



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Stone,









2015 BCCA 36




Date: 20150123

Docket:
CA041965

Between:

Regina

Respondent

And

Thomas John Stone

Appellant




Before:



The Honourable Madam Justice D. Smith

The Honourable Madam Justice Bennett

The Honourable Mr. Justice Willcock




On appeal from:  An
order of the Provincial Court of North Vancouver,
dated June 9, 2014 (
R. v. Stone
, North Vancouver Docket 58934).

Oral Reasons for Judgment




Counsel for the Appellant:



J. Myers





Counsel for the Respondent:



D. Layton





Place and Date of Hearing:



Vancouver, British
  Columbia

January 23, 2015





Place and Date of Judgment:



Vancouver, British
  Columbia

January 23, 2015








Summary:

Mr. Stone pleaded guilty to
six counts of robbery and three counts of using an imitation firearm in the
course of committing robbery. He was sentenced to five years imprisonment. On
appeal, Mr. Stone argued that the sentencing judge placed undue emphasis on the
principles of deterrence and denunciation, did not adequately consider
mitigating factors, and underemphasized the totality principle. Held: Leave to
appeal granted; appeal dismissed. The sentencing judge appropriately considered
the relevant factors and arrived at a fit sentence.

[1]

BENNETT J.A.
:  Thomas Stone pleaded guilty to six counts of
robbery contrary to s. 344(1)(b) of the
Criminal Code
, R.S.C. 1985,
c. C-46 and three counts of using an imitation firearm in the course of
committing an indictable offence contrary to s. 85(2) of the
Criminal Code
.
He was sentenced to a total of five years imprisonment. With time deducted for
pre‑sentence custody, he received a sentence of 34 months. Mr. Stone,
a United States (USA) citizen, had returned to the USA after committing the
offences. He was arrested in the USA and waived his extradition hearing. The
sentencing judge calculated the time spent in custody from the execution of the
warrant in the USA until the time of sentencing.

(a)  Circumstances
surrounding the offences

[2]

The following summary is taken from the Crowns statement:

Counts 1-2
: At 7:30 p.m.
on March 31, 2012 in West Vancouver, the appellant entered the office of
Safeway manager Darren Jankiprasad, pointed an imitation handgun at Mr. Jankiprasad
and said If I dont see the money, Im going to drill you. He threw a bag at Mr. Jankiprasads
feet. Mr. Jankiprasad took the appellant to the store floor and gave him
$1,200 from two cash registers.

Count 3
: At 6:45 p.m.
on April 14, 2012 the appellant entered the staff area of a North
Vancouver SuperValu store and showed employee Jason Benner the handle of an
imitation gun tucked into his waistband. The appellant tossed Mr. Brenner
a bag, told him to go upstairs and fill it with the money from the tills, and
said, Dont make a fuss or I will shoot you. The appellant obtained $300 from
this robbery.

Counts 5-6
: At 6:55 p.m.
on May 6, 2012 the appellant entered the Queensdale Market in North
Vancouver. He approached manager John Popove and said, This is a robbery,
clean out the tills and give me the money, Ive got a gun. He began to pull an
imitation handgun from his waistband. Mr. Popove tried to stop him. The
appellant hit Mr. Popove in the forehead with the gun, then left the store
without any money. Mr. Popove received nine stitches to his head.

Counts 7-8
: At 7:00 p.m.
on May 12, 2012 in Vancouver, the appellant entered an Extra Foods Store.
Employee Leslie Garrett was collecting money from the cash registers. He
followed her into a small room. He pointed an imitation handgun at her, gave
her a bag and told her to put the money inside. He left with $13,000.

Count 9
: At 6:30 p.m.
on October 11, 2012 in Vancouver, the appellant entered an IGA Marketplace
and approached Antonio Ciaburri in the staff room. He said he had a handgun and
demanded money. Mr. Ciaburri and a co‑worker gave him $250 plus
envelopes containing an unknown amount of cash from a safe.

Count 11
: At 5:55 p.m.
on October 26, 2012 the appellant entered a Choices Market in Burnaby and
approached employee David Olson at the customer service counter. He told Mr. Olson
that he had a gun right here and indicated something on his hip. He gave Mr. Olson
a bag and told him to fill it with money from the safe and the tills. The
appellant left the store with $1,477.

[3]

On December 10, 2012, Mr. Stone fled to Washington to avoid
arrest.

[4]

The Crown sought a sentence of five to six years and the defence sought
a sentence in the range of 39 to 42 months. On appeal, Mr. Stone submits
that an appropriate sentence is 39 months. The Crown submits that the
sentence is fit.

[5]

The Crown seeks to adduce fresh evidence from Mr. Stones parole
officer, indicating a deportation order has been made against Mr. Stone
and he will be deported upon his release. As a result of the removal order, his
day parole, full parole and unescorted temporary absence eligibility dates are
all the same as his full parole date, May 15, 2015. Mr. Stone is
scheduled for a parole hearing in April 2015. The parole officer is
recommending that he receive full parole, which would be effective May 15,
2015. And, as noted, he will be deported on his release on parole.

[6]

Mr. Stone is 70 years of age. He has no criminal record. At
the time he committed the offences, Mr. Stone was in dire financial straits.
He was out of work, could not pay his rent and was running the risk of becoming
homeless. He owed thousands of dollars on outstanding credit card debts. A pre‑sentence
report and a psychiatric report indicate that he has no alcohol or drug
problems, and that he was truly remorseful for his conduct. He had failed to
appreciate the significant effect his conduct would have on the individuals he
robbed, as he thought robbing grocery stores would only affect a corporate
victim.

[7]

Mr. Stone joined the United States Air Force in 1963. He left
without leave in 1972 and came to Canada. He has lived in Canada since that
time. He has family in the USA who are supportive of him. He is not married and
has no children. He was arrested for desertion when he returned to the USA after
committing these offences and received a dishonourable discharge.

[8]

The sentencing judge set out the aggravating and mitigating factors that
he was taking into consideration:

Aggravating Factors

1.         These
robberies were planned and premeditated.

2.         There
were multiple robberies.

3.         The
motivation for the robberies was financial gain.

4.         The
imitation gun was used and displayed.

5.         Mr. Stone
fled to the United States in an attempt to avoid being arrested.

Mitigating Factors

1.         Mr. Stone
is 69 years old and has no prior record.

2.         Mr. Stone
pled guilty to the charges.

3.         Mr. Stone
is remorseful and has apologized.

4.         Mr. Stone
was motivated to commit these offences because of the extreme financial despair
he was experiencing.

5.         Mr. Stone
waived his extradition hearing.

6.         Mr. Stone filed a number
of extremely positive reference letters in which the authors described their
shock for this out-of-character behaviour of Mr. Stone.

[9]

The sentencing judge weighed these factors, and concluded that a fit
sentence was one of five years, giving effect in particular to deterrence, and
rehabilitation in addition to the principle of totality. He considered the fact
that the robberies were planned, and committed over a period of six months. The
sentencing judge had to craft a sentence that took into account the fact that
the three offences under s. 85(2) of the
Criminal Code
required one year
minimum sentences consecutive to the index offence and consecutive to each
other (
Criminal Code,
s. 85(4)).

[10]

The sentencing judge imposed two year concurrent sentences on each of
the robbery counts, and one year consecutive on each of the weapons counts.

[11]

A sentencing judge is given great deference (
R. v. C.A.M
.,
[1996] 1 S.C.R. 500):

90
Put
simply, absent an error in principle, failure to consider a relevant factor, or
an overemphasis of the appropriate factors, a court of appeal should only
intervene to vary a sentence imposed at trial if the sentence is demonstrably
unfit. Parliament explicitly vested sentencing judges with a
discretion
to determine the appropriate degree and kind of punishment under the
Criminal
Code
.

[12]

Mr. Stone argues that the sentencing judge did not give effect to
the totality principle and as a result imposed a sentence that was demonstrably
unfit. The totality principle permits the court to mitigate what would
otherwise be a disproportionate sentence as a result of imposing consecutive
sentences for multiple offences. By imposing
concurrent
sentences of two
years on the robberies, which could not be considered a spree given they were
over a six month period, the sentencing judge gave effect to the totality
principle. Otherwise, the sentence would have been significantly higher.

[13]

In my respectful view, Mr. Stone has not identified an error in
principle, failure to consider a relevant factor or an overemphasis of the
appropriate factors. In my view, the sentencing judge considered all of the
factors, weighed them and arrived at a fit sentence.

[14]

It is not necessary in my opinion to admit the fresh evidence. I would
grant leave to appeal, but would dismiss the appeal.

[15]

D. SMITH J.A.:
I agree.

[16]

WILLCOCK J.A.:
I agree.

[17]

D. SMITH J.A.:
Leave to appeal the sentence is granted, and the
appeal from sentence is dismissed.

The Honourable Madam Justice Bennett


