Decisions of the Court of Appeal

Introduction

[1]              On February 6, 2009 Mr. Chevers was convicted of attempted murder and two other firearms offences.  The trial judge sentenced him to a global period of 15 years imprisonment less pre-sentence credit of 4 years, leaving a net sentence of 11 years to be served in prison. 

[2]              Mr. Chevers was 24 years old when he committed the offences.   It is accepted that he has a troubled background and a criminal record with the most significant prior offence being the possession of a firearm in a vehicle. 

[3]              Mr. Chevers argues that the trial judge committed three errors: (i) overemphasizing the infrequency of related crime in the community; (ii) taking judicial notice of a fact not shown in evidence; and (iii) the sentence was harsh and excessive.

Discussion

[4]              The trial judge emphasized the impact of the offence on the community and noted the prominence of deterrence and denunciation as the key sentencing principles in the circumstances.  In his reasons for sentence, the trial judge described the offences this way:

The facts here are alarming.  It calls for, because of the nature of the event and specifically the use of a handgun, greater sanctions for the benefit and welfare of our community and for the public interest.

Here we have a situation where Mr. Chevers, in an unprovoked, premeditated, cold-blooded manner, attempted to murder [the victim], and by mere chance, he missed: probably because he was using a 22 calibre weapon.

[5]              The trial judge’s reasons do not disclose any error and there is no reason for this court to intervene.  For several reasons, each of Mr. Chevers’ grounds of appeal must fail.

[6]              First, the trial judge was entitled to consider the harm to the community occasioned by the offence.  In doing so, he did not take improper judicial notice of questionable facts, but merely noted that crimes of this nature are not restricted to large urban centres.

[7]              Second, the trial judge acknowledged the relative youth of Mr. Chevers and the fact that a “crushing sentence” would void any hope of rehabilitation.  Ultimately, however, he was concerned with the nature of the offence and the use of the handgun, particularly given the weapons prohibition Mr. Chevers was under.   

[8]              Finally, double digit prison sentences for attempt murder have been imposed in cases of planned executions involving the use of loaded firearms: see for example R. v. Tan, 2008 ONCA 574. 

[9]              The 15 year sentence was appropriate in this case given:

·               the premeditation,

·               the use of a prohibited handgun,

·               the firing of two shots – one directly at the victim’s head,

·               Mr. Chevers’ prior criminal record – including possession of a prohibited/restricted firearm with ammunition, and,

·               the impact on the victim and on the community. 

[10]         The limited mitigating factor of age was properly considered by the trial judge. 

[11]         In the result, leave to appeal sentence is granted, although the appeal is dismissed.

“M. Rosenberg J.A.”

“E.E. Gillese J.A.”

“H.S. LaForme J.A.”