COURT OF APPEAL FOR ONTARIO
DATE: 20000626
DOCKET: C30790
McMURTRY C.J.O., GOUDGE AND BORINS JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
THOMAS MANN
Appellant
Gregory Lafontaine
for the appellant
Sandra Kingston
for the respondent
Heard: June 7, 2000
On appeal from the sentence imposed by Zuraw J. on April 8, 1998.
BY THE COURT:
[1] The appellant appeals from the sentence imposed on his
guilty plea to charges of robbery, wounding, committing an
indictable offence while disguised and possession of a stolen
vehicle. On April 8, 1998 he was sentenced to 16 years in prison.
[2] As recited by Zuraw J. the facts are as follows. On the
evening of August 6, 1996, the appellant, then 17 years old,
drove to a plaza in Dundas in a vehicle stolen earlier that day.
Accompanied by another youth, he entered a food mart with a nylon
mask covering his face and carrying a loaded handgun, which had
also been stolen earlier that day. He demanded that the employee,
who was alone in the store, open the cash register. The employee
said “just take it easy and I’ll open the cash register for you
if you want the money.” The employee kept his word and opened
the cash register. The appellant then fired two shots. The second
shot struck the employee who collapsed on the floor, but did not
lose consciousness. The employee lay on the floor, unable to move
his arms or legs, calling for help. The shot fired by the
appellant left the employee paralyzed for life from the chest
down.
[3] The appellant fled in the stolen car. Shortly thereafter, by
coincidence, the ambulance that had been called following the
discovery of the victim, and which was rushing him to hospital,
pulled up behind the getaway car. Despite a number of emergency
signals from its siren and loud-hailer, the appellant with the
same callousness as he demonstrated in the shooting refused to
pull over to let the ambulance by. Finally, the ambulance had to
cautiously pull over and pass the vehicle on the right.
[4] A short time later the appellant was arrested in the stolen
car with the stolen handgun in his possession.
[5] He has remained in custody since his arrest on August 6,
- On October 9, 1997, he was ordered to be transferred from
youth court to ordinary court and was moved to an adult detention
facility. On February 9, 1998, he pleaded guilty and on April 8,
1998 was sentenced to six years on the charge of robbery, 10
years consecutive on the charge of wounding and 1 year concurrent
on each of the other two charges.
[6] The appellant argues that in totality this sentence is
outside the range and therefore unfit.
[7] We do not agree.
[8] There is no doubt that the sentencing judge found that the
circumstances of these offences displayed horrible and callous
antisocial behaviour carrying tragic results for an innocent
victim. He was right.
[9] The sentencing judge was also alive to the circumstances of
the offender including his youth, his previously minor criminal
record, his very unfortunate family background and his
substantial pre-trial custody.
[10] However, the sentencing judge gave significant consideration
to the appellant’s prospects for rehabilitation. He determined
that they were not good and that, while foreseeable,
rehabilitation would be a lifelong task for the appellant. The
record amply supports his conclusion. The pre-sentence report
reveals that the appellant had taken some courses while in the
youth detention facility following his arrest. However, after his
transfer to the adult facility, he declared that he had no
interest in academic work and no motivation to pursue it. Nor had
he seen any psychiatrists or psychologists, saying he would
rather play cards. He had previously responded poorly to
probation, showing little inclination to change his ways or
improve his situation. His plans for the future seemed to center
on working for the release from custody of his brother who is a
substance abuser with a substantial criminal record.
[11] The appellant has been in jail for more than two years since
his sentencing. We were supplied with no information about his
circumstances over those two years. There is nothing to show any
progress.
[12] In all the circumstances, particularly given the dim
prospects for rehabilitation, the need to protect the public and
the requirement for denunciation of these brutal acts, a long
period of incarceration was required for despite the appellant’s
youth and limited prior record. While the total sentence imposed
was at the very high end of the range, given this offender and
these offences we cannot say that it was unfit, nor that the
trial judge erred in principle in imposing the sentence.
[13] Leave to appeal is granted but the appeal of sentence is
dismissed.
Released: June 26, 2000 “R.M.”
“R. McMurtry C.J.O.”
“S.T. Goudge J.A”
“S. Borins J.A.”