Court File and Parties

Ontario Court of Justice

Date: 2018-03-13

Court File No.: Ottawa 16-A11606

Between:

Her Majesty the Queen

— and —

William J. Carlisle

Before: Justice P.K. Doody

Heard on: January 11 and March 1, 2018

Reasons for Sentence released on: March 13, 2018

Counsel

J. Lalande — counsel for the Crown

L. Greenspon and N. Caparelli — counsel for the defendant

Decision

DOODY J.:

Conviction and Sentencing Request

[1] William Carlisle was convicted after trial of robbery. This is my decision and reasons for sentence.

[2] Crown counsel seeks a period of incarceration of 1 year, followed by a period of probation that would include counselling for alcohol abuse. Defence counsel seeks a sentence of 90 days in custody, to be served on weekends, followed by a lengthy period of probation.

Sentencing Principles

[3] The fundamental purposes of sentencing, as established by s. 718 of the Criminal Code, are to denounce unlawful conduct and the harm done to victims and the community caused by it; deter the offender and others from committing offences; separate offenders from society where necessary; assist in rehabilitating offenders; provide reparations for harm done to victims or the community; and promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and the community.

[4] The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.

Circumstances of the Offence

[5] On May 14, 2016, at 4:24 p.m., the defendant entered a gas bar. There was another person in the store. He left and returned a few minutes later after that person had left. He approached the cashier with his hand held inside his pocket as if he had a gun. He demanded all the money. The cashier gave him something more than $100. He then left the store.

[6] There was no evidence that the defendant had a weapon of any sort. He did not use violence, although violence was threatened. The cashier, who was the sole occupant of the store at the time of the robbery, was not physically injured, although he testified he was very anxious at the time.

[7] The defendant is 44 years old. He is a journeyman refrigeration and air conditioning mechanic. He has been employed at a heating, cooling, and plumbing business since March 2015. A letter from his employer was filed which indicates that he is a valued employee with an excellent work ethic. He works a regular 40 hour week and is on call for 7 days every 6 weeks to deal with emergency calls.

Circumstances of the Offender

[8] He has a criminal record. In 2007 he was convicted of assaulting a peace officer, for which he received a suspended sentence and was placed on probation for 3 years. In 2008 he was convicted of assault with intent to resist arrest, trespassing at night, possession of a schedule I substance, and breach of probation, for which he received a 120 day conditional sentence and 2 years' probation.

[9] He has a son, who is 13 years old and lives with his ex-wife. The defendant has custody of his son on weekends, picking him up on Saturday and taking him to school Monday morning. He supports his son while living with his parents.

[10] I have been advised by defence counsel that the defendant has provided him with funds to make restitution of $140.

[11] The defendant has a significant alcohol problem. He told me that he has abused alcohol since he was 18 years old. His first attempt to get sober was in 2006, when he was 33 or 34 years old. He said he managed to stay sober for almost a year. He became active in the Alcoholics Anonymous community. He kept track of his sober days.

[12] In 2008, however, he relapsed. He told me that he realized then that his fight against this addiction would be lifelong. He was treated in a residential facility for 30 days. He went to 2 or 3 AA meetings a week when he was released.

[13] In 2013, however, he succumbed again to his addiction. He lost the job he had held for over 12 years. He entered a downward spiral. He then got his current job which he has managed to hold. He had productive weekends with his son. He described himself as a "functioning alcoholic" – drinking only on weeknights, and never with his son or at work. He told me that in February 2018 he had managed to do a few AA meetings, which he acknowledged were not enough to maintain sobriety. He told me he was determined to get sober again. He expressed significant remorse for his actions, particularly for what he had put the gas station attendant through.

[14] I was advised by defence counsel that the robbery occurred while the defendant was on a 3 day bender and he had no memory of it. Crown counsel accepted that the defendant's drinking motivated the offence.

[15] The defendant also has mental health issues. His family physician has advised him to see a psychiatrist and has made referrals for psychiatric treatment but the defendant has not seen a psychiatrist for these issues.

Mitigating and Aggravating Factors

[16] There are a number of mitigating factors.

[17] As Crown counsel submitted, the circumstances of the offence place this at the low end of the low range for robbery offences.

[18] There was no actual violence, although violence was threatened by his mimicking having a gun. There were no physical injuries. There was no weapon. The offender is addicted to alcohol, and this played a role in the offence, thus lowering his moral blameworthiness.

[19] He has, for the past 10 years or so, led a responsible life, working steadily except when his alcohol issues prevented him from doing so. He has a trade and is a valued employee. He supports his son and shares parenting with his ex-wife. He has not previously been incarcerated, although he did serve a 120 day conditional sentence in 2008.

[20] There are significant aggravating factors. The offence is serious. The victim, a cashier in a gas bar, is vulnerable because he was alone in the store. The defendant does have a criminal record, albeit dated.

[21] Mr. Carlisle did not plead guilty. That is his right. It is not an aggravating factor that he required the Crown to prove his guilt. Had he pled guilty, however, that would have been a mitigating factor.

Comparative Sentences for Robbery

[22] The parity principle, set out in s. 718.2(b) of the Criminal Code, requires the court to consider that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. This principle has led courts to develop "ranges" of sentences for particular crimes.

[23] Ranges are not to be rigidly applied. The Supreme Court of Canada held in R. v. Lacasse, 2015 SCC 64 at paragraph 60, that sentencing ranges are primarily guidelines, and not hard and fast rules. Wagner J. wrote at paragraph 58 of that case, on behalf of the majority of the Court:

There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit.

[24] Crown counsel relied on 2 cases, both titled R. v. Brown.

[25] In R. v. Brown, [2001] O.J. No. 4924, the Court of Appeal dismissed a defence appeal from an 18 month sentence for robbery of a convenience store in which he threatened to use a gun, although he did not have one. There were a number of mitigating factors. The offender had pled guilty. He had come from a dysfunctional family. He had been abused by his father. He had lived on the street for several years, and had a serious substance abuse problem. He also had a long criminal record, including several convictions for offences of robbery.

[26] R. v. Brown, 2009 ONCA 357, is less applicable to the facts before me. The Court of Appeal dismissed a defence appeal from a 4 year 4 ½ month sentence for robbery of a convenience store late at night when only one clerk was on duty. He was convicted after trial. He had suggested that he had a weapon by telling the clerk that he had "something on him" although he did not. He had a lengthy record of 66 prior convictions, including 3 prior robbery convictions and numerous convictions for violence.

[27] R. v. Minns, 2004 ONCJ 30, is closer to the facts of this case. Justice Wolder imposed a 12 month conditional sentence for robbery of a gas bar of $150. He had threatened to use a gun, although he did not have one. The defendant had a serious addiction to crack cocaine and was high at the time of the offence. He had a dated criminal record which included 2 impaired driving convictions and, over 20 years earlier, a mischief conviction. He pleaded guilty. After the charges, he started taking his addiction seriously. He entered an in-patient treatment program, continued treatment after release, and became an active member of Narcotics Anonymous and assumed a leadership role in helping others deal with drug addiction. The sentencing judge found that while the need for denunciation and deterrence was so strong that incarceration was required, a conditional sentence would send the necessary message to the offender and the community. I cannot, however, impose a conditional sentence. Conditional sentences have been unavailable since 2012 for an offence for which the maximum penalty is life imprisonment.

[28] Defence counsel relied on R. v. McLeod, 2010 ONCJ 354, in which Forsyth J. imposed a 90 day intermittent sentence for two convictions for robbery of gas bars in which he had provided the attendant a note indicating that he had a gun. He had no gun when he was arrested while fleeing from the second robbery. Justice Forsyth held that a conditional sentence was not available because the offences were "serious personal injury offences" and the law at that time did not allow conditional sentences for such offences. The offender had pleaded guilty. He was addicted to drugs. He had undertaken significant rehabilitative efforts which would be interrupted were he to serve a jail sentence of straight time. He had expressed significant remorse.

[29] Other cases have provided for a 90 day sentence for robbery, in unusual circumstances in which the prospects of rehabilitation would be significantly impaired if a longer prison term were imposed. See R. v. Fleming, [2013] N.J. No. 9 (NLPC); R. v. Reid, [2009] N.J. No. 151 (N.L.P.C.); R. v. Peebles, [1999] A.J. No. 34, 1999 ABPC 5; R. v. King, [1990] M.J. No. 414 (C.A.); R. v. Large, [1984] O.J. No. 155.

[30] In R. v. Keller, 2016 A.J. No. 330 (A.P.C.), Dinkel J. suspended the passing of sentence and imposed 3 years' probation which included a period of house arrest followed by curfew on an 18 year old offender who had robbed 2 convenience stores. Threats had been made during the robberies. He was of very limited intelligence, described as low functioning with mild cognitive impairment. He had no adult criminal record and one theft conviction as a youth. His crack addiction led to the offences and he was attending ongoing treatment for drug addiction.

[31] The Supreme Court of Canada has recognized that what may be seen as a short jail sentence followed by a lengthy probation order can be justified in appropriate cases. In R. v. Knott, 2012 SCC 42, Fish J. wrote at paragraphs 43 to 45:

The sentencing objectives set out by Parliament in ss. 718 to 718.2 of the Criminal Code are best achieved by preserving -- not curtailing -- a sentencing court's arsenal of non-custodial sentencing options. Probation orders, where available and appropriate, serve that purpose well: They afford sentencing judges the flexibility to opt for shorter prison terms followed by community supervision, rather than the longer prison terms that they would have otherwise unnecessarily imposed to achieve the same ends.

Not infrequently, the offender and society will both benefit from a probation order that comes into force following imprisonment for an aggregate period of more than two years (R. v. Mathieu, 2008 SCC 21 at para. 20). The offender has the benefit of a shorter sentence of imprisonment, and society benefits from constraints aimed at facilitating rehabilitation and protecting society (R. v. Shoker, 2006 SCC 44 at para. 10).

Analysis

[32] Although this case has many similarities to the 2001 decision of the Court of Appeal in Brown, it must be recognized that in that case the Court was not called upon to determine a sentence at first instance, but rather to determine, using the appropriate standard of review, whether the 18 month sentence imposed by the sentencing judge was so severe that it ought to be varied downward. Furthermore, the defendant had a lengthy criminal record, which included robbery offences.

[33] This case is not like the 2009 Brown decision of the Court of Appeal, in which the offender violently struck his companion when he tried to stop the robbery, and had 66 prior convictions, including 3 robbery convictions and numerous convictions for crimes of violence.

[34] In my view, this case is much like that of King, in which the Manitoba Court of Appeal held:

If the accused were required to serve a one-year sentence, - or indeed the six to nine months recommended by Crown counsel at the initial hearing - the effect would be that the accused would lose his job. It might not be easy to find alternative employment. Society will not gain by having the accused remain in the general prison population for several months, and then discharged to an uncertain employment future. Since it appears that personal deterrence is a minor factor in view of his genuine remorse and his firm resolution to avoid future problems, this Court now has the opportunity to structure a sentence which imposes punishment without the adverse consequences which would be involved in a longer uninterrupted period of incarceration.

For these reasons, in my opinion a fit sentence becomes that recommended by counsel for the accused, namely, 90 days to be served intermittently on weekends, together with an order of two years' supervised probation during which the accused will continue his alcohol treatment program. The accused is also to make full restitution.

I have not overlooked the significance of public deterrence as a factor in sentencing. When exceptional circumstances give rise to a more lenient sentence than the norm, it does not mean that the regular sentencing pattern has been abandoned. It does not send signals to those with robbery on their minds that leniency is the new order of the day. It simply means that within any sentencing structure there must be room for the exceptional cases where the depth of contrition and the good prospects for rehabilitation will cause the scales to tip to the accused's advantage. That flexibility within the system is highly desirable.

[35] I recognize that Mr. Carlisle has not taken any significant steps to deal with his alcohol problem in the last few years. He told me he is resolved to do so. And he has succeeded for a number of years in the past.

[36] I am satisfied that if he is sentenced to a period of incarceration, he will lose his job. He will lose the opportunity to become engaged in serious counselling and rehabilitation for his alcohol addiction. He will lose the opportunity to be with his son. That is likely to make it even more difficult for Mr. Carlisle to deal with his alcohol addiction. And his son will lose the financial and emotional support he is now receiving from his father. The community would not benefit from any of those things.

[37] I am satisfied that a 90 day period of incarceration, served intermittently, followed by a 2 year probation period with a curfew for the first year, will adequately express the necessary denunciation and general deterrence in the circumstances of this case. The curfew will assist in deterring him from leaving his home to drink. Furthermore, while I recognize that probation terms are not meant to be punitive, I am not blind to the fact that the curfew is a significant impediment to his liberty.

[38] I accept that the likelihood of success in an alcohol abuse treatment program is diminished where the participant is forced to attend. But Mr. Carlisle recognizes the necessity of his taking such a program. He has done it before. He has told me he knows he needs to. If he complies with the conditions of his probation and faithfully attends and participates in treatment, he will have a good chance of achieving and maintaining sobriety and being a good father. If not, he may well not have another opportunity. The choice is up to him.

Sentence

[39] I sentence Mr. Carlisle as follows:

(1) 90 days in custody, to be served intermittently, from 7 p.m. on Friday evenings to 6 a.m. on Monday mornings;

(2) 2 years' probation, with the following conditions:

(a) a curfew between 9 p.m. and 6 a.m. for the first 12 months, except when travelling to and from or at work or for medical emergencies related to himself or his immediate family;

(b) a requirement to attend, participate in, and abide by the requirements of any program for counselling and treatment for alcohol abuse as recommended by his probation officer, and for any other conditions as his probation officer considers appropriate;

(c) a requirement to remain employed or be actively seeking employment;

(d) a requirement to cooperate with his probation officer and sign any consents required to allow his probation officer to monitor his compliance with any of these conditions; and

(e) a requirement to make restitution in the amount of $140;

(3) A prohibition from possessing the weapons set out in s. 109(2)(a) of the Criminal Code for 10 years, and the weapons set out in s. 109(2)(b) of the Criminal Code for life, as required by s. 109(1)(a); and

(4) An order that he provide a sample of his DNA for analysis and registration.

Released: March 13, 2018

Signed: Justice P.K. Doody