





CITATION:
R. v. Walsh, 2011
          ONCA 325



DATE: 20110426



DOCKET: C52662



COURT OF APPEAL FOR ONTARIO



Weiler, Blair and Epstein JJ.A.



BETWEEN



Her Majesty the Queen



Appellant



and



Jamie Dwayne Walsh



Respondent



Nadia Thomas, for the appellant



Gerald G. White, for the respondent



Heard:
April 19, 2011



On appeal from the sentence imposed
          on August 20, 2010 by Justice Jean-Marie
Bordeleau
of the Ontario Court of Justice.



By the Court:



[1]

This is a Crown appeal from sentence.  Following his trial, Walsh was found guilty of
    robbery, assault causing bodily harm committed as part of the robbery and
    breach of undertaking.  The offences
    occurred during a home invasion in search of the drug
Oxycontin
,
    a drug that Walsh, a self described addict and drug dealer, understood had been
    stolen from a pharmacy by the victim.

[2]

The Crown sought a sentence of eight years imprisonment.  The defence sought a sentence of three and a
    half years imprisonment.  Walsh had
    previously served four penitentiary sentences.  Two of those sentences were for four years each.

[3]

After giving Walsh 2 years credit (1.6 to 1 credit)
[1]
for time spent in Harvest House, a treatment facility, the trial judge
    sentenced him to18 months imprisonment plus three years probation.

[4]

The trial judge gave no reasons for awarding credit for
    time spent in Harvest House.  Overall,
    the very experienced trial judge was impressed with the great strides in
    rehabilitation Walsh made.

[5]

At his sentencing hearing, Mr. Main, the pastor and
    recent executive director of Harvest House, testified concerning the
    exceptional efforts Walsh had made both in reforming himself and in
    contributing to the community.  After
    acknowledging his drug problem and desire to reform, Walsh stood up in meetings
    and told people he was on the staff side and if they brought drugs in he would
    go to the staff and report them.  He
    worked exceptionally hard.  He spent
    extra hours doing volunteer fundraising on the telephone and in the community;
    he contributed time as a volunteer to the junior hockey triple
A
program.  He also
    went on television and radio to discuss the problem of drugs on the street.  The aim of these appearances was to speak
    about the addictive properties of
Oxycontin
, the fact
    that it creates an almost immediate addiction, that you do not get a chance to
    back out, and that the end result is always the same, jail or death.  He wanted to scare people who had a propensity
    to abuse
Oxycontin
or cocaine and its derivatives
    away from the drug.  After finishing the
    program at Harvest House, he continued to do volunteer work there pending
    sentencing.

[6]

We note that no victim impact statement was filed at
    the sentencing hearing.

[7]

Walsh served six months of his sentence and was
    released on parole February 24, 2011.  A
    condition of his parole is that he is required to live at Harvest House for the
    duration of his parole.  He has now been
    on parole for seven weeks without incident.  In addition to residing at Harvest House, Walsh is taking further
    counselling for Anger Solutions through the John Howard Society.

[8]

The Crown appeals and alleges three errors in law.  Firstly, the sentencing judge erred in
    awarding two years credit for the time spent in the Harvest House treatment
    centre with no reasons.  Secondly, the
    trial judge failed to consider denunciation or general deterrence, and focused
    almost exclusively on rehabilitation.  Thirdly,
    the sentence was demonstrably
unfit,
having regard to
    the fact this was a home invasion robbery, an aggravating factor of the
    robbery, and Walshs lengthy criminal record.

[9]

We do not accept that the trial judge was correct in
    giving the credit he did for pre-trial custody.

[10]

Based on
R. v.
Downes
(2006), 79 O.R. (3d) 321, it may be appropriate
    in some circumstances to give credit for the impact of pre-sentence release
    conditions.  However, this court has
    repeatedly made clear that such credit is not automatic and that bail
    conditions are not equivalent to pre-trial custody.  Specifically, this court held in
R. v. Rice
, [2004] O.J. No. 5197 (C.A.),
    that residence in a rehabilitative facility prior to sentencing should not
    automatically be equated with incarceration for the purposes of calculating
    credit for pre-trial custody.  Further,
    in
R. v.
Fobister
,
    2010 ONCA 7, this court rejected a trial judges decision to grant 1 to 1
    credit for time spent in a treatment centre, noting that the jurisprudence
    does not support credit at this level.  Having regard to this error in principle we must therefore assess the
    overall fitness of the sentence.

[11]

We agree with the Crown that the sentence imposed is
    outside the normal range of five years and up for a home invasion robbery.  (See
R.
    v. Wang
, [2001] O.J. No. 1491 (C.A.);
R.
    v. Wright
(2006), 83 O.R. (3d) 427 (C.A.). At para. 24 of
Wright
, Blair J.A. explained that while
    rehabilitation should be considered, the objectives of protection of the
    public, general deterrence and denunciation should be given priority ... a
    stiff penitentiary sentence is generally called for.)  In this case, giving priority to the
    principles of general deterrence and denunciation, an appropriate sentence
    would have been a period of incarceration of 8 years.

[12]

Nothing we say here is intended to alter or detract in
    any way from the above-noted principles as stated by this court.
     Moreover, we agree with the Crown that the trial judge overemphasized the
    concept of rehabilitation at the expense of the principles of deterrence and
    denunciation in his reasons.

[13]

However, at the hearing of the appeal we had the
    benefit of fresh evidence, filed on consent, with respect to Walshs
    rehabilitation and current status, that puts this case into a very rare
    category.  The fresh evidence confirms his unusual and exceptional efforts
    at rehabilitation and the continued success of those efforts.  In this
    sense, it may be said that in these particular circumstances his so-far
    successful rehabilitation is responsive as well to the sentencing principle of
    specific deterrence.  It may also be said, as counsel for Walsh submits  again,
    in this particular context  that the principle of general deterrence is at
    least partially accommodated through Walshs very public acknowledgement of his
    criminal career and his public attempts to educate those living similar
    lifestyles to understand that the consequences are jail or death (as he is
    reported to have put it)  all reinforced by his own transformation and
    reformation.

[14]

In the very particular circumstances of this case,
    therefore  given the rehabilitative progress Walsh has made and the fact that he
    is out in the community now and continuing not only to respond well but also to
    assist others facing drug-related problems  we are not inclined to interfere
    with the sentence imposed.  As counsel submits, further incarceration of
    Walsh would serve little useful purpose, and might well be counterproductive
    from a societal point of view as it could undermine what he appears genuinely
    to have achieved, take away what he has to offer to the community, and
    lead to a further cycle of harmful conduct towards that community.

[15]

Accordingly, while leave to appeal is granted, the appeal as to sentence

is dismissed.

RELEASED:  Apr. 26,
    2011                                                                        K.M.
    Weiler J.A.

KMW                                                                                                      R.A.
    Blair J.A.


G.J. Epstein J.A.





[1]
The appellant was charged on April 18, 2009 and sentenced on August 20, 2010.  The
Truth
    in Sentencing Act
S.C. 2009 c. 29, amends s. 719(3) of the
Criminal Code
by providing that a court
    shall limit any credit for pre-trial custody to a maximum of one day for each
    day spent in custody.  Subject to two
    exceptions, if the circumstances justify it, the maximum is one and one-half
    days for each day spent in custody.  The
Act
applies to persons
charged
after the
Act
came into force on February 22, 2010.




