Court of Appeal for Ontario

Citation: R. v. Nelson, 2010 ONCA 870

Date: 2010-12-17

Docket: C50721

Between:

Her Majesty the Queen

Respondent

and

Andrew Nelson

Appellant

Before: Goudge, Gillese and Blair JJ.A.

Counsel:

Andrew Nelson, acting in person

Breese Davies, acting as duty counsel

Holly Loubert, for the respondent

Heard: November 15, 2010

On appeal from the conviction entered on June 26, 2008, and the sentence imposed on November 21, 2008, by Justice Alan W. Bryant of the Superior Court of Justice, sitting without a jury.

Endorsement

[1] The appellant was convicted by Bryant J. sitting alone of five counts of robbery, one count of possession of prohibited ammunition, and two counts of possession of stolen property. He was sentenced to a total of seven years after credit for pre-trial custody.

[2] With the able assistance of Ms. Breese Davies as duty counsel, he appeals both conviction and sentence.

[3] In our view, the conviction appeal must be dismissed. In his reasons the trial judge carefully analysed the evidence in its entirety, and was satisfied beyond a reasonable doubt of the appellant’s guilt. Though the evidence was very largely circumstantial, it was ample to sustain this conclusion. In particular, there was evidence of the appellant’s links with the two co-accused, two cell phones stolen in the robberies that were found in an apartment frequented by the appellant, video evidence of the robberies taken by security cameras at the restaurants involved, and records of cell phone use and highway 407 use linking the appellant and a car with which he was associated to the times and locations of the robberies, and finally the similar fact support that evidence of each robbery provided to the others.

[4] This cannot be said to be an unreasonable verdict, and we would not interfere with it.

[5] As to sentence, the appellant was a youthful first time offender. However, these were very serious crimes. The appellant and his two associates committed five robberies of Chinese restaurants late at night in the course of which they brandished and pointed handguns as if they were operative firearms. Money was stolen from customers and cash registers.

[6] Although the appellant’s sentence is of significant length, given the gravity of these offences we cannot say it is unfit.

[7] However, the appellant reminds us that he is a youthful first time offender. He argues that the trial judge erred in principle by focusing on general deterrence and denunciation and sacrificing rehabilitation and individual deterrence.

[8] We cannot agree. The trial judge went no further than to say that general deterrence and denunciation were the “key” principles to be used. In other words, he gave them more prominence than he would have had these not been serious crimes of violence. We cannot say that the trial judge rejected individual deterrence and rehabilitation in sentencing the appellant. The trial judge’s approach does not constitute an error in principle for crimes of this gravity. See R. v. Priest, 1996 1381 (ON CA), 1996 110 C.C.C. (3d) 289 (Ont. C.A.); R. v. T.(K.), 2008 ONCA 91, 2008 89 O.R. (3d) 99 (Ont. C.A.).

[9] The appeals of conviction and sentence are dismissed.

“S.T. Goudge J.A.”

“E. E. Gillese J.A.”

“R. A. Blair J.A.”