Court of Appeal for Ontario

CITATION: R. v. Hayes, 2016 ONCA 47

DATE: 20160115

DOCKET: C58244

MacPherson, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andrew Hayes

Applicant/Appellant

Counsel:

Robert C. Sheppard, for the appellant

Chris Chorney, for the respondent

Heard: January 14, 2016

On appeal from the sentence imposed on June 20, 2013 by Justice Jeanine E. LeRoy of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant, a mature recidivist, appeals a sentence of ten years in the penitentiary imposed upon him after he pleaded guilty to seven counts of robbery and a single count of failure to stop at the scene of an accident.

[2] Each robbery involved a bank. The appellant entered the bank wearing a disguise. He approached a teller and presented a note demanding money and claimed to be carrying a gun. The tellers complied. The appellant left the bank.

[3] The robberies took place over a period of two weeks in four different places: Napanee, Pickering, Oshawa and London. The appellant was arrested shortly after he failed to remain at the scene of a motor vehicle accident that occurred during his attempt to escape a police pursuit after completing his fourth robbery on the same day in London. He committed all the offences while he was unlawfully at large from a halfway house where he resided while on statutory release on sentences imposed on previous convictions for robbery.

[4] The appellant advances two arguments in support of his submission that his sentence should be reduced to a penitentiary term of eight years. He submits that the sentencing judge erred:

i. by failing to award the appellant any credit for pre-sentence custody; and

ii. by failing to properly apply the principles of proportionality and totality when determining the length of sentence she imposed.

[5] We would not give effect to either submission.

[6] In our view, a fair reading of the trial judge’s reasons for sentence makes it clear that she did take into account the period of 18 months pre-sentence custody in settling upon the total sentence of 10 years as fit for these offences and offender. In this respect, we note that the appellant was only entitled to credit for “any time spent in custody … as a result of the offences” upon which he was sentenced. The entire pre-sentence custodial period was taken up in serving sentences imposed on pleas of guilty for other offences. Those pleas were entered and sentences imposed from time to time at the appellant’s request so that he could maintain his status as a federal inmate for statutory release purposes. It is clear that he was entitled to no credit under s. 719(3) for the period during which he was serving these sentences, and thus for the entire period of pre-sentence custody. Consideration of that time as a determinant of the sentence under appeal was a benefit the appellant obtained but one to which he was not entitled.

[7] Nor are we persuaded that the sentence imposed failed to properly apply the principles of proportionality and totality. The trial judge was correct in imposing concurrent sentences for the London robberies. Further, it was open to her to impose consecutive sentences for the Napanee, Pickering and Oshawa robberies and order that those sentences be served consecutively to the sentences imposed on the London robberies. After all, these robberies were days and miles apart from each other and from the London robberies.

[8] The reasons of the trial judge reflect no error in principle, nor any imbalance in weighing applicable principles, factors or objectives of sentencing.

[9] Leave to appeal sentence is granted, but the appeal from sentence is dismissed.

“J.C. MacPherson J.A.”

“David Watt J.A.”

“B.W. Miller J.A.”