Court of Appeal for Ontario
Date: 2017-06-07
Docket: C61887
Panel: Hoy A.C.J.O., Feldman and Benotto JJ.A.
Between
Her Majesty the Queen Respondent
and
Victor James Paul Davies Appellant
Counsel
Alexander Ostroff, for the appellant
Shawn Porter, for the respondent
Heard
May 9, 2017
Appeal Information
On appeal from the sentence imposed on August 7, 2015 by Justice Robert B. Reid of the Superior Court of Justice, sitting with a jury.
Reasons for Decision
[1] A jury convicted the appellant of robbery, use of an imitation firearm, and masking his face. He was sentenced to a global sentence of twelve years' imprisonment: ten years for the robbery, two years (consecutive) for the use of an imitation firearm, and one year (concurrent) for masking his face. He seeks leave to appeal his sentence and, if leave is granted, he seeks to rely on fresh evidence.
[2] The fresh evidence describes the appellant's personal history. He was taken into child protection as a young child, declared a Crown ward, and placed at St. John's Training School. While there, he was the victim of physical and sexual abuse.
[3] The Crown concedes that the sentencing judge committed an error in principle by sentencing the appellant, who represented himself at the sentencing hearing, without obtaining or considering information about his personal circumstances. Accordingly, leave to appeal sentence is granted and the fresh evidence is admitted.
[4] The Crown argues that notwithstanding the fresh evidence, the sentence imposed at trial remains fit, having regard to the appellant's lengthy record, which includes previous convictions for robbery and firearm offences. The Crown submits that the sentence appeal should therefore be dismissed.
[5] We do not agree. In our view, the sentencing judge's error in principle impacted the sentence he imposed. The fitness of a sentence depends not only on the seriousness of the crime and its consequences, but also on the moral blameworthiness of the offender: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089. The appellant's personal circumstances inform the question of moral blameworthiness and are not reflected in the sentence that was imposed.
[6] The appeal is allowed and the sentence is reduced – as requested by the appellant - to a global sentence of ten years' imprisonment: eight years for the robbery, two years (consecutive) for the firearm offence, and one year (concurrent) for masking his face. We make no change to the credit granted for pre-sentence custody.
"Alexandra Hoy A.C.J.O."
"K. Feldman J.A."
"M.L. Benotto J.A."
