The accused was charged with robbery arising out of a home invasion. The accused broke into the home of the victim to rob him of Oxycontin that the accused believed the victim had previously stolen from a pharmacy. The accused was convicted. At the sentencing hearing the Crown sought a sentence of eight years; the defence sought a sentence of three and a half years. The accused had a significant criminal record including four penitentiary sentences [para 2]. The trial judge considered the fact that the accused had been on release at a treatment facility, Harvest House, and granted the accused 1.6 to 1 credit for that time. Taking that into account, the trial judge imposed a total sentence of three and a half years. The Crown appealed.
Two issues were dealt with by the Court of Appeal. First, the issue of dead time was considered. On that point, the Court of Appeal found that the trial judge erred. While acknowledging that R v Downes, 2006 CarswellOnt 778, [2006] OJ No 555 (CA) provides authority for such credit, the court emphasized that such credit is not automatic (see R v Rice, [2004] OJ No 5197 (CA) and R v Fobister, [2010] OJ No 5989) and in the present case it was an error to grant it [para 10].
Two issues were dealt with by the Court of Appeal. First, the issue of dead time was considered. On that point, the Court of Appeal found that the trial judge erred. While acknowledging that R v Downes, 2006 CarswellOnt 778, [2006] OJ No 555 (CA) provides authority for such credit, the court emphasized that such credit is not automatic (see R v Rice, [2004] OJ No 5197 (CA) and R v Fobister, [2010] OJ No 5989) and in the present case it was an error to grant it [para 10].
Second, the court addressed the fitness of the sentence. While upholding the sentence – in the rare circumstances of the offender – the court nonetheless provided the following helpful guidance: “We agree with the Crown that the sentence imposed is outside the normal range of five years and up for a home invasion robbery…In this case, giving priority to the principles of general deterrence and denunciation, an appropriate sentence would have been a period of incarceration of 8 years” [para 11].
DG Mack