R. v. McGarrett Johnson (R.)

• Jurisdiction: Manitoba
• Court: Court of Appeal (Manitoba)
• Judge: Monnin, MacInnes and Beard, JJ.A.
• Citation: (2015), 319 Man.R.(2d) 114 (CA),2015 MBCA 50
• Date: 03 December 2014

R. v. McGarrett Johnson (R.) (2015), 319 Man.R.(2d) 114 (CA);

      638 W.A.C. 114

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. MY.025

Her Majesty The Queen (respondent) v. Rondell McGarrett Johnson (accused/appellant)

(AR 14-30-08105; 2015 MBCA 50)

Indexed As: R. v. McGarrett Johnson (R.)

Manitoba Court of Appeal

Monnin, MacInnes and Beard, JJ.A.

May 14, 2015.

Summary:

The accused was sentenced to seven years' imprisonment for robbery, less 10 months for pre-sentence custody, one year consecutive for use of an imitation firearm, one year concurrent for wearing a mask and six months concurrent for public mischief, resulting in a net global sentence of seven years and two months. The accused moved for leave to appeal the sentences for robbery and using an imitation firearm.

The Manitoba Court of Appeal granted leave to appeal, allowed the appeal and substituted a sentence of five years' imprisonment for robbery, less 15 months for pre-sentence custody and one year consecutive for use of an imitation firearm. This resulted in a net global sentence for all offences of four years and nine months.

Criminal Law - Topic 5804

Sentencing - General - Consecutive sentences - Reduced total term (totality principle) - The accused, while dressed as a female clown, wearing a mask and carrying an imitation handgun, robbed three bank tellers and fled - At the time of sentencing, he was 40 years old - He had a lengthy criminal record in the United States - Many of the U.S. convictions were related to drugs - There were no robbery convictions - The trial judge sentenced the accused to seven years' imprisonment for robbery, less 10 months for 10 months of pre-sentence custody, one year consecutive for use of an imitation firearm, one year concurrent for wearing a mask and six months concurrent for public mischief, resulting in a net global sentence of seven years and two months - The accused appealed the sentences for robbery and use of an imitation firearm - The Manitoba Court of Appeal noted that the Crown had conceded that contrary to its position at trial, the use of an imitation firearm should not be treated as an aggravating factor (the court did not decide the issue) - The Crown also conceded, and the court concurred, that the trial judge erred in not making it clear what, if any, adjustments were made to comply with the totality principle and in failing to give reasons for the credit given for the pre-sentence custody - Given these concessions and errors, no deference was owed to the sentence imposed at trial - The court substituted a sentence of five years' imprisonment for robbery, less 15 months for pre-sentence custody, and one year consecutive for use of an imitation firearm - This resulted in a net global sentence for all offences of four years and nine months.

Criminal Law - Topic 5810.2

Sentencing - Sentencing procedure and rights of the accused - Reasons for sentence - [See Criminal Law - Topic 5804 ].

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served - [See Criminal Law - Topic 5804 ].

Criminal Law - Topic 5855

Sentence - Robbery - [See Criminal Law - Topic 5804 ].

Criminal Law - Topic 5917

Sentence - Use of firearm during offence - [See Criminal Law - Topic 5804 ].

Criminal Law - Topic 6201

Sentencing - Appeals - Variation of sentence - Powers of appeal court (incl. standard of review - [See Criminal Law - Topic 5804 ].

Criminal Law - Topic 6203

Sentencing - Appeals - Variation of sentence - Grounds for varying sentence imposed by trial judge - [See Criminal Law - Topic 5804 ].

Cases Noticed:

R. v. St. Amand (1982), 67 C.C.C.(2d) 130 (Ont. C.A.), refd to. [para. 14].

R. v. Flanders (1984), 65 N.S.R.(2d) 171; 147 A.P.R. 171 (C.A.), refd to. [para. 14].

R. v. Warkentin (C.) (1994), 125 Sask.R. 236; 87 W.A.C. 236 (C.A.), refd to. [para. 14].

R. v. Brewer (P.J.) (1999), 182 Nfld. & P.E.I.R. 14; 554 A.P.R. 14; 141 C.C.C.(3d) 290 (Nfld. C.A.), refd to. [para. 14].

R. v. McKinney (J.E.) (1994), 39 B.C.A.C. 233; 64 W.A.C. 233 (C.A.), refd to. [para. 14].

R. v. Fearon (C.J.) (1995), 65 B.C.A.C. 223; 106 W.A.C. 223 (C.A.), refd to. [para. 14].

R. v. Abiodun (D.O.), [2013] A.R. Uned. 124; 2013 ABCA 185, refd to. [para. 14].

R. v. Araya (N.) (2013), 312 O.A.C. 284; 2013 ONCA 734, refd to. [para. 15].

R. v. Wills (B.) (2014), 318 O.A.C. 99; 308 C.C.C.(3d) 109; 2014 ONCA 178, refd to. [para. 15].

R. v. Summers (S.), [2014] 1 S.C.R. 575; 456 N.R. 1; 316 O.A.C. 349; 2014 SCC 26, refd to. [para. 15].

R. v. Proulx (J.K.D.), [2000] 1 S.C.R. 61; 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161; 2000 SCC 5, refd to. [para. 17].

R. v. Foianesi (L.) (2011), 262 Man.R.(2d) 312; 507 W.A.C. 312; 2011 MBCA 33, refd to. [para. 17].

R. v. Ipeelee (M.), [2012] 1 S.C.R. 433; 428 N.R. 1; 288 O.A.C. 224; 318 B.C.A.C. 1; 541 W.A.C. 1; 2012 SCC 13, refd to. [para. 17].

R. v. Smoke (D.D.) (2014), 310 Man.R.(2d) 123; 618 W.A.C. 123; 2014 MBCA 91, refd to. [para. 17].

R. v. Draper (T.G.) (2010), 251 Man.R.(2d) 267; 478 W.A.C. 267; 2010 MBCA 35, refd to. [para. 18].

R. v. Stonefish (S.T.) (2012), 288 Man.R.(2d) 103; 564 W.A.C. 103; 2012 MBCA 116, refd to. [para. 19].

R. v. Nembhard (J.), [2010] O.A.C. Uned. 279; 2010 ONCA 420, refd to. [para. 21].

R. v. D.R.Z., 2011 BCPC 295, refd to. [para. 21].

R. v. Doumont, [1984] B.C.J. No. 1838 (C.A.), refd to. [para. 22].

R. v. Nadeau (P.J.), [1999] A.R. Uned. 174; 1999 ABCA 219, refd to. [para. 22].

Authors and Works Noticed:

Ruby, Clayton C., Chan, Gerald J., and Hasan, Nader R., Sentencing (8th Ed. 2012), pp. 961, 962, para. 23.404 [para. 24]; paras. 23.413, 23.422 [para. 25].

Counsel:

L.J.W. Tailleur and J.G. Neufeld, for the appellant;

N.M. Cutler, for the respondent.

This appeal was heard on December 3, 2014, by Monnin, MacInnes and Beard, JJ.A., of the Manitoba Court of Appeal. Beard, J.A., delivered the following judgment for the court on May 14, 2015.