



COURT OF APPEAL
    FOR ONTARIO

CITATION:
    R. v. Robinson, 2014 ONCA 176

DATE: 20140306

DOCKET: C51957

Laskin, Simmons and Cronk JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Eric Robinson

Appellant

Joseph S. Wilkinson, for the appellant

Robert Gattrell, for the respondent

Heard in writing

On appeal from the conviction for
    second degree murder entered against Eric Robinson by Justice John R. Sproat of
    the Superior Court of Justice, sitting with a jury, on June 26, 2009, and the
    sentence imposed on November 13, 2009.

Simmons J.A.:

A.

Overview

[1]

These reasons address the sentence to be imposed on a substituted
    conviction for manslaughter.

[2]

In June 2009, following a trial by judge and jury, Eric Robinson was
    convicted of second degree murder. In reasons released on January 24, 2014, this
    court substituted a manslaughter conviction for the second degree murder
    conviction.

[3]

At the appeal hearing, Robinson asked this court to impose a sentence of
    time served in the event of a substituted conviction for manslaughter. As we
    decided not to remit sentencing to the trial judge, and as the Crown did not
    make sentencing submissions concerning a substituted conviction for
    manslaughter, in our January 24, 2014 reasons, we directed the Crown to file written
    submissions on sentence and permitted Robinson to file a written reply.

[4]

In their written submissions, neither the Crown nor Robinson requested
    an oral sentencing hearing. In all the circumstances, I consider it unnecessary
    to convene an oral sentencing hearing.

[5]

Robinson was sentenced to life imprisonment for second degree murder on
    November 13, 2009. He was arrested on October 9, 2007 and thus had served about
    two years and one month in pre-sentence custody. Robinson submits that, in
    accordance with the general practice prevailing in November 2009, his
    pre-sentence custody should be credited on a two-for-one basis. The Crown does
    not oppose Robinsons position. I would credit Robinson with four years and two
    months of pre-sentence custody.

[6]

In addition, Robinson has now served four years, three months and 23
    days in the penitentiary. This yields total time served as of the date of these
    reasons of eight years, five months and 23 days.

[7]

For the reasons that follow, I conclude that, had Robinson been
    sentenced for manslaughter on November 13, 2009, a sentence of eight years,
    five months and 23 days imprisonment would have been fit. In the
    circumstances, I would sentence Robinson to one day of imprisonment (in
    addition to time served) plus one year of probation on the terms set out below.

B.

The Circumstances of the Offence

[8]

The circumstances of the offence are more fully set out in my reasons
    relating to Robinsons conviction appeal, reported at 2014 ONCA 63, [2014] O.J.
    No. 272, and in my reasons concerning a related appeal,
R. v. White
, 2014
    ONCA 64, [2014] O.J. No. 273. For the purpose of these reasons, the following
    summary is sufficient.

[9]

Robinson was one of four young men partying outside the home of a friend
    in late September 2007. At around four oclock in the afternoon, the four young
    men noticed a 16-year-old walking down the street wearing headphones. They
    decided to rob him. For that purpose, the four young men followed the youth
    down a catwalk connecting their friends subdivision to an adjacent street. At
    some point, the four young mens pursuit turned into a running four-on-one
    chase. Just as the youth reached the adjacent street, one of Robinsons companions
    caught up with the fleeing youth, grabbed him from behind and held him in a
    bear hug. Within seconds, another of Robinsons companions caught up with the
    grabber and the youth, and stabbed the youth once in the chest, inflicting a
    fatal wound. Robinson and his remaining companion arrived on the scene seconds
    after the stabbing. Almost immediately, Robinson and two of his companions (the
    grabber and the stabber) fled back down the catwalk to their friends basement apartment.

[10]

Two
    days after the killing, Robinson gave a statement to the police in which he
    provided himself with a false alibi that his former girlfriend supported. In
    the same statement, Robinson offered to provide the police with assistance in
    finding out who was responsible for the stabbing. He also told police that he
    knew that one of his companions (the stabber, Omari White) typically carried a
    knife in his pocket, but that he did not know whether White was present on the
    day of the stabbing or if White was responsible for the stabbing.

[11]

Robinson
    and two of his companions (the grabber and the stabber) were tried together on
    charges of first degree murder. Robinson refused to testify at the preliminary
    inquiry of the fourth young man charged in relation to the stabbing.

[12]

As
    noted above, the victim of the offence was a 16-year-old youth. He was an
    honours student and was walking to his part-time job at Tim Hortons when he was
    killed. He was a young man of impeccable character and great promise. His senseless
    and tragic death had a devastating impact on his parents and his two younger
    brothers.

C.

The Offender

[13]

Robinson
    was 19 years old on the date of the killing, and had a minor non-violent
    criminal record. While incarcerated, he was moved to a medium security facility
    and has completed his high school credits.

D.

procedural issues

[14]

This
    court is entitled to substitute a conviction for manslaughter and impose a
    sentence that is warranted in law under ss. 686(1)(b)(i) and 686(3)(b) of the
Criminal
    Code
.
[1]


[15]

Section
    719(1) of the
Criminal Code
provides that [a] sentence commences when
    it is imposed, except where a relevant enactment otherwise provides.


[16]

In
R. v. Boyd
, [1979] O.J. No. 499, 47 C.C.C. (2d) 369 (C.A.), Martin
    J.A. noted an argument that there may be an implied power to backdate a
    sentence to the date on which the original sentence was imposed. However, in
Boyd
,
    this court imposed a sentence for a substituted offence commencing as of the
    date of the courts reasons.

[17]

Consistent
    with the disposition in
Boyd
, the weight of authority from this court supports
    the view that where an appeal court imposes a sentence for a substituted
    offence under s. 686(3)(b) of the

Criminal Code
, the sentence
    should commence on the date on which it is imposed:
R. v. Conway
,
    [1997] O.J. No. 5224, 36 O.R. (3d) 579 (C.A.), at para. 58;
R. v. Carrière
,
    [2002] O.J. No. 1429, 158 O.A.C. (C.A.), at paras. 6, 9 and 18;
R. v. Roks
,
    2011 ONCA 618, [2011] O.J. No. 4266, at paras. 24-25.
[2]


[18]

The
    starting point for determining a fit sentence for a substituted offence is to
    consider what would have been an appropriate sentence as of the date of the
    original sentencing:
Carrière
, at para. 9;
Roks
, at para. 26.
    Varied approaches have been adopted to determine how such a sentence should be
    implemented. For example, in
Carrière
, this court took account of what
    would have been the mandatory release date had the sentence been imposed as of
    the date of the original sentencing. In
Roks
, this court determined
    the appropriate sentence as of the original sentencing date, and then credited
    pre-sentence custody to the original sentencing date on a two-for-one basis,
    and time served subsequent to the original sentencing date on a one-for-one
    basis.

E.

the Crowns position on sentence

[19]

The
    Crown asks for a 10-year sentence of imprisonment to run from the date of
    imposition less credit for pre-sentence custody on a two-for-one basis to the
    original sentencing date, and on a one-to-one basis from the original
    sentencing date to the date of imposition. In seeking this sentence, the Crown
    relies on the following aggravating factors:

·

the appellant was a willing and active participant in a group
    robbery;

·

the killing was the culmination of a completely random attack on
    a total stranger in broad daylight in a residential neighbourhood;

·

the victim was vulnerable in that he was unarmed, outnumbered,
    younger than his attackers and had no reason to be on guard;

·

while the attack was impromptu, it was nevertheless co-ordinated
    in the sense that the attackers timed their approach so that it would happen in
    the catwalk;


·

Robinson knew that the stabber typically carried a knife;

·

after the stabbing, Robinson fled the scene, concocted a false
    alibi and recruited others to support that alibi; and

·

the crime had a devastating impact on the victims family and is
    the type of crime that shocks the community.

[20]

The
    Crown acknowledges that Robinsons youth and prospects for rehabilitation are
    mitigating factors on sentencing. However, the Crown urges that, despite these
    factors, the circumstances of the offence require a strong deterrent message.

F.

Robinsons Reply Submissions

[21]

Robinson
    disputes the Crowns submissions concerning the impact of various aggravating
    factors and, in particular, disputes the Crowns submission that he knew that
    the stabber typically carried a knife. Robinson also points to the fact that
    prior to trial he offered a plea to manslaughter, which the Crown refused.

[22]

Robinson
    contends that the appropriate range of sentence for manslaughter, where the
    offender did not directly participate in causing the death of the victim, is
    four to eight years imprisonment. He concedes that proper balancing of the
    aggravating and mitigating factors in this case should place the sentence in
    the middle to upper end of this range (i.e. six to eight years imprisonment).

[23]

To
    facilitate his transition to the community, Robinson asks that a sentence of
    one day of imprisonment plus six months probation be imposed.

G.

Discussion

[24]

I
    agree with the Crowns submission that despite his youth and his prospects for
    rehabilitation, the sentence imposed on Robinson should strongly reflect the
    sentencing principles of denunciation and deterrence. Robinson joined three
    others in an attempt to rob a defenceless victim. He and his companions chased
    the victim down. He was aware that these events could lead to harm to the
    victim that was more than minor or trifling. Moreover, despite Robinsons
    submissions to the contrary, I accept the Crowns position that the evidence at
    trial demonstrated that Robinson knew that the stabber typically carried a
    knife. He acknowledged that fact in his statement to the police.

[25]

Overall,
    the circumstances of this offence reveal the senseless and tragic killing of a
    vulnerable youth who held much promise; that this crime occurred in broad
    daylight and in a residential area is also shocking to the community.

[26]

At
    the same time, Robinsons sentence must reflect his level of culpability. He
    was not present when the killing occurred and, unlike the grabber and the
    stabber, he was not a physical participant in the killing. Moreover, the
    substituted conviction for manslaughter reflects the reality that the Crown was
    unable to prove that Robinson had the
mens rea
for murder. The Crown
    did not prove that Robinson either intended death to occur, or that Robinson
    realized death was likely to occur from the common purpose in which he engaged.

[27]

Having
    regard to all the circumstances, I am satisfied that a sentence in the range of
    eight years and five months imprisonment would have been a fit sentence as of
    November 2009.

[28]

However,
    as the sentence imposed by this court will run from the date it is imposed, an
    appropriate sentence should account for the time Robinson has served to date, as
    well as facilitate his reintegration into the community. Accordingly, I would
    impose a sentence of one day of imprisonment (in addition to time served), plus
    one year of probation on the following terms:

·

keep the peace and be of good behaviour;

·

report to a probation officer within 48 hours after release and
    thereafter weekly as directed by a probation officer; and

·

reside in a place approved by a probation officer.

H.

Conclusion

[29]

Based
    on the foregoing, I would impose a sentence of one day of imprisonment (in addition
    to time served), plus one year of probation on the terms set out above. This
    sentence shall run from the date of the release of these reasons.

Released:

MAR -6 2014                                    Janet
    Simmons J.A.

EAC                                                 I
    agree John Laskin J.A.

I
    agree E.A. Cronk J.A.





[1]

In my reasons dated January 24, 2014, I said I would allow
    Robinsons appeal, set aside his conviction and substitute a conviction for
    manslaughter. In accordance with ss. 686(1)(b)(i) and 686(3), I should have said
    I would dismiss his appeal and substitute a conviction for manslaughter.



[2]
In
R. v. Salt
, [2007] O.J. No. 1344 (C.A.), this court directed that
    the sentence for a substituted offence commence on the date of the original
    sentence. However, it appears that the parties had agreed on that disposition.


