Court of Appeal for Ontario

Citation: R. v. Flowers, 2010 ONCA 129 Date: 2010-02-18 Docket: C50493

Between:

Her Majesty the Queen (Respondent)

and

Dayon Flowers (Appellant)

Before: MacPherson, Cronk and Blair JJ.A.

Counsel: Dayon Flowers in person Breese Davies, Duty Counsel Riun Shandler for the Crown

Heard & released orally: February 10, 2010

On appeal from the sentence imposed by Justice L. Feldman of the Ontario Court of Justice on September 8, 2008.

Endorsement

[1] The appellant, Dayon Flowers, and his co-accused, Dwight Dilleon – young men of 22 and 20 years at the time – participated in a series of 15 consecutive convenience store robberies between mid-August and mid-November, 2006. Each robbery was characterized by some form of gratuitous violence and by the use of either a prohibited sawed-off shotgun or a handgun to intimidate the store-worker victims and render them compliant.

[2] Mr. Flowers pleaded guilty to 8 counts of armed robbery (4 in common with Mr. Dilleon) along with another related weapons offence. Mr. Dilleon also pled guilty to 8 counts of robbery (including the 4 in common with Mr. Flowers) and to an additional charge of aggravated assault.

[3] Primarily it was Mr. Dilleon who personally wielded the weapons during the robberies, but we note that the weapons offence to which Mr. Flowers also pleaded guilty was for breach of a mandatory weapons prohibition order. He must at least have been carrying a weapon during the incidents, therefore. It is part of the admitted facts as well that he instructed Mr. Dilleon at one point to shoot a clerk who was lying on the ground – part of the intimidation techniques, apparently. Fortunately, Mr. Dilleon did not do so.

[4] The trial judge imposed a global sentence of 10 years imprisonment, less 4 years’ credit for pre-trial custody, on Mr. Flowers for the robbery convictions. He imposed a one-year consecutive sentence on the plea to breach of a mandatory weapons prohibition order, but adjusted the robbery sentences downwards somewhat to maintain a global sentence of 10 years on totality principles.

[5] Mr. Dilleon received a sentence of 8 years for the robberies, less time served, and an additional 2 years for the aggravated assault, for a global sentence of 10 years.

[6] While not arguing strenuously that 10 years was an inappropriate sentence for Mr. Flowers in the circumstances, Ms. Davies submits on his behalf that the trial judge erred by failing to apply the principle of parity properly. She relies particularly on the passage in his reasons where he said:

In the circumstances, given Mr. Dilleon’s central role in these multiple violent crimes, I am not inclined to apply any significant variance in sentence as between the accused. Where there may be some adjustment is in the total sentence following the disposition to be imposed in relation to the aggravated assault.

[7] It was Mr. Dilleon who pleaded guilty to the aggravated assault, yet he received the lesser sentence for the robberies.

[8] Even if it were an error, on pure parity principles, not to impose equal sentences for the robberies – given the trial judge’s findings above – we would not impose a different sentence on Mr. Flowers than the 10 years chosen by the trial judge in the circumstances.

[9] These were particularly egregious, violent and callous crimes, carried out in a pre-meditated and common manner over a period of several months. Whether Mr. Flowers himself wielded the guns is not particularly significant in our view. He knew very well that guns and intimidation would be used during the commission of the crimes and, in fact – as noted above – he encouraged that conduct and participated in it.

[10] A sentence of 10 years’ incarceration was a perfectly fit sentence to impose. If Mr. Dilleon’s sentence was somewhat light, Mr. Flowers is not automatically entitled to benefit from Mr. Dilleon’s good fortune: see R v. Douglas (1996) O.A.C. 224, at para. 9. In R v. Issa (T.) (1992), 57 O.A.C. 253, this Court stated the following with respect to the principle of parity:

So long as sentencing remains an individual process there may be sentences meted out to offenders for participation in the same offence which are justifiably disparate. [We] think that Clayton Ruby’s statement in Sentencing (3rd Ed. 1987), at p. 29 is correct, that the rule against unreasonable disparity in sentencing ‘does not require equal sentences, but only understandable sentences when examined together.’ [Citations omitted.]

Gale C.J.O., recognized that a sting of injustice might follow in some cases and the court should act on it. In R. v. Dawdy (1973), 1973 CanLII 1437 (ON CA), 12 C.C.C. (2d) 477 (Ont. C.A.) at 478-479, he said:

While we are not bound to sentence Dawdy by reference to Bush’s sentence, we do think that the sentence should not be so disparate as to cause bitterness or resentment on the part of Dawdy.

[11] In the end, the question is whether the disparity in sentences – to the extent there was one – works an injustice on Mr. Flowers. In our view, it does not. The differences are understandable on the facts, and we can see no basis upon which Mr. Flowers could justifiably feel bitterness or resentment as a result. There were significant differences between the circumstances of these young men that in themselves would justify discrete sentences. Mr. Flowers had a lengthy criminal record (including offences of violence). Mr. Dilleon did not. Mr. Flowers was on probation at the time he participated in this run of robberies. Mr. Dilleon was not (although he was on bail for the aggravated assault offence at the time some of the robberies were committed). Mr. Dilleon had better prospects of rehabilitation, in the trial judge’s view. The trial judge concluded that Mr. Flowers was “criminally inclined, prone to violence and likely incorrigible,” although he did not rule out all prospects of rehabilitation (and we commend Mr. Flowers for the efforts he appears to be making to turn himself around since these convictions).

[12] In all the circumstances, however, we would not interfere with the sentence imposed by the trial judge. Leave to appeal sentence is therefore granted, but the appeal as to sentence is dismissed.

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”

“R.A. Blair J.A.”