Court of Appeal for Ontario

Citation: R. v. Jervis, 2013 ONCA 208

Date: 20130403

Docket: C54890

Before: Rosenberg, Gillese and Rouleau JJ.A.

Between

Her Majesty the Queen

Respondent

and

Lamart Jervis

Appellant

Counsel:

Lamart Jervis, appearing in person

Danielle Robitaille, acting as duty counsel

Amanda Rubaszek, for the respondent

Heard: March 22, 2013

On appeal from the sentence imposed on November 18, 2011 by Justice S. Bruce Durno of the Superior Court of Justice.

ENDORSEMENT

[1] The appellant, with the assistance of duty counsel, appeals from an effective sentence of nine years imprisonment imposed by Durno J. following the appellant’s plea of guilty to a number of charges arising out of a violent home invasion.

[2] The trial judge made no error in principle and the sentence, when imposed was well within the range of sentence for this type of offence, even given the appellant’s minor criminal record and the several mitigating factors. The appeal to this court really turns on the fresh evidence which, the appellant submits, brings his case within the type of exceptional cases referred to in R. v. Walsh, 2011 ONCA 325 justifying extreme leniency. For the following reasons, while leave to appeal sentence is granted, the appeal is dismissed.

[3] This was an extremely serious offence, demonstrating planning, use of violence and most importantly use of a firearm. The appellant and another man attended at the victim’s home. Posing as salesmen, they were dressed in business clothes and equipped with clipboards. When the victim tried to close the door, the two men forced their way in. A violent struggle ensued during which the appellant struck the victim. Ultimately, the victim was bound with zip ties. The perpetrators stole various items including computers and a safe containing $4,000. The men fled the residence and were loading the stolen goods into a car when the victim was able to free himself. He went outside and was on his cell phone relaying information to his father about the robbery. The appellant turned and fired several shots in the victim’s direction. The victim was not injured but one of the bullets entered the principal’s office at a nearby public school. Although these offences occurred in mid-day, fortunately no one was hurt.

[4] In this court, the appellant disputed the allegation that he assaulted the victim. However, there is no indication that the appellant disputed those facts at the time of the plea. In any event, the assaults are not the most serious of the allegations. Whether the assaults occurred precisely as described in the agreed facts or as now claimed by the appellant would not have changed the sentence.

[5] At the time of the offence, the appellant was 32 years of age. He had done well in school and was able to obtain skilled employment. These offences were out of character for the appellant. He blames his participation on the fact that he needed money to support his family. On the appeal we received fresh evidence. Some two years ago, the appellant, while in custody, was stabbed in the neck. About one year ago, the appellant suffered a severe allergic reaction to a prescription drug. An emergency tracheotomy had to be performed. Despite surgery on two occasions the tracheotomy remains in place and it is uncertain when, if ever, the appellant will be back to normal health. He now considers himself disabled. His disability was apparent during the hearing of the appeal. It is difficult for the appellant to speak. The appellant also refrains from socializing with other inmates. He has received very positive reports from the institution.

[6] We have not been persuaded that this is an appropriate case to reduce the sentence. The sentence of nine years was already within the low end of the range given the planning and violence of the home invasion and the discharge of the firearm. We agree with Crown counsel that, in this case, the conditions under which the appellant must now serve his sentence are matters to be taken into account by the Parole Board and the penitentiary authorities. These offences were so serious that nothing less than a lengthy penitentiary sentence was required as a matter of general deterrence and denunciation. The use of one firearm in this manner, in midday in a residential area near a school, was outrageous behaviour. This act alone required that denunciation be the paramount consideration and overshadowed the unusual characteristics of the appellant’s present condition. That the objectives of specific deterrence and rehabilitation have been fulfilled does not justify reduction of the sentence imposed in this case.

[7] Accordingly, while leave to appeal sentence is granted, the appeal is dismissed.

“M. Rosenberg J.A.”

“E.E. Gillese J.A.”

“Paul Rouleau J.A.”