Court of Appeal for Ontario

Citation: R. v. Houle, 2008 ONCA 287

Date: 2008-04-16

Docket: C43655

Before: Laskin and Gillese JJ.A. and Whalen J. (ad hoc)

Between:

Her Majesty the Queen (Respondent)

and

Robert Houle (Appellant)

Counsel:

Alison Craig, for the appellant

John McInnes, for the respondent

Heard and released orally: April 11, 2008

On appeal from the sentence imposed by Justice A. Zuraw of the Ontario Court of Justice dated February 18, 2005.

ENDORSEMENT

[1] The appellant and his co-accused were convicted and sentenced in respect of two robberies involving violence with weapons. The appellant was sentenced to fifteen years - thirteen years concurrent for the robbery and aggravated assault convictions, one year consecutive for possession of a firearm and one year consecutive for possession of a firearm while under prohibition. The co-accused was sentenced to eleven years on the robberies, two years concurrent on the weapons charges.

[2] The appellant submits that his sentence is not fit because there was unjustifiable disparity between the sentences imposed on him and the co-accused. The appellant also argued that the sentences imposed for the weapons offences should have been concurrent rather than consecutive. We do not accept either submission.

[3] The disparity in the sentence is fully justified by the very significant difference in the backgrounds of the appellant and the co-accused. The co-accused, aged nineteen at the time of sentencing, was younger and had no criminal record. The appellant was 25 years old and had a horrendous record that included 39 convictions of which three had resulted in penitentiary sentences. At the time of sentencing, the appellant was on parole based on a conviction in 2003 for discharging some 30 rounds from a firearm in a residence. He was also subject to a lifetime firearm prohibition at the time of the offences in question. The disparity in sentence was fully justified.

[4] It was also open to the sentencing judge to impose consecutive sentences for the firearms-related offences. The deference that is due the sentencing judge on matters of sentencing generally applies to the decision whether to make sentences consecutive or concurrent: R. v. McDonnell (1997), 1997 CanLII 389 (SCC), 114 C.C.C. (3d) 436 (S.C.C.). Although these offences were temporally linked, they constitute invasions of different legally protected interests. The sentencing judge was entitled to bring home the seriousness of the offences by imposing consecutive sentences for the firearms offences. See R. v. Gummer, 1983 CanLII 5286 (ON CA), [1983] O.J. No. 181 (C.A.). The principal of totality was also satisfied.

[5] Accordingly, we would grant leave to appeal sentence but dismiss the appeal.

"John Laskin J.A."

"E.E. Gillese J.A."

"L. Whalen J. (ad hoc)"