



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Gwyn,









2013 BCCA 51




Date: 20130130

Docket:
CA040056

Between:

Regina

Respondent

And

Joshua Jeremy
Quinton Gwyn

Appellant




Before:



The Honourable Madam Justice Newbury





The Honourable Mr. Justice Lowry





The Honourable Mr. Justice Harris




On appeal from: 
Provincial Court of British Columbia, March 30, 2012
(
R. v. Gwyn
, Kelowna Registry 75656)

Oral Reasons for Judgment




Counsel for the Appellant:



L.J. Helps





Counsel for the Respondent:



B.A. MacLean





Place and Date of Hearing:



Vancouver, British
  Columbia

January 29, 2013





Place and Date of Judgment:



Vancouver, British
  Columbia

January 30, 2013








[1]

NEWBURY J.A.:
Mr. Gwyn was sentenced by His Honour Judge
Hogan, P.C.J., to 65 months imprisonment on one charge of bank robbery to
which he pleaded guilty in August 2011. The 65 months was arrived at after
the judge gave credit on a one-for-one basis for seven months the appellant had
already spent in custody, with the result that sentence was effectively one of
six years imprisonment.

[2]

Mr. Gwyn was age 26 at the time of sentencing and had a record of
previous convictions, both in Youth Court and as an adult, including on charges
of theft, fraud, assault causing bodily harm, at least three failures to
appear, possession of illegal drugs for the purposes of trafficking, and breaking
and enters. At the time of sentencing, there was an outstanding warrant for his
arrest in Ontario and outstanding charges in Alberta. He has a serious
addiction to heroin and the sentencing judge noted that Mr. Gwyn had been
trying to take some drug programs at Kelowna Regional Correctional Centre to
gain some insight into his behaviour. There was no further information before
us as to specific steps he has taken since he was sentenced.

[3]

Evidently, Mr. Gwyn was high on drugs at the time of the offence,
which the sentencing judge described as follows:

He is on some kind of drug
bender, he has recently arrived here [Kelowna] and, in the midst of his
drug-addled confusion, writes up a note demanding $15,000, goes into the Royal
Bank, hands it to the clerk, gets the money after a threat that he has a gun. He
is arrested shortly thereafter with about $1100, if I recall, in his possession.
The rest having been squandered almost immediately.

[4]

In his reasons for sentencing, the judge reviewed the principles of
sentencing, including the obligation to use the sentence which least confines
the individual, the step principle, and the objectives of sentencing as set
out in the
Criminal Code
. As mitigating factors, he noted that Mr. Gwyn
is comparatively young, and not a hardened offender as to age, and that he
had pleaded guilty. He had also, as noted earlier, been trying to address his
drug addiction.

[5]

The aggravating factors noted by the judge included the fact that
although Mr. Gwyn was not the old and hardened offender, neither is he
the young and foolish teenager that he once was when he came into contact with
the justice system.  The judge noted the pretty frightening effect of
robbery on the bank teller and that although Mr. Gwyn did not have a gun,
he suggested to the teller that he did. As well, the judge said, he does have
these outstanding charges in other provinces which means I cannot go too far in
considering he is of good character.  (Para. 16.)  The Court took into
account a general rise in the number of bank robberies and similar robberies in
the Okanagan region, where he noted a now wide-spread enthusiasm for
robberies.

[6]

On a more personal level, the judge noted Mr. Gwyns drug problem
and the fact he had apologized a bit today to the victim of the robbery.

[7]

As far as the applicable objectives of sentencing were concerned in this
case, the sentencing judge stated that general deterrence is not completely
exhausted in our society and that he had seen cases in which persons who
served time in a penitentiary actually turn their lives around. On the other
hand, he said, he had not given up on rehabilitation at all. The Crown suggested
a sentence in the range of six years. The sentencing judge found that this was
pretty sensible taking into account the circumstances of the offence and the
appellants past record. The judge concluded that the Crowns suggestion was a
wise one as to the length of time in total and from it deducted the seven
months the appellant had already spent in custody, for a sentence of five years
and five months. The Court also made a restitution order in the amount of $13,900
in favour of the Royal Bank, observing that restitution was one of the best ways
to demonstrate to the community that Mr. Gwyn is making amends.

[8]

On appeal, counsel for Mr. Gwyn contends that a six-year sentence
is unfit; that the Court failed to consider the totality of such a sentence in
conjunction with the restitution order; and that the latter order was made
without counsels submissions and was excessive.

[9]

In general terms, no error in the reasoning of the court below has been
shown. The sentencing judge considered the appropriate factors and sentencing
principles, and applied them to the facts before him. The real question for us
is whether the sentence was a fit one, having regard to this offender and this
offence. We were referred to this courts decision in
R. v. Brogan
,
1999 BCCA 278, in which a sentence of eight years for
two
robberies was
upheld. Ryan J.A. for the Court suggested that the cases support a range
of between two and nine years in cases in which a robbery with violence has
been committed by a young man. (Violence was not used in the case at bar,
although the bank teller was threatened.)

[10]

We were also referred to this courts decision in
R. v. Gill
,
2006 BCCA 127, which involved a six-year global sentence imposed after the
appellant pleaded guilty to one count of robbery (of a convenience store),
using an imitation firearm and masking his face. He had been serving a CSO at
the time of the offence. This court reduced the sentence to four years,
emphasizing the appellants age (23), his lack of any record for similar
offences, and the fact he had used an unloaded replica weapon. The Court
attached to its reasons a chart which summarized sentences given in several cases
involving the robbery of commercial premises by youthful offenders. (As the
sentencing judge pointed out in his reasons, Mr. Gwyn is not young,
although he may well be youthful.)

[11]

Counsel also made reference to
R. v. Godkin
2008 BCCA
287, in which this court upheld a sentence of nine years plus two months
incarceration on two counts of robbery and one of possession of a dangerous
weapon;
R. v. Nilsson
2012 BCCA 498, upholding an eight-year
sentence imposed on conviction for two counts of robbery; and
R. v. Zakis
2012 BCCA 450, upholding a sentence of six years incarceration after the
appellant pleaded guilty to one count of robbery. The latter case is very
similar to the present one in that it involved a bank robbery in the Okanagan
and does not appear to have involved a weapon or violence of any kind. The
appellant was older (age 39) than Mr. Gwyn, but had a criminal record for
a series of earlier offences for which the longest sentence he had received was
one year.

[12]

Of course, as counsel agreed, and as stated in
Brogan
, no two
offences or offenders are ever entirely the same. In this case, the offender is
not old but not young; he has a record that does not involve violence but which
includes property crimes over several years; and he is addicted to heroin. As Crown
counsel noted, we were not given a great deal of information about his personal
circumstances that might indicate that the sentence imposed here was not fit. He
is not a resident of the Okanagan Valley and seems to have drifted across
Canada in recent years and therefore lacks a stable support system to which he
can turn. Although the court below was told he has a common law wife and child,
it now appears that the mother is of the child is only his girlfriend and
that Mr. Gwyn 
hopes
 to have a relationship with the child. We
were not informed of any specific efforts he has made at drug rehabilitation since
sentencing, and it may be that his best hope for treatment and recovery lies in
programs administered by Corrections authorities. Any remorse he has
demonstrated for the robbery seemed lukewarm at best. These factors in my view
weigh in the balance against a sentence at the low end of the range. Perhaps
more importantly, we must be mindful of the sentencing judges comments
regarding the epidemic of bank robberies in the Okanagan region.

[13]

In all the circumstances, although I view the six-year sentence as lying
at the high end of the range, I am unable to say that it was not fit in this
case or that it represented too great a step up from Mr. Gwyns previous
sentences. This sentence must reflect the seriousness of the robbery as
compared to those previous offences.

[14]

As for the restitution order, I am not convinced that it was unfit, or
that together with the jail term, it represents a crushing or excessive punishment
within the meaning of
R. v. Hoyt
[1992] B.C.J. No. 2315
(B.C.C.A.). As Wood J.A. stated in
Hoyt
:

[32]      As this Court noted in
Flottvik
, an order
for compensation is a valuable weapon in the arsenal of the sentencing judge.
Studies have long questioned the deterrent value of harsh custodial sentences,
and suggested that it is the certainty of sanctions stemming from the fear of
detection that acts as a more potent deterrent than does any sanction imposed
after the fact:  see
Sentencing Reform
:
A Canadian Approach
,
Report of the Canadian Sentencing Commission, 1987, at pp. 135-8, and the
studies there referred to. If the fear of detection is accompanied by the
realization that restitution will be ordered, and exacted, the deterrent effect
of any sanction imposed must ultimately be enhanced.

[33]      In addition to having a
measured denunciatory effect, an order for compensation also provides a means
by which the offender can be required to take responsibility for the true
consequences of his or her crime. The assumption of that responsibility
provides a positive benefit to the victim of the offence in question.

[15]

I believe this is what the sentencing judge in this case had in mind when
he observed at para. 38 that restitution was the best way for Mr. Gwyn
to demonstrate to the community that he is making amends.  I also note that the
order simply clears the way procedurally for the Bank to recover the amount
stolen from it: Mr. Gwyn would be bound civilly to make restitution in any
event.

[16]

In the result, I would grant Mr. Gwyn an extension of time in which
to appeal and I would grant leave to appeal, but dismiss the appeal.

[17]

LOWRY J.A.:
I agree.

[18]

HARRIS J.A.:
I agree.

[19]

NEWBURY J.A.:
The appeal is dismissed.

The Honourable Madam Justice Newbury


