19 January 2012

Rumpole and the New Math

The voice rasped down the phone line even before the receiver hit my ear.

“On the Upper Path these days,” the familiar voice solemnly declared, “four plus four is five and a half.”

“What?” your humble e-scribbler asked, figuring this must be the latest bit of gossip on the illegal drug trade or prostitution in Sin Jawns.

“On Duckworth Street, stunned arse. You know where that is, do you?”

He repeated himself slowly and carefully as if his audience were deaf or feeble minded or both.

“Four and four is five and a half.”

“What in the name of God are you talking about?”

“I’ll make it easier for you.  Test your numeracy skills, then.  You’re always going on about that.”

A sip of coffee and a pause was enough of a reply in whatever game he was at today.

“What is two times four?” he said, sounding for all the world like a school boy who had discovered his first play on words.

Another slurp and more silence.  Experience teaches that it is best just to let him ramble when he is in one of these moods. He knows you are listening and just needs to act out the little drama.

“What is four plus four?”

“Eight” went the reply, with only a hint of boredom.

“See,” says the familiar voice, “that’s why you will never be a justice of the Supreme Court of Newfoundland and Labrador.  No matter how hard you try, no matter what political arse you kiss, no matter how proper you are or how many times you stand up for truth, justice and fair play, you cannot ever get to sit with those learned men and women of the highest court in this land.”

“You,” he said, pausing on each word, “do not know the New Math.”

The voice then summarised a recent decision from the Supreme Court’s Appeals Division of an appeal of the sentences in an armed robbery trial. 

A young fellow turned up last year appealing the sentence in a robbery case.  He’d pleaded guilty to two sets of offenses committed six days apart.

In the first robbery, the young fellow and another man went into a convenience store in town with handkerchiefs on their faces and knives in hand. They tried to rob a customer and when that didn’t work they made off with cigarettes and lottery tickets.

The young fellow who showed up in appeals court “pleaded guilty to robbery with respect to the theft of the cash, cigarettes and tickets (s. 343(d) of the Criminal Code), attempted robbery of the customer with intent to steal her purse (s. 463(a) of the Code), wearing a mask with intent to commit an indictable offence (s. 351(2) of the Code) and breach of an existing probation order (s. 733.1(1)(a) of the Code). He was sentenced as follows for these offences:

Robbery (Count No. 7) 4 years

Attempted robbery (Count No. 9) 3 years, concurrent

Wearing face mask (Count No. 8) 1 year, concurrent

Breach of probation (Count No. 10) 1 day, consecutive”

In the second incident, the same young fellow “demanded and received $115 in cash, as well as some cigarettes. He then fled the store. He pleaded guilty to one count each of robbery, wearing a face mask and breach of probation. For these offences he was sentenced as follows:

Robbery (Count No. 1) 3 years (less 141 days pre-trial custody), consecutive to the robbery sentence for the Hamilton robbery

Wearing Face mask (Count No. 2) 1 year, concurrent

Breach of Probation (Count No. 3) 1 day, consecutive”

The quotes are from the appeals court decision issued on January 12.  As the decision puts it, the “net effect of the sentencing was that the appellant was sentenced to a total term of imprisonment of seven years (less 141 days) plus two additional days (for the breaches of probation).”  There was a lifetime firearms prohibition and a DNA order but those two didn’t factor into the appeal.

The young man and his lawyer thought that the judge didn’t get the totals right when he sorted out consecutive and concurrent sentences for all the offences.

After a lengthy explanation, the appeals court noted that the trial judge had followed the law in pretty well everything except the notion of “totality”.  That is, he not only looked at the individual sentences for the individual crimes, he also had to look at the amount of time it all added up to.

At this point, it is just as well to let the Chief Justice’s words speak for themselves:

(vi)  A Fit Sentence

[95] No issue was taken with the one year sentences for wearing a face mask or the three years for the attempted robbery. I do not propose to say anything further about them.

[96] Counsel for the appellant did not dispute the proposition that sentences of four years and three years for the Hamilton and Blackmarsh Robberies, respectively, were fit. Counsel for the Crown, although stating that he had “no issue” with those sentences, submitted that four years for each would be more appropriate.

[97] I agree that, in the circumstances of this case, parity requires a four year sentence to be imposed for the Hamilton Robbery because that was the sentence meted out to Mr. Hutchings’ co-robber. The sentence for that robbery can also be considered as a benchmark for the other. There is little to differentiate between them except that a customer was also involved in the Hamilton Robbery and there were two robbers. Both were convenience stores, the modus operandi was the same, only a small amount of money or merchandise was taken and the events took place at night. Mr. Hutchings must bear more responsibility for the Blackmarsh Robbery because he acted alone. It was also his second robbery in a very short time. These factors countervail to some extent for the fact that the Hamilton Robbery involved both a customer and a store employee. Given the sentencing judge’s identification of the prevalence of armed robberies in the community and that there is a need to protect people working in or using convenience stores late at night, a fit sentence for the second robbery should be four years.

[98] While this sentence is somewhat higher than the levels of sentence imposed in other comparable cases in this jurisdiction (See R. v. Sheppard (1997) 147 Nfld. & P.E.I.R. 304 (Nfld.C.A.) (no criminal record; one robbery with mask; severe gambling problem; four years reduced to three on appeal); R. v. Butt (1986), 59 Nfld. & P.E.I.R. 89 (Nfld.C.A.) (armed robbery of gas bar; four years reduced to two years less a day because of psychiatric illness); R. v. Pardy (1994), 126 Nfld. & P.E.I.R. 218 (Nfld.SCTD) (one robbery of service station, masked; prior convictions; three years); R. v. Power (2006), 262 Nfld. & P.E.I.R. 30 (NLSCTD) (robbery of restaurant; psychiatric disorders; joint submission of three years accepted), it is nevertheless justified given the present community problems with this type of offence, and the concern for the safety of vulnerable workers, as identified by the sentencing judge.

[99] As far as the sentences for breach of probation are concerned, a sentence of one day, as imposed by the sentencing judge is inappropriate. Sentences can range between one month and sometimes less to upwards of six months. See Murphy (six months); Oxford (three months). In Oxford, the Court accepted statements in prior cases that sentences for non-compliance with probation orders could be one month or less even where there are prior convictions.

[100] In the current case, Mr. Hutchings has several convictions for failure to comply with court orders. In light of the requirements of specific and general deterrence, I am satisfied in the circumstances that sentences of two months for each offence are necessary to achieve respect for the observance of court orders.

[101] I have already indicated that I agree that the two robberies should be considered separate criminal adventures and that the sentences, other things being equal, should be served consecutively. The robbery and attempted robbery at the Hamilton convenience store were part of the same criminal adventure and the sentences are appropriately made concurrent with each other. It is also appropriate to make the sentences for having the face masked concurrent with the respective robbery sentences, as they were part of and arose out of the robbery events. Sentences for breaches of court orders are generally an exception to the normal rules respecting consecutive and concurrent sentences. They should normally be made consecutive. I see no reason to depart from that approach here.

[102] Accordingly, before considering totality, the overall sentence would be eight years for the two robberies plus four months for the two breaches of probation orders for a total of eight years, four months.

[103] It is now necessary to consider totality, the application of which is engaged because some sentences are consecutive to each other.

[104] The most serious offences here are the robberies. The normal level of sentence for armed robberies of convenience stores-gas bars by a young person, masked, late at night where the money or merchandise taken is relatively small could range from three to five years. When compared with the total sentence of eight years four months that would otherwise be indicated, this would be a factor calling for a reduction in the overall sentence.

[105] There were two offence events. While not a rash of robberies, neither was it a single isolated incident. The two events occurred within a short period of time. Although the gravity of these offences can be regarded as not as serious as, say, large scale robberies where violence is actually perpetrated, they are nevertheless of great concern. Weapons were involved, Mr. Hutchings was masked and the offences were carried out at night when the victims were more vulnerable. The total sentence must reflect these factors.

[106] Mr. Hutchings has a lengthy prior criminal record spanning from late 2006 to mid-2009, involving a total of 26 offences, eleven of which were convictions for failure to comply with a previous undertaking, recognizance or probation order. Of the remaining 15 offences, nine were committed as a young offender and two as an adult. The sentencing for these offences occurred in four clusters as a youth and once as an adult. The sentence for the adult offences was 30 days intermittent plus 2 years probation for 2 counts of theft under $5,000 and 2 counts of failure to comply with a prior court order. The most concerning sentence as a young offender involved a conviction for armed robbery in 2006, where Mr. Hutchings was sentenced to 9 ½ months involving a combination of secure and open custody plus an additional 159 days supervision order and 12 months probation. This is a significant sentence in the context of a young offender where the emphasis is on rehabilitation. With that exception, none of the other youth sentences involved any significant amount of custodial time. The sentence for the current offences will be Mr. Hutchings’ first substantial period of imprisonment as an adult. The committing of the current offences does indicate, however, as the sentencing judge noted, that Mr. Hutchings “has not gotten the message” from the sentences imposed for his prior offences. That said, even though the sheer number of prior offences is a matter of considerable concern, a sentence of eight years, four months is a substantial movement from a thirty day intermittent sentence which was the longest period of jail time he had previously received as an adult, or even from 9 ½ months, which was the longest period of custody he had previously received as a young offender.

[107] Mr. Hutchings’ young age has to be considered in relation to his prospects for rehabilitation. Notwithstanding the absence of a pre-sentence report, the fact of his age should be taken into account insofar as his behaviour may be at least partially attributable to immaturity. While eight years, four months might not be considered a “crushing” sentence, it certainly will take away from him a substantial portion of his twenties which are important to a young man who is still maturing and developing those things, like job prospects and relationships, that provide the base for a productive life. This factor also points toward modifying the total sentence.

[108] Mr. Hutchings suffers, as noted by the sentencing judge, from a drug problem, a circumstance that often fuels the type of behavior for which he was sentenced. Some of the cases cited previously (e.g. Sheppard, Butt, Power) recognize addictions, such as gambling and alcohol dependency, or emotional or psychiatric illness as factors that may mitigate the severity of a sentencing disposition.

[109] Other appellate decisions recognize that it may be appropriate to reduce an overall sentence when an offender is being sentenced for multiple robberies committed in close succession. (See Wozny).

[110] Taking all these factors into consideration, and noting that a number of them point toward a reduction in overall sentence, I am satisfied that a sentence of eight years, four months is unduly long or harsh when measured against the gravity of the offences and the offender’s degree of responsibility. While recognizing the serious nature of this type of offence and that a considerable term of imprisonment is nevertheless warranted, a more appropriate overall sentence that will still recognize the inherent gravity of the offences would be five years, six months.

[111] To achieve this result, I would impose sentences as follows:

For the Hamilton Robbery:

Robbery 4 years

Attempted robbery 3 years, concurrent

Wearing a mask 1 year, concurrent

Breach of probation 2 months, concurrent [changed, for totality, from consecutive to concurrent]

For the Blackmarsh Robbery:

Robbery 1 year, 6 months consecutive [reduced, for totality, from an otherwise appropriate sentence of 4 years] (less 141 days pre-trial custody),

Wearing a mask 1 year, concurrent

Breach of probation 2 months, concurrent [changed, for totality, from consecutive to concurrent]

Summary and Disposition

[112]I would vary the sentence imposed by the sentencing judge as follows: for Count No. 1 on the Information to one year, six months (less 141 days pre-trial custody); Count No. 2 to one year concurrent; Count No. 3 to two months concurrent; Count No. 7 to four years consecutive; Count No. 8 to one year concurrent; Count No. 9 to three years concurrent; and Count No. 10 to two months concurrent.

“And that,” the voice chuckled down the phone line, “is how four and four gets you five and a half.

Next time, I’ll tell you how seven times 13 is 28.”

- srbp -