DATE: 20061016

DOCKET: C44608

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – JEAN MARC ARSENAULT (Appellant)

BEFORE:

CRONK, LANG AND MACFARLAND JJ.A.

COUNSEL:

Joseph Di Luca

for the appellant

Charmaine M. Wong

for the respondent

HEARD & RELEASED ORALLY:

October 6, 2006

On appeal from the conviction entered by Justice Peter Ralph Adams of the Ontario Court of Justice dated June 14, 2005 and from the sentence imposed by Justice Adams dated October 4, 2005.

E N D O R S E M E N T

[1] The appellant walked into a bank, gave a note to the teller demanding money, obtained $5,000.00 and left. The trial judge concluded that this was a robbery because the Crown had proven threats of violence. The appellant argues that he should only have been convicted of theft.

[2] In our view the trial judge’s factual findings are dispositive of this issue. The appellant walked into the bank fully disguised. His head was completely wrapped in gauze bandages leaving only his eyes exposed. In addition he wore a baseball cap. He handed the teller a note demanding money. He deliberately refused to use his voice and responded to the teller’s questions only by nodding or shaking his head. In addition, the trial judge accepted the teller’s evidence that she “was very, very nervous and my fear was I just wanted to make sure that I did everything correctly so nobody would get hurt”.

[3] The threat of violence was implicit in the location of the crime and in the appellant’s conduct, including his disguise. The trial judge’s findings, which were amply supported by the evidence, support the appellant’s conviction for robbery.

[4] The appellant also appeals his sentence of 15 months imposed following his conviction for robbery and disguise with intent. The appellant argues that the sentence imposed is overlong and ought to have been a conditional sentence to be served in the community. In his reasons for sentence the trial judge did not adequately address why a conditional sentence for this offender would not appropriately meet the requirements for denunciation and general deterrence.

[5] While robbery is always a serious offence, there are degrees of seriousness as is apparent from the broad range of sentences imposed by courts for this offence. The appellant had no criminal record at the time of this offence. The Pre-Sentence Report was most favourable and, indeed, said that the appellant was a suitable candidate for service in the community. Mr. Pilgrim, another individual who was also involved in this robbery with the appellant, received only a five-month sentence to be served conditionally. Mr. Pilgrim had a serious record, particularly when compared with that of the appellant, and was the subject of an especially negative Pre-Sentence Report.

[6] In our view, the trial judge’s failure to consider a conditional sentence on the facts of this case was an error in principle: see R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61. In the particular circumstances of this case, we are of the view that the appellant should have been granted a conditional sentence. We would not, however, interfere with the duration of the sentence as it is in the appropriate range albeit at the lower end for this offence and we note that the appellant has already served some two and one-half months in custody.

[7] In the result, the appeal against conviction is dismissed. Leave to appeal sentence is granted and the appeal is allowed to the extent that the appellant may serve his sentence conditionally.

“E.A. Cronk J.A.”

“J. MacFarland J.A.”

“S.E. Lang J.A.”