14: Robbery is a very serious offense, 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 offense 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 6 to 10 years. … 21… Robberies of financial institutions and other businesses pose a very grave threat to society. Such offenses endanger not only thosewho work in those places, but the public in the vicinity of them and the police who are called upon to protect them and apprehend the

perpetrators. [40] While there are examples of sentences of three years' incarceration or less, the circumstances of those cases are significantlydifferent than the case before me. See for example R. v. Johnson 2004 NSSC 221; R. v. Longaphy, supra and R. v. Izzard (1999) 1999NSCA 52 , 175 N.S.R.(2d) 288 ( NSCA). [41] The Crown submits that an appropriate sentence in relation to the robbery charge before me is 8 years of imprisonment. Thatis a sentence that is clearly in the range of sentences for similar circumstances and for offenders of similar background to Mr.

Downey. [42] In the Longaphy case, the offender was 36 years old, and had 12 prior convictions that included assault causing bodily harm,three armed robberies and one attempted robbery. At the time of commission of the offense for which he was being sentenced, he wason parole for an attempted robbery. At his sentencing hearing, expert opinion evidence was led with respect to his psychological profile.He was an intelligent individual however he was a serious drug addict and alcoholic. He had, from time to time, performed well in bothpursuing an education and in business.

In that particular case, he went into a convenience store and robbed it of $860 while pointing asteak knife at the shopkeeper. He entered a plea of guilty and was remanded pending his sentencing hearing. It is noteworthy that hehad received earlier periods of incarceration for the robbery convictions of two years, then three years and then seven years. He alsoreceived three years for an attempted robbery. The Court of Appeal imposed a period of incarceration on this last one of five years.

So,actually the Court of Appeal, based on the circumstances before it, concluded that it was appropriate to give him a lesser sentence thanhe had already served in other similar cases in the past. Now obviously, each case turns on the facts before the Court at that time. This isprobably a good example of what counsel have referred to as the art of sentencing. Each case is different and presents itself differently tothe judges that have to resolve these matters. Now in this case, I am being asked by the Crown to jump Mr.

Downey from the maximumsentence he has ever served of three years - which was some, now 12 years ago, 14 years ago - to 12 years. A substantial jump with asignificant gap that has occurred in his criminal record at least, in between those two times. I only point that out at this stage, partlybecause obviously it is relevant, but also because it stands in stark contrast to what happened for example in the Leet case, or theLongaphy case which I just talked about. [43] Now in Mr. Leet’s case he was a first-time offender who had been a probation officer.

He committed a series of bank robberiesover a period of five months. He was masked and used an imitation handgun in the commission of his offenses. He stole significantamounts of money. By the time of sentencing, he had made restitution in full. The Court of Appeal imposed a sentence of 6 ½ years. [44] In the Brewer case, the offender was 39 years of age with a lengthy criminal record that included a prior conviction forrobbery. He entered into a credit union, armed with a sawed off shotgun which he used to threaten the teller. He stole approximately$16,000.

He received a sentence of nine years imprisonment. [45] I have also been referred to the decision of the Nova Scotia Court of Appeal in R. v. O'Brien 2011 NSCA 112, which provides agood review of the principles of sentencing in robbery cases. Mr. O'Brien was found guilty of robbery, wearing a disguise with intent,and possession of a weapon. He robbed a convenience store clerk at approximately 10 pm in the evening. The robbery took less than aminute, without actual violence being inflicted. The Court of Appeal affirmed a sentence of 6 1/2 years consecutive to time serving onunrelated offenses.

The cumulative effect created an aggregate sentence of 12 and half years which the offender had been arguing wasexcessive and had not taken appropriate consideration of the totality principle. [46] I am also aware of the decision of Chief Justice Kennedy of this court rendered on July 30, 2012 in the case of R. v. CoultonDowney. The offender in that case was a coaccused in this matter on which Rodan Downey is now being sentenced. Coulton Downeyentered pleas of guilty to one count of robbery and two counts of kidnapping being counts 1, 3 and 4 in the Indictment before me. He had no prior criminal record.

He was described as a a young man and he received a sentence of six years incarceration on each chargeconcurrent one to the other, a sentence which, based on the case law that I have been reviewing, I would characterize as being at the highend of the range of sentences, when looking at the circumstances of these offences, and the circumstances of Coulton Downey. [47] It is important to keep in mind that Rodan Downey may be differentiated from Coulton Downey by the fact that CoultonDowney was seen as a young person with time and potential to rehabilitate. Rodan Downey is much older.

He also has an extensivealthough dated related criminal record that Coulton Downey did not have. Coulton Downey entered a guilty plea and presumably wasaccorded some mitigation for that.

[ 48 ] Now the Defence in this matter submits caselaw that shows the range of sentences to be essentially in the three to eight year range of sentencing. Although I would say that cases like R. v. Shea, which is similar to this case and which resulted in a sentence of six and one-half years bears more in common to this case. Shea is as I discussed with Crown counsel, a bit of a sign post as to the range of sentencing for offences such as I am looking at here. It involved offences of extortion and forcible confinement. They were armed with weapons and the victim was obviously threatened in the process.

The Court of Appeal in looking at the appropriate sentence referred to the accused as having lengthy, violent, criminal records, that they were armed, that they confined and extorted the victim, a Mr. Hersey. They characterized the offences as grave and they spoke about the degree of responsibility of the offenders. In many respects it compares very well with this case, well in the sense of being similar, and as I say, something that I have to take note of in assessing what the appropriate range is. [ 49 ] Mr.

Borden, on behalf of the Crown, made some suggestions as to how Shea could be distinguished from the circumstances of this case and in particular, he noted the role and character of the victim in that case as perhaps influencing the outcome. I took it from his comments that it in some way may have been seen to mitigate the penalty that the Court thought was appropriate. [ 50 ] On the break that I took, I went back to re-read Shea and I am satisfied that the Court of Appeal did not tie the result to the character or the conduct of Mr. Hersey in that case.

They made no distinction about who he was or what kind of a person he was. And in fact, the character of the victim should not typically influence penalty, unless they were more vulnerable, as in this case, which is a relevant consideration. But, otherwise, or perhaps if the victim in some way provoked the offence, that might be considered relevant. But a Court would begin down a very slippery slope if we start to try to compare sentencing on the basis of whether one victim is more worthy of the accused getting heavier sentences than others. It is not our role to get in to that kind of an assessment.

Kidnapping [ 51 ] The Crown urges that a consecutive sentence of five years be imposed for the offences of kidnapping. In essence the Crown submits that the kidnapping as an offence merits sentencing in isolation of the other offences. There are two approaches that I can employ. One is to accept the Crown view that any sentence should be consecutive, however then I would necessarily have to consider the principle of totality in arriving at an overall sentence. In this regard, see, section 718 (2) (c).

In fact, the only way to get to the 12 (sic) year penalty that the Crown seeks would be to make it consecutive and to be able to stay within the accepted ranges for each of those offences. In other words, the eight years for robbery may be in the range, the five years for the kidnapping may be in the range, but to make them consecutive and come to 12 (sic) years would, in my view, be, it would be a very rare if not an unheard of result, notwithstanding the very particular circumstances of this case. It would be excessive by the caselaw that I have reviewed.

It is not to say that it would never happen, that 12 years would be the total sentence, but to do it in a consecutive fashion does not appeal to me and I will explain why. [ 52 ] That alternative approach, and the one that I favor is to impose a concurrent sentence that recognizes the aggravating features in the combination of the kidnapping, the robberies, the use of masks, and the use of an imitation firearm.

The sentence must reflect all of these circumstances. [ 53 ] My reason for preferring this approach is that all of these offences were part of a continuing event, with each component being intrinsic to the overall goal of robbing Beazley's. The "plan" arrived at to commit the robbery at Beazley's, required that Ms. Cohoon be abducted to get her to help the robbers gain entry. The plan required her to cooperate and so she was threatened with what appeared to be a firearm. They needed a car to transport some of the robbers and the two victims, so they stole Ms. Owen's car while armed.

They wore masks to avoid being identified. Conclusion [ 54 ] I acknowledge that the circumstances in the commission of these offenses stand in contrast to those robberies which consist of short confrontations where the offender was armed and stole money or property. It bears repeating that in the commission of these offenses Mr. Downey, and his co- offenders,:

1. carried out a carefully planned armed robbery; 2. targeted a business at its midnight closing; 3. targeted a clerk and her friend who were young and perceived to be vulnerable and probably therefore easier to intimidate; 4. abducted the two girls in a dark rural area and stole the motor vehicle in which they were traveling for use in the commission of the robbery; 5. created a very real image of a willingness to use firearms to cause physical injury or death to the victims generating genuine terror in the victims; 6. confined the victims against their will for an extended period of time; 7. took a substantial amount of money that was never recovered. [ 55 ] There must be a strong message that society will not accept this kind of conduct and that those who commit these types of crimes will be punished and severely. [ 56 ] Having regard then to all of the factors that I am required to consider, both by statute and by caselaw, I come to the conclusion that a total sentence amounting to eight years incarceration is a fit and proper disposition.

It is to be calculated as follows: Count 1 : Robbery punishable contrary to section 344(1) (

b) of the Criminal Code . - Eight years imprisonment. Counts 3 and 4 : Unlawful confinement punishable pursuant to section 279(2)(

a) of the Code - Five years on each charge concurrent one to the other and concurrent to the first Count. Count 8: Possession of an imitation weapon, to wit: an imitation firearm, for a purpose dangerous to the public peace contrary to section 88(1) of the Code and punishable under section 88(2)(a) - Three years to be served concurrently to all other sentences being imposed today. Credit for Remand Time [ 57 ] In addition, with respect to the credit for remand time, after being taken into custody on these charges, Mr. Downey was released August 12, 2009 on conditions set out in a recognizance.

On September 8, 2011 he was back in custody "on other matters". Since that time he has been in custody, partly to serve time for the breach offences, but since January 18, 2012 on remand for these offences. [ 58 ] The issue is whether to provide Mr. Downey with a credit in excess of one to one. Counsel agrees that the determination of the appropriate credit to be given for pre-sentence incarceration lies within the discretion of the sentencing judge.

[ 59 ] Prior to the implementation of now section 719 (3) of the Code , which creates a presumptive credit of no more than one to one, it was a generally accepted starting point that an offender would get the benefit of a two to one credit. Typically, this was seen as an appropriate response to the following conditions for remanded prisoners:

i) little or no access to rehabilitative programming; ii) substantial periods of lockdown for 22 to 23 ½ hours per day; iii) more crowded housing conditions; iv) no credit of remand time is applicable to parole eligibility calculations. [ 60 ] In this case, Mr. Downey, through his counsel, indicates that the usual so called consideration should apply and that two to one should be accorded to him. If I was to concur with that it would be I am told the calculation is 251 days times two would be 502 days off of the eight year sentence which I have just imposed.

It is for these reasons I am urged by the offender to apply a ratio that would normally have been uncontroversial prior to the Truth in Sentencing Act S.C. 2009, c. 29, s. 3. [ 61 ] For its part, the Crown disagrees. It says that there is no basis on which to consider anything greater than one to one in this case for the period of January 18, 2012 to September 7, 2012 being the period during which Mr. Downey was remanded, but up to the point at which the sentencing was originally scheduled to take place.

The Crown agrees or submits at least that it should be a one point five to one credit for remand time from September 7-25 being a period of 18 days, because that delay was occasioned by the Court, and not by anything that Mr. Downey did and so he should not be punished, if you will, or denied the greater credit for something that was beyond his doing. [ 62 ] I have concluded that the result will be as the Crown has suggested and so the credit for remand time will be a total of 269 days.

Let me explain my rationale though in reaching that conclusion. [ 63 ] This is an unusual case in that often times when we are looking at credit for remand time, the offender has never had the opportunity to be released, as took place in this case. They are remanded immediately upon apprehension and stay in custody. In this particular case, there was a fairly considerable period of release time before Mr. Downey was arrested and put into custody. He lost his release in this matter because of his commission of breaches of the release order that was issued in these cases. Now he has been punished.

I made a very clear point of clarifying that with the Crown. He has already done his time, if you will, for that, so he is not to be punished twice. But, in my view, neither is he to get extra credit for being in custody when the reason he is in custody is for failing to comply with the release condition in this matter. It just is, it seems illogical to me that there should be some extra credit offered in these circumstances and so I am not prepared to do that for the period of January 18 to September 7, 2012.

I do agree, however, that it is appropriate to give him some relief, or credit if you will, for the period where he had no control over the adjournment. And so for all of these reasons I concluded that an appropriate reduction of the sentence for remand time is 269 days. [ 64 ] In addition to the above then, there will be a mandatory prohibition order pursuant to s. 109(3) for life. As well, there will be a forfeiture order of the imitation handgun pursuant to s. 491 of the Code.

There will be an order to provide a DNA sample pursuant to s. 487.051 and finally I have considered the circumstances with respect to the appropriateness of determining whether a victims of crime fund surcharge should be imposed. I find in these circumstances it would not be appropriate and so it is waived. J.