


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Jones, 2012 ONCA 609

DATE: 20120917

DOCKET: C52736

MacPherson, Armstrong and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Jones

Appellant

Jonathan Dawe, for the appellant

Maria Stevens, for the respondent

Heard: September 6, 2012

On appeal from the sentence imposed on June 29, 2010 by
    Justice A.J. Stong of the Superior Court of Justice.

ENDORSEMENT

[1]

This is a sentence appeal.

[2]

The appellant initially pleaded not guilty to five offences:

(i)    aggravated assault;

(ii)   discharge
    a firearm with intent to wound, maim or disfigure;

(iii)   using
    a firearm while committing an indictable offence;

(iv)  kidnapping
    with a firearm; and

(v)   possession
    of a restricted weapon while prohibited pursuant to an order made under the
Youth
    Criminal Justice Act
.

[3]

Three weeks into the trial, the appellant changed his plea to guilty as
    did his co-accused, Michael Chalmers, who pleaded guilty to essentially the
    same offences.

[4]

The underlying facts are the following.  On September 16, 2007, the
    appellant, co-accused and an unidentified third person kidnapped Dwight Geary
    by pulling him into a car driven by the appellant.  Geary was held captive for
    several hours.  The appellants co-accused pointed a gun at Geary and required
    him to contact Robert Hinds-Grannum to arrange a meeting with Hinds-Grannum at
    his house.  When the kidnappers arrived at Hinds-Grannums house, the
    co-accused and Geary got out of the car.  The appellant remained seated behind
    the wheel.  A confrontation followed in which gunfire was exchanged.  The
    co-accused fired a shot that wounded Hinds-Grannum in his leg.

[5]

The trial judge imposed the following sentence:

·

9 years concurrent for aggravated assault, discharge firearm with
    intent to wound, maim or disfigure and kidnapping with a firearm;

·

2 years concurrent on the charge of possession of a restricted
    weapon contrary to the order under the
Youth Criminal Justice Act
; and

·

1 year consecutive for use of a firearm while committing an
    indictable offence.

[6]

The total sentence is 10 years, which resulted in the appellant having
    to serve 6 more years in custody by reason of a credit for pre-sentence
    detention on the basis of 1.5:1.  In arriving at the pre-sentence credit, the
    trial judge said:

In ascertaining the amount of credit to be given him for his
    sentencing, I take his involvement into account, I take his association with
    weapons into account leading up to this incident, and I am satisfied that
    because he is not likely to qualify for early parole.  For those reasons, I am
    disposed to give him a credit of 1.5 days to 1 for the 33 months, which
    translates into an equivalent of having spent four years in custody prior to
    this sentencing.

[7]

Mr. Chalmers, whom the sentencing judge found to be the principal in the
    shooting of Hinds-Grannum, received a global sentence of 11 years consecutive
    to another sentence of 11 years he was then serving.

[8]

The appellant raised the following grounds of appeal:

(i)    the
    sentencing judge erred in failing to give the appellant credit for his pre-trial
    detention on a 2:1 basis;

(ii)   the
    sentencing judge erred in ignoring the submission of the counsel for the Crown
    that the appropriate global sentence was 9 years;

(iii)  the
    sentencing judge erred in failing to give proper effect to the parity
    principle; and

(iv)  the
    sentencing judge erred by ignoring the principle that first penitentiary
    sentences for youthful offenders should be as short as possible.

[9]

We agree with the appellants first ground of appeal in respect of pre-trial
    credit.  It was the practice at the time of these offences that a sentencing court
    gave 2:1 credit for pre-sentence custody in circumstances such as these.  In
    our view, there does not appear to be any evidentiary basis for the sentencing
    judges conclusion that the appellant would not likely be a candidate for early
    parole.  We agree that the appellant was entitled to 2:1 credit on the basis
    that he was held in detention in a remand centre for 33 months without access
    to rehabilitative programmes.

[10]

We
    are of the view that the sentencing judge erred in exceeding the submission of
    the Crown for a sentence of 9 years without explaining the basis for doing so.

[11]

In
    respect of the parity principle, counsel for the appellant submits that his
    co-accused was the principal and worst offender and therefore there should have
    been a much greater disparity between the two sentences.  The lack of
    significant disparity is largely explained on the basis that Chalmers sentence
    was modified because it was made consecutive to a sentence of 11 years he was
    then serving in respect of other convictions and therefore required adjustment
    to conform to the totality principle.  We would not give effect to this ground
    of appeal.

[12]

Finally,
    we do not agree that the sentencing judge erred in failing to give the
    appellant a shorter penitentiary term because of his youth.  The criminal use
    of firearms is a plague on the life of the Greater Toronto Area.  Those who are
    disposed to engage in this kind of criminal activity have to get the message
    that they will ultimately come face to face with the full force of the law and,
    in the result, will be sent to penitentiary for a long period of time.  Denunciation
    and deterrence are the primary objectives of sentencing in this kind of case.

[13]

In
    the result, the application for leave to appeal is granted, the appeal is
    allowed to the extent that the 10 year sentence is reduced to 9 years to
    conform with the submissions of the Crown counsel at trial.  The appellant is
    entitled to pre-sentencing credit on a 2:1 basis for his pre-trial detention of
    33 months.  Accordingly, the ultimate sentence is an additional 42 months in
    custody from the date of sentencing.

J.C. MacPherson J.A.

Robert P. Armstrong J.A.

David Watt J.A.


