Court of Appeal for Ontario

Citation: R. v. Woolridge, 2016 ONCA 302

Date: 20160425

Docket: C60585

Before: Doherty, Watt and Miller JJ.A.

Between

Her Majesty the Queen

Respondent

and

Calvin Woolridge

Appellant

Counsel:

Joseph Di Luca and Michael Wendl, for the appellant

Davin M. Garg, for the respondent

Heard and released orally: April 12, 2016

On appeal from the sentence imposed on December 23, 2014 by Justice Richard E. Jennis of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant appeals a net or effective sentence of 3 years, 7 months imposed after he pleaded guilty to a single count of robbery.

[2] The sentencing judge considered that a sentence of 4 years, 10 months was fit for the robbery conviction, but reduced it to 3 years, 7 months because of the time the appellant had spent in pre-disposition custody which the sentencing judge credited at the rate of 1.25:1.

[3] At the same time, the sentencing judge imposed sentences of one month on each of two counts of theft under $5,000, upon which the Crown proceeded by indictment. The sentences were made consecutive to each other, and to the sentence imposed on the robbery conviction. Neither the quantum of those sentences, nor the order that they be served consecutively to each other and to the robbery sentence, is in issue on appeal.

[4] Before the sentencing judge, Crown counsel sought a penitentiary sentence of 4 to 8 years, less credit for pre-disposition custody. Defence counsel sought a sentence that would permit service of it in a reformatory so that the appellant could receive the benefit of substance abuse programs said to be more effective there than in the penitentiary.

[5] The appellant advances two grounds of appeal. He says that the sentencing judge erred in failing to award him credit on a 1.5:1 basis for the time he spent in pre-disposition custody. Second, he contends that the sentencing judge erred in the quantum of sentence he imposed by placing undue weight on the appellant’s criminal record.

[6] The respondent acknowledges that the sentencing judge erred in failing to award credit for pre-disposition custody at the rate of 1.5:1, but submits that the sentence imposed is otherwise free of error. In fairness to the sentencing judge, he based his conclusion on this issue on a decision of this court that was overtaken by subsequent authority not available to the sentencing judge at the time he imposed sentence.

[7] Apart from awarding enhanced credit for pre-disposition custody, we would dismiss the appeal.

[8] In light of R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, we are permitted to intervene with a sentence imposed at first instance only where the sentencing judge has erred in principle; failed to consider a relevant factor; or erred in his or her consideration of an aggravating or mitigating factor; and that such an error had an impact on the sentence imposed.

[9] The assignment of weight to aggravating and mitigating factors in determining a fit sentence is quintessentially a matter for the sentencing judge. Here, the sentencing judge was dealing with a mature recidivist with nearly seven dozen convictions on a record that spanned almost a quarter-century. The offence committed was a brazen and planned robbery accompanied by the use of an imitation weapon. Deterrence and denunciation dominated the sentencing calculus. The sentencing judge considered rehabilitation but accorded it, as he was entitled to do, a place of lesser influence.

[10] Apart from adjusting the pre-disposition custody credit, we see no reason to interfere with this sentence.

[11] We reduce the remanet of this sentence by 94 days to reflect the credit of 1.5:1, rather than 1.25:1. This leaves a net sentence on the robbery conviction of 3 years, 5 months and 15 days. Otherwise the appeal, from sentence is dismissed.

“Doherty J.A.”

“David Watt J.A.”

“B.W. Miller J.A.”