Court of Appeal for Ontario

Date: 2019-03-08 Docket: C66014

Judges: Juriansz, Pepall and Lauwers JJ.A.

Between

Her Majesty the Queen Respondent

and

Sheldon Higgins Appellant

Counsel

For the Appellant: Jeffery Couse

For the Respondent: Rebecca De Filippis

Heard and released orally: March 7, 2019

On appeal from: The sentence imposed on June 21, 2018 by Justice Anne M. Molloy of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] The appellant seeks leave to appeal the sentence imposed after he was convicted of robbery of a gas station convenience store. He was sentenced to 30 months custody, less credit for 8.5 months of pre-sentence custody, which resulted in an effective sentence of 21.5 months.

[2] To succeed on appeal the appellant must establish that the sentencing judge made an error in principle that impacted the sentence, or that the sentence is demonstrably unfit.

[3] The appellant submits the sentencing judge erred in characterizing his prior sentences as "lenient" and that the sentence is demonstrably unfit.

[4] We accept the appellant's argument it was inappropriate for the sentencing judge to describe his previous sentences as lenient. However, we are not persuaded that observation had any impact on the sentence imposed. The sentencing judge properly considered the appellant's extensive criminal record. She noted eight separate probation orders had been ineffective. The appellant also had received 14 separate convictions for breaching court orders.

[5] The sentencing judge also considered his alcohol and drug use. We note he was extremely inebriated at the time of the offence. The record supports the sentencing judge's conclusion that the appellant's inability to control his addictions in the past was related to his criminal conduct. She considered his need for meaningful programs for his drug and alcohol addictions.

[6] While the sentence imposed was some nine months longer than the appellant's previous sentence, it was proportionate to the gravity of the offence and reflected the increase in the appellant's violent and dangerous conduct. Clerks working alone late at night in gas station convenience stores – the robbery took place at 1:30 a.m. – are particularly vulnerable. We are satisfied the sentence was fit.

[7] Leave to appeal sentence is granted and the appeal is dismissed.

"R.G. Juriansz J.A."

"S.E. Pepall J.A."

"P. Lauwers J.A."