Court of Appeal for Ontario

Date: 2019-06-07 Docket: C64527

Judges: Feldman, van Rensburg and Huscroft JJ.A.

Between

Her Majesty the Queen Respondent

and

Christopher Goulbourne Appellant

Counsel

Christopher Goulbourne, in person by video conference Amy Ohler, duty counsel Jessica Smith Joy, for the respondent

Heard and released orally: June 5, 2019

On appeal from: The sentence imposed on May 31, 2017 by Justice Michael G. Quigley of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] The appellant seeks leave to appeal his sentence for robbery, use of an imitation firearm and breaking and entering in the context of a home invasion. He received seven and a half years broken down as follows: four and half years for the robbery, four and a half years concurrent for the break and enter, three years consecutive for use of the imitation firearm. This was also consecutive to the remaining four years he was already serving for a bank robbery he committed a few months earlier.

[2] The appellant raises four grounds of appeal: the first is that the sentences should have been concurrent. However, s. 85(4) of the Criminal Code requires that the three year minimum sentence for use of an imitation firearm offence must be made consecutive. There is no discretion on that.

[3] Also, the trial judge took the bank robbery sentence into account using the totality principle by reducing the sentence he would otherwise have imposed for the home invasion by two years.

[4] The second ground is that the trial judge failed to give credit for the mitigating factors including the appellant's very difficult childhood. We do not accept this submission because the trial judge carefully outlined all of those factors and weighed them against the aggravating factors in coming to his ultimate decision on sentence.

[5] The third ground is the alleged failure to apply the parity principle with the co-accused. However, the co-accused received a sentence of eight years including two years of pre-sentence credit, while the appellant got seven and a half years. While the co-accused received a concurrent sentence on a subsequent offence, that does not detract from the parity of the sentences imposed for the home invasion.

[6] The fourth ground was a constitutional challenge which was not pursued.

[7] In summary, we see no error in the reasons of the trial judge and the sentence imposed.

[8] The appellant spoke very well on this appeal. Like the trial judge we commend him for his progress and hope he continues and wish him well for the future.

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

K. Feldman J.A. K. van Rensburg J.A. Grant Huscroft J.A.