DATE: 20050215
DOCKET: C39660
COURT OF APPEAL FOR ONTARIO
McMURTRY C.J.O., GOUDGE AND SHARPE JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Christopher D. Hicks and Joseph Wilkinson for the appellant
(Respondent)
- and -
ALEX NIKOLOVSKI
Thomas Galligan for the respondent
(Appellant)
Heard: December 22, 2004
On appeal from the conviction imposed by Justice Janet Wilson dated March 2, 2000 and on appeal from the sentence imposed by Justice Janet Wilson dated December 30, 2002.
BY THE COURT:
[1] On March 2, 2000, Alexander Nikolovski was convicted of two bank robberies. On December 30, 2002, Wilson J. dismissed the Crown’s dangerous offender application but found Mr. Nikolovski to be a long-term offender, and sentenced him to three years in prison (in addition to the equivalent of nine years in pre-trial custody), together with a ten year long-term supervision order.
[2] Mr. Nikolovski appeals against the long-term offender designation and the length of both his custodial sentence and his supervision order. He raises a number of arguments. In our view, none succeed and the appeal must be dismissed. We will deal with each of them in turn, leaving until the last the only argument upon which we required argument from the Crown.
[3] First, the appellant says that his s. 11(b) Charter rights were violated at the sentencing stage of his trial.
[4] We disagree. While the protection of s. 11(b) extends to sentencing, it has more limited scope at that stage. See R. v. MacDougall (1998), 1998 763 (SCC), 128 C.C.C. (3d) 483, S.C.C. Here, the time from conviction to the commencement of the dangerous offender hearing was approximately 31 months. The trial judge attributed 16 months of that to institutional requirements and to the Crown, with the balance being the responsibility of the defence.
[5] We can see no error in this allocation. The appellant’s main complaint is that having offered dates that were unavailable to the Crown or to the court, defence counsel’s subsequent unavailability for significant periods of time should have been counted against the Crown by the trial judge. We do not agree, particularly where, as here, the appellant insisted on being represented by a particular counsel. The allocation of responsibility for defence counsel’s unavailability was properly done by the trial judge.
[6] In our view, the trial judge was correct in concluding that the inherent delay was not unreasonable in the circumstances of this case. This was the sentencing phase not the pre-conviction phase of the trial. Moreover, any prejudice to the appellant was minimal, given that he had been convicted of two very serious offences, and was destined to be in custody for a significant period of time in any event.
[7] Second, the appellant says that the trial judge erred by failing to recognize that she had a discretion to impose a determinate sentence alone, even if she concluded that the appellant met the statutory criteria for long-term offender.
[8] We disagree. The trial judge cited with approval the decision of the British Columbia Court of Appeal in R. v. Johnson 158 S.C.C. (3d) 155 (which was later upheld by the Supreme Court of Canada at 2003 SCC 46, 177 C.C.C. (3d) 97). She proceeded on the basis that even if the appellant met the statutory criteria for dangerous offender, she must examine whether he also met the long-term offender criteria and if public safety could be achieved by the less draconian means of that designation. She concluded that indeed this could be done. Her reasons leave the reader with the unmistakable conclusion not that she failed to address whether public safety could be achieved with the determinate sentence alone, but that the conditions she imposed on the appellant as a long-term offender were necessary to reduce the public threat to an acceptable level and that nothing less would suffice. This conclusion is amply supported by the overwhelming preponderance of the evidence before her.
[9] Third, the appellant argues that the trial judge erred in finding that there was a substantial risk that the appellant will re-offend.
[10] This argument is simply answered. While the trial judge was required to come to this factual conclusion in order to find the appellant to be a long-term offender, there was an ample basis in the record to sustain her conclusion including the evidence of the predicate offences and the voluminous evidence of the experts who examined the appellant both those called by Crown and by the appellant.
[11] Fourth, the appellant submits that both the term of imprisonment and the length of the supervision order are excessive.
[12] Again we disagree. The trial judge correctly held that the appellant met the criteria for dangerous offender not just those for long-term offender. He has a horrendous criminal record including thirteen prior convictions for robbery. The psychiatric evidence about him was bleak. In the circumstances, both aspects of his sentence were entirely fit.
[13] The appellant’s final argument is that the trial judge erred in finding that the two predicate offences were “serious personal injury” offences as defined in s. 752 of the Criminal Code. That definition reads as follows:
- Definitions – In this Part,
“court” means the court by which an offender in relation to whom an application under this Part is made was convicted, or a superior court of criminal jurisdiction;
“serious personal injury offence” means
(a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving
(i) the use or attempted use of violence against another person, or
(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person,
and for which the offender may be sentenced to imprisonment for ten years or more, or
(b) an offence or attempt to committee an offence mentioned in section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault).
[14] The trial judge found that the predicate offences satisfied both (a)(i) and (a)(ii) of this definition and were therefore “serious personal injury offences”. She then went on to find that the appellant is a dangerous offender because he had been convicted of a “serious personal injury offence” and constitutes a threat to the life, safety or physical or mental well being of other persons. Ultimately, she also concluded that the appellant met the statutory definition of long-term offender and could be satisfactorily controlled by means of a long-term supervision order following his incarceration. Thus her initial finding that the two robberies of which the appellant was convicted were serious personal injury offences was an important step en route to the sentence she imposed.
[15] The trial judge found that these offences met (a)(i) of the statutory definition because they involve the use or attempted use of violence. It is unnecessary for us to address this finding since the trial judge also found that these offences qualified under (a)(ii) because they involved conduct inflicting or likely to inflict severe psychological damage upon another person.
[16] This conclusion depends very much on the facts of the particular case. In our view, here there was evidence capable of supporting the finding of the trial judge on this issue. These robberies were extremely serious. In each case the appellant was masked. In each case there were customers in the bank. In each case the appellant robbed three different tellers. In each case he had his hand in his pocket in a way that led the victims to believe that he had a weapon. A number of the tellers were threatened with physical violence or death. The tellers were terrified. Some went into shock. Others froze or went limp. The effects of the robberies lingered for some time. One teller was afraid of being along or was frightened to be out at night after being robbed. Another was terrified and did not return to work for a week. One bank arranged for a psychiatrist to come in and talk with the staff to assist them with their emotional problems after the robbery. We would therefore dismiss this ground of appeal.
[17] Thus we cannot accept any of the appellant’s arguments. The appeal is dismissed.
Released: February 15, 2005 ”R.R.M.”
“R.R. McMurtry C.J.O.”
“S.T. Goudge J.A.”
“Robert J. Sharpe J.A.”