DATE: 20020705 DOCKET: C34639
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) –and– RICHARD NEWTON OWENS (Appellant)
BEFORE:
LABROSSE, ABELLA and SIMMONS JJ.A.
COUNSEL:
Brian H. Greenspan, for the appellant
Rosella Cornaviera, for the respondent
HEARD:
June 28, 2002
RELEASED ORALLY:
June 28, 2002
On appeal from the convictions imposed by Justice E.B. Minden, sitting without a jury, dated May 4, 2000, and from the sentence imposed by Justice Minden dated June 13, 2000.
E N D O R S E M E N T
[1] The appellant was convicted of two counts of robbery, four counts of attempted robbery and one count of conspiracy to commit robbery which includes the six previous offences. He was sentenced to twelve years’ imprisonment. He appeals his convictions on the sole ground that the verdicts are unreasonable and unsupported by the evidence. He also appeals the sentence imposed.
[2] The Crown’s case largely depended on circumstantial evidence which was the product of an exceptional police investigation. After a lengthy trial, the trial judge concluded that the appellant played a crucial role in the planning and execution of the offences. The appellant did not testify or call any evidence in his defence.
[3] It was alleged that the appellant, a police officer, was a member of a group of men who committed a string of bank robberies and attempted bank robberies between 1994 and 1997. The appellant’s role consisted of using his position as a police officer for the purpose of obtaining and providing information he knew was essential to the success of the offences, to his friend Bailey, a co-accused.
[4] Shortly before each incident, the appellant received a list of vehicle plate numbers belonging to persons Bailey believed to be bank employees. The appellant searched the registered information through the unauthorized use of the confidential police CPIC computer system, and provided the information relating to the owners of the vehicles to Bailey. During the commission of the offences, the information was used to instill fear in the bank employees.
[5] In detailed and cogent reasons, the trial judge considered the direct and circumstantial evidence implicating the appellant and the inferences that could be drawn from the evidence. He cautioned himself on the proper use to be made of certain evidence. He reviewed in detail the documents that had been found on the appellant’s person at the time of his arrest, the items found in his vehicle and at his residence, and other circumstantial evidence, including telephone calls made between the appellant and Bailey at relevant times as well as an incriminating booklet and a police scanner (not working) found in the possession of the appellant.
[6] In particular, the trial judge considered the exculpatory explanation the appellant gave upon his arrest. He stated that he obtained the information from the unauthorized CPIC searches for his friend Bailey for “girls”. The trial judge concluded that the plausibility of the appellant’s explanation for abusing the confidential police information system, in the context of the whole of the evidence, was “illogical and contrary to common sense”, and did not raise a doubt in the trial judge’s mind. There was no reason to provide the kind of information he gave to Bailey except to assist him in the commission of the offences.
[7] The trial judge addressed and rejected the argument that the appellant’s conduct supported the inference that he was not a party to the offence. He concluded that the appellant knowingly played a crucial role in the planning and execution of the offences. The totality of the evidence led him to the inescapable inference that there was no other rational conclusion but that the appellant had knowledge and participated in the offences.
[8] In our view, the inferences and the conclusions reached by the trial judge are logically based on the totality of the evidence. The verdicts are such that a properly instructed jury, acting judicially, could reasonably have rendered, having regard to the totality of the evidence tendered at trial.
[9] Accordingly, we would dismiss the appeal as to conviction.
[10] With respect to the sentence appeal, the trial judge, once again, gave careful and thorough reasons for his decision. He addressed the aggravating and mitigating factors and applied the appropriate governing principles in considering an appropriate sentence.
[11] In particular, he took into account the good background of the appellant, the absence of a criminal record, the support of his family and the prospect of rehabilitation. He also noted the tragic consequences of the convictions on his family and the consequences of a penitentiary term for the appellant.
[12] On the other hand, the trial judge also considered the use of the appellant’s position as a trusted police officer to secure confidential information. In providing that information to Bailey, he was subjecting innocent persons to actual and threatened violence in circumstances of extreme volatility. Although not the principal in the actual commission of the offences, the appellant played a crucial role in these offences notwithstanding his physical absence from the scenes of the crimes. The trial judge found the appellant’s blameworthiness practically indistinguishable from that of Bailey. He said: “The difference in involvement, perhaps slightly favourable to Mr. Owens’ global position, is counterbalanced by the circumstances to which I have already referred, seriously aggravating Mr. Owens’ situation.”
[13] We see no error in principle and, while the sentence may be at the high end of the range, it is not demonstrably unfit.
[14] In the result, the appeal as to sentence is dismissed.
Signed: “J.-M. Labrosse J.A.”
“R.S. Abella J.A.”
“Janet Simmons J.A.”