DATE: 20050906
DOCKET: C43367
COURT OF APPEAL FOR ONTARIO
SHARPE, BLAIR and MACFARLAND J.J.A
B E T W E E N :
HER MAJESTY THE QUEEN
Douglas Edward Dennis, in person
Respondent
Joseph DiLuca, Duty Counsel
- and -
DOUGLAS EDWARD DENNIS
Riun Shandler, for the respondent
Appellant
Heard: June 22, 2005
On appeal from the sentence imposed by Justice D.J. Wallace of the Ontario Court of Justice, on November 23, 2004.
R.A. BLAIR J.A.:
Overview
[1] Douglas Edward Dennis is a seventy-year old bank robber and career criminal. He is an addicted gambler and has an extensive criminal record for crimes of dishonesty, gambling-oriented offences, breach of release conditions and, of course, robbery.
[2] In June 2004, he was convicted of the offence of robbery for a fourth time – this time in connection with a bank in Niagara Falls. When he pleaded guilty to that offence, he was sentenced to life imprisonment by Justice D.J. Wallace of the Ontario Court of Justice. The trial judge imposed the sentence primarily because he was persuaded that a life sentence provided the parole authorities with more flexibility in terms of determining whether Mr. Dennis remained a danger to the public and therefore should or should not be released back into society.
[3] Mr. Dennis appeals the sentence arguing: (a) that it was excessive in the circumstances; and (b) that the trial judge erred in factoring parole considerations into his determination as to sentence. For the reasons that follow, I would allow the appeal.
Facts
The Circumstances of the Offence
[4] As the trial judge noted, the robbery was planned, but “not well planned or conceived”. For all of his efforts, Mr. Dennis succeeded in extracting a total of $6,725 from four different tellers in the bank. He was known to police, as were his habits, and two days later he was arrested after surveillance cameras identified him gambling away the proceeds of his crime at one of Niagara Falls’ casinos.
[5] The crime was committed in the following fashion. Mr. Dennis made an appointment to meet a small loans officer at the bank. When he arrived, he was carrying a bag and a T.V. remote device. He told the loans officer that he had a bomb in the bag, that there was another bomb located at the door of the bank, and that the device he held in his hand, if activated, would set off the explosives. He handed the bank officials a note with this message on it and saying that the strength of the bombs was sufficient to destroy the building. It also said that he was dying of cancer, had less than a year to live, and had nothing to lose if the bombs were detonated. He demanded that the bank officials open the bank vault.
[6] The demand was not met, as the bank officials in question professed not to know the combination to the vault. Mr. Dennis was therefore left to canvas a series of four tellers at various stations in the bank, as a result of which he obtained the $6,725 mentioned above. He then left the bank, but not before the bank’s security camera took what the trial judge referred to as an “excellent” photograph that “[depicted] the offender clearly”.
[7] Mr. Dennis did not have a bomb, or bombs, at the bank, but the bank personnel could not have known this and had to take the threat seriously. They were afraid to notify the police until the robber had left and, as directed, gave him time to make good his escape, after which the police were contacted. The area was evacuated and the Niagara Regional Police Service Explosive Disposal Unit was dispatched to the scene. The bag was determined to contain a non-explosive substance (a four-litre plastic jug of plumbing antifreeze wrapped in paper). Mr. Dennis was identified from the surveillance tape and, as mentioned above, subsequently arrested.
The Circumstances of the Offender
[8] The appellant was seventy years of age at the time of his conviction and sentence. He is now seventy-one. He has one family member, a niece, who is supportive of him and who visits him and looks after his finances on the rare occasions when he is “on the street”.
[9] In 1976, Mr. Dennis was sentenced to one year in prison for robbery; in 1983, to a total of seven years imprisonment on two counts of robbery; and in 1990, to thirteen years imprisonment for an armed robbery (in conjunction with a charge of unlawful imprisonment) after he held up a bank armed with a gun and took the bank manager hostage. For these, and the other crimes, Mr. Dennis has been sentenced to approximately thirty years in jail over the past forty years of his life. He is a career criminal and likely to re-offend as long as he is physically and mentally capable of doing so.
The Reasons of the Trial Judge
[10] The thrust of the trial judge’s decision as to sentence is found in the following passage from his reasons:
Now clearly the focus here has to be upon deterrence. And a further focus has to be on the protection of the general public. . . . Both counsel concede that a substantial penitentiary term is required as a specific deterrent here and for the protection of the public here. And I agree.
Counsel for the defence suggested that a ten-year jail term would be appropriate. Counsel for the Crown suggested that a life sentence should be imposed. Counsel for the Crown indicated that if a life sentence were imposed, the offender would be eligible for parole after he had served seven years of his sentence. Of course the fact that he would be eligible for parole does not mean that the parole board would grant him parole. It was noted that if I were to sentence this man to a ten-year sentence, he would be automatically eligible for parole once two-thirds of that sentence had been served, that is to say once six and two-thirds years of time had been served. The time that this man would stay in custody, therefore, is pretty much the same whether a life sentence is imposed or a ten-year custodial sentence is imposed.
Upon reflection, I think that the life sentence is more appropriate. And the reason I am of that view is that the life sentence gives the parole board more flexibility and more leeway in determining whether this man should be released or not. They can keep him longer if they think he is still a danger to society. Whereas with the specific ten-year sentence, once two-thirds of that sentence has been served, the parole board must release him. I prefer the view that the parole board should have more flexibility in keeping him in custody if he is still deemed to be a danger to the community.
Analysis
[11] While I am not persuaded that the trial judge erred in law by taking into account the particular parole considerations in the fashion he did, it is not necessary to determine that issue for purposes of this appeal. Respectfully – and leaving that issue aside – the trial judge made two errors in principle which, in combination, require us to re-open the question of his sentence, in my view. First, he approached the subject as if his options were to choose between the sentence proposed by the Crown and that suggested by counsel for Mr. Dennis. Secondly, he gave inadequate consideration to the practical realities arising from the age of the offender in the circumstances of this case. As a result, he failed to recognize that he could have accomplished the very goals he sought to achieve without imposing a sentence of life imprisonment.
[12] The jurisprudence is clear that maximum sentences of any kind are, by their very nature, to be imposed only rarely: see, for example, R v. Cheddesingh, 2004 SCC 16, [2004] 1 S.C.R. 433 at para. 1; R. v. Klair (2004), 71 O.R. (3d) 336 (C.A.) at para. 12. Here, the trial judge did not find that a life sentence would be otherwise appropriate, apart from his concern to ensure that the parole board had flexibility in determining whether, and when, Mr. Dennis should be released back into society.
[13] Mr. Dennis has a lengthy criminal record, as outlined above, including four prior convictions for robbery. He was sentenced to thirteen years imprisonment for his last robbery offence. Although that crime had been characterized by considerably more violence than the present case, and notwithstanding the submissions of defence counsel at trial, the trial judge was justified in imposing a more lengthy term of imprisonment on this occasion. He was also quite correct in treating the protection of the public as a primary consideration in sentencing. The record fully supports his view that Mr. Dennis is a risk to re-offend – and to re-offend in a violent manner – if he is released. But the goal could have been accomplished for all practical purposes, and in the circumstances of this case, by imposing a fixed term of imprisonment for a period of time between the life sentence sought by the Crown and the ten years suggested by the defence. The trial judge does not seem to have considered this option.
[14] The trial judge could have sentenced Mr. Dennis to a fixed term of fifteen to eighteen years’ imprisonment, for example, and exercised his discretion under s. 743.6(1) of the Criminal Code – which, in the circumstances, it would have been open for him to do. In that event, Mr. Dennis would not have been eligible for parole for seven and one-half to nine years, and would not have been entitled to statutory parole for ten to twelve years. Given his record, and prior history of release violations, it is unlikely that he would be released before his mandatory statutory release date. At that time, Mr. Dennis, if still alive, would be eighty or eighty-two years of age and subject to whatever conditions the parole board might see fit to require for another five or eight years. It seems to me that the likelihood of Mr. Dennis committing further violent crimes and continuing as a danger to the community at those ages, while not non-existent, is remote at best.
[15] There may be cases where the criminal history and incorrigibility of an offender may justify a maximum sentence in order to deter the offender and protect the public: R. v. Stairs, [1994] O.J. No. 1326 (C.A.). Here, however, both the paramount factors of specific deterrence and the protection of the public could have been equally well accommodated in reality without the imposition of a life sentence. That being the case, a sentence of life imprisonment ought not to have been ordered, as the trial judge did not find that such a sentence was otherwise warranted.
Disposition
[16] Having regard to all of the circumstances, I would grant leave to appeal, allow the appeal, setting aside the sentence of life imprisonment and substituting a sentence of 16 years imprisonment with no eligibility for parole before the expiration of seven years of that sentence.
“R.A. Blair J.A.”
“I agree Robert J. Sharpe J.A.”
“I agree J.L. MacFarland J.A.”