CITATION: R. v. Parry, 2012 ONCA 171
DATE: 20120320
DOCKET: C52244
COURT OF APPEAL FOR ONTARIO
Feldman and Armstrong JJ.A. and Himel J. (ad hoc)
BETWEEN
Her Majesty the Queen
Respondent
and
Justin Daniel Parry
Appellant
Daniel J. Brodsky, for the appellant
John Patton, for the respondent
Heard: December 5, 2011
On appeal from the sentence imposed by Justice K. G. Lenz of the Ontario Court of Justice on August 14, 2008.
Armstrong J.A.:
[1] The major issue in this appeal is whether the sentencing judge properly applied the principle of totality.
[2] The appellant pleaded guilty to several criminal offences including robberies in which firearms and other weapons were used. Some of the victims were physically abused. He also pleaded guilty to a number of break and enters involving homes, barns, commercial establishments and a courthouse. Finally, he pleaded guilty to charges involving the use of a disguise, pointing a firearm, forcible confinement, assault with a weapon, theft with a weapon and conspiracy to commit robbery. The appellant was not investigated for these offences. However, as the result of a decision to turn his life around and a new-found religious faith, which he experienced while in prison for other offences, he came forward and disclosed all of these offences to the police.
[3] Counsel for the Crown at sentencing submitted that a total sentence of 20 years, consecutive to a 7 year sentence he was then serving, would be appropriate. However, he received, in total, a sentence of 22 years in the penitentiary consecutive to the previous 7 year sentence. He now appeals his 22 year sentence.
The Appellant’s Background
[4] At the time of sentencing, the appellant was 28 years old. He was four credits short of completing a high school diploma. He was suspended from school on several occasions for a variety of reasons. He now wishes to complete his high school diploma. He had a troubled youth. His father left the family when he was very young and he has had very little contact with his father since. A step-father with whom he had a good relationship died of cancer. A second step-father was violent towards his mother and was a bad role model for the appellant. The appellant has always been very close to his mother.
[5] The appellant was involved in a six year relationship with a woman who is the mother of their child. The appellant apparently makes support payments for the child when he can. At the time of sentencing, he indicated that he was approximately eight hundred dollars in arrears of his support payments.
[6] Due to his leaving school early, the appellant had a series of low end jobs. The sentencing judge noted that he was a hard worker.
[7] The appellant began to use marijuana at a very early age.
[8] The appellant’s criminal record commenced in youth court in 1998. Up until July of 2007, the appellant’s longest period of incarceration was 83 days. In July 2007, he pled guilty to three counts of armed robbery for which he received a total sentence of 7 years.
The Guilty Plea
[9] When beginning to serve his 7 year sentence he began to turn his life around, which he attributed to finding God. He became a model prisoner.
[10] He was determined to clear his conscience and disclose to the police a number of other criminal offences he had committed. The appellant approached the police and co-operated fully, to the point of taking the police from place to place where the offences were committed. The sentencing judge noted that it was unlikely that the police would ever have discovered who was responsible for most of the offences had the appellant not come forward.
[11] The appellant discharged his lawyer and refused to retain another lawyer to represent him. He represented himself on the guilty plea. He did not attempt to negotiate a plea bargain with the police or the Crown.
The Offences
[12] The offences to which the appellant pled guilty are very serious. They involve five armed robberies and four other home and commercial robberies involving the use of weapons other than firearms and injury to some of the victims. The offences also included break and enter to homes, commercial premises and the Woodstock courthouse.
[13] At the sentencing hearing, the appellant apologized to his victims in a prepared statement, which said in part: “I have fired my lawyer and I am willing to accept any sentence that comes to me, to truly show you how guilty and sorry I really am for hurting you. I have surrendered my life to God.”
The Sentences
[14] The appellant was sentenced to consecutive sentences of four years for each of the four counts of robbery with the use of a firearm and four years for one count of conspiracy to commit robbery. He was also sentenced to a consecutive sentence of two years in respect of his conviction for theft while armed with a weapon. All of the aforesaid produced a total of 22 years in the penitentiary consecutive to the time remaining on the 7 year sentence he was serving at the time of his plea – a grand total of approximately 28 years.
[15] On the remaining offences for which he pleaded guilty, the appellant received concurrent sentences ranging from one to four years.
[16] This was a complicated sentencing, given the great number of charges. In places, it is difficult to follow the transcript as to exactly what transpired in respect of the sentence for each count. I note that there are three errors, which were not raised before us but need to be addressed. Count 4, a robbery charge, was withdrawn by the Crown, although the appellant was sentenced to one year concurrent on that matter. This conviction and the sentence should be quashed. On counts 6 and 7, both break and enters of a barn, the appellant pleaded guilty but he does not appear to have been sentenced for these offences. I propose that we pass sentence on these two offences.
Analysis
[17] As indicated above, the main issue in this appeal is whether the trial judge erred in his application of the principle of totality. Section 718.2 of the Criminal Code provides that, “where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh”. The Supreme Court of Canada in R. v. M.(C.A.), [1996] 1 S.C.R. 500 at para. 42 discussed the totality principle as follows:
In the context of consecutive sentences, this general principle of proportionality expresses itself through the more particular form of the “totality principle”. The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. As D.A. Thomas describes the principle in Principles of Sentencing (2nd ed. 1979), at p. 56:
The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate sentence is “just and appropriate”.
[18] This court has previously held that the principle of totality applies where an offender is sentenced and part of the total term of incarceration includes a pre-existing sentence: see R. v. Cathcart, [1976] O.J. No. 1225 and R. v. Bond, [2005] O.J. No. 108.
[19] The sentencing judge in this case referred to the appropriate principles of sentencing, including the principle of totality. He emphasized that a sentence should not be so crushing so as to destroy any hope of rehabilitation. He recognized that the appellant was a candidate for rehabilitation.
[20] In spite of the fact that the sentencing judge referred in his reasons to the relevant principles of sentencing, I am of the opinion that a 22 year sentence, consecutive to the remnant of the 7 year sentence the appellant was then serving, cannot be regarded as anything but crushing. In short, it offends the principle of totality.
[21] Furthermore, the sentence gives no credit for or acknowledgement of the fact that the appellant came forward and admitted his crimes, accepted responsibility, showed significant remorse and sought rehabilitation. He pled guilty and was unrepresented before the court. These are very unusual circumstances indeed. They call for a carefully crafted judicial response that reflects a balancing of the need for a sentence that responds to the number and seriousness of the crimes on the one hand, with the important step this young man has taken toward rehabilitation, the guilty plea, which always attracts credit in sentencing and his positive attributes in the face of a very disadvantaged upbringing.
[22] In my view, the appropriate period of incarceration for this appellant, including the 7 year sentence he was serving at the time of sentencing, is in the 15 year range. A sentence in that range will recognize and give effect to the principle of totality.
[23] It is difficult to fashion such a sentence in these circumstances where four of the robberies involved the use of a firearm and thus attract minimum sentences of four years each. Also, with so many offences spread over a five year period some of the individual sentences, when viewed separately, do not appear to be proportionate to the gravity of the offence and the degree of responsibility of the offender as required by s. 718.1 of the Criminal Code. That said, in these circumstances, it is the totality of all the sentences that must satisfy the proportionality requirement.
[24] I start by observing that at the time of the sentencing in this case on August 14, 2008, the appellant had served 12 months and 25 days of his 7 year sentence imposed on July 20, 2007. He therefore had nearly 6 more years remaining on his 2007 sentence. I would sentence the appellant as follows:
(i) on count 2, robbery with the use of a firearm: 4 years consecutive to the sentences imposed on July 20, 2007;
(ii) on count 11, robbery with the use of violence by threatening with a knife: 4 years consecutive to the sentence in count 2;
(iii) on count 27, break, enter and theft: 1 year consecutive to the sentence in count 11;
(iv) on count 18, robbery with the use of a firearm: 4 years concurrent with the sentence in count 2;
(v) on count 30, break, enter and theft: 4 years concurrent with the sentence in count 2;
(vi) on count 31, robbery with the use of a firearm: 4 years concurrent with the sentence in count 2;
(vii) on count 35, conspiracy to commit robbery: 4 years concurrent with the sentence in count 2;
(viii) on count 41, robbery with the use of a firearm: 4 years concurrent with the sentence in count 2;
(ix) on count 47, did steal a quantity of Canadian currency and narcotics while armed with an offensive weapon, to wit, an imitation firearm: 4 years concurrent with the sentence in count 2;
(x) on count 3, with intent to commit an indictable offence did have his face masked: 2 years concurrent with the sentence in count 2;
(xi) on count 16, with intent to commit an indictable offence did have his face masked: 2 years concurrent with the sentence in count 2;
(xii) on count 22, did in committing an assault, use a weapon to wit: the butt of a rifle: 2 years concurrent to the sentence in count 2;
(xiii) on count 12, with intent to commit an indictable offence did have his faced masked: 2 years concurrent with the sentence in count 2;
(xiv) on count 13, did without lawful excuse confine a certain person: 2 years concurrent with the sentence in count 2;
(xv) on count 15, did steal while armed with a knife: 2 years concurrent with the sentence in count 2;
(xvi) on count 19, with intent to commit an indictable offence did have his face masked: 2 years concurrent with the sentence in count 2;
(xvii) on count 20, did without lawful authority confine certain persons: 2 years concurrent with the sentence in count 2;
(xviii) on count 21, did in committing assault on a certain person use a weapon, to wit, a fire extinguisher: 2 years concurrent with the sentence in count 2;
(xix) on count 33, with intent to commit an indictable offence did have his face masked: 2 years concurrent with the sentence in count 2;
(xx) on count 36, did steal a quantity of coins and jewellery while armed with an offensive weapon: 2 years concurrent with the sentence in count 2;
(xxi) on count 37, did without lawful authority confine a certain person: 2 years concurrent with the sentence in count 2;
(xxii) on count 38, with intent to commit an indictable offence did have his face masked: 2 years concurrent with the sentence in count 2;
(xxiii) on count 42, did without lawful excuse, point a firearm at several persons: 2 years concurrent with the sentence in count 2;
(xxiv) on count 43, with intent to commit an indictable offence, did have his face masked: 2 years concurrent with the sentence in count 2;
(xxv) on count 48, did without lawful authority confine certain persons: 2 years concurrent with the sentence in count 2;
(xxvi) on count 1, break and enter a barn and did commit the indictable offence of theft: 1 year concurrent with the sentence in count 2;
(xxvii) on count 6, break and enter a barn: 1 year concurrent to the sentence in count 2;
(xxviii) on count 7, break and enter a barn: 1year concurrent to the sentence in count 2;
(xxix) on count 10, break and enter a barn and commit the indictable offence of theft: 1 year concurrent with the sentence in count 2;
(xxx) on count 24, break and enter the Woodstock Courthouse and commit the indictable offence of mischief: 1 year concurrent with the sentence in count 2; and,
(xxxi) on count 25, break and enter a store and did commit the indictable offence of theft: 1 year concurrent with the sentence in count 2.
[25] The total of the above sentences is 25 days short of 15 years, taking into account the approximately 6 years which remained in respect of his 7 year sentence imposed on July 20, 2007.
[26] In the result, I would grant leave to appeal the sentences and vary the sentences in accordance with paragraph 24 above.
RELEASED:
“MAR 20 2012” “Robert P. Armstrong J.A.”
“KF” “I agree K. Feldman J.A.”
“I agree S. Himel J.” (ad hoc)