Court of Appeal for Ontario

Date: March 16, 2018 Docket: C63904

Judges: Laskin, Pepall JJ.A. and Gans J. (ad hoc)

Between

Her Majesty the Queen Respondent

and

Frank Colasimone Appellant

Counsel:

• James Harbic, for the appellant
• Mabel Lai, for the respondent

Heard: November 29, 2017

On appeal from the sentence imposed on September 12, 2016 by Justice Diane M. Lahaie of the Ontario Court of Justice.

Decision

Gans J. (ad hoc):

A. Introduction

[1] Frank Colasimone was convicted of an armed bank robbery. He was sentenced in September 2016 to 14.5 years' incarceration, in addition to 6 months' time served, for a total sentence of around 15 years. The trial judge also made an order under s. 743.6 of the Criminal Code, delaying Mr. Colasimone's parole eligibility to at least one half of the imposed sentence. The effect of this sentence means that Mr. Colasimone has to serve a minimum of 7.5 years in penitentiary.

[2] In my view, this sentence is demonstrably unfit since it "unreasonably departs from the fundamental principle of proportionality": R. v. Orwin.

[3] Alternatively, I would find that the sentence imposed resulted from errors in principle since it overemphasized the principles of deterrence and public safety, paid but lip service to the appellant's prospects for rehabilitation (having regard to his history of drug dependency), and improperly relied on his past record to augment the sentence imposed.

Circumstances of the Offence

[4] In mid-October 2015, the appellant, who was then on parole and living in a half-way house, entered a Bank of Montreal wearing sunglasses and a hat, with his hood up. He approached a teller while wielding a box cutter and demanded all the large bills in the till. Not satisfied with what he first received, he demanded more money from the teller, who complied under threat and proceeded to give the appellant the bills that were located in a safe below his cash tray. The appellant left the bank with about $15,000, almost a third of which was in U.S. currency.

[5] A few days later, the appellant signed out of the half-way house again, but failed to return. An arrest warrant was issued as a consequence. In the meantime, he had exchanged some of the U.S. funds into Canadian dollars at a different bank. He was arrested shortly after this last transaction in the possession of roughly a fifth of what had been taken at first instance.

[6] The appellant maintained his innocence throughout. He was convicted after a two day trial before a judge of the Ontario Court of Justice in Ottawa on one count each of robbery, carrying a weapon for purposes of committing an offence, wearing a disguise with intent to commit an indictable offence, and money laundering.

[7] Having regard to the manner in which this offence was committed and its surrounding circumstances, reduced to its simplest form, the gravamen of the offence is one of robbery. The remaining charges are more suggestive of the pathos associated with the appellant and his unfortunate circumstances for which he received sentences of five years, concurrent.

Circumstances of the Appellant

[8] The appellant's childhood was difficult, and included involvement with the Children's Aid Society. He is, to this day, unable to speak about this period in his life, and does not appear to be amenable to counselling in that regard.

[9] As the appellant's parole office report dated November 2015 indicates (the "Report"), he has a lengthy, "versatile" criminal history, which includes a number of armed robberies. His criminality started when he was but 18 and continued intermittently thereafter into the 1990s. There was a five year gap in this activity in the early 2000s, at which time he was married, employed, and raising a family. All this came to a crashing halt in 2007 when he was convicted of two counts of robbery, for which he was sentenced to 9 years, concurrent, and an unrelated drug offence. He was on parole at the time of the commission of the index offences.

[10] Significantly, his parole officer noted in the Report that his "offending is linked to substance abuse", which coupled with mental health issues, presents the appellant with continuing struggles.

B. Decision Below

[11] Prior to imposing a sentence, the trial judge noted her mandate under the relevant sections of the Criminal Code, including the principles of sentencing found in s. 718 and the need for proportionality expressed in s. 718.01.

[12] After reviewing the psychological profile contained in an earlier parole officer's report, she went on to highlight the appellant's record, while acknowledging that he should not be "re-punished for prior crimes."

[13] It was her view, however, that the appellant's criminal history constituted a "most aggravating factor". She then proceeded to use the dated record to justify her conclusion that the appellant warranted a lengthy period of incarceration, which she concluded would act as a specific deterrent, having also concluded that there was little likelihood of rehabilitation.

[14] She did note, as well, that she considered the planned nature of the robbery on a "tempting target with vulnerable employees and customers" to be an aggravating factor.

[15] It was her view that the appellant was a threat to public safety, and that public protection and deterrence were of paramount importance in the imposition of the instant sentence. She determined that the sentence ultimately imposed was within the range of the cases with which she was provided.

C. Analysis

[16] It is trite to say that judges on appeal should be reluctant to intervene with the imposition of a sentence, which carries with it a broad discretion. Appellate courts have long deferred to courts of first instance, which are in the best position to assess the needs of the community and those of the offender, having seen and heard the relevant evidence.

[17] The scope of review is, therefore, limited to errors of principle and law and where the sentence is found to be demonstrably unfit having regard to the seriousness of the offence and the blameworthiness of the offender: R. v. Lacasse.

[18] That said, I am of the opinion that the sentence imposed in this case is demonstrably unfit as it is not proportionate to the appellant's individual circumstances and the crime committed. Mr. Colasimone suffers from substance abuse, a cocaine addiction, and other mental health issues not particularized in the material, and on all accounts is driven to crime to feed his addiction.

[19] Furthermore, while I am not suggesting that robbing banks (a crime which can carry with it a life sentence) is not serious, the index offence is not the most heinous assault on private property, particularly considering the "disguise" that was employed. Nor would I suggest that robbing a bank armed with a box cutter is not frightening for the vulnerable employees. It is nevertheless a far cry from a robber armed with a semi-automatic or automatic weapon.

[20] In the final analysis, I am persuaded that a sentence of around 15 years in the circumstances of this case was demonstrably unfit. The sentence is made all the more oppressive in light of the fact that Mr. Colasimone will not be eligible for parole until one half of the sentence has been served.

[21] While not dispositive of the matter, the table of cases provided by counsel for the appellant suggests that the range of sentence for similar crimes by offenders with similar records would be less than the sentence ultimately imposed by the trial judge.

[22] The case of R. v. Johnson, 2012 ONCA 339 – to which the trial judge referred – was not one to which she, in my respectful opinion, could draw a parallel. In the first place, it was a case that dealt with proportionality in the context of the totality of sentence.

[23] Furthermore, the appellant in that case committed a rash of nine different bank robberies while he was absent without leave from penitentiary in the span of a few weeks. There was no suggestion that he had any substance abuse or mental health issues, as in the instant case. He was, as Blair J.A. observed at para. 5, "an inveterate, if not incorrigible, bank robber", a descriptor that cannot be applied to this appellant, who as I said, was driven to crime by his addiction. The court in Johnson nevertheless reduced the sentence from 14 to 11 years.

[24] Additionally, I believe the trial judge committed two errors in principle: first in underscoring the appellant's past record as an aggravating factor beyond what was reasonable and permissible, thereby re-punishing him for his past offences; and secondly, in over-emphasizing the principles of deterrence and public protection, while dismissing the chances of rehabilitation. It is worth noting, as well, that the subject sentence exceeds any previous sentence imposed by 6 years.

[25] In the first place, the appellant's record, although not insignificant, was for the most part dated, and contained periods where he was not in breach of the law. 23 of his 27 prior convictions occurred before 1987; one took place in each of 1993 and 1999, respectively; and one in 2007. This record suggests that he might be amenable to some form of control or rehabilitation.

[26] Secondly, as Blair J.A. noted at para. 29 of Johnson:

[T]he appellant's potential for rehabilitation should not have been disregarded completely, albeit that his antecedents suggest the prospects may be dim and that the concepts of denunciation, deterrence and protection of the public are paramount in these circumstances. As Professor Allan Manson notes … "[e]ven when there is little evidence of positive rehabilitative prospects, total sentences should not be so long as to crush optimism about eventual re-integration."

[27] I am of the opinion that the sentence in the instant case, if not modified, would have a crushing effect on the appellant, who at some point will be released into the community. To suggest that the combined resources of Corrections Canada and the parole system could not assist in the delivery of the sort of behavioural modification program or focused counselling outlined in the Report would render rehabilitation meaningless as sentencing principle.

D. Disposition

[28] I would therefore grant leave to appeal sentence, grant the appeal on sentence, and vary the same to 10 years' incarceration inclusive of time served of 119 days.

[29] While I am of the view that the order made pursuant to s. 743.6 should similarly fall, no relief was sought in respect of that order and no argument was made in that regard on the appeal. Hence, the appellant is obliged to serve one half of the sentence now imposed.

[30] In accordance with the authority provided this court under s. 743.2, I order that a copy of these reasons be transmitted to the Correctional Service of Canada, together with a copy of the Report. I would also recommend that the appellant be provided with further substance abuse and psychological counselling as is available both in the institutions in which he will be incarcerated and in the community on his release into parole.

Released: March 16, 2018

Arthur M. Gans J.

I agree. John Laskin J.A.

I agree. S.E. Pepall J.A.