



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Johnson, 2012
    ONCA 339

DATE: 20120523

DOCKET: C53880

Laskin, Armstrong and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Frederick Johnson

Appellant

Alex Burns, for the appellant

Scott Latimer, for the respondent

Heard: October 21, 2011

On appeal from the sentence imposed by Justice M. Agro of
    the Ontario Court of Justice on February 2, 2011.

R.A. Blair J.A.:

Overview

[1]

Mr. Johnson has committed 26 bank robberies over the past 14 years. 
    Twenty-five were committed while he was in the community on parole or other
    form of release from custody.

[2]

In November, 2010, Mr. Johnson was serving the remaining 9 years of a 12-year
    sentence imposed in 2004 following his conviction on 6 counts of robbery.  On
    November 16th of that year, he was released from the penitentiary on a
    temporary absence pass.  He did not return.

[3]

Over the next three weeks Mr. Johnson robbed nine more banks.  For these
    crimes, Justice M. Agro of the Ontario Court of Justice sentenced him to a
    total of 14 years, to run consecutively to the 9 years remaining on his
    previous sentence.  Mr. Johnson submits that a total of 23 years is simply too
    much.  He asks us to reduce the sentence or, in the alternative, to order that
    the sentence be varied to run concurrently with the previous sentence.

[4]

I would not do the latter, but for the reasons that follow I would grant
    leave to appeal and vary the sentence to a global sentence of 20 years.

Facts

[5]

The appellant is an inveterate, if not incorrigible, bank robber.  In
    1997, he was sentenced to two years imprisonment for a single bank robbery. 
    In 2000, he was sentenced to eight years on ten counts of bank robbery,
    consecutive to any sentence he was then still serving.  In 2004, he was
    sentenced to 12 years imprisonment on another 6 counts of bank robbery,
    consecutive again to any other sentence he was already serving.  The robbery
    spree leading to the current convictions and sentences in February, 2011, involved
    nine further banks. He was on parole, statutory release or a temporary absence
    pass when he committed all of his robberies, except the first.  He was 54 years
    old when he committed the current offences.

[6]

The appellants
modus operandi
is what is known as the “note pass” robbery.  He gives the teller a note indicating that he is armed and demanding money.  There is no physical or verbal violence or brandishing of weapons.  The appellant was not wearing a disguise during the current robberies and the judge found that he did not have or use a weapon.  His crimes appear to have been driven by his addiction to drugs.

[7]

In the appellants favour, when he was arrested by the police he made a
    full confession, accepted responsibility for the robberies, and co-operated
    fully.  He pled guilty to all nine counts at an early stage of the proceedings
    thus saving court resources and sparing his victims the necessity of attending
    to testify.

[8]

As aggravating factors, the sentencing judge took into account that the
    robberies were committed while the appellant was on a temporary absence pass,
    that they involved the threat of a weapon, that bank employees are a vulnerable
    segment of society, and that the appellant has an extensive criminal record,
    including (but not limited to) the convictions for the robbery offences
    outlined above.

[9]

The sentencing judge concluded that a 14-year sentence concurrent on
    each of the 9 counts and consecutive to the sentence the appellant was then
    still serving was appropriate in all the circumstances.  Speaking directly to
    the appellant, she said:

Having weighed the aggravating circumstances, the mitigating
    circumstances, taking [into] account the facts, taking into account your
    background, I am of the view that the principles of sentencing that are to be
    addressed here are general and specific deterrence, denunciation and the
    protection of society, and in particular other bank tellers.  I do not consider
    rehabilitation to be a factor.  You have had the benefits of some counselling
    while you have been incarcerated over the years.  It worked for a while, it has
    not worked since.  I will certainly make a recommendation on the warrant that
    you be afforded every opportunity for more intensive drug addiction programs,
    particularly addressed to cocaine.  But whether or not that is successful sir
    is frankly not going to have anything to do with the length of my sentence.

Analysis

[10]

Mr.
    Burns raises a number of arguments on behalf of the appellant, but only the
    submission that the sentence fails to take into account the principle of
    totality warrants full consideration, in my view.

Other Grounds

[11]

In
    spite of Mr. Burns argument to the contrary, I am satisfied that the
    sentencing judge properly took into account the appellants guilty pleas and
    his co-operation with the authorities, and that she was entitled in these
    circumstances  particularly given the appellants unremitting record for bank
    robbery and other crimes  to give priority to the principles of general and
    specific deterrence, denunciation and the protection of society.  The
    appellants prospects of rehabilitation appear to be remote at best.  I do not
    think the sentencing judge partially based her sentence on victim impact
    statements she had reviewed in other cases and that were not part of the record
    before her; she simply called upon her experience, as trial judges are entitled
    to do in such circumstances.

[12]

Nor
    am I persuaded that a sentence of 14 years imprisonment is excessive for the
    robberies here.  While there are examples in the authorities of lower sentences
    in similar circumstances, there are also examples of sentences in a similar or
    higher range:  see, for example,
R. v. Stairs
(1994), 73 O.A.C. 79 (life
    imprisonment);
R. v. Bergeron
, [1982] O.J. No. 80 (C.A.) (14 years);
R.
    v. Wolynec
, 2007 ONCA 826, [2007] O.J. No. 4662 (13 years);
R. v.
    Dennis
(2005), 202 O.A.C. 146 (16 years);
R. v. Duhamel
, [2004]
    O.J. No. 1164 (C.A.) (12 years);
R. v. Nikolovski
(2005), 194 O.A.C.
    258 (12 years).  Here, the appellant, himself, sought a sentence of nine years
    consecutive to the remainder of his prior sentence.

[13]

While
    note passing robberies may not be as violent as other forms, this Court has
    made it clear that they remain a very serious crime capable of instilling fear
    and trauma into victimized bank tellers:
R. v. MacCormack
, 2009 ONCA
    72, 245 O.A.C. 271, at para. 88.

[14]

That
    said, the sentencing judge does not appear to have given any consideration to
    the principle of totality in arriving at her decision, although she clearly
    recognized that the 14-year sentence she was imposing was to be consecutive to
    the sentence the appellant was then serving.

The Totality
    Principle

[15]

A
    foundational principle of the Canadian sentencing regime is the principle of
    proportionality: [a] sentence must be proportionate to the gravity of the
    offence and the degree of responsibility of the offender:
Criminal Code
,
    s. 718.1.  This principle is based upon the fundamental notion that the punishment
    must fit the crime and that the degree of punishment must reflect the gravity
    of the offence and the moral blameworthiness of the offender.  Otherwise,
    society will have no confidence in the law or the fairness and rationality of
    the legal system: see
Re B.C. Motor Vehicle Act
, [1985] 2 S.C.R. 486,
    at p. 533.

[16]

An
    important component of the principle of proportionality is the principle of
    totality, which is embedded in s. 718.2(c) of the
Criminal Code
:

A court that imposes a sentence shall also take into
    consideration the following principles:

(c) where consecutive sentences are imposed, the combined
    sentence should not be unduly long or harsh.

[17]

In
R. v. M.(C.A.)
, [1996] 1 S.C.R. 500, at para. 42, Chief Justice Lamer
    explained the rationale underlying the totality principle and its nexus with
    proportionality:

In the context of consecutive sentences, this general principle
    of proportionality expresses itself through the more particular form of the
    totality principle.  The totality principle, in short, requires a sentencing
    judge who orders an offender to serve consecutive sentences for multiple
    offences to ensure that the cumulative sentence rendered does not exceed the
    overall culpability of the offender.  As D.A. Thomas describes the principle in
Principles of Sentencing
(2
nd
ed. 1979), at p. 56:

The effect of the totality principle
    is to require a sentencer who has passed a series of sentences, each properly
    calculated in relation to the offence for which it is imposed and each properly
    made consecutive in accordance with the principles governing consecutive
    sentences, to review the aggregate sentence and consider whether the aggregate
    sentence is just and appropriate.

Clayton Ruby articulates the principle in the following terms
    in his treatise,
Sentencing
, [4
th
ed. (Toronto:
    Butterworths, 1994)], at pp. 44-45:

The purpose is to ensure that a
    series of sentences, each properly imposed in relation to the offence to which
    it relates, is in aggregate just and appropriate.  A cumulative sentence may
    offend the totality principle if the aggregate sentence is substantially above
    the normal level of a sentence for the most serious of the individual offences
    involved, or if its effect is to impose on the offender a crushing sentence
    not in keeping with his record and prospects.

[18]

In
    short, a combined sentence must not be unduly long or harsh in the sense that
    its impact simply exceeds the gravity of the offences in question or the
    overall culpability of the offender. The overall length of the custodial period
    imposed must still relate to and reflect the variety of sentencing goals,
    including denunciation, deterrence (specific and general), rehabilitation, the
    need to separate offenders from society where necessary, and the general
    imperative of promoting respect for the law and the maintenance of a just, peaceful
    and safe society:
Criminal Code
, s. 718.  In this regard, the
    authorities recognize that where the ultimate effect of the combined sentences
    is to deprive the offender of any hope of release or rehabilitation, the
    functional value of these sentencing principles meets the point of diminishing
    returns: see
R. v. C. (J.A.)
(1995), 26 O.R. (3d) 462 (C.A.).  This
    point was reinforced by Lamer C.J. in
M.(C.A.)
, at para. 74.

[19]

There
    are at least two types of situation where the principle of totality in the context
    of consecutive sentences may arise.  The first is where a single judge must
    deal with a series of offences, some of which require the imposition of
    consecutive sentences having regard to the criteria for such sentences.  A
    second  which is the case here  concerns a situation where a sentencing judge
    must impose a fit sentence on an offender convicted of one or more offences
    where that offender is at the same time serving the remainder of a sentence for
    a previous conviction or convictions.

Section 718.2(c) of the
Criminal Code
draws no
    distinction between these two types of scenario, and this Court and others have
    recognized that the totality principle applies where the offender is serving
    the remainder of a previous sentence:
R. v. Cathcart
, [1976] O.J. No.
    1225 (C.A.);
R. v. Gorham
(1987), 22 O.A.C. 237;
R. v. Bond
,
    [2005] O.J. No. 108 (C.A.);
R. v. Reid
, [2003] O.J. No. 3255 (C.A.);
R.
    v. Evans
(1975), 11 N.S.R. (2d) 91 (C.A.);

R. v. Bueger
(1994), 48 B.C.A.C. 266;
R. v. Saran
(1996), 113 Man. R. (2d) 205
    (C.A.);
R. v. Parry,
2012 ONCA 171, [2012] O.J. No. 1209.

[20]

Although
    they are codified, the principles of proportionality and totality are common
    law concepts and the approach outlined above is consistent with the premises
    underlying those concepts, as expressed in
M.(C.A.)
.  If sentences are
    unduly harsh and excessive, confidence in the fairness and rationality of the
    sentencing process is lost  see
Re B.C. Motor Vehicle Act
, at p. 533 
    and where consecutive sentences are unduly harsh and excessive, the overall
    length of incarceration may work against the attainment of the various goals of
    sentencing.  This is particularly so where, as here, the combined effect of the
    sentences threatens to encroach upon  or exceed  the offenders reasonable life
    expectancy.  Chief Justice Lamer underlined this rationale, at para. 74 of
M.(C.A.)
:

However, in the process of determining a just and appropriate
    fixed-term sentence of imprisonment, the sentencing judge should be mindful of
    the age of the offender in applying the relevant principles of sentencing.
After
    a certain point, the utilitarian and normative goals of sentencing will
    eventually begin to exhaust themselves once a contemplated sentence starts to
    surpass any reasonable estimation of the offenders remaining natural life
    span.
Accordingly, in exercising his or her specialized discretion under
    the
Code
, a sentencing judge should generally
refrain from
    imposing a fixed-term sentence which so greatly exceeds an offenders expected
    remaining life span that the traditional goals of sentencing, even general
    deterrence and denunciation, have all but depleted their functional value.
But with that consideration in mind, the governing principle remains the same:
    Canadian courts enjoy a broad discretion in imposing numerical sentences for
    single or multiple offences, subject only to the broad statutory parameters of
    the
Code
and the fundamental principle of our criminal law that global
    sentences be just and appropriate. [Emphasis added.]

[21]

The
    potential for unduly harsh sentences to frustrate the goals of the process
    exists whether the offender is incarcerated for an excessive period of time
    because of one sentence or a series of sentences imposed by the same judge, on
    the one hand, or because of the combined effect of a new sentence imposed by a
    subsequent judge and the remainder of an existing sentence.

[22]

At
    the same time, there is an additional level of concern that comes into play
    where a subsequent sentence is imposed on top of the remainder of an existing
    one, and, as a result, the totality principle has a somewhat tempered effect in
    such circumstances, in my view.  The underlying rationale of the sentencing
    regime supports this notion, too.

[23]

The
    system must be seen to be fair and rational  both to the offender and the
    community  and its integrity must be preserved.  Just as a sentence cannot be
    unduly harsh and excessive, neither can it be overly lenient or unresponsive to
    other purposes and principles that underpin the sentencing regime  denunciation,
    deterrence, the promotion of a sense of responsibility in offenders and
    acknowledgement of harm done to victims and the community, and the protection
    of the public:
Criminal Code
, s. 718.  In this sense, an offender such
    as the appellant ought not to be seen to be reaping benefits from his previous
    serious criminal misconduct.  As this Court observed in
Gorham
:

It was argued that, in its totality, the sentence was too
    severe and crushing.  In our view the principle of totality must have a
    substantially reduced effect upon a sentence where a part of the total term is
    based upon a remanet.  Neither one who is unlawfully at large nor one who is at
    liberty on mandatory supervision should be entitled to benefit from the remanet
    which must be served if a new offence is committed.

[24]

I
    read this not as an indication that the principle of totality has only minimal
    application in situations where the offender is serving the remainder of an
    existing sentence.  The Court said only that the principle will have a
    substantially reduced effect in such circumstances. I take the Court to be
    indicating, rather, that there are other considerations regarding the need to
    protect the integrity of the sentencing process  public confidence in the
    fairness and rationality of the system, in the words of Wilson J. in
Re
    B.C. Motor Vehicle Act
 that must be taken into account in such
    circumstances.  This need to protect the integrity of the sentencing process,
    and the overall purposes and goals of sentencing, are to be balanced against
    the recognition that there will be situations where, globally speaking, a
    combined sentence will simply be too harsh and excessive.

[25]

In
Sentencing: The Practitioners Guide,
the authors suggest that the
    court will balance the length of the unexpired term of the offenders sentence
    against the aggravating effect of the commission of an offence while on parole
    [or other form of temporary release]: Gary R. Clewley, Paul G. McDermott and
    Rachel E. Young,
Sentencing: The Practitioners Guide

(Toronto:
    Canada Law Book, 2011), at para. 1.570(d).  I agree to the extent that, at the
    end of the day, the subsequent sentencing judge will determine how much weight
    to give to the existing remaining sentence by assessing whether the length of
    the proposed sentence
plus
the existing sentence will result in a just
    and appropriate disposition that reflects as aptly as possible the relevant
    principles and goals of sentencing in the circumstances.

Application of
    the Totality Principle in the Circumstances

[26]

Here,
    the sentencing judge did not address her mind to the principle of totality.  Having
    regard to the foregoing considerations, I am persuaded that the combined
    sentence of 23 years imprisonment imposed on the appellant is unduly long and
    harsh.  I would reduce each of the concurrent sentences of 14 years in relation
    to the 9 current convictions to 11 years for a global sentence of 20 years.

[27]

Although
    he is apparently unremitting in his commitment to a life of crime, the appellant is not the worst of the world’s bank robbers nor are his robberies the worst of that type of crime.  The appellant’s “note passing”
modus operandi
has not involved the actual use of real or imitation weapons, although it threatened such use.  The robberies were very serious, as I have noted above, but they were not armed robberies.

[28]

The
    appellant was 54 years old at the time of his most recent convictions and the
    14-year concurrent sentences accompanying them.  He is a hardened and chronic
    recidivist  particularly when it comes to bank robberies  but he did express
    remorse by pleading guilty and in his comments at the sentencing hearing
    appears to have been reaching out for assistance in coping with his drug
    addiction.  The sentencing judge excluded rehabilitation from her deliberations
    because she felt that, although the appellant had had some counselling over the
    years during his incarcerations, [i]t worked for a while, [but] it has not
    worked since.

[29]

In
    my view, the appellants potential for rehabilitation should not have been
    disregarded completely, albeit that his antecedents suggest the prospects may
    be dim and that the concepts of denunciation, deterrence and protection of the
    public are paramount in these circumstances.  As Professor Allan Manson notes
    in
The Law of Sentencing
(Toronto: Irwin Law, 2001), at p. 102,
    [e]ven when there is little evidence of positive rehabilitative prospects,
    total sentences should not be so long as to crush optimism about eventual
    re-integration.  See also
R. v. Manybears
, 2009 ABCA 82, 457 A.R. 101,
    at para. 8.  To repeat the guiding language of Lamer C.J. in
M.(C.A.)
,
    at para 74:

the sentencing judge should be mindful of the age of the
    offender in applying the relevant principles of sentencing.
After a
    certain point, the utilitarian and normative goals of sentencing will
    eventually begin to exhaust themselves once a contemplated sentence starts to
    surpass any reasonable estimation of the offenders remaining natural life
    span.
Accordingly, in exercising his or her specialized discretion under
    the
Code, a sentencing judge should generally refrain from imposing a
    fixed-term sentence which so greatly exceeds an offenders expected remaining
    life span that the traditional goals of sentencing, even general deterrence and
    denunciation, have all but depleted their functional value.
[Emphasis
    added.]

[30]

If
    the sentences under appeal are upheld, the appellant would be 77 years old after
    serving a total sentence of 23 years.  While not greatly exceed[ing] [his]
    expected remaining life span, perhaps, the combined sentence comes close to
    the point of crushing all hope.  Some might say that a person in the
    appellants position deserves such an outcome.  But I do not believe it to be
    what the principle of totality calls for here.

Disposition

[31]

In
    all of the circumstances, I am persuaded that a global sentence of 23 years
    imprisonment is unduly long and harsh.  At the same time, the principle of
    totality is tempered and must co-exist with other considerations relating to
    the integrity of Canadas sentencing regime where the crimes for which the
    offender is currently being sentenced were committed while the offender was on
    parole or other form of statutory release in relation to a prior existing
    sentence.  This is particularly so where  as here  the offender is a serial
    criminal committing serious crimes.  The appellants history and extensive
    criminal record, together with the need for deterrence, denunciation, promotion
    of a sense of responsibility in the offender and acknowledgement of harm done
    to victims and to the community, as well as the protection of the public in his
    case, require a stiff consecutive sentence.

[32]

In
    varying the sentence, as I propose to do, I emphasize that in my opinion the
    concurrent sentences of 14 years imprisonment on the 9 robbery charges were
    quite appropriate, viewed alone.  A totality of 23 years imprisonment is unduly
    long and harsh, however  for all of the reasons outlined above  and I would
    accordingly reduce the global sentence to one of 20 years in order to achieve a
    result that I believe to be just and appropriate in all of the circumstances.

[33]

I
    would therefore grant leave to appeal sentence and vary the concurrent
    sentences of 14 years imprisonment on the 9 counts of robbery to one of 11 years
    concurrent, to be served consecutively to the remaining 9 years of the
    appellants previous sentence.

R.A. Blair J.A.

I agree John Laskin
    J.A.

I agree R.P. Armstrong
    J.A.

Released: May 23, 2012


