J. THE COURT OF APPEAL FOR SASKATCHEWAN HER MAJESTY THE QUEEN and RANDALL DESNOMIE CORAM: The Honourable Mr. Justice Cameron The Honourable Mr. Justice Sherstobitoff The Honourable Mr. Justice Lane COUNSEL: Mr. D.M. Brown, Q.C. for the Crown Ms. C.G. Covert for the Respondent DISPOSITION: Appeal Heard: March 8, 1996 Appeal Allowed: March 8, 1996 (orally) Reasons: March 21, 1996 On Appeal From: QBCNJ 39 of 1995, J.C. of Regina Appeal File: 6807 Reasons by: The Honourable Mr. Justice Sherstobitoff In concurrence: The Honourable Mr. Justice Cameron and The Honourable Mr. Justice Lane SHERSTOBITOFF J.A. (orally) This is a Crown appeal against two sentences of two years less a day each, to be served concurrently. The sentences were imposed in respect of two convictions for armed robbery. The respondent agreed that the facts of the case were accurately set out in the Crown factum as follows: On September 10, 1994 the Respondent negotiated sale of hash oil to be supplied by the complainant Jesse Thorseth. The arrangement was for the Respondent to come to Mr. Thorseth's apartment in the evening to pick it up. The Respondent had only $425.00 of the $450.00 which was the negotiated price but Mr. Thorseth agreed that it was sufficient. Although they sampled some of the hash together and the Respondent agreed it was sufficient quality, when the Respondent returned to his mother's apartment he decided that the hash was no good. The Respondent was angry that he had been ripped off and returned to Mr. Thorseth's apartment to confront him and get his money back. At that point Mr. Thorseth said that he did not have the money any longer. The Respondent didn't believe this to be true since he had only been away from the apartment for five minutes and therefore he pulled out knife and threatened Mr. Thorseth. Eventually, the Respondent found the money underneath Mr. Thorseth's bed. He took that money and in addition took $5 or $6 in change and some jewellery that was laying on the counter which belonged to Mareea Spyropoulos. Ms. Spyropoulos was not involved in the negotiation of the sale of the drugs and was likely in the washroom during the initial transaction. She was frightened by the Respondent's threatening behaviour with the knife. The Respondent was arrested on the charge on September 22, 1994. As he was at that time on parole for his conviction of January 23, 1992 for robbery, his parole was revoked. The service of that sentence concluded on March 4, 1995 and he was held on Remand until the date of sentencing, September 22, 1995. In the proceedings before the trial court, it was considered that he had been on Remand the entire time being one year. Mr. Justice D.E.W. McIntyre felt that sentence of four years imprisonment would be appropriate in the circumstances of this case. He gave credit of two years for the one year he believed the Respondent had spent on Remand and therefore imposed sentence of two years less one day concurrent on each charge. In addition, firearms prohibition under Section 100 of the Criminal Code was made for life. Some additional facts set out in the respondent's factum are not reproduced because they are not relevant to the appeal. The appellant is 32 years of age and has 32 previous convictions including two armed robberies and seven other convictions relating to possession of weapons. As noted earlier, he was on parole for an earlier armed robbery when this offence occurred. The appellant has common law wife, four children from previous unions, and an aged mother who is at least partially dependent on him. He has Grade 12 education and was pursuing secondary education at the Saskatchewan Indian Federated College. Indeed, his only excuse for the drug deal was that he needed the money from "peddling dope" to pursue his education and to meet the needs of his children. He said the robbery was unpremeditated and occurred only because the money he paid for the drugs was very large sum to him, and the robbery was necessary to recoup the money because the drugs were bad. The Crown appeal must be allowed for two reasons. First of all, the judge clearly made an error in calculating the time on remand that should have been credited to the sentence for this offence — only the period from March 4, 1995, to September 22, 1995, approximately six months, should have been so counted rather than the whole year. Second, given the record of the appellant, particularly in respect of armed robbery and weapons offences, these offences demanded a sentence of more than the three year minimum generally imposed for such offences. Taking all of these factors into account, and even allowing some discount for the fact that the robbery occurred during the course of an illegal drug transaction, the sentences for each offence should be increased to three years imprisonment, the sentences to be served concurrently. There will be an order accordingly.
The Crown appealed two sentences of two years less a day each, to be served concurrently for armed robbery. The 32 year old appellant had 32 previous convictions including two armed robberies and seven convictions relating to possession of weapons. HELD: The Crown appeal was allowed and the sentence for each offence was increased to three years imprisonment to be served concurrently. 1)The judge made an error in calculating the time on remand that should have been credited to the sentence. Only six months rather than the whole year should have been counted. 2)Given the appellant's record these offences demanded more than the three year minimum generally imposed.