Court of Appeal for Ontario

Citation: R. v. Clarke, 2014 ONCA 296

Date: 20140417

Docket: C55913

Before: Sharpe, Cronk and Juriansz JJ.A.

Between:

Her Majesty the Queen Respondent

and

Kristopher Clarke Appellant

Counsel: Peter Lindsay, for the appellant Gavin MacDonald, for the respondent

Heard: March 27, 2014

On appeal from the sentence imposed on July 25, 2012, by Justice John C. Moore of the Ontario Court of Justice.

By the Court:

[1] The appellant was sentenced to two years less a day upon a joint submission following a guilty plea to charges of robbery, use of an imitation firearm, and disguise with intent. The appellant concedes that the sentence was fit when imposed but argues that the sentence should be reduced on account of fresh evidence relating to the steps he has taken towards rehabilitation following conviction and sentence.

The Offences

[2] At the time of these offences, the appellant was 19 years old. The appellant entered a convenience store shortly after midnight wearing a skeleton style mask over his face. He pulled out an imitation handgun (a starter’s pistol), and pointed it at the head of the victim. He then pushed the weapon against the victim’s ribs and demanded cash and cigarettes, threatening to shoot the victim if he did not comply. The appellant was arrested shortly thereafter near the scene of the robbery.

The Joint Submission and Sentence Imposed

[3] In accepting the joint submission, the sentencing judge took into account several mitigating factors.

[4] First, the appellant was a youthful first offender who had entered a guilty plea and acknowledged the seriousness of his conduct.

[5] Second, the appellant had what the sentencing judge described as “an incredible amount of potential” and that his chances for rehabilitation were “very good”. The appellant had the full support of his family and filed supportive letters from friends and from people with whom he had worked.

[6] Third, the appellant had spent several months on fairly strict release pending trial and sentence and had abided by all terms.

[7] Fourth, there was evidence the appellant was suffering from depression at the time of the offence and had stopped taking anti-depressant medication because he could not afford the medication and did not wish to ask his father for the money. A detailed psychiatric report stated that while it could not be said that the robbery was a direct result of the lack of medication, it could have been a factor.

[8] The sentencing judge found that the sentence proposed by way of joint submission was appropriate although he added that “it is not a sentence I am happy about imposing because of your age, and your potential, and everything else, but I have to do it.”

[9] The sentencing judge imposed a global sentence of two years less a day comprised of the minimum one year sentence for the use of the imitation firearm and a consecutive term of one year less a day on the offences of robbery and disguise with intent.

The Appeal

[10] The appellant initially appealed his conviction raising a claim of ineffective assistance of counsel. After serving 28 days in custody he was released on bail pending appeal. More than one year later, following receipt of a responding affidavit from his trial counsel and cross-examination on that affidavit and on his own affidavit, the appellant confirmed that he was no longer pursuing the conviction appeal and that he would be appealing sentence alone.

[11] The appeal from sentence is based upon fresh evidence as to the steps the appellant has taken towards rehabilitation since the sentence was imposed and during the period of time he has been on bail pending this appeal. He asks us to consider reducing the sentence to between 12 and 18 months.

[12] While the appellant raised the issue of appropriate credit for the period of time he spend on relatively strict conditions of release pending trial in his factum, that ground was not pressed in oral argument and, in view of the joint submission and the sentence that was imposed, it is without merit.

Analysis

[13] The proposed fresh evidence falls into three categories.

[14] First, there are several letters of support from friends and colleagues of the appellant’s parents. These letters are written from the vantage point of persons who have known the appellant’s family for many years. In our view, they add little to the letters of support filed at the time the appellant was sentenced and that were available to the sentencing judge.

[15] Second are letters from the appellant’s employers. These letters indicate, with no detail as to time or duration of employment, that the appellant has held part-time jobs in Subway restaurants.

[16] Third are letters relating to the appellant’s education. Since he was sentenced, he has completed the credit he needed to complete his high school diploma. He has taken courses at Ryerson (something he had started to do before sentencing) and he has enrolled in Seneca College’s Environmental Landscape Management Course where he appears to be doing well.

[17] The appellant is certainly to be commended for his success in securing part-time employment and moving forward with his education. However, it was because of his potential and predicted success on those fronts that he secured the benefit of a relatively lenient sentence based upon a joint submission.

[18] Sentencing a youthful first offender who demonstrates potential for rehabilitation is a difficult and at times agonizing task. In this case, the offences were serious but the appellant’s potential for rehabilitation is high. The sentencing judge followed a joint submission and imposed the sentence that was plainly at the low-end of the range. It is well-established in the case law that robbery of a convenience store at night while wearing a disguise required custodial time in addition to the one year minimum for the firearms offence. It is clear from the sentencing judge’s reasons that the age and potential of the appellant made him reluctant to impose even that sentence, but that he felt compelled to do so by the law.

[19] After giving the matter careful consideration, we have come to the conclusion that the fresh evidence we have does not significantly alter the picture that was presented to the sentencing judge. Then, as now, the appellant is a youthful first offender who committed very serious offences and who shows good potential for rehabilitation. Then, as now, he has the full support of his friends and family. While the appellant appears to have made progress with his education since he was released on bail pending appeal we cannot say that the fresh evidence demonstrates a significant change of circumstances sufficient to permit us to reduce the sentence imposed by the sentencing judge.

[20] In the end, we find ourselves essentially in the same position as the sentencing judge. We understand the trial judge’s unhappiness about having to impose the sentence of two years less a day on this young offender. However, given the gravity of the offence, the governing law, and the fact that the sentence was at the low end of the range and imposed following a joint submission, we consider that in law we must uphold the sentence.

Disposition

[21] For these reasons, we conclude that the fresh evidence fails to meet the threshold required for admission on appeal. Accordingly, we dismiss the application to admit the fresh evidence and while we grant leave to appeal, we dismiss the sentence appeal.

“Robert J .Sharpe J.A.”

“E.A. Cronk J.A.”

“R.G. Juriansz J.A.”

Released: April 17, 2014