



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Clarke, 2014 ONCA 296

DATE: 20140417

DOCKET: C55913

Sharpe, Cronk and Juriansz JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kristopher Clarke

Appellant

Peter Lindsay, for the appellant

Gavin MacDonald, for the respondent

Heard: March 27, 2014

On appeal from the sentence imposed on July 25, 2012, by Justice
    John C. Moore of the Ontario Court of Justice.

By the Court:

[1]

The appellant was sentenced to two years less a day upon a joint
    submission following a guilty plea to charges of robbery, use of an imitation
    firearm, and disguise with intent. The appellant concedes that the sentence was
    fit when imposed but argues that the sentence should be reduced on account of
    fresh evidence relating to the steps he has taken towards rehabilitation
    following conviction and sentence.

The Offences

[2]

At the time of these offences, the appellant was 19 years old. The
    appellant entered a convenience store shortly after midnight wearing a skeleton
    style mask over his face. He pulled out an imitation handgun (a starters pistol),
    and pointed it at the head of the victim. He then pushed the weapon against the
    victims ribs and demanded cash and cigarettes, threatening to shoot the victim
    if he did not comply. The appellant was arrested shortly thereafter near the
    scene of the robbery.

The Joint Submission and Sentence Imposed

[3]

In accepting the joint submission, the sentencing judge took into
    account several mitigating factors.

[4]

First, the appellant was a youthful first offender who had entered a
    guilty plea and acknowledged the seriousness of his conduct.

[5]

Second, the appellant had what the sentencing judge described as an
    incredible amount of potential and that his chances for rehabilitation were
    very good. The appellant had the full support of his family and filed
    supportive letters from friends and from people with whom he had worked.

[6]

Third, the appellant had spent several months on fairly strict release
    pending trial and sentence and had abided by all terms.

[7]

Fourth, there was evidence the appellant was suffering from depression
    at the time of the offence and had stopped taking anti-depressant medication
    because he could not afford the medication and did not wish to ask his father
    for the money. A detailed psychiatric report stated that while it could not be
    said that the robbery was a direct result of the lack of medication, it could
    have been a factor.

[8]

The sentencing judge found that the sentence proposed by way of joint
    submission was appropriate although he added that it is not a sentence I am
    happy about imposing because of your age, and your potential, and everything
    else, but I have to do it.

[9]

The sentencing judge imposed a global sentence of two years less a day
    comprised of the minimum one year sentence for the use of the imitation firearm
    and a consecutive term of one year less a day on the offences of robbery and
    disguise with intent.

The Appeal

[10]

The
    appellant initially appealed his conviction raising a claim of ineffective
    assistance of counsel. After serving 28 days in custody he was released on bail
    pending appeal. More than one year later, following receipt of a responding
    affidavit from his trial counsel and cross-examination on that affidavit and on
    his own affidavit, the appellant confirmed that he was no longer pursuing the
    conviction appeal and that he would be appealing sentence alone.

[11]

The
    appeal from sentence is based upon fresh evidence as to the steps the appellant
    has taken towards rehabilitation since the sentence was imposed and during the
    period of time he has been on bail pending this appeal. He asks us to consider
    reducing the sentence to between 12 and 18 months.

[12]

While
    the appellant raised the issue of appropriate credit for the period of time he
    spend on relatively strict conditions of release pending trial in his factum, that
    ground was not pressed in oral argument and, in view of the joint submission
    and the sentence that was imposed, it is without merit.

Analysis

[13]

The
    proposed fresh evidence falls into three categories.

[14]

First,
    there are several letters of support from friends and colleagues of the
    appellants parents. These letters are written from the vantage point of
    persons who have known the appellants family for many years. In our view, they
    add little to the letters of support filed at the time the appellant was
    sentenced and that were available to the sentencing judge.

[15]

Second
    are letters from the appellants employers. These letters indicate, with no
    detail as to time or duration of employment, that the appellant has held
    part-time jobs in Subway restaurants.

[16]

Third
    are letters relating to the appellants education. Since he was sentenced, he
    has completed the credit he needed to complete his high school diploma. He has
    taken courses at Ryerson (something he had started to do before sentencing) and
    he has enrolled in Seneca Colleges Environmental Landscape Management Course
    where he appears to be doing well.

[17]

The
    appellant is certainly to be commended for his success in securing part-time
    employment and moving forward with his education. However, it was because of
    his potential and predicted success on those fronts that he secured the benefit
    of a relatively lenient sentence based upon a joint submission.

[18]

Sentencing
    a youthful first offender who demonstrates potential for rehabilitation is a
    difficult and at times agonizing task. In this case, the offences were serious
    but the appellants potential for rehabilitation is high. The sentencing judge
    followed a joint submission and imposed the sentence that was plainly at the
    low-end of the range. It is well-established in the case law that robbery of a
    convenience store at night while wearing a disguise required custodial time in
    addition to the one year minimum for the firearms offence. It is clear from the
    sentencing judges reasons that the age and potential of the appellant made him
    reluctant to impose even that sentence, but that he felt compelled to do so by
    the law.

[19]

After
    giving the matter careful consideration, we have come to the conclusion that
    the fresh evidence we have does not significantly alter the picture that was
    presented to the sentencing judge. Then, as now, the appellant is a youthful first
    offender who committed very serious offences and who shows good potential for
    rehabilitation. Then, as now, he has the full support of his friends and
    family. While the appellant appears to have made progress with his education since
    he was released on bail pending appeal we cannot say that the fresh evidence
    demonstrates a significant change of circumstances sufficient to permit us to
    reduce the sentence imposed by the sentencing judge.

[20]

In
    the end, we find ourselves essentially in the same position as the sentencing
    judge. We understand the trial judges unhappiness about having to impose the
    sentence of two years less a day on this young offender. However, given the
    gravity of the offence, the governing law, and the fact that the sentence was
    at the low end of the range and imposed following a joint submission, we
    consider that in law we must uphold the sentence.

Disposition

[21]

For
    these reasons, we conclude that the fresh evidence fails to meet the threshold
    required for admission on appeal. Accordingly, we dismiss the application to
    admit the fresh evidence and while we grant leave to appeal, we dismiss the
    sentence appeal.

Robert J .Sharpe J.A.

E.A. Cronk J.A.

R.G. Juriansz J.A.

Released: April 17, 2014


