CITATION: R. v. Brown, 2009 ONCA 357
DATE: 20090430
DOCKET: C49461
COURT OF APPEAL FOR ONTARIO
MacPherson, Cronk and LaForme JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Melvin Brown
Appellant
Benissa Yau, for the appellant
Andreea Baiasu, for the respondent
Heard: April 23, 2009
On appeal from the sentence imposed by Justice E. K. Bignell of the Ontario Court of Justice on March 25, 2008.
ENDORSEMENT
[1] The appellant was convicted of robbery following a trial before Bignell J. of the Ontario Court of Justice. He was sentenced to three years’ imprisonment after credit of 16 and one-half months for 11 months pre-trial custody. He appeals against his sentence, arguing that: (i) the sentencing judge erred by failing to credit his pre-trial custody on the customary 2:1 basis; and (ii) the sentence imposed is demonstrably unfit since it allegedly exceeds the applicable range of sentences for similar offences and similar offenders. We reject these arguments.
[2] The amount of credit to be accorded to pre-trial custody is within the discretion of the sentencing judge. As a discretionary decision, it attracts considerable deference from this court.
[3] In this case, in according the appellant credit for his pre-trial custody on a 1.5:1 − rather than a 2:1 − basis, the sentencing judge took account of the appellant’s prospects for parole − including his status as a parole violator, his rehabilitation potential, and the delays in reaching trial that had the effect of prolonging the appellant’s pre-trial detention, some of which the sentencing judge regarded as attributable to the defence.
[4] These were proper considerations. The appellant has an extensive criminal record consisting of 66 prior convictions, including 3 prior robbery convictions and numerous convictions for crimes involving violence. The appellant’s history of incarceration and the fact of his prior parole violation made it unlikely that he would receive early parole.
[5] The appellant’s poor rehabilitative history also supported a departure from enhanced credit for his pre-trial custody on a 2:1 basis. The appellant’s pre-sentence report indicated that notwithstanding his claimed willingness to participate in counselling or rehabilitation programs, his record actually reveals a pattern of poor or non-compliance with such programs, both in custody and the community.
[6] Moreover, numerous delays, including repeated adjournments at the request of the defence, were experienced in bringing this matter to trial. On this record, the sentencing judge was correct to conclude that some of these delays prevented the case from proceeding as it normally should have.
[7] These factors provided ample support for the sentencing judge’s denial of 2:1 credit for the appellant’s pre-trial custody.
[8] Nor do we accept the appellant’s argument that the sentence imposed was unacceptably long and harsh, such that it is unfit. The appellant robbed a convenience store late at night when only one store clerk was on duty. When demanding money from the clerk, the appellant clearly intimated that he was in possession of a weapon. Then, when one of the appellant’s companions attempted to halt the robbery, the appellant responded violently, striking his companion. Although the appellant did not physically harm the clerk, this entire encounter can only have been terrifying for the vulnerable store employee.
[9] In these circumstances, the sentence imposed was neither excessive nor otherwise unfit.
[10] Leave to appeal sentence is granted and the appeal is dismissed.
“J.C. MacPherson J.A.”
“E.A. Cronk J.A.”
“H.S. LaForme J.A.”