COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Jones, 2012 ONCA 609
DATE: 20120917
DOCKET: C52736
MacPherson, Armstrong and Watt JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Christopher Jones
Appellant
Jonathan Dawe, for the appellant
Maria Stevens, for the respondent
Heard: September 6, 2012
On appeal from the sentence imposed on June 29, 2010 by Justice A.J. Stong of the Superior Court of Justice.
ENDORSEMENT
[1] This is a sentence appeal.
[2] The appellant initially pleaded not guilty to five offences:
(i) aggravated assault;
(ii) discharge a firearm with intent to wound, maim or disfigure;
(iii) using a firearm while committing an indictable offence;
(iv) kidnapping with a firearm; and
(v) possession of a restricted weapon while prohibited pursuant to an order made under the Youth Criminal Justice Act.
[3] Three weeks into the trial, the appellant changed his plea to guilty as did his co-accused, Michael Chalmers, who pleaded guilty to essentially the same offences.
[4] The underlying facts are the following. On September 16, 2007, the appellant, co-accused and an unidentified third person kidnapped Dwight Geary by pulling him into a car driven by the appellant. Geary was held captive for several hours. The appellant’s co-accused pointed a gun at Geary and required him to contact Robert Hinds-Grannum to arrange a meeting with Hinds-Grannum at his house. When the kidnappers arrived at Hinds-Grannum’s house, the co-accused and Geary got out of the car. The appellant remained seated behind the wheel. A confrontation followed in which gunfire was exchanged. The co-accused fired a shot that wounded Hinds-Grannum in his leg.
[5] The trial judge imposed the following sentence:
• 9 years concurrent for aggravated assault, discharge firearm with intent to wound, maim or disfigure and kidnapping with a firearm;
• 2 years concurrent on the charge of possession of a restricted weapon contrary to the order under the Youth Criminal Justice Act; and
• 1 year consecutive for use of a firearm while committing an indictable offence.
[6] The total sentence is 10 years, which resulted in the appellant having to serve 6 more years in custody by reason of a credit for pre-sentence detention on the basis of 1.5:1. In arriving at the pre-sentence credit, the trial judge said:
In ascertaining the amount of credit to be given him for his sentencing, I take his involvement into account, I take his association with weapons into account leading up to this incident, and I am satisfied that because he is not likely to qualify for early parole. For those reasons, I am disposed to give him a credit of 1.5 days to 1 for the 33 months, which translates into an equivalent of having spent four years in custody prior to this sentencing.
[7] Mr. Chalmers, whom the sentencing judge found to be the principal in the shooting of Hinds-Grannum, received a global sentence of 11 years consecutive to another sentence of 11 years he was then serving.
[8] The appellant raised the following grounds of appeal:
(i) the sentencing judge erred in failing to give the appellant credit for his pre-trial detention on a 2:1 basis;
(ii) the sentencing judge erred in ignoring the submission of the counsel for the Crown that the appropriate global sentence was 9 years;
(iii) the sentencing judge erred in failing to give proper effect to the parity principle; and
(iv) the sentencing judge erred by ignoring the principle that first penitentiary sentences for youthful offenders should be as short as possible.
[9] We agree with the appellant’s first ground of appeal in respect of pre-trial credit. It was the practice at the time of these offences that a sentencing court gave 2:1 credit for pre-sentence custody in circumstances such as these. In our view, there does not appear to be any evidentiary basis for the sentencing judge’s conclusion that the appellant would not likely be a candidate for early parole. We agree that the appellant was entitled to 2:1 credit on the basis that he was held in detention in a remand centre for 33 months without access to rehabilitative programmes.
[10] We are of the view that the sentencing judge erred in exceeding the submission of the Crown for a sentence of 9 years without explaining the basis for doing so.
[11] In respect of the parity principle, counsel for the appellant submits that his co-accused was the principal and worst offender and therefore there should have been a much greater disparity between the two sentences. The lack of significant disparity is largely explained on the basis that Chalmers’ sentence was modified because it was made consecutive to a sentence of 11 years he was then serving in respect of other convictions and therefore required adjustment to conform to the totality principle. We would not give effect to this ground of appeal.
[12] Finally, we do not agree that the sentencing judge erred in failing to give the appellant a shorter penitentiary term because of his youth. The criminal use of firearms is a plague on the life of the Greater Toronto Area. Those who are disposed to engage in this kind of criminal activity have to get the message that they will ultimately come face to face with the full force of the law and, in the result, will be sent to penitentiary for a long period of time. Denunciation and deterrence are the primary objectives of sentencing in this kind of case.
[13] In the result, the application for leave to appeal is granted, the appeal is allowed to the extent that the 10 year sentence is reduced to 9 years to conform with the submissions of the Crown counsel at trial. The appellant is entitled to pre-sentencing credit on a 2:1 basis for his pre-trial detention of 33 months. Accordingly, the ultimate sentence is an additional 42 months in custody from the date of sentencing.
“J.C. MacPherson J.A.”
“Robert P. Armstrong J.A.”
“David Watt J.A.”