Decisions of the Court of Appeal

[1]              This is a Crown appeal from sentence.  Following his trial, Walsh was found guilty of robbery, assault causing bodily harm committed as part of the robbery and breach of undertaking.  The offences occurred during a home invasion in search of the drug Oxycontin, a drug that Walsh, a self described addict and drug dealer, understood had been stolen from a pharmacy by the victim.

[2]              The Crown sought a sentence of eight years imprisonment.  The defence sought a sentence of three and a half years imprisonment.  Walsh had previously served four penitentiary sentences.  Two of those sentences were for four years each.

[3]              After giving Walsh 2 years’ credit (1.6 to 1 credit)[1] for time spent in Harvest House, a treatment facility, the trial judge sentenced him to18 months imprisonment plus three years probation.

[4]              The trial judge gave no reasons for awarding credit for time spent in Harvest House.  Overall, the very experienced trial judge was impressed with the great strides in rehabilitation Walsh made.

[5]              At his sentencing hearing, Mr. Main, the pastor and recent executive director of Harvest House, testified concerning the exceptional efforts Walsh had made both in reforming himself and in contributing to the community.  After acknowledging his drug problem and desire to reform, Walsh stood up in meetings and told people he was on the staff side and if they brought drugs in he would go to the staff and report them.  He worked exceptionally hard.  He spent extra hours doing volunteer fundraising on the telephone and in the community; he contributed time as a volunteer to the junior hockey triple A program.  He also went on television and radio to discuss the problem of drugs on the street.  The aim of these appearances was to speak about the addictive properties of Oxycontin, the fact that it creates an almost immediate addiction, that you do not get a chance to back out, and that the end result is always the same, jail or death.  He wanted to scare people who had a propensity to abuse Oxycontin or cocaine and its derivatives away from the drug.  After finishing the program at Harvest House, he continued to do volunteer work there pending sentencing.  

[6]              We note that no victim impact statement was filed at the sentencing hearing.

[7]              Walsh served six months of his sentence and was released on parole February 24, 2011.  A condition of his parole is that he is required to live at Harvest House for the duration of his parole.  He has now been on parole for seven weeks without incident.  In addition to residing at Harvest House, Walsh is taking further counselling for Anger Solutions through the John Howard Society.

[8]              The Crown appeals and alleges three errors in law.  Firstly, the sentencing judge erred in awarding two years credit for the time spent in the Harvest House treatment centre with no reasons.  Secondly, the trial judge failed to consider denunciation or general deterrence, and focused almost exclusively on rehabilitation.  Thirdly, the sentence was demonstrably unfit, having regard to the fact this was a home invasion robbery, an aggravating factor of the robbery, and Walsh’s lengthy criminal record.

[9]              We do not accept that the trial judge was correct in giving the credit he did for pre-trial custody.

[10]         Based on R. v. Downes (2006), 79 O.R. (3d) 321, it may be appropriate in some circumstances to give credit for the impact of pre-sentence release conditions.  However, this court has repeatedly made clear that such credit is not automatic and that bail conditions are not equivalent to pre-trial custody.  Specifically, this court held in R. v. Rice, [2004] O.J. No. 5197 (C.A.), that residence in a rehabilitative facility prior to sentencing should not automatically be equated with incarceration for the purposes of calculating credit for pre-trial custody.  Further, in R. v. Fobister, 2010 ONCA 7, this court rejected a trial judge’s decision to grant 1 to 1 credit for time spent in a treatment centre, noting that the jurisprudence “does not support credit at this level.”  Having regard to this error in principle we must therefore assess the overall fitness of the sentence.

[11]         We agree with the Crown that the sentence imposed is outside the normal range of five years and up for a home invasion robbery.  (See R. v. Wang, [2001] O.J. No. 1491 (C.A.); R. v. Wright (2006), 83 O.R. (3d) 427 (C.A.). At para. 24 of Wright, Blair J.A. explained that while rehabilitation should be considered, “the objectives of protection of the public, general deterrence and denunciation should be given priority ... a stiff penitentiary sentence is generally called for.”)  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.

[12]         Nothing we say here is intended to alter or detract in any way from the above-noted principles as stated by this court.  Moreover, we agree with the Crown that the trial judge overemphasized the concept of rehabilitation at the expense of the principles of deterrence and denunciation in his reasons.

[13]         However, at the hearing of the appeal we had the benefit of fresh evidence, filed on consent, with respect to Walsh’s rehabilitation and current status, that puts this case into a very rare category.  The fresh evidence confirms his unusual and exceptional efforts at rehabilitation and the continued success of those efforts.  In this sense, it may be said that in these particular circumstances his so-far successful rehabilitation is responsive as well to the sentencing principle of specific deterrence.  It may also be said, as counsel for Walsh submits – again, in this particular context – that the principle of general deterrence is at least partially accommodated through Walsh’s very public acknowledgement of his criminal career and his public attempts to educate those living similar lifestyles to understand that the consequences are “jail or death” (as he is reported to have put it) – all reinforced by his own transformation and reformation.

[14]         In the very particular circumstances of this case, therefore – given the rehabilitative progress Walsh has made and the fact that he is out in the community now and continuing not only to respond well but also to assist others facing drug-related problems – we are not inclined to interfere with the sentence imposed.  As counsel submits, further incarceration of Walsh would serve little useful purpose, and might well be counterproductive from a societal point of view as it could undermine what he appears genuinely to have achieved, take away what he has to offer to the community, and lead to a further cycle of harmful conduct towards that community.

[15]         Accordingly, while leave to appeal is granted, the appeal as to sentence is dismissed.

RELEASED:  Apr. 26, 2011                                                                        “K.M. Weiler J.A.”

   “KMW”                                                                                                      “R.A. Blair J.A.”

                                                                                                                        “G.J. Epstein J.A.”