DATE: 20021021 DOCKET: C38486

COURT OF APPEAL FOR ONTARIO

O’CONNOR A.C.J.O., CRONK and ARMSTRONG, JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Eric Siebenmorgen, for the respondent

Respondent

• and -

ODEL DRISDELLE

Steven L. Kovacs, for the appellant

Appellant

Heard: September 20, 2002

On appeal from the sentence imposed by Justice D.M. Stone on June 20, 2002.

CRONK J.A.:

[1] The appellant was convicted of two counts of robbery and sentenced to eighteen months incarceration and three years probation. A ten year weapons and firearm prohibition was also imposed. He seeks leave to appeal against his sentence and, if leave be granted, appeals against his sentence to this court.

(1) Background

[2] On June 25, 2000, at approximately 3:10 a.m., the appellant and two accomplices robbed a pizza store. The appellant drove the getaway car. His two accomplices wore masks and carried metal pipes. They stole approximately $1,500 from the cash register and the sum of $40 from the wallet of the clerk who was on duty in the store. The clerk was not physically harmed.

[3] The second robbery occurred at approximately 10:30 p.m. on June 29, 2000 at a gas bar where two clerks were working. The appellant’s accomplices entered the gas bar, wearing masks. A scuffle ensued and one of the gas bar attendants was cut across his right temple and ear with a knife carried by one of the accomplices. The cut required six stitches to close. Both attendants were threatened and verbally abused. Approximately $160 was stolen from the cash register, together with cigarettes and cigars, $10 from one of the attendants and the cell phone and money pouch of the other attendant. The appellant again drove the getaway car. He also communicated by cell phone with his two accomplices, providing advice on the best time to rob the gas bar.

[4] The appellant was nineteen years old at the time of the robberies and had no prior criminal record.

[5] Following an extended period of pre-trials, the appellant pleaded guilty to both robbery charges.

[6] At trial, the parties agreed that a reformatory sentence was appropriate, but disagreed as to whether a conditional sentence should be imposed. The appellant’s two accomplices received sentences of two years less one day after credit for pre-trial custody, and twelve months secure custody and two years probation, respectively, on two counts of robbery arising from the same incidents.

(2) Issues

[7] The appellant argues that his sentence is manifestly harsh and excessive given his personal circumstances and those of the case. In particular, he asserts that his pleas of guilty, his ultimate co-operation with the police, his relative youth and lack of a criminal record, his excellent rehabilitation prospects and the nature and extent of his role in the robberies warranted imposition of a conditional sentence or a sentence in the low to mid-reformatory range. He further submits that the trial judge failed to apply proper sentencing principles by over-emphasizing the aggravating factors here, and by giving inadequate consideration to the sentences imposed on the appellant’s accomplices.

(3) Analysis

[8] The trial judge delivered lengthy and considered reasons for the sentence imposed in this case. He referred to the many evident mitigating factors, including those relied upon by the appellant, and the positive indicators of the appellant’s potential for rehabilitation. The trial judge concluded, correctly in my view, that specific deterrence is not a major factor here. His approach to determining a fit sentence was aptly encapsulated in the following statement in his reasons:

This case is difficult particularly because everything about the offence says jail, and almost everything about the accused says conditional sentence; it is the balancing of those matters and determining what the right disposition is that is the most difficult exercise here.

[9] The trial judge recognized that robbery is a most serious crime. That is particularly so when, as here, the use of weapons is involved, one or more of the victims is injured, the commission of the offence occurs late at night and the victims occupy vulnerable and isolated positions.

[10] The trial judge rejected the defence submission that the appellant’s role in the robberies was minimal. The appellant drove the getaway car, drove his accomplices to the robbery locations, knew the intention to commit the robberies, assisted his accomplices in implementing the second robbery by communicating with them by cell phone, and facilitated their escape. The trial judge observed that the circumstances in this case indicate “a very serious public need for denunciation, general deterrence, and ultimately a period of incarceration”. I agree.

[11] The trial judge was also alert to the appellant’s eligibility for a conditional sentence and the fact that robbery is an offence which may attract a conditional sentence, in a proper case. He considered the applicable principles enunciated in R. v. Proulx (2000), 2000 SCC 5, 140 C.C.C. (3d) 449 (S.C.C.) and the incidence of robberies in the community in which these crimes occurred, as he was entitled to do.

[12] In balancing all of those factors, the trial judge concluded that a conditional sentence was not an appropriate disposition in this case. That decision is entitled to considerable deference from this court. I am not persuaded that in rejecting the defence submission for a conditional sentence, the trial judge erred in principle or failed to properly consider and apply the relevant sentencing principles. Accordingly, I would not interfere with that aspect of his decision.

[13] It is important however, in my view, to emphasize several other features of this case. First, the appellant’s conduct in the robberies is to be contrasted with that of his accomplices. While the appellant’s role was serious, and not insignificant, it did not involve the use of violence or weapons, an attempt at disguise, threats to the victims of the robberies or verbal abuse of them. In contrast to the appellant’s sentence, one of his accomplices, a young person whose role in the robberies was materially different than that of the appellant, received concurrent sentences of twelve months secure custody and two years probation on similar robbery counts arising from the same situation. The different sentence for the appellant was not based on any clear distinction by the trial judge between the role of the appellant and the role of the relevant accomplice. Such a comparison would have favoured the appellant. Disparity in sentence is a principle which deserved considerable attention in this case.

[14] Moreover, the trial judge found that there was evidence of a maturing in the appellant’s thought processes and a recognition by him of the shame and disgrace that he visited upon himself and his family. He undertook voluntary counselling prior to his arrest on the offences at issue and, unlike his accomplices, had no prior criminal record. In addition, he was not involved in any further criminal activity after the robberies and prior to his arrest on the offences for which he was sentenced by the trial judge.

[15] In my view, with respect, the reasons of the trial judge do not reflect sufficient consideration of the cumulative importance and implications of all of the factors described above. Accordingly, I conclude that the proper jail sentence in this case for the appellant is twelve months, rather than eighteen months as imposed by the trial judge.

(4) Disposition

[16] For the reasons given, I would grant leave to appeal sentence and allow the appeal in part by substituting twelve months incarceration for the period of eighteen months incarceration imposed by the trial judge. In all other respects, I would dismiss the appeal.

“E.A. Cronk, J.A.”

“I agree Robert P. Armstrong J.A.”

O’CONNOR A.C.J.O. (Dissenting):

[17] I have read the reasons of my colleague, Cronk J.A. Like her, I would not interfere with the trial judge’s decision to impose a custodial sentence. However, I am not persuaded that the trial judge erred in imposing a term of imprisonment of eighteen months.

[18] Although the appellant did not directly use violence or weapons, he played an integral role in the commission of two very serious offences. His accomplices, who were masked and armed, robbed two business establishments in which there were vulnerable victims working in isolated circumstances at night. The victim of one of the robberies received a cut to his temple requiring six stitches. The need for denunciation and general deterrence was a significant factor in determining what would be an appropriate sentence.

[19] In imposing a sentence of eighteen months, the trial judge delivered very careful and thorough reasons. He took into consideration all of the appropriate factors, including the personal circumstances of the appellant and the sentences that were imposed on his two accomplices.

[20] The appellant had no previous criminal record and did not spend any time in pre-trial custody. The accomplices both had criminal records. One of the accomplices, a young offender, received a sentence of twelve months secure custody, together with two years probation. The other, who was an adult offender, was sentenced to two years less a day in custody after having served 191 days of pre-trial custody.

[21] I do not consider that the sentence of eighteen months imposed on the appellant offends the principle of treating similar offenders and offences in a similar manner. In considering whether there is an unacceptable disparity between the sentence imposed on the appellant and the sentences imposed on the accomplices, a comparison to the sentence imposed on the adult accomplice is the more appropriate gauge. The sentencing principles that apply to a young offender differ somewhat from those that govern adult offenders.

[22] Depending on whether one allows 2:1 for the pre-trial custody of the adult accomplice, his sentence was the equivalent of either two and a half or three years imprisonment. In my view, a sentence of eighteen months for the appellant sufficiently recognizes the lesser role of the appellant in the offences and the differences in the personal circumstances of the two offenders.

[23] I am satisfied that the sentence of eighteen months imprisonment imposed by the trial judge falls within the appropriate range for this offence and this offender. I would, therefore, grant leave to appeal the sentence, but would dismiss the appeal.

RELEASED: “OCT 21 2002” “DOC”

“D. O’Connor A.C.J.O.”