COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Johnson, 2012 ONCA 339
DATE: 20120523
DOCKET: C53880
Laskin, Armstrong and Blair JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Frederick Johnson
Appellant
Alex Burns, for the appellant
Scott Latimer, for the respondent
Heard: October 21, 2011
On appeal from the sentence imposed by Justice M. Agro of the Ontario Court of Justice on February 2, 2011.
R.A. Blair J.A.:
Overview
[1] Mr. Johnson has committed 26 bank robberies over the past 14 years. Twenty-five were committed while he was in the community on parole or other form of release from custody.
[2] In November, 2010, Mr. Johnson was serving the remaining 9 years of a 12-year sentence imposed in 2004 following his conviction on 6 counts of robbery. On November 16th of that year, he was released from the penitentiary on a temporary absence pass. He did not return.
[3] Over the next three weeks Mr. Johnson robbed nine more banks. For these crimes, Justice M. Agro of the Ontario Court of Justice sentenced him to a total of 14 years, to run consecutively to the 9 years remaining on his previous sentence. Mr. Johnson submits that a total of 23 years is simply too much. He asks us to reduce the sentence or, in the alternative, to order that the sentence be varied to run concurrently with the previous sentence.
[4] I would not do the latter, but for the reasons that follow I would grant leave to appeal and vary the sentence to a global sentence of 20 years.
Facts
[5] The appellant is an inveterate, if not incorrigible, bank robber. In 1997, he was sentenced to two years’ imprisonment for a single bank robbery. In 2000, he was sentenced to eight years on ten counts of bank robbery, consecutive to any sentence he was then still serving. In 2004, he was sentenced to 12 years’ imprisonment on another 6 counts of bank robbery, consecutive again to any other sentence he was already serving. The robbery spree leading to the current convictions and sentences in February, 2011, involved nine further banks. He was on parole, statutory release or a temporary absence pass when he committed all of his robberies, except the first. He was 54 years old when he committed the current offences.
[6] The appellant’s modus operandi is what is known as the “note pass” robbery. He gives the teller a note indicating that he is armed and demanding money. There is no physical or verbal violence or brandishing of weapons. The appellant was not wearing a disguise during the current robberies and the judge found that he did not have or use a weapon. His crimes appear to have been driven by his addiction to drugs.
[7] In the appellant’s favour, when he was arrested by the police he made a full confession, accepted responsibility for the robberies, and co-operated fully. He pled guilty to all nine counts at an early stage of the proceedings thus saving court resources and sparing his victims the necessity of attending to testify.
[8] As aggravating factors, the sentencing judge took into account that the robberies were committed while the appellant was on a temporary absence pass, that they involved the threat of a weapon, that bank employees are a vulnerable segment of society, and that the appellant has an extensive criminal record, including (but not limited to) the convictions for the robbery offences outlined above.
[9] The sentencing judge concluded that a 14-year sentence concurrent on each of the 9 counts and consecutive to the sentence the appellant was then still serving was appropriate in all the circumstances. Speaking directly to the appellant, she said:
Having weighed the aggravating circumstances, the mitigating circumstances, taking [into] account the facts, taking into account your background, I am of the view that the principles of sentencing that are to be addressed here are general and specific deterrence, denunciation and the protection of society, and in particular other bank tellers. I do not consider rehabilitation to be a factor. You have had the benefits of some counselling while you have been incarcerated over the years. It worked for a while, it has not worked since. I will certainly make a recommendation on the warrant that you be afforded every opportunity for more intensive drug addiction programs, particularly addressed to cocaine. But whether or not that is successful sir is frankly not going to have anything to do with the length of my sentence.
Analysis
[10] Mr. Burns raises a number of arguments on behalf of the appellant, but only the submission that the sentence fails to take into account the principle of totality warrants full consideration, in my view.
Other Grounds
[11] In spite of Mr. Burns’ argument to the contrary, I am satisfied that the sentencing judge properly took into account the appellant’s guilty pleas and his co-operation with the authorities, and that she was entitled in these circumstances – particularly given the appellant’s unremitting record for bank robbery and other crimes – to give priority to the principles of general and specific deterrence, denunciation and the protection of society. The appellant’s prospects of rehabilitation appear to be remote at best. I do not think the sentencing judge partially based her sentence on victim impact statements she had reviewed in other cases and that were not part of the record before her; she simply called upon her experience, as trial judges are entitled to do in such circumstances.
[12] Nor am I persuaded that a sentence of 14 years’ imprisonment is excessive for the robberies here. While there are examples in the authorities of lower sentences in similar circumstances, there are also examples of sentences in a similar or higher range: see, for example, R. v. Stairs (1994), 1994 1396 (ON CA), 73 O.A.C. 79 (life imprisonment); R. v. Bergeron, [1982] O.J. No. 80 (C.A.) (14 years); R. v. Wolynec, 2007 ONCA 826, [2007] O.J. No. 4662 (13 years); R. v. Dennis (2005), 2005 31224 (ON CA), 202 O.A.C. 146 (16 years); R. v. Duhamel, [2004] O.J. No. 1164 (C.A.) (12 years); R. v. Nikolovski (2005), 2005 3328 (ON CA), 194 O.A.C. 258 (12 years). Here, the appellant, himself, sought a sentence of nine years consecutive to the remainder of his prior sentence.
[13] While “note passing” robberies may not be as violent as other forms, this Court has made it clear that they remain a very serious crime capable of instilling fear and trauma into victimized bank tellers: R. v. MacCormack, 2009 ONCA 72, 245 O.A.C. 271, at para. 88.
[14] That said, the sentencing judge does not appear to have given any consideration to the principle of totality in arriving at her decision, although she clearly recognized that the 14-year sentence she was imposing was to be consecutive to the sentence the appellant was then serving.
The Totality Principle
[15] A foundational principle of the Canadian sentencing regime is the principle of proportionality: “[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender:” Criminal Code, s. 718.1. This principle is based upon the fundamental notion that the punishment must fit the crime and that the degree of punishment must reflect the gravity of the offence and the moral blameworthiness of the offender. Otherwise, society will have no confidence in the law or the fairness and rationality of the legal system: see Re B.C. Motor Vehicle Act, 1985 81 (SCC), [1985] 2 S.C.R. 486, at p. 533.
[16] An important component of the principle of proportionality is the principle of totality, which is embedded in s. 718.2(c) of the Criminal Code:
A court that imposes a sentence shall also take into consideration the following principles:
(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh.
[17] In R. v. M.(C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, at para. 42, Chief Justice Lamer explained the rationale underlying the totality principle and its nexus with proportionality:
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”.
Clayton Ruby articulates the principle in the following terms in his treatise, Sentencing, [4th ed. (Toronto: Butterworths, 1994)], at pp. 44-45:
The purpose is to ensure that a series of sentences, each properly imposed in relation to the offence to which it relates, is in aggregate “just and appropriate”. A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of a sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender “a crushing sentence” not in keeping with his record and prospects.
[18] In short, a combined sentence must not be unduly long or harsh in the sense that its impact simply exceeds the gravity of the offences in question or the overall culpability of the offender. The overall length of the custodial period imposed must still relate to and reflect the variety of sentencing goals, including denunciation, deterrence (specific and general), rehabilitation, the need to separate offenders from society where necessary, and the general imperative of promoting respect for the law and the maintenance of a just, peaceful and safe society: Criminal Code, s. 718. In this regard, the authorities recognize that where the ultimate effect of the combined sentences is to deprive the offender of any hope of release or rehabilitation, the functional value of these sentencing principles meets the point of diminishing returns: see R. v. C. (J.A.) (1995), 1995 635 (ON CA), 26 O.R. (3d) 462 (C.A.). This point was reinforced by Lamer C.J. in M.(C.A.), at para. 74.
[19] There are at least two types of situation where the principle of totality in the context of consecutive sentences may arise. The first is where a single judge must deal with a series of offences, some of which require the imposition of consecutive sentences having regard to the criteria for such sentences. A second – which is the case here – concerns a situation where a sentencing judge must impose a fit sentence on an offender convicted of one or more offences where that offender is at the same time serving the remainder of a sentence for a previous conviction or convictions.
Section 718.2(c) of the Criminal Code draws no distinction between these two types of scenario, and this Court and others have recognized that the totality principle applies where the offender is serving the remainder of a previous sentence: R. v. Cathcart, [1976] O.J. No. 1225 (C.A.); R. v. Gorham (1987), 22 O.A.C. 237; R. v. Bond, [2005] O.J. No. 108 (C.A.); R. v. Reid, [2003] O.J. No. 3255 (C.A.); R. v. Evans (1975), 1975 1261 (NS CA), 11 N.S.R. (2d) 91 (C.A.); R. v. Bueger (1994), 1994 409 (BC CA), 48 B.C.A.C. 266; R. v. Saran (1996), 1996 18202 (MB CA), 113 Man. R. (2d) 205 (C.A.); R. v. Parry, 2012 ONCA 171, [2012] O.J. No. 1209.
[20] Although they are codified, the principles of proportionality and totality are common law concepts and the approach outlined above is consistent with the premises underlying those concepts, as expressed in M.(C.A.). If sentences are unduly harsh and excessive, confidence in the fairness and rationality of the sentencing process is lost – see Re B.C. Motor Vehicle Act, at p. 533 – and where consecutive sentences are unduly harsh and excessive, the overall length of incarceration may work against the attainment of the various goals of sentencing. This is particularly so where, as here, the combined effect of the sentences threatens to encroach upon – or exceed – the offender’s reasonable life expectancy. Chief Justice Lamer underlined this rationale, at para. 74 of M.(C.A.):
However, in the process of determining a just and appropriate fixed-term sentence of imprisonment, the sentencing judge should be mindful of the age of the offender in applying the relevant principles of sentencing. After a certain point, the utilitarian and normative goals of sentencing will eventually begin to exhaust themselves once a contemplated sentence starts to surpass any reasonable estimation of the offender’s remaining natural life span. Accordingly, in exercising his or her specialized discretion under the Code, a sentencing judge should generally refrain from imposing a fixed-term sentence which so greatly exceeds an offender’s expected remaining life span that the traditional goals of sentencing, even general deterrence and denunciation, have all but depleted their functional value. But with that consideration in mind, the governing principle remains the same: Canadian courts enjoy a broad discretion in imposing numerical sentences for single or multiple offences, subject only to the broad statutory parameters of the Code and the fundamental principle of our criminal law that global sentences be “just and appropriate”. [Emphasis added.]
[21] The potential for unduly harsh sentences to frustrate the goals of the process exists whether the offender is incarcerated for an excessive period of time because of one sentence or a series of sentences imposed by the same judge, on the one hand, or because of the combined effect of a new sentence imposed by a subsequent judge and the remainder of an existing sentence.
[22] At the same time, there is an additional level of concern that comes into play where a subsequent sentence is imposed on top of the remainder of an existing one, and, as a result, the totality principle has a somewhat tempered effect in such circumstances, in my view. The underlying rationale of the sentencing regime supports this notion, too.
[23] The system must be seen to be fair and rational – both to the offender and the community – and its integrity must be preserved. Just as a sentence cannot be unduly harsh and excessive, neither can it be overly lenient or unresponsive to other purposes and principles that underpin the sentencing regime – denunciation, deterrence, the promotion of a sense of responsibility in offenders and acknowledgement of harm done to victims and the community, and the protection of the public: Criminal Code, s. 718. In this sense, an offender such as the appellant ought not to be seen to be reaping benefits from his previous serious criminal misconduct. As this Court observed in Gorham:
It was argued that, in its totality, the sentence was too severe and crushing. In our view the principle of totality must have a substantially reduced effect upon a sentence where a part of the total term is based upon a remanet. Neither one who is unlawfully at large nor one who is at liberty on mandatory supervision should be entitled to benefit from the remanet which must be served if a new offence is committed.
[24] I read this not as an indication that the principle of totality has only minimal application in situations where the offender is serving the remainder of an existing sentence. The Court said only that the principle will have “a substantially reduced effect” in such circumstances. I take the Court to be indicating, rather, that there are other considerations regarding the need to protect the integrity of the sentencing process – public “confidence in the fairness and rationality of the system,” in the words of Wilson J. in Re B.C. Motor Vehicle Act – that must be taken into account in such circumstances. This need to protect the integrity of the sentencing process, and the overall purposes and goals of sentencing, are to be balanced against the recognition that there will be situations where, globally speaking, a combined sentence will simply be too harsh and excessive.
[25] In Sentencing: The Practitioner’s Guide, the authors suggest that “the court will balance the length of the unexpired term of the offender’s sentence against the aggravating effect of the commission of an offence while on parole [or other form of temporary release]”: Gary R. Clewley, Paul G. McDermott and Rachel E. Young, Sentencing: The Practitioner’s Guide (Toronto: Canada Law Book, 2011), at para. 1.570(d). I agree to the extent that, at the end of the day, the subsequent sentencing judge will determine how much weight to give to the existing remaining sentence by assessing whether the length of the proposed sentence plus the existing sentence will result in a “just and appropriate” disposition that reflects as aptly as possible the relevant principles and goals of sentencing in the circumstances.
Application of the Totality Principle in the Circumstances
[26] Here, the sentencing judge did not address her mind to the principle of totality. Having regard to the foregoing considerations, I am persuaded that the combined sentence of 23 years imprisonment imposed on the appellant is unduly long and harsh. I would reduce each of the concurrent sentences of 14 years in relation to the 9 current convictions to 11 years for a global sentence of 20 years.
[27] Although he is apparently unremitting in his commitment to a life of crime, the appellant is not the worst of the world’s bank robbers nor are his robberies the worst of that type of crime. The appellant’s “note passing” modus operandi has not involved the actual use of real or imitation weapons, although it threatened such use. The robberies were very serious, as I have noted above, but they were not armed robberies.
[28] The appellant was 54 years old at the time of his most recent convictions and the 14-year concurrent sentences accompanying them. He is a hardened and chronic recidivist – particularly when it comes to bank robberies – but he did express remorse by pleading guilty and in his comments at the sentencing hearing appears to have been reaching out for assistance in coping with his drug addiction. The sentencing judge excluded rehabilitation from her deliberations because she felt that, although the appellant had had some counselling over the years during his incarcerations, “[i]t worked for a while, [but] it has not worked since.”
[29] In my view, the appellant’s potential for rehabilitation should not have been disregarded completely, albeit that his antecedents suggest the prospects may be dim and that the concepts of denunciation, deterrence and protection of the public are paramount in these circumstances. As Professor Allan Manson notes in The Law of Sentencing (Toronto: Irwin Law, 2001), at p. 102, “[e]ven when there is little evidence of positive rehabilitative prospects, total sentences should not be so long as to crush optimism about eventual re-integration.” See also R. v. Manybears, 2009 ABCA 82, 457 A.R. 101, at para. 8. To repeat the guiding language of Lamer C.J. in M.(C.A.), at para 74:
… the sentencing judge should be mindful of the age of the offender in applying the relevant principles of sentencing. After a certain point, the utilitarian and normative goals of sentencing will eventually begin to exhaust themselves once a contemplated sentence starts to surpass any reasonable estimation of the offender’s remaining natural life span. Accordingly, in exercising his or her specialized discretion under the Code, a sentencing judge should generally refrain from imposing a fixed-term sentence which so greatly exceeds an offender’s expected remaining life span that the traditional goals of sentencing, even general deterrence and denunciation, have all but depleted their functional value. [Emphasis added.]
[30] If the sentences under appeal are upheld, the appellant would be 77 years old after serving a total sentence of 23 years. While not “greatly exceed[ing] [his] expected remaining life span,” perhaps, the combined sentence comes close to the point of crushing all hope. Some might say that a person in the appellant’s position deserves such an outcome. But I do not believe it to be what the principle of totality calls for here.
Disposition
[31] In all of the circumstances, I am persuaded that a global sentence of 23 years’ imprisonment is unduly long and harsh. At the same time, the principle of totality is tempered and must co-exist with other considerations relating to the integrity of Canada’s sentencing regime where the crimes for which the offender is currently being sentenced were committed while the offender was on parole or other form of statutory release in relation to a prior existing sentence. This is particularly so where – as here – the offender is a serial criminal committing serious crimes. The appellant’s history and extensive criminal record, together with the need for deterrence, denunciation, promotion of a sense of responsibility in the offender and acknowledgement of harm done to victims and to the community, as well as the protection of the public in his case, require a stiff consecutive sentence.
[32] In varying the sentence, as I propose to do, I emphasize that in my opinion the concurrent sentences of 14 years’ imprisonment on the 9 robbery charges were quite appropriate, viewed alone. A totality of 23 years’ imprisonment is unduly long and harsh, however – for all of the reasons outlined above – and I would accordingly reduce the global sentence to one of 20 years in order to achieve a result that I believe to be “just and appropriate” in all of the circumstances.
[33] I would therefore grant leave to appeal sentence and vary the concurrent sentences of 14 years’ imprisonment on the 9 counts of robbery to one of 11 years concurrent, to be served consecutively to the remaining 9 years of the appellant’s previous sentence.
"R.A. Blair J.A."
"I agree John Laskin J.A."
"I agree R.P. Armstrong J.A."
Released: May 23, 2012