R. v. Johnson, 2016 ONCA 935

APPEAL BOOK ENDORSEMENT

1Mr. Johnson appeals the global sentence of 9 years for armed robbery of a bank, possession of a prohibited firearm, possession for the purpose of trafficking cocaine and failure to comply with a youth sentence by possessing a firearm.

2Duty counsel submits that the sentencing judge erred in two respects: (i) by failing to take into account the appellant’s youth when he imposed a consecutive sentence on the possession for the purpose trafficking and (ii) by imposing a restitution order without making an inquiry as to the appellant’s ability to pay.

3The sentencing judge referred extensively through his reasons to the appellant’s youth. He made rehabilitation a primary consideration. That he – as the Crown submits – “sliced the pie differently” with respect to consecutive versus concurrent sentences does not amount to an error in principle. It was within his discretion to do so and the decision is entitled to deference.

4With respect to the restitution order, the sentencing judge’s reasons, read as a whole, reflect that he did consider ability to pay. He determined that restitution was an important aspect towards rehabilitation. We also note that the appellant did not disclose what happened to the stolen money even though he was apprehended within days of the robbery.

5On his own behalf, the appellant submits that the sentencing judge erred in commenting that he had three guns when he only had two. He is correct in this regard. There were three occasions of gun possession but only two guns.

6However, in our view this would not have affected the fitness of the global sentence given the seriousness of the offence and the failure to comply with an order requiring him not to possess prohibited weapons.

7For these reasons, leave to appeal is granted but the appeal is dismissed.