R. v. Mann, 2010 ONCA 342

CITATION: R. v. Mann, 2010 ONCA 342

DATE: 20100510

DOCKET: C50127

COURT OF APPEAL FOR ONTARIO

Weiler, MacPherson and Armstrong JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Adam Troy Mann

Appellant

Counsel:

Adam Mann, acting in person

Joseph Di Luca, as duty counsel

Randy Schwartz, for the respondent

Heard: April 22, 2010

On appeal from the conviction entered on February 5, 2009 and the sentence imposed on March 10, 2009, by Justice Richard E. Jennis of the Ontario Court of Justice.

MacPherson J.A.:

A. INTRODUCTION

[1] On February 5, 2009, the appellant Adam Mann was convicted of five offences – robbery with a firearm, carrying a concealed weapon, unauthorized possession of a firearm, possession of a prohibited or restricted firearm with ammunition, and possession of a firearm or ammunition contrary to a prohibition order – at the conclusion of a trial before Jennis J. of the Ontario Court of Justice in Hamilton.

[2] On March 13, 2009, the trial judge sentenced Mr. Mann to a global sentence of 12 years. The key components of the sentence were ten years for robbery with a firearm, and two years consecutive (with 2:1 credit for nine months pre-sentence custody) for possession of a firearm contrary to a prohibition order.

[3] The appellant appeals his conviction and sentence. The main issue on appeal relates to the 12 year global sentence – does it offend the parity principle given that the appellant’s co-accused, his cousin Pierre Mann, received a global sentence (from a different judge) of five years for his participation in essentially the same criminal activity?

B. FACTS

[4] On April 24, 2008, Adam and Pierre Mann entered a private dwelling house on Barton St. East in Hamilton. Both men were carrying loaded firearms. The house was being used by Troy Collin-Miller and his grandmother as premises for an unlicensed business of selling alcohol (a “booze can”). The Manns showed the victims their firearms and robbed them of some money, including rolled coins. As the Manns were leaving, they threatened to kill the victims if they called the police.

[5] A short time later, two plainclothes officers, who had been alerted by dispatch to the robbery, saw two suspects matching the description of the alleged robbers getting into a taxi cab. Pierre Mann was arrested and found with a loaded handgun and money, including a substantial amount of rolled coins that the victims had reported were taken in the robbery.

[6] The other suspect fled and was chased by one of the officers. The suspect managed to escape. However, he dropped a cell phone and a loaded Webley handgun, and he lost a baseball cap. Testing of the cap identified the DNA of Adam Mann.

[7] Pierre Mann pleaded guilty to three offences – use of a firearm during commission of an indictable offence, possession of a prohibited or restricted firearm with ammunition, and possession of a firearm contrary to a prohibition order. He received a global sentence of five years for these offences.

[8] Following a trial, Adam Mann was convicted of the five offences set out above and received a global sentence of 12 years.

C. DISCUSSION

(1) The conviction appeal

[9] The appellant made a brief submission on his own behalf. He said that he did not commit the crimes and that he was convicted because “the witnesses lied”.

[10] I see nothing in the record, including the trial judge’s assessment of the evidence of the various witnesses in his reasons for judgment, to support the appellant’s assertion. I would dismiss the conviction appeal.

(2) The sentence appeal

[11] The appellant, with the assistance of a very able argument by duty counsel Joseph Di Luca, contends that his sentence of 12 years offends the parity principle in light of the five year sentence imposed on the co-accused Pierre Mann.

[12] I begin with a preliminary point. There are some differences in the offences as between the two offenders. The appellant was convicted of five offences; Pierre Mann was convicted of three offences. The most serious offence for the appellant was robbery; the most serious offence for Pierre Mann was use of a firearm during commission of an indictable offence.[^1]

[13] There is also a difference in the way the two judges calculated the time to be served for the offence of possession of a firearm contrary to a prohibition order. The trial judge imposed a sentence on the appellant of two years consecutive for this offence. The trial judge in Pierre Mann’s case imposed a sentence of one year concurrent for the same offence.

[14] However, in this case both counsel proceeded on the basis that given the actual events that unfolded, and the joint role of the two offenders throughout, the sentences that needed to be compared for purposes of the parity issue were the appellant’s global sentence of 12 years and the co-accused’s global sentence of five years. I agree and will proceed on that basis.

[15] The principle of parity of sentences is explicitly set out in s. 718.2 of the Criminal Code:

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

[16] The rationale for the principle is stated concisely in Clayton Ruby’s Sentencing, 7th ed. (Markham: LexisNexis Canada Inc., 2008) at para. 2.21:

The principle of parity has developed to preserve and ensure fairness by avoiding disproportionate sentences among convicted persons where, essentially, the same facts and circumstances indicate equivalent or like sentences.

[17] While parity is a guiding principle of sentencing, it is not, as stated by this court in R. v. Miller (J.) (2002), 2002 CanLII 45072 (ON CA), 163 O.A.C. 63, at para. 9, to be applied in an absolute fashion: “parity is only one of a number of principles that must be taken into consideration in imposing an appropriate sentence, and it cannot in and of itself dictate the result in all cases involving similar offenders committing similar crimes”. In R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at para. 36, the Supreme Court of Canada expressed a similar view: “Owing to the very nature of an individualized sentencing process, sentences imposed for offences of the same type will not always be identical. The principle of parity does not preclude disparity where warranted by the circumstances, because of the principle of proportionality” (emphasis in original).

[18] Appellate courts must demonstrate substantial deference to sentencing decisions: see R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227 and R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500. In the context of the parity principle, this means that “a court of appeal should only intervene to minimize the disparity of sentences where the sentence imposed by the trial judge is in substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes”: see R. v. M. (C.A.), at p. 567.

[19] In the case law, whether a sentence represents “a substantial and marked departure” can involve inquiries into two comparison groups – a co-accused and other offenders sentenced for a similar crime. In my view, it is appropriate to consider both potential comparison groups in this case.

[20] The trial judge focussed his parity analysis on the sentence given to the co-accused Pierre Mann, namely, five years. The trial judge was of the view that a much higher sentence for the appellant was justified by two factors – Pierre Mann’s early guilty plea and the more serious criminal record of the appellant.

[21] In my view, both of these factors supported the trial judge’s ultimate sentence for the appellant. A guilty plea, especially an early one, is entitled to a substantial credit in the sentencing process. And in this case, the appellant’s long criminal record (22 previous convictions) was replete with convictions for offences involving weapons and violence. Indeed, when the appellant was sentenced in March 2009, he was only 25 years old, but was being sentenced for his fourth robbery (Pierre Mann had one previous conviction for robbery). He also had previous convictions for aggravated assault and assault with a weapon. Moreover, the longest previous sentence imposed on the appellant was three years and seven months, whereas Pierre Mann’s longest previous sentence was six months.

[22] I turn to the other potential comparison category, namely, other offenders convicted of similar offences. This court has said that the range of sentences for offences committed in home invasion cases is four to five years at the low end, and up to 11 to 13 years at the high end: see R. v. Wright (2006), 2006 CanLII 40975 (ON CA), 216 C.C.C. (3d) 54, at para. 23. In that case, Blair J.A. said that a sentencing judge in a home invasion case “must give priority to the sentencing objectives of deterrence and denunciation” and that “a lengthy penitentiary term is fully warranted upon conviction for a home invasion offence”: see paras. 12 and 15, respectively.

[23] In Wright, the home invasion involved robbery with a firearm and this court upheld an eight year sentence. The accused pleaded guilty to the offences with which he was charged, he had a minor criminal record, and he expressed remorse, a desire to make amends, and a willingness to take responsibility for his actions.

[24] In contrast, the appellant did not plead guilty, has a serious criminal record for violent offences, and has now been convicted of robbery four times. Moreover, his pre-sentence report is very bleak indeed and includes these statements:

Ministry records show a pattern of minimization of behaviour, lack of remorse and lack of responsibility for his actions. A police report quoted the offender, as describing the act of stabbing a female victim “like a knife going through butter”. His pattern of minimization and deflection of responsibility is ongoing.

The subject has continually displayed lack of respect for authority and a continued defiance towards conventional rules. He is not suitable for community supervision, as he appears to be an unmanageable risk while in the community.

[25] The trial judge referred to all of these factors in his sentencing reasons. He also reviewed several leading cases dealing with home invasion robberies, including Wright, and concluded that “robberies, such as home invasions with loaded guns, are to be treated with denunciation and deterrence as foremost sentencing objectives.” In all the circumstances, I can see no error, including violation of the parity principle, in his determination that a 12 year global sentence was warranted.

[26] I would grant leave to appeal sentence and dismiss the appeal.

RELEASED: May 10, 2010 “JCM”

“J.C. MacPherson J.A.”

“I agree K.M. Weiler J.A.”

“I agree Robert Armstrong J.A.”

[^1]: I observe that this is a puzzling charge in the circumstances of this case. The indictable offence clearly committed by both offenders was robbery. However, in s. 85(1) of the Criminal Code, robbery is excluded as an offence that can ground a charge of using a firearm during commission of an offence.