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SENTENCING - Offences against rights of property - Robbery and extortion

Friday, October 30, 2020 @ 6:16 AM  

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Appeals by the Crown from sentence imposed on the respondents H and Z for robbery involving firearms. H pleaded guilty to robbery while using a prohibited firearm contrary to s. 344(1)(a)(i) of the Criminal Code and violating a firearms prohibition. H, then 19, and a 13-year-old accomplice robbed a convenience store with an unloaded sawed-off rifle. H covered his face with his shirt and pointed the gun at two employees demanding cash. They fled with $290 in lottery tickets and were apprehended a short time later. H was an Indigenous offender with a family history of residential school attendance. He had a history of physical abuse, family violence, chronic unemployment and gang involvement. The sentencing judge found that any period of incarceration would have a profound impact upon him, and that a penitentiary sentence would be severe. The sentencing judge found that a fit global sentence for both charges would be two years less a day, acknowledging the relevant Gladue factors, H’s degree of responsibility, the need for denunciation and deterrence for these crimes committed while he was on probation and prohibited from possessing firearms, and recognizing that this was his first custodial sentence. He found that the five-year minimum sentence in s. 344(1)(a)(i) was grossly disproportionate for H and other reasonably foreseeable applications of the law. Z pleaded guilty to using a firearm, as a party to the offence, during a robbery contrary to s. 344(1)(a.1) and committing robbery as a party to the offence. H was sentenced to two years’ imprisonment less a day on each count to be served concurrently. Z and two others robbed two convenience stores. In each case, Z was the driver of the getaway vehicle. Z, 53, had no prior record. He suffered from chronic pain and his participation in these robberies could have been for supporting his addictions because of his long-standing pain. The sentencing judge concluded the four-year mandatory minimum in s. 344(1)(a.1) was not grossly disproportionate for Z. Z was sentenced to three years’ imprisonment for robbery with a firearm and one-year consecutive for the second robbery. The judge found, however, that the mandatory minimum sentence for armed robbery came into conflict with the court’s obligation pursuant to ss. 718, 718.1 and 718.2 in several types of reasonably foreseeable applications. The Crown argued the mandatory minimums were consistent with the provisions of the Canadian Charter of Rights and Freedoms (Charter), and the sentences imposed were otherwise unfit.

HELD: Appeal by Z dismissed. H’s appeal allowed in part. A four-year mandatory minimum for Z’s conviction was not grossly disproportionate to a fit and proper sentence for Z, given the gravity of the offence, his blameworthiness and the harm caused by this crime. H’s sentence was varied to three years’ imprisonment for robbery with a prohibited firearm and six months’ consecutive for violation of the firearms prohibition order. The sentence imposed by the sentencing judge for the violation of the firearms prohibition should have been ordered to be served consecutively, not concurrently, subject to the totality principle. The mandatory minimum sentences were unconstitutional and of no force and effect. In H’s case, denunciation and deterrence must be accorded significant importance. The sentencing judge committed errors in principle by failing to put sufficient emphasis on aggravating factors, failing to place sufficient weight on deterrence and denunciation and overemphasizing the Gladue factors. These errors had an impact on the sentence imposed. The sentence of two years’ imprisonment less a day was thus unreasonable and demonstrably unfit. The mandatory minimum five-year sentence imposed on H, compared to a fit and proper sentence of three years, outraged standards of decency, and the sentence was abhorrent or intolerable. An additional two years in jail over and above a fit and proper sentence would shock the conscience of the reasonable person. A reasonable, properly informed Canadian, considering all the hypothetical scenarios and considerations, would find the mandatory minimum four-year sentence imposed to be an outrage to standards of decency, and find the mandatory minimum sentence abhorrent or intolerable.

R. v. Hilbach, [2020] A.J. No. 987, Alberta Court of Appeal, T.W. Wakeling, J. Strekaf and K.P. Feehan JJ.A., September 18, 2020. Digest No. TLD-October262020009