Court of Appeal for Ontario

CITATION: R. v. Willimott, 2015 ONCA 272

DATE: 20150420

DOCKET: C58642

Before: Strathy C.J.O., Doherty and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Brandon Willimott

Appellant

Counsel:

David Parry, for the appellant

Amy Rose, for the respondent

Heard: April 16, 2015

On appeal from the sentence imposed on August 16, 2013 by Justice Donald A. Ebbs of the Ontario Court of Justice.

ENDORSEMENT

[1] Four robberies were committed. Four individuals were charged but not every co-accused was involved in every robbery.

[2] The appellant pled guilty to two of the robberies and to a separate unrelated assault. He was sentenced to 4.5 years for the robberies, and 60 days, consecutive, for the assault.

[3] In his reasons, the sentencing judge referred to the robbery of Christopher Gaudio, who had been hit in the head with a two-by-four. The appellant was not convicted of the Gaudio robbery.

[4] The co-accused received the following sentences:

• Mizon (robberies of Gaudio and Jayne; possessing proceeds of crime): 32.5 months
• Giesbrecht (robberies of Jayne, Dyck): 30 months
• Sickini (robbery of Dyck): 18 months

[5] The appellant appeals against sentence. He says the sentencing judge violated the parity principle by imposing a greater sentence on him than the three co-accused received. He also says the sentencing judge erred in referring to the Gaudio robbery, which skewed the sentencing judge’s assessment of the seriousness of the offences because the Gaudio robbery was particularly violent.

[6] We would not accede to the appellant’s submissions.

[7] The rule against unreasonable disparity in sentencing does not require equal sentences, but only that the sentences are understandable when examined together: R. v. Flowers, 2010 ONCA 129, 258 O.A.C. 97, at para. 10. In our view, the disparity in the appellant’s sentence, when considered against the sentences of his co-accused, is understandable because of the differences in their personal circumstances. The appellant had a lengthy youth record, with a history of violence and failing to comply with court orders. His co-accused had no criminal records and were sentenced as youthful first offenders.

[8] We acknowledge that the sentencing judge incorrectly referred to the Gaudio robbery when sentencing the appellant. However, in our view, the error was harmless. The sentencing judge found that it was the use of weapons and actual violence that were the aggravating features. In the robbery of Dyck – of which the appellant was convicted – Dyck was hit with a baseball bat and his friend was also assaulted. The Dyck robbery was at least as serious and violent as the Gaudio robbery.

[9] Furthermore, we note, the sentence is at the very low end of the range for a home invasion robbery, which is between four and thirteen years: see R. v. Wright (2006), 2006 40975 (ON CA), 83 O.R. (3d) 427 (C.A.), at para. 23.

[10] Accordingly, leave to appeal sentence is granted but the appeal is dismissed.

"G.R. Strathy C.J.O."

"Doherty J.A."

"E.E. Gillese J.A."