ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
COURT FILE NO.: 805
DATE: 20130904
B E T W E E N:
HER MAJESTY THE QUEEN
M. Czerkawski, for the Crown
Respondent
- and -
JIMI CARRINE
R. Sheppard, for the Appellant
Appellant
HEARD: August 27, 2013
REASONS FOR JUDGMENT
[On appeal from the judgment of the Honourable Justice A.T. McKay]
A.J. GOODMAN J.
[1] This is an appeal against the sentence imposed by McKay J. on April 3, 2013.
[2] The appellant pleaded guilty to three counts of break, enter with intent, one count of misleading police and one count of fail to attend court, contrary to their respective provisions of the Criminal Code. The appellant was sentenced to four months consecutive on each of the break and enter counts, 60 days concurrent with respect to misleading police, and 45 days consecutive with respect to the fail to attend court, for a global sentence of 13½ months in jail.
[3] The appellant appeals against the imposition of sentence received only with regards to the three counts of Break, and enter with intent and the overall quantum of incarceration.
Position of the appellant:
[4] The appellant submits that the trial judge erred in his sentencing assessment. The appellant argues that the sentence totalling 12 months imprisonment on the break and enter convictions was excessive (especially in light of the sentence of one third that duration imposed upon the co-perpetrator, Mr. Raymond Jackson). Although Mr. Jackson had no prior record of property offences and thus was entitled to greater leniency, it appeared from the facts read in by the Crown that both offenders had equal involvement in the offences. The appellant submits that even if mathematic equality was not called for in this case, some greater degree of parity in sentence was warranted. [1] The appellant submits that Section 718.2(b) has an enhanced relevance when the similar offender is the appellant’s co-offender and the similar circumstances involve the commission of the actual same offence(s).
Position of the Crown:
[5] Crown counsel submits that the trial judge did not commit an error in principle, did not ignore any relevant factors and did not impose a demonstrably unfit sentence. The Crown submits that to tamper with the sentence imposed would be inconsistent with the deference that is owed to sentencing judges.
The Evidence
[6] The facts in this case have been laid out in appellant’s counsel’s factum and I have been provided with the transcripts of the proceedings.
Reasons for sentence
[7] Justice McKay laid out his reasons during the course of the sentencing hearing. Principally, the Court held:
The difficulty of course is that, even acknowledging the efforts that you are making now, I can’t ignore the seriousness of the offences; I can’t ignore the past completely. I can try to balance all of those factors to come to what I think an appropriate sentence is. There are always consequences to behaviour and you are facing those right now, and it is some time after it [the offences] happened, and you may be in a very different place, but the consequences still flow here.You have to deal with them and move on.
So, in my view, you deserve some credit for the steps that you’ve tried to take and for what I view as genuine remorse and trying to deal with these things and move on from them. I also have to bear in mind the outcome of the case against one of your co-accused. I acknowledge that the record is nowhere near as serious as your record or as lengthy, but he received 4 months, and so that is a factor because there shouldn’t be too great a disparity between the sentences imposed. Your [sentence] obviously will be different because of the length of your criminal record.
Legal principles:
[8] The scope of appellate review of sentences has been set out by the Supreme Court of Canada: R. v. M.(C.A.) (1996), 1996 230 (SCC), 105 C.C.C. (3d) 327 (S.C.C.). In R. v. Shropshire (1995), 1995 47 (SCC), 102 C.C.C. (3d) 193 (S.C.C.), Iaccobucci J. held that deference is to be accorded to trial judges on sentencing matters:
An appellate court should not be given free reign to modify a sentencing order simply because it feels that a different order ought to have been made. The formulation of a sentencing order is a profoundly subjective process; the trial judge has the advantage of having seen and heard all of the witnesses whereas the appellate court can only base itself upon a written record. A variation of that sentence should only be made if the court of appeal is convinced that it is not fit. That is to say, that it has found the sentence to be clearly unreasonable.
[9] In R. v. L.J., 2008 SCC 31, [2008] S.C.J. No. 31 (S.C.C.) Lebel J. confirmed the limited scope of review on appeals against sentence:
Owing to the profoundly contextual nature of the sentencing process, in which the trier of fact has broad discretion, the standard of review to be applied by an appellate court is one based on deference. The sentencing judge has ‘served on the front lines of our criminal justice system’ and possess unique qualifications in terms of experience and the ability to assess the submission of the Crown and the offender. In sum, in the case at bar, the Court of Appeal was required – for practical reason, since the trier of fact was in the best position to determine the appropriate sentence for L.M. – to show deference to the sentence imposed by the trial judge.
[10] The test is not whether I would have imposed a different sentence. Rather, appellate intervention is limited to: where the sentence is found to be: demonstrably unfit, clearly unreasonable, outside the acceptable range failure to consider relevant factors or overemphasis of the appropriate factors, an appellate court should only intervene to vary a sentence if it is demonstrably unfit or where it exhibits a substantial and marked departure from sentences customarily imposed for similar offenders who have committed similar offences, or was clearly excessive or inadequate. An appeal court can also intervene where the trial judge applied the wrong principle(s) or failed to consider a relevant factor.
[11] As a trial judge’s decisions in sentencing an accused is entitled to deference, absent an error I am not to substitute my opinion as to what I might believe is the appropriate sentence.
Analysis:
[12] I have been referred to and have considered the cases provided by appellant’s counsel including R. v. Knife, 1982 2569 (SK KB), [1982] S.J. No. 443 (C.A.); R v. Blanas, 2006 2610 (ON CA), [2006] O.J. No. 364 (C.A.) and R v. F. ,1982 ABCA 148, [1982] A.J. No. 731 (C.A.), which all deal with, inter alia, the principles of parity and disparity in sentencing.
[13] Clearly, a sentencing judge must consider all of the circumstances of the offence and the offender in relation to the provisions of s. 718 to 718.2 of the Criminal Code. In addressing the principles of parity and totality, a judge is required to reflect upon the offender’s role in the crime, his or her antecedents, the participation of others involved among many other factors. While the jurisprudence suggests that the principle of parity and totality must be considered, in reviewing the decision of a trial judge an appellate court must be careful in comparing sentences of other offenders.
[14] Mr. Sheppard submits that the parity and totality principles have been offended in this case. While conceding that the appellant has a significantly greater criminal record than his colleague, Mr. Sheppard submits that the judge erred in imposing a significantly greater sentence than he did with respect to the other separately-charged offenders. The three break and enters were one event that involved the break-in to three separate storage trailers on the same commercial premises at the same time. Although it was open to the police to charge the appellant with three separate counts, in effect, this was really one offence event. Mr. Sheppard argues that warranted concurrent sentences on the break and enter charges (bearing in mind that some increase in the sentence of the appellant compared with that of Raymond Jackson was called for by the appellant’s criminal record).
[15] Mr. Sheppard makes a very persuasive argument that in this particular case, the court ought not to have imposed consecutive sentences. I agree that generally, where the offences are linked -as in this case immediately in time and location and frankly the very nature of the incidents-, concurrent sentences most reasonably address the issue of blameworthiness that derives from the event; with an enhancement of the sentence duration reflective of the number of repetitions of the offence: R. v. White, Dubeau and McCullough, [1974] O.J. No. 41 (Ont. CA.), R. v. Jewell (1995), 1995 1897 (ON CA), 100 C.C.C. (3d) 270 (Ont. C.A.) and R. v. Haines, [1975] O.J. No. 251 (Ont. C.A.).
[16] It seems to me that the manner in which the offences have been described to the judge as well as the identical counts found in the information are indistinguishable and speak to the principle of concurrent sentences. However, does Mr. Sheppard’s concern rise to the level of being demonstrably unfit or exhibiting a substantial and marked departure from sentences customarily imposed for similar offenders who have committed similar offences? In other words, is this a case where there is an overriding error justifying intervention by an appellate court? Deference must be shown to the sentencing judge and sentencing is a subjective exercise. I am not convinced that the imposition of consecutive sentences in and of itself or in conjunction with the totality principle is sufficient to overcome the burden required for this Court to intervene.
[17] While there is some foundation for the argument with respect to the parity principle, it fails based on the lack of evidence or information before me. No doubt, the appellant’s record is extensive and was a factor that had been considered by the trial judge. Mr. Jackson’s criminal record was not presented before me (although referred to before McKay J.), and I do not have a transcript of the sentencing proceedings held on December 7, 2012. There is simply insufficient information to address the parity principle on the record before me.
[18] Having reviewed the Reasons for Sentence, it is clear to me that the judge reviewed and weighed all relevant factors. While, the imposition of consecutive sentences in the circumstances of this case raises a valid concern, I am unable to conclude that there was an error in principle, a failure to consider relevant issues or an overemphasis or underemphasis on various factors. The sentence was neither demonstrably unfit nor a marked departure from the sentences customarily imposed for similarly-placed offenders committing similar crimes. While I might have structured the sentence differently, (as the case does call out for concurrent sentences), the net total period of incarceration would have likely been the same had the trial judge imposed one sentence for the break and enter with concurrent sentences to flow from the other property related counts, arriving at the same result of 12 months. I am persuaded that the error, if indeed there was an error, is a matter of form rather than substance.
[19] During submissions, Mr. Sheppard presented a copy of the information regarding the exact same offences arising out of the identical property related occurrence as against the appellant’s co-perpetrator, Mr. Raymond Jackson. I am satisfied that Mr. Jackson faced the exact jeopardy and counts as the appellant, albeit his personal circumstances were dissimilar. Mr. Jackson pleaded guilty to one count of Break, enter with intent and was sentenced to 90 days jail to be served intermittently and to one count of possession of burglary tools and received a concurrent sentence of 90 days intermittent.
[20] In her submissions to the sentencing court, Crown counsel was unable to state what occurred in Dale Jackson’s case, but, concerning Raymond Jackson she reported:
In reviewing the file, Your Honour, I actually do have some concrete information in regard to the co-accused. I don’t know what sentence Dale Jackson received, however, I can indicate that Raymond Jackson, who was the older gentleman, the father, he entered a guilty plea. It (sic) was sentenced for four months custody and I note that the Crown reviewing the file noted that Mr. Raymond Jackson’s record is not near as lengthy as the accused, nor does it have previous property-related crimes as the accused’s record does. And I do have Raymond Jackson’s criminal record in my file, if Your Honour would like to review it.
[21] No doubt, Crown counsel was doing her very best to address the issues before McKay J. The plea court is a very busy court. The appellant was anxious to have his matter completed without further delay. Crown counsel mentioned to the court that Mr. Raymond Jackson had pleaded guilty and received a sentence of 4 months incarceration. Clearly, that was an unintentional error.
[22] It appears from my reading of the transcript that McKay J. seized on the Crown’s submission to formulate his sentence. In his reasons McKay J. states:
I am going to impose a sentence on each of the three break and enters of four months custody. So, four months on the first one; four months consecutive on the second; and four months consecutive on the third. 60 days custody on the public mischief, that’s going to run concurrently, so it will be at the same time. 45 days consecutive on the fail to attend court: that has happened before, and this was a trial date, and those are significant things. So that takes you to 13.5 months in custody.
[23] The sentencing judge received unintentional, albeit erroneous information with respect to the appellant’s co-perpetrator. Based on the error, it appears that McKay J. sentenced the appellant by multiplying the sentence he believed was imposed on the co-accused by the three counts pleaded to. While I am not prepared to overturn the decision based on the application of consecutive sentences or the parity principle, the foundation for the arithmetic employed here is clearly wrong. Based on my reading of the reasons, it is clear to me that the sentencing judge intended to give effect to the principles of disparity between the sentences imposed on both offenders. I conclude that it would have been probable that His Honour would have rendered a sentence of three months for each count plead to had he known the true state of affairs with respect to Mr. Jackson. In any event, fairness dictates that the appellant’s sentence ought to be reduced to correct any misinformation.
Conclusion:
[24] For the aforementioned reasons, I grant leave to appeal against sentence and I allow the appeal.
[25] The sentenced is varied as follows: With respect to count 2: Break, enter with intent: nine months jail, counts 3 and 4, Break enter with intent: nine months concurrent and concurrent. The sentence with respect to the other two counts
remains unaltered. Therefore, the net term of incarceration for all of the counts is reduced from 13½ months to 10½ months incarceration.
“Justice A. J. Goodman”
A.J. GOODMAN J.
Released: September 4, 2013
COURT FILE NO. 805
DATE: 2013-09-04
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
JIMI CARRINE
Appellant
REASONS FOR JUDGMENT
[On appeal from the judgment of the Honourable Justice McKay]
A.J. Goodman J.
Released: September 4, 2013
[^1]: See s. 718.2