



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Colasimone, 2018 ONCA 256

DATE: 20180316

DOCKET: C63904

Laskin, Pepall JJ.A. and Gans J. (
ad hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Frank Colasimone

Appellant

James Harbic, for the appellant

Mabel Lai, for the respondent

Heard: November 29, 2017

On appeal from the sentence imposed on September 12, 2016
    by Justice Diane M. Lahaie of the Ontario Court of Justice.

Gans J. (
ad hoc
):

A.

Introduction

[1]

Frank Colasimone was convicted of an armed bank robbery. He was
    sentenced in September 2016 to 14.5 years incarceration, in addition to 6
    months time served, for a total sentence of around 15 years. The trial judge
    also made an order under s. 743(6) of the
Criminal Code
[1]
,
    delaying Mr. Colasimones parole eligibility to at least one half of the
    imposed sentence. The effect of this sentence means that Mr. Colasimone has to
    serve a minimum of 7.5 years in penitentiary.

[2]

In my view, this sentence is demonstrably unfit since it unreasonably
    departs from the fundamental principle of proportionality:
R. v. Orwin
[2]
.

[3]

Alternatively, I would find that the sentence imposed resulted
    from errors in principle since it overemphasized the principles of deterrence
    and public safety, paid but lip service to the appellants prospects for
    rehabilitation (having regard to his history of drug dependency), and
    improperly relied on his past record to augment the sentence imposed.

Crcumstances of the Offence

[4]

In mid-October 2015, the appellant, who was
    then on parole and living in a half-way house, entered a Bank of Montreal
    wearing sunglasses and a hat, with his hood up. He approached a teller while wielding
    a box cutter and demanded all the large bills in the till. Not satisfied with
    what he first received, he demanded more money from the teller, who complied
    under threat and proceeded to give the appellant the bills that were located in
    a safe below his cash tray. The appellant left the bank with about $15,000, almost
    a third of which was in U.S. currency.

[5]

A few days later, the appellant signed out of
    the half-way house again, but failed to return. An arrest warrant was issued as
    a consequence. In the meantime, he had exchanged some of the U.S. funds into
    Canadian dollars at a different bank. He was arrested shortly after this last
    transaction in the possession of roughly a fifth of what had been taken at
    first instance.

[6]

The appellant maintained his innocence
    throughout. He was convicted after a two day trial before a judge of the
    Ontario Court of Justice in Ottawa on one count each of robbery, carrying a
    weapon for purposes of committing an offence, wearing a disguise with intent to
    commit an indictable offence, and money laundering.

[7]

Having regard to the manner in which this
    offence was committed and its surrounding circumstances, reduced to its
    simplest form, the gravamen of the offence is one of robbery. The remaining charges
    are more suggestive of the pathos associated with the appellant and his
    unfortunate circumstances for which he received sentences of five years,
    concurrent.

Circumstances of the Appellant

[8]

The appellants childhood was difficult, and
    included involvement with the Childrens Aid Society. He is, to this day,
    unable to speak about this period in his life, and does not appear to be
    amenable to counselling in that regard.

[9]

As the appellants parole office report dated
    November 2015 indicates (the Report), he has a lengthy, versatile criminal
    history, which includes a number of armed robberies.
[3]
His criminality started when
    he was but 18 and continued intermittently thereafter into the 1990s. There was
    a five year gap in this activity in the early 2000s, at which time he was
    married, employed, and raising a family. All this came to a crashing halt in
    2007 when he was convicted of two counts of robbery, for which he was sentenced
    to 9 years, concurrent, and an unrelated drug offence. He was on parole at the
    time of the commission of the index offences.

[10]

Significantly, his parole officer noted in the
    Report that his offending is linked to substance abuse, which coupled with
    mental health issues, presents the appellant with continuing struggles.

B.

Decision Below

[11]

Prior to imposing a sentence, the trial judge
    noted her mandate under the relevant sections of the
Criminal Code
, including the principles of sentencing found in s. 718 and the
    need for proportionality expressed in s. 718.01.

[12]

After reviewing the psychological profile
    contained in an earlier parole officers report, she went on to highlight the
    appellants record, while acknowledging that he should not be re-punished for
    prior crimes.

[13]

It was her view, however, that the appellants
    criminal history constituted a most aggravating factor. She then proceeded to
    use the dated record to justify her conclusion that the appellant warranted a
    lengthy period of incarceration, which she concluded would act as a specific
    deterrent, having also concluded that there was little likelihood of
    rehabilitation.

[14]

She did note, as well, that she considered the
    planned nature of the robbery on a tempting target with vulnerable employees
    and customers to be an aggravating factor.

[15]

It was her view that the appellant was a threat
    to public safety, and that public protection and deterrence were of paramount
    importance in the imposition of the instant sentence. She determined that the
    sentence ultimately imposed was within the range of the cases with which she
    was provided.

C.

Analysis

[16]

It is trite to say that judges on appeal should
    be reluctant to intervene with the imposition of a sentence, which carries with
    it a broad discretion. Appellate courts have long deferred to courts of first
    instance, which are in the best position to assess the needs of the community
    and those of the offender, having seen and heard the relevant evidence.

[17]

The scope of review is, therefore, limited to
    errors of principle and law and where the sentence is found to be demonstrably
    unfit having regard to the seriousness of the offence and the blameworthiness
    of the offender:
R. v.
Lacasse
[4]
.

[18]

That said, I am of the opinion that the sentence
    imposed in this case is demonstrably unfit as it is not proportionate to the
    appellants individual circumstances and the crime committed. Mr. Colasimone
    suffers from substance abuse, a cocaine addiction, and other mental health
    issues not particularized in the material, and on all accounts is driven to
    crime to feed his addiction.

[19]

Furthermore, while I am not suggesting that
    robbing banks (a crime which can carry with it a life sentence) is not serious,
    the index offence is not the most heinous assault on private property,
    particularly considering the disguise that was employed. Nor would I suggest
    that robbing a bank armed with a box cutter is not frightening for the
    vulnerable employees. It is nevertheless a far cry from a robber armed with a
    semi-automatic or automatic weapon.

[20]

In the final analysis, I am persuaded that a
    sentence of around 15 years in the circumstances of this case was demonstrably
    unfit. The sentence is made all the more oppressive in light of the fact that
    Mr. Colasimone will not be eligible for parole until one half of the sentence
    has been served.

[21]

While not dispositive of the matter, the table
    of cases provided by counsel for the appellant suggests that the range of
    sentence for similar crimes by offenders with similar records would be less
    than the sentence ultimately imposed by the trial judge.

[22]

The case of
R. v. Johnson
, 2012 ONCA 339, 285 C.C.C. (3d) 120

 to which the trial judge referred  was not one to which she, in
    my respectful opinion, could draw a parallel. In the first place, it was a case
    that dealt with proportionality in the context of the totality of sentence.

[23]

Furthermore, the appellant in that case
    committed a rash of nine different bank robberies while he was absent without
    leave from penitentiary in the span of a few weeks. There was no suggestion
    that he had any substance abuse or mental health issues, as in the instant
    case. He was, as Blair J.A. observed at para. 5, an inveterate, if not
    incorrigible, bank robber, a descriptor that cannot be applied to this
    appellant, who as I said, was driven to crime by his addiction. The court in
Johnson

nevertheless reduced the sentence from 14 to 11 years.

[24]

Additionally, I believe the trial judge
    committed two errors in principle: first in underscoring the appellants past
    record as an aggravating factor beyond what was reasonable and permissible, thereby
    re-punishing him for his past offences; and secondly, in over-emphasizing the
    principles of deterrence and public protection, while dismissing the chances of
    rehabilitation. It is worth noting, as well, that the subject sentence exceeds
    any previous sentence imposed by 6 years.

[25]

In the first place, the appellants record,
    although not insignificant, was for the most part dated, and contained periods
    where he was not in breach of the law. 23 of his 27 prior convictions occurred before
    1987; one took place in each of 1993 and 1999, respectively; and one in 2007. This
    record suggests that he might be amenable to some form of control or
    rehabilitation.

[26]

Secondly, as Blair J.A. noted at para. 29 of
Johnson
:

[T]he appellant's potential for rehabilitation
    should not have been disregarded completely, albeit that his antecedents
    suggest the prospects may be dim and that the concepts of denunciation,
    deterrence and protection of the public are paramount in these circumstances.
    As Professor Allan Manson notes  [e]ven when there is little evidence of
    positive rehabilitative prospects, total sentences should not be so long as to
    crush optimism about eventual re-integration.

[27]

I am of the opinion that the sentence in the
    instant case, if not modified, would have a crushing effect on the appellant,
    who at some point will be released into the community. To suggest that the
    combined resources of Corrections Canada and the parole system could not assist
    in the delivery of the sort of behavioural modification program or focused
    counselling outlined in the Report would render rehabilitation meaningless as
    sentencing principle.

D.

Disposition

[28]

I would therefore grant leave to appeal sentence,
    grant the appeal on sentence, and vary the same to 10 years incarceration
    inclusive of time served of 119 days.

[29]

While I am of the view that the order made
    pursuant to s. 743.6 should similarly fall, no relief was sought in respect of
    that order and no argument was made in that regard on the appeal. Hence, the
    appellant is obliged to serve one half of the sentence now imposed.

[30]

In accordance with the authority provided this
    court under s. 743.2, I order that a copy of these reasons be transmitted to
    the Correctional Service of Canada, together with a copy of the Report. I would
    also recommend that the appellant be provided with further substance abuse and
    psychological counselling as is available both in the institutions in which he
    will be incarcerated and in the community on his release into parole.

Released: March 16, 2018
    (S.E.P.)

Arthur
    M. Gans J.

I
    agree. John Laskin J.A.

I
    agree. S.E. Pepall J.A.





[1]
R.S.C. 1985, c. C-46.



[2]
2017 ONCA 841, at para. 53.



[3]
I would observe that the trial judge referenced at length a dated parole
    officer report, one prepared in January 2014 and not the more recent Report.



[4]
2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 16, 42-44, 46.


