





CITATION: R. v. May, 2011 ONCA
      74



DATE:  20110127



DOCKET: C52198-C52199



COURT OF APPEAL FOR ONTARIO



Doherty, Laskin and Gillese JJ.A.



BETWEEN



Her Majesty the Queen



Appellant



and



Jesse Brendan May



Respondent

and

Jonathan
          Whalen

Respondent



Susan Magotiaux, for the appellant



John Lefurgey, for the respondent, May

Mark Halfyard, for the respondent, Whalen



Heard and released orally:  January 24, 2011



On appeal from the sentences imposed by Justice D. Taliano of
          the Superior Court of Justice on May 10, 2010.



ENDORSEMENT



[1]

This is a Crown application for leave to appeal the sentences imposed on
    the respondents, May and Whalen.  Both pled guilty to robbery.  The robbery
    involved a home invasion.  Mr. May received a sentence of two years less a day
    to be followed by three years probation.  Mr. Whalen received a sentence of 21
    months to be followed by three years probation.  Both served very brief periods
    of incarceration prior to sentencing and both were on strict bail terms for
    approximately a year and a half.

[2]

This was a planned robbery.  Three individuals, including May, entered
    the home armed with a variety of weapons.  They threatened to kill the
    occupants.  At one point during the robbery, a gun, apparently belonging to one
    of the victims, discharged and killed one of the robbers.  The details
    surrounding that discharge are unknown.  It would appear that May was upstairs
    at the time the shooting occurred in the basement.  Mr. Whalen did not enter
    the home.  He drove the getaway vehicle, but was well aware of the plan to rob
    the home.

[3]

Mr. May was 19 years old at the time of the offence.  He has a terrible
    background and has had very little by way of guidance or parental control.  He
    has accumulated a significant youth record, including two convictions for
    robbery.  The details of those offences were not before the court.

[4]

Mr. May was placed on strict bail conditions.  Fortunately, the persons
    responsible for him while he was under release took a real interest in Mr. May. 
    He has turned his life around during the one and a half years he has been on
    bail.  Everyone agrees he has made very significant strides to becoming a law
    abiding and responsible citizen.

[5]

Mr. Whalen was 21 years of age at the time of the offence.  He too has a
    record, although it does not involve any crimes of violence.  He has a
    conviction for possession of a restricted weapon.  As indicated above, Mr.
    Whalen was the driver.  He also made substantial strides towards his
    rehabilitation while on bail awaiting trial.

[6]

This was obviously a very serious offence.  The trial judge was well
    aware of the seriousness of the offence.  His reasons show that he was aware of
    the applicable principles of sentencing and the range of sentence for home
    invasions set by this court.  The trial judge was also aware that a sentence
    range is not fixed in stone, but is ultimately provided for the guidance of
    trial judge who must exercise their sentencing discretion on a case-by-case
    basis.  Sometimes the proper exercise of that discretion takes the sentence out
    of the range.

[7]

The Crown agrees that deference was owed to the sentence imposed by the
    trial judge.  Clearly, he had a difficult task in this case.  The trial judge
    ultimately saw substantial potential for rehabilitation for both of these young
    men.  He saw that there was a real opportunity for them to become productive
    law abiding citizens.  The material before him provided a basis for that
    finding.  Both respondents have also continued their progress while in custody
    as indicated in the material that has been placed before us.  They do seem to
    have turned their lives around.

[8]

The trial judge had to shape a sentence that maximized the potential to
    achieve rehabilitation, which as indicated was a very real prospect in this
    case.  However, at the same time, he had to impose a sufficient penalty to
    adequately reflect the needs of general deterrence and denunciation.  Balancing
    these competing, if not somewhat antagonistic, principles, was not an easy
    task.  I think it is fair to say that other trial judges might have come down
    with a different sentence.  However, deference means yielding to the sentence
    imposed by the trial judge where the balancing engaged in by the trial judge
    does not reflect error in principle or result in a manifestly unreasonable
    sentence.  In our view, the trial judges balancing in this case does not
    suffer from either of those deficiencies.  We would not interfere.

[9]

In closing, we add one point.  The reasons of the trial judge are
    thoughtful and detailed but could be read as devaluing the impact of this very
    serious crime on the victims.  There is some suggestion that at least one of
    the victims was involved in the drug trade.  The trial judge seems to have
    thought that the absence of a victim impact statement entitled him to infer
    that the victims had not suffered any unusual harm.  This was a terrible
    experience for anyone to go through and to the extent that the trial judge
    minimized the seriousness of the impact on the victims because of their
    backgrounds, he was wrong in doing so.  However, his observations concerning
    the victims did not ultimately affect the balancing engaged in by the trial
    judge and we would not interfere with the sentence on that basis.

[10]

Leave to appeal the sentences is granted.  The appeals are dismissed.

Doherty J.A.

J.I. Laskin J.A.

E.E.
    Gillese J.A.


