W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
A non-publication and non-broadcast order in this proceeding concerning the identity of and any information that would disclose the identity of the appellant has been made and continues.
CITATION: R. v. X.Y., 2007 ONCA 189
DATE: 20070316
DOCKET: C44840
COURT OF APPEAL FOR ONTARIO
FELDMAN, GILLESE and ARMSTRONG JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Norman F. Williams, for the appellant
(Respondent)
- and -
XY
Charmaine M. Wong, for the respondent
(Appellant)
Heard: February 16, 2007
On appeal from the sentence imposed by Justice William Festeryga of the Superior Court of Justice on January 6, 2006.
ARMSTRONG J.A.:
[1] This is a sentence appeal. The appellant pleaded guilty before Justice Festeryga in the Superior Court of Justice to charges which covered a time period of April 24, 2003 to June 3, 2003. Four of the charges involved three non-violent break and enters and a possession over charge. The remaining four charges included two counts of assault with intent to steal, break and enter and robbery and possession of a prohibited firearm. The latter four charges involved three incidents of significant violence or threatened violence.
[2] The first incident occurred on May 4, 2003 shortly after the appellant smoked crack with a female friend. The two elected to steal a car from a parking lot by using a crowbar to break its steering column. When the owner of the car, who was in his mid-sixties, unexpectedly arrived, there was a confrontation. Anticipating an assault, the owner of the car struck the appellant in the face with his fist. The appellant then knocked the owner of the car down, hit him with the crowbar and repeatedly punched and kicked him. The appellant yelled to his friend to run over the owner of the car while he was prone. The owner of the car eventually gave up the fight and the appellant removed his wallet, which contained about $1,450 in cash, then fled in the car.
[3] The second incident occurred on May 29, 2003 in a farmhouse in a rural area. At about 2:30 in the morning, the owner of the house, a 76-year-old man, awoke to the sound of somebody in the house. The owner of the house got out of bed, armed himself with a registered .25 calibre handgun, and investigated the noise. In the area of his bathroom, the appellant surprised the owner of the house from behind and knocked him to the floor. The appellant was armed with a knife and managed to disarm the owner of the house. The appellant ordered the owner of the house into the bedroom at gunpoint and demanded to know where the safe was as he ransacked the room. Another struggle ensued and the gun discharged, sending a bullet through the homeowner’s hip into his right buttock. The appellant stole the homeowner’s car keys and fled in his car, abandoning it a short distance away.
[4] The third incident occurred on June 2, 2003 at about 6:20 in the morning. The appellant pushed into the office of a motel with what appeared to be a sawed-off shotgun and confronted the female proprietor saying to her, “give me the money or I’ll shoot you.” She fled through a door in the back of the office and told her son to call 9-1-1. The appellant fled in a get-away car without having stolen any money or causing injury to anyone.
[5] The appellant was 31 years old at the time of sentencing. He had a lengthy criminal record, which included robbery, break and enter and theft, threatening, assault with a weapon, mischief, various property offences and failure to comply with court orders. He was described in his pre-sentence report as a career criminal.
[6] The appellant comes from a family where he was subjected to significant physical abuse from his father. The appellant has a Grade 12 education. The appellant had a four year common-law relationship with a woman. There is a son from that relationship. Access to his son has waned.
[7] The appellant has a history of drug addiction which underlies his criminal activity. Due to his criminal activity, he has not engaged in much legitimate employment although he has job skills in roofing, welding and working with heavy equipment.
[8] At the time of sentencing, the appellant was treated as having served two years and seven months pre-trial custody. During the pre-trial custody, the appellant, on his own initiative, acted as an informer for the jail authorities. The evidence before the sentencing judge was that the information provided to the jail authorities was extremely useful and led to at least one arrest and conviction as well as appropriate action related to others.
Sentencing Submissions
[9] In respect of the three non-violent break and enter charges and the possession over charge, counsel for the Crown and defence agreed on a joint submission. Crown and defence agreed that the appellant would be sentenced to one year and eight months of his pre-trial custody which, on a basis of a two-for-one credit, would be an effective sentence of three years and four months.
[10] In respect of the four remaining charges, arising out of the three violent incidents, there was no agreement between the Crown and defence.
[11] Counsel for the appellant at the sentencing hearing submitted that the judge should give three-for-one credit for the remaining eleven months of pre-trial custody followed by a conditional sentence of two years less a day.
[12] Counsel for the Crown suggested that the appellant should receive credit of one to two years for his assistance to the jail authorities and two-for-one credit for the remaining eleven months of pre-trial custody followed by an additional six years in custody.
The Sentence
[13] The sentencing judge accepted the joint submission in relation to the non-violent break and enters and possession charge. In regard to the charges arising out of the three violent incidents, he sentenced the appellant to a further six years in custody. In coming to this conclusion, the sentencing judge said:
I find that an appropriate range of sentence would be eight to ten years as suggested by the Crown for the home invasion and an additional two years for the brutal and serious assaults, for a total of 12 years. He shall be allowed some leniency for cooperating with the authorities to bring jail guards and other citizens to justice, and undertaking to cooperate with the police in a murder investigation. The net sentence will be eight years after being given that leniency.
He shall also be given credit for 11 months pre-sentence custody and I am allowing two-for-one, or two years, and therefore, the sentence will be a global sentence of six years for counts one, three, six and seven on indictment J-05-24 to be served concurrently and concurrently to the sentence on the other counts…
The Appeal
[14] Counsel for the appellant submits that the trial judge made two errors in sentencing the appellant in respect of the convictions arising out of the three violent incidents. The first error relates to a failure to take into account the “jump” principle. The second error relates to a failure to give sufficient credit to the appellant for his assistance to the jail authorities.
[15] Counsel for the appellant argues that before giving credit to the appellant for his assistance to the authorities and credit for pre-trial custody that the appropriate sentence in this case is eight years. Counsel submits that the longest sentence served by the appellant to date is eleven months for break and enter plus ninety days for breach of probation. He reasons that a twelve year sentence is too big a jump.
[16] In submitting that the trial judge erred in failing to give adequate credit for the assistance provided to the authorities, counsel relies on the reasons for judgment of Hill J. of the Superior Court of Justice in R. v. John Doe (1999), 142 C.C.C. (3d) 330.
[17] In the above case, John Doe pleaded guilty to importing one and a half kilograms of cocaine into Canada from Jamaica. The cocaine had an estimated street value exceeding $250,000. After arrest and before sentencing, Doe provided information to the police, which led to the arrest of others involved in two separate transactions. The sentencing judge concluded that ordinarily, a just and fit sentence would be four to five years in the penitentiary. However, given the exceptional circumstances of helping the police, he was given a conditional sentence of two years less a day.
[18] Hill J. engaged in a thorough review of the circumstances under which a sig-nificant discount should be given in sentencing an accused person who has provided meaningful assistance to the police and other authorities.
[19] In considering the quantification of a discount for informer assistance, Hill J. said at para. 42:
Cooperation of a high order requires a meaningful discount. However, an accused who has under consideration the role of police informer is understandably, and not unreasonably, anxious to know that the assistance provided will have a real effect in his or her own criminal proceeding. Perhaps, to this end, some courts have expressly stated that real or valuable assistance uncovering serious criminality will draw sub-stantial credit, perhaps a one-half to two-thirds reduction in the otherwise appropriate sentencing disposition: R. v. King, [1985] 7 Cr. App. R. (S) 227 at p. 230; R. v. Sehitoglu and Ozaken, [1984] 1 Cr. App. R. (S) 89 at p. 95; R. v. Perrier and Richardson (1990), 59 A. Crim. R. 164 at p. 172.
[20] Counsel for the appellant urges that we accept eight years as the starting point and further submits that the discount for informer assistance should be a one-half to two-thirds reduction in respect of eight years. After applying that discount and the two-for-one credit for the remaining eleven months of pre-trial custody, the appellant submits that he should receive a conditional sentence in respect of the remaining time.
ANALYSIS
[21] In respect of the appellant’s submission that a “jump” from incarceration of eleven months plus ninety days to twelve years is too great, counsel for the respondent submitted that the home invasion conviction alone warranted a sentence of ten years. See R. v. Wright (2006), 218 O.A.C. 215.
[22] Two of the three offences involved a significant degree of violence. The third offence involved a threat with a sawed off shotgun. One of the offences involved a house invasion. In the circumstances, I do not accept that there has been a violation of the “jump” principle.
[23] In respect of the appropriate credit for the appellant’s assistance to the jail authorities, I do not think that the trial judge erred in failing to apply a discount of one-half to two-thirds of the appropriate sentence. The three cases cited by Hill J. in R. v. John Doe in support of a discount of that magnitude are from the English and Australian courts. Although the cases are persuasive, they are non-binding authorities. Each of those cases involved fact situations different from this case. I also note that the John Doe case was a narcotics importing case which involved an accused with no prior criminal record.
[24] Hill J. in John Doe does not purport to set a fixed tariff for discounts in the sentencing of police informants. His language is carefully qualified at paragraph 43 of his reasons for judgment:
The just allowance will, of course, vary case to case depending on a discretionary assessment of individual cir-cumstances measuring the extent to which the actions of a co-operative accused justify a particular result. John Doe was the beneficiary of such an approach.
[25] The authorities of this court and other courts make it clear that the sentencing of an accused is dependent upon the individual circumstances of the accused and the offence committed. In my view, the informer discount of four years cannot be said to be inappropriate in the circumstances of this case.
[26] The submission that the appellant should receive a conditional sentence appears to me to be entirely out of the question. This appellant has a lengthy criminal record and these offences involve significant violence. But for his assistance to the jail authorities, he would be receiving a sentence of twelve years on these offences.
[27] The additional credit of two years for pre-trial custody is not challenged in this appeal and is appropriate.
[28] In the result, I would grant leave to appeal sentence but dismiss the appeal.
Section 684(1) of the Criminal Code
[29] Counsel for the appellant has requested that we make a formal order pursuant to s. 684(1) of the Criminal Code appointing him as counsel to the appellant. The result of such an order is that the fees and disbursements of counsel are paid by the Attorney General. In making an order under this section, the court considers whether there is an arguable case on the merits. If there is an arguable case, “the question becomes – can the appellant effectively advance his grounds of appeal without the assistance of counsel?” See R. v. Bernardo (1998), 121 C.C.C. (3d) 123 at para. 24 (Ont. C.A.). In answering this question, Doherty J.A. said in Bernardo:
This inquiry looks to the complexities of the arguments to be advanced and the appellant’s ability to make an oral argument in support of the grounds of appeal. The complexity of the argument is a product of the grounds of appeal, the length and content of the record on appeal, the legal principles engaged, and the application of those principles to the facts of the case. An appellant’s ability to make arguments in support of his or her grounds of appeal turns on a number of factors, including the appellant’s ability to understand the written word, com-prehend the applicable legal principles, relate those principles to the facts of the case, and articulate the end product of that process before the court.
[30] Even if it can be said that there was an arguable case, based on John Doe, it cannot be said that the appellant could not have effectively advanced his two grounds of appeal without the assistance of counsel. Indeed, during the course of the argument, the appellant made articulate interjections from time to time. Also, if this case had proceeded as an inmate appeal, the appellant would have had the assistance of experienced duty counsel in any event.
[31] While the court was assisted by the submissions of Mr. Williams on behalf of the appellant, this is not a case in which the court should make an order under s. 684(1). That said, Mr. Williams is to be commended for taking on this case on a pro bono retainer.
Disposition
[32] In the result, I would grant leave to appeal sentence in respect of the four convictions arising out of the three violent incidents but I would dismiss the appeal.
RELEASED:
“MAR 16 2007” “Robert P. Armstrong J.A.”
“KNF” “I agree K. Feldman J.A.”
“I agree E.E. Gillese J.A.”