DATE: 20010615 DOCKET: C32051
COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent) –and– LLOYD RICHARDS (Appellant)
BEFORE: FINLAYSON, WEILER and GOUDGE JJ.A.
COUNSEL: Gregory Lafontaine, for the appellant Christopher Webb, for the respondent
HEARD: June 13, 2001
RELEASED ORALLY: June 13, 2001
On appeal from the conviction imposed by Justice Peter A. Grossi, sitting without a jury, dated October 6, 1998 and from the sentence imposed by Justice Grossi dated October 29, 1998.
E N D O R S E M E N T
[1] The appellant was convicted of two counts of robbery with a weapon – count five involving an appliance store known as Caplan’s in October, and count one involving a Ministry of Transportation (“MOT”) office in November. He was sentenced to four years’ imprisonment on each count to be served consecutively. The appellant concedes his conviction and sentence with respect to the MOT robbery were proper. The alleged errors with respect to conviction relate to the Caplan robbery. The appellant also seeks leave to appeal and, if leave is granted, appeals from the total sentence of eight years.
[2] The appellant submits that the trial judge erred in failing to properly separate the evidence as between the two counts of robbery. We do not agree that the trial judge made that error. He relied on the totality of the evidence, including surveillance and wiretap evidence, to show the association between the appellant and the other persons involved in the robbery as confirmatory of the identification evidence of the appellant as being involved in the Caplan robbery as well as the MOT robbery. In any event, the identification evidence amply supported a finding that the appellant committed the Caplan robbery. At a minimum, the appellant was guilty of robbery and we did not call upon the Crown to respond to this ground of appeal.
[3] The appellant further submits that there is no evidence that the objects pointed at the witnesses were firearms as that term as defined within the meaning of s. 2 of the Criminal Code. The relevant portion of s. 2 reads, “Firearm means a barrelled weapon from which any shot … can be discharged and that is capable of causing serious bodily injury…”.
[4] It was unwise of the Crown to abandon a count in the indictment relating to the use of an imitation weapon in the commission of a robbery. Nevertheless, having regard to the description of the gun given by the witnesses, the circumstances surrounding the use of the gun – namely that the witnesses were ordered to get down on the floor, had a gun pressed to the head, were threatened, and the modus operandi indicating that the appellant had ready access to guns called up from different locations prior to the subsequent robbery – it was open to the trial judge to come to the conclusion that the gun used by the appellant was a firearm. The appeal as to conviction is dismissed.
[5] With respect to sentence, although the trial judge was obliged to impose minimum sentences, he was not obliged to impose two consecutive minimum sentences. Mandatory minimum sentences must still be imposed in a manner that is consistent with general principles of sentencing. One of those principles is that the total sentence imposed must not be unduly long or harsh. Having regard to the circumstances of the offender in this case, we are of the opinion that the sentence imposed was too long.
[6] Accordingly, we would grant leave to appeal sentence, allow the appeal with respect to sentence, set aside the sentences imposed and in their place impose a sentence of six years with respect to count one and a sentence of four years concurrent with respect to count five.
Signed: “G.D. Finlayson J.A.” “K.M. Weiler J.A.” “S.T. Goudge J.A.”