Case Name:

[1984] N.S.J. No. 294

61 N.S.R.(2d) 357

61 N.S.R.(2d) 357; 133 A.P.R. 357*

S.C.C. 00932


 Nova Scotia Supreme Court Appeal Division

Morrison, Macdonald and Pace, JJ.A.

February 6, 1984

(4 pages) (11 paras.)


Henry John Dietrich and Mark Arnold, for the accused
Dana Giovannetti, for the Crown

This application was heard on February 6, 1984, before Morrison, Macdonald and Pace, JJ.A., of the Nova Scotia Supreme Court, Appeal Division.

On February 6, 1984, Macdonald, J.A., delivered the following judgment orally for the Court of Appeal.

1     Macdonald, J.A., [orally]:-- On October 26, 1983, the appellant Gerald Burrell Johnson was convicted after trial before Chief Justice Glube and a jury on a bill of indictment charging that he robbed Arthur Harris of a sum of money. Chief Justice Glube sentenced the appellant for such offence to imprisonment for twelve years. He now applies for leave to appeal and, if leave be granted, appeals against the sentence on the following grounds:

2     This robbery was carried out on December 7, 1982, after the appellant and a companion had in effect broken into the rural residence of Mr. Harris. The relevant circumstances were detailed by Chief Justice Glube on the sentencing hearing as follows:

"...Mr. Harris then described what took place between 8:00 and 9:00 P.M. on December 7th, 1982, when two masked men came in, one with a sawed-off, twelve-gauge shotgun and the other, which he eventually determined had something in his hand. The robbers ripped his phone out, and Mr. and Mrs. Harris were told to lie on the floor with their hands behind their back. Mr. Harris was unable to do this, and he started to get to his knees, when he was struck twice on the head by, what we now learn, Mr. Johnson with a billy or blackjack and, as he said, this was done to show him that they meant business. Mrs. Harris cried out and she was struck several times by Mr. Johnson after the other person who was with Mr. Johnson said to keep her quiet. She was then bleeding from these blows. Mr. Harris was struck two additional times and he started to bleed and said on the stand that one of these blows caused him severe pain to his forehead. He, too, then had blood running down his face. He and his wife were not only beaten but threatened. Mr. Harris gave the money from his pocket and then he had to open the safe. He had a gun pointing at his back, and Mr. Johnson was threatening Mrs. Harris with a knife, saying, according to Mr. Harris' evidence, that "he would take her to the barn and cut her up" so Mr. Harris would not recognize his wife. Mr. Harris' ninety-three year old mother was also in the house, although apparently was not in any way harmed. Approximately fifteen to twenty thousand dollars was stolen according to Mr. Harris.

Afterwards, Mr. Johnson talked to a number of people about the robbery. He flashed money around and seemed rather to be bragging about this whole affair. Mr. Johnson and whoever was with him on that night of December 7th, 1982, not only violated the sancity of Mr. and Mrs. Harris' home but, in my view, Mr. Johnson and without any conscience brutally beat both Mr. and Mrs. Harris and made vicious threats to them. They may or may not have serious physical after-effects, [*page359] but I can well appreciate that they would have serious problems as a result of this robbery and, although I did not have the evidence of Mrs. Harris, I can well believe that she is suffering as a result, mentally suffering as a result of this, as Mr. Harris would be. And this is more so because of the age of the individuals. Mr. Harris is sixty-two and Mrs. Harris was forty-two years old at the time, and this was done with his mother, who was ninety-three, in the house."

3     Mr. Johnson is now forty-two years of age. He has a prior criminal record consisting of approximately nineteen convictions, including two for robbery, four for theft and two for possession of stolen property. He also has two convictions for causing bodily harm and two convictions for aggravated assault.

4     With respect to the first ground of appeal, counsel for the appellant contends that the trial judge erred in holding that reformation and rehabilitation were totally inappropriate for consideration. In imposing sentence Chief Justice Glube said:

"...Normally, when I look at the aims of sentencing, I think of reformation and rehabilitation; however, this would seem totally inappropriate in your case, Mr. Johnson. You have had that opportunity in the past with various light sentences, and you've not obviously taken any advantage of it at all, except to go on to greater crime. So I must look at deterrence to teach you and others who might be thinking of this sort of crime that you cannot go on this route and to demonstrate to potential offenders the consequences of violating the law."

5     These remarks were made only after the trial judge had heard not only the evidence on the trial but also the submissions made on behalf of Mr. Johnson.

6     In view of his age, his previous criminal record and the aggravated circumstances of this case, we agree with Chief Justice Glube that deterrence was the primary consideration. Indeed, not only do we not think that she erred as alleged, we endorse her comments.

7     With respect to the second ground of appeal, counsel for the appellant referred to judgments of this court wherein the sentences of less than twelve years were affirmed in aggravated cases of robbery.

8     It must be remembered that this court will not interfere with a sentence unless the trial judge acted on a wrong principle or unless the sentence is so excessive or so inadequate as to by such fact alone reflect error in principle. Therefore, simply because this court affirms a sentence does not mean that one somewhat higher or somewhat lower might not also be appropriate.

9     We agree with Crown counsel that this was a robbery aggravated by the following factors;

"(1) It was planned and apparently with knowledge that a large sum of money was kept in a safe.

10     In light of the circumstances surrounding this robbery and in view of the criminal record of the appellant, we have no hesitation in saying that, in [*page360] our opinion, the sentence of twelve years' imprisonment imposed for this offence by this offender was fit and proper under all the circumstances.

11     In result, the application of Mr. Johnson for leave to appeal against his sentence is hereby dismissed.

Application dismissed.