CITATION: R. v. Nembhard, 2010 ONCA 420
DATE: 20100608
DOCKET: C50985
COURT OF APPEAL FOR ONTARIO
Weiler, Feldman, Armstrong JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Joseph Junior Nembhard
Appellant
Joseph Junior Nembhard, in person
Peter Copeland, amicus curiae
David Finley, for the respondent
Heard: April 19, 2010
On appeal from the sentence imposed by Justice Al O’Marra of the Superior Court of Justice, sitting without a jury, on August 25, 2009.
ENDORSEMENT
[1] The appellant appeals his sentence following a guilty plea after the commence-ment of the trial for robbery of one bank and attempted robbery of another, both using an imitation firearm and disguise. The appellant had a dated record for three robberies and related charges in 1993 for which he received a total sentence of six years.
[2] In this case, the trial judge imposed a total sentence of nine years made up of four years each concurrent for the robbery and the attempted robbery and four years each concurrent for wearing a disguise each time, plus an additional two years consecutive for the imitation firearm on the attempted robbery and three years consecutive for the imitation firearm on the robbery.
[3] The appellant objects to the length of the overall sentence, relying on the totality and gap principles. He acknowledges that the offences required a significant sentence, but submits that nine years overemphasizes his dated record for the previous robberies and fails to give sufficient credit for his guilty plea.
[4] There was an effective ten year gap between the appellant’s prior robbery convictions and the sentencing for the present convictions. In the period between his release from prison in 1997 and 2001, his record is clear. In 2001, he was convicted of credit card fraud and received a suspended sentence and probation. He was offence-free for another six years. The present offences were committed in July 2007. In respect of the gap between the robbery offences of 1993 and the sentencing in 2009, the sentencing judge said:
I recognize that there is a 16 year gap [includes the time in prison on the first robberies] in Mr. Nembhard’s record between his bank robberies in 1993 and these offences and I take the gap into account with respect to imposing the consecutive sentences for the use of imitation firearm offences.
[5] The sentencing judge does not explain how the sentences in respect of the imitation firearms take the gap into account and we do not follow his line of reasoning.
[6] While these offences are very serious and call for a substantial penitentiary term, we believe that a total sentence of nine years fails to take into account the significant gaps in the appellant’s criminal record and, in particular, the effective ten year gap between the robbery offences.
[7] We therefore grant leave to appeal the sentence. We vary the sentence by reducing the imitation firearm offence of July 4, 2007 from two years consecutive to one year consecutive. We also reduce the three year sentence in respect of the imitation firearm offence of July 5, 2007 from three years consecutive to two years consecutive. In the result, the total sentence is seven years.
RELEASED:
“JUN -8 2010” “Karen M. Weiler J.A.”
“KMW” “K. Feldman J.A.”
“Robert P. Armstrong J.A.”