Court of Appeal for Ontario

Citation: R. v. Whitlock, 2014 ONCA 470

Date: 20140613,

Docket: C56764

Before: Doherty, Rouleau and Epstein JJ.A.

Between

Her Majesty the Queen

Respondent

and

Joseph Richard Whitlock

Appellant

Counsel:

Jody Berkes and Anne Marie Morphew, for the appellant

Lorna Bolton, for the respondent

Heard: June 12, 2014

On appeal from the sentence imposed on February 29, 2012 by Justice Gregory Regis of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1] The appellant pleaded guilty to one count of robbery and one count of kidnapping. He appeals his eight year sentence. The circumstances of the offences are horrendous and this offender has a terrible record.

[2] Further, the kidnapping and robbery traumatized the victim who no doubt believed he would be killed that day. A very substantial penitentiary sentence was clearly needed in this case.

[3] The Crown at sentencing sought a sentence of at least six years. This offender, however, pleaded guilty and at the time of sentencing was 19 years old and his longest sentence served was eight months.

[4] The sentencing judge found that despite his record and the offences committed, the appellant was not beyond rehabilitation and that rehabilitation should be a prime factor.

[5] The appellant submits that the trial judge erred in that he concluded that the way the robbery and kidnapping were executed had been planned and that the appellant had been involved in the planning of it. The appellant argues that the sentencing judge used this as an aggravating factor despite the fact that it had not been proven by the Crown.

[6] We agree. The sentencing judge found that the crime had been executed “by design” and that nothing “accidental” had happened. Although there was ample evidence suggesting that the crimes were not carried out in a panic, there is no basis to find that the appellant knew of a design as to specifically know the offences would be executed and, more particularly, that the victim would be kidnapped and terrorized. While the robbery was being committed and the kidnapping initiated, the appellant was outside the convenience store.

[7] In the result, we would grant leave to appeal, set aside the sentence imposed. In our view, a total sentence of six years is appropriate. In light of the mandatory minimum, we would impose concurrent sentences of six years on both counts. Taking into account pre-sentence custody of 142 days, the sentence is five years seven months and eight days on each count with the sentences to run concurrently.