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SENTENCING - Weapons offences - Breach of undertaking or recognizance

Monday, August 26, 2019 @ 9:47 AM  

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Appeal by the Crown from the sentence imposed on the respondent following his guilty pleas to four offences related to an armed robbery and one breach of recognizance. The respondent robbed a pharmacy of narcotics while masked and armed with a pipe and knife. He threatened the pharmacist with the knife and struck him with the pipe. The respondent had 68 previous convictions over a 17-year period. The sentencing judge initially calculated the sentence to be four years for the four robbery offences, in addition to three months for the breach of recognizance charge. In adjusting for totality, the sentencing judge reduced the sentence to a total of 24 months, to be served concurrently with a sentence the respondent was already serving in connection with a previous armed robbery. She found the existence of the sentence for the previous robbery, as well as the delay in charging the respondent with the subject offences and his strong prospects for rehabilitation warranted a downward adjustment in sentence.

HELD: Appeal allowed in part. The sentencing judge did not err in finding the four robbery related offences arose out of a single criminal venture, resulting in concurrent sentences for the offences. It was appropriate for the sentencing judge to address the effect of the existence of the unexpired sentence on totality. The sentencing judge erred in focusing on the length of the sentence originally imposed in the previous robbery rather than on the unexpired portion. The finding the sentence should be adjusted for 24 months for totality was entitled to deference. Making the sentence concurrent to the previous sentence did not punish the respondent or make him accountable for serious offences. The sentencing judge did not give proper consideration to section 718.3(4) of the Criminal Code in making the sentence concurrent. Making the sentences concurrent did not result in a fit sentence. The sentences for the subject offences were made consecutive to the previous robbery sentence. The sentencing judge had the discretion to order a lifetime firearms prohibition. Sentence: 24 months’ imprisonment, including 21 months for armed robbery; lifetime firearms prohibition.

R. v. Roberts, [2019] N.J. No. 219, Newfoundland and Labrador Court of Appeal, J.D. Green C.J.N.L., C.W. White and M.F. Harrington JJ.A., July 11, 2019. Digest No. TLD-August26019002