



COURT OF APPEAL FOR ONTARIO

CITATION:

R. v. Courtney, 2012
    ONCA 478

DATE: 20120706

DOCKET: C55129

Laskin, Cronk and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Thomas Courtney

Appellant

Richard Litkowski, for the appellant

Michael Medeiros, for the respondent

Heard: July 3, 2012

On appeal from the sentence imposed by Justice Edward J.
    McGrath of the Ontario Court of Justice, on August 11, 2011.

By the Court:

I.   Introduction

[1]

The appellant was convicted of robbery, dangerous driving, failing to stop
    for police, assaulting a peace officer and perjury.  He was sentenced, on a
    joint submission by counsel, to five years imprisonment on the robbery charge,
    less three months credit for pre-trial custody, and six months imprisonment,
    concurrent, on each of the other offences.  A restitution order in the amount
    of $567.67  the total amount stolen during the robbery  was also imposed.

[2]

The appellant appeals against sentence.  He submits that: (1) his
    sentence on the robbery charge offends the parity principle since his related accused,
    who was also convicted of robbery, received an effective sentence of nine
    months imprisonment; and (2) the five-year sentence on the robbery count also
    violates the jump principle, as the appellant had never been sentenced
    previously to more than 90 days in custody.  The appellant also contends that
    the restitution order was illegal because the circumstances of the offence
    support the reasonable inference that all the stolen cash was recovered by the
    police.

II.       Parity Principle Not Violated

[3]

The appellant acknowledges that several aggravating factors were
    relevant to his sentencing that did not apply to the sentencing of his
    companion in the robbery, Brandon White.  Based on these factors, he concedes
    that he should have received a longer custodial sentence than that imposed on
    White.  However, relying on the parity principle, he argues that the disparity
    in sentences here is extreme and unwarranted.  He submits that on application
    of the parity principle, an appropriate sentence for his robbery conviction is
    three years imprisonment, less credit for pre-trial custody, resulting in a
    sentence of 33 months imprisonment.

[4]

We disagree.  The parity principle does not require that all co-accused
    be subject to the same sentence, or even that they be treated similarly for
    sentencing purposes.  On the contrary, disparate sentences for different
    offenders, for the same offence, do not violate the parity principle so long as
    they are warranted by all the circumstances.  See
R. v. Ipeelee
,
    [2012] S.C.J. No. 13, at paras. 78 to 79,
per
LeBel J.

[5]

In this case, we see little, if any, parallel between the circumstances
    of the appellant and those of White.  Indeed, on this record, there were
    fundamental differences in the antecedents of the two men and in the offences
    for which they were convicted.

[6]

The appellant was 31 years of age at the time of the robbery.  He had a
    lengthy criminal record with 43 convictions (albeit mostly for property
    offences and repeated breaches of court orders).  Further, in addition to the
    robbery count, he was charged with a series of serious offences arising out of
    or associated with the robbery.  These additional offences themselves warranted
    significant sanctions.

[7]

In contrast, to the limited extent evident on this record, Whites
    circumstances were materially different from those of the appellant.  White was
    a youthful offender (18 or 19 years of age at the time of the robbery) and had
    no prior criminal record.  He was charged and convicted of one count of robbery,
    while the appellant pleaded guilty to different and multiple crimes.  As the
    Crown points out, the principles of sentencing that apply to a youthful first
    offender, like White, differ greatly from those applicable to the appellant. 
    Different sentences for these offenders, given their disparate circumstances,
    would be expected especially if, as is likely, rehabilitation figured in
    Whites sentencing.

[8]

Little else is known on the record before us concerning Whites
    conviction and sentence.  In particular, the record contains no information
    regarding the facts to which he admitted at trial, his background and any
    relevant mitigating circumstances.  As a result, we agree with the Crown that
    only a limited comparison can be made between the appellants circumstances and
    those of White.

[9]

We therefore conclude, on the available information, that a violation of
    the parity principle is not made out.

III.      Jump Principle Not Violated

[10]

We
    reach a similar conclusion concerning the appellants claim that his sentence on
    the robbery charge offends the jump principle.  The appellants crimes are
    fundamentally different in kind and seriousness than the crimes for which he
    was previously sentenced.  Accordingly, the rationale for the jump principle 
    that successive sentences should be increased gradually  is simply not
    engaged.  As this court observed in
R. v. Borde
(2003), 63 O.R. (3d)
    417, at para. 39:

[The jump] principle cautions a court against imposing a
    dramatically more severe sentence than the sentences imposed upon the offender
    for similar offences in the recent past.  It has little application where the
    severity of the offenders crimes shows a dramatic increase in violence and
    seriousness.

[11]

It
    also bears emphasis that the appellants sentence was the product of a joint
    submission.  This court has repeatedly held that it will not lightly interfere
    with a sentence imposed in accordance with a joint submission.  The appellant
    does not contend that the sentence imposed was manifestly unfit given the
    nature of his crimes.

IV.     Restitution

[12]

It
    remains to consider the restitution order imposed on the appellant.  The Crown
    has now determined that, in fact, the full amount of the cash stolen in the
    robbery was recovered by the police, as the appellant asserts.  As a result,
    the Crown acknowledges, quite properly, that the restitution order cannot stand
    since no loss was sustained by the victim of the robbery.  We agree.

V.      Disposition

[13]

Accordingly,
    for the reasons given, leave to appeal sentence is granted and the sentence appeal
    is allowed, in part, by quashing the restitution order.  In all other respects,
    the appeal is dismissed.

Released: JUL -6 2012

JL                                          John Laskin
    J.A.

E.A.
    Cronk J.A.

Alexandra
    Hoy J.A.


