Citation: R. v. Cullen Date: PESCAD 16 Docket: AD-0862 Registry: Charlottetown

Transcription

1 Citation: R. v. Cullen Date: PESCAD 16 Docket: AD-0862 Registry: Charlottetown PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - APPEAL DIVISION BETWEEN: AND: HER MAJESTY THE QUEEN JAMES PATRICK CULLEN APPELLANT RESPONDENT Before: The Honorable Chief Justice N.H. Carruthers The Honorable Mr. Justice G.E. Mitchell The Honorable Mr. Justice J.A. McQuaid Darrell E. Coombs Counsel for the Appellant W. Kent Brown, Q.C. Counsel for the Respondent Place and Date of Hearing Place and Date of Judgment Charlottetown, Prince Edward Island April 5, 2000 Charlottetown, Prince Edward Island May 17, 2000 Written Reasons by: The Honorable Mr. Justice J.A. McQuaid

2 Concurred in by: The Honorable Chief Justice N.H. Carruthers The Honorable Mr. Justice G.E. Mitchell Citation: R. v. Cullen Date: PESCAD 16 Docket: AD-0862 Registry: Charlottetown HER MAJESTY THE QUEEN AND JAMES PATRICK CULLEN APPELLANT RESPONDENT (11 pages) Before: Carruthers, C.J.P.E.I.; Mitchell and McQuaid, JJ.A. Heard: April 5, 2000 Judgment: May 17, 2000 CRIMINAL LAW - SENTENCING - Sentences, particular offences - Use of a firearm in the commission of robbery - Appeals, variation of sentence The Court of Appeal increased the sentence imposed by the sentencing judge from five years to seven and one-half years. CASES CONSIDERED: R v. Doughty (1978), 40 C.C.C. (2d) 224 (P.E.I.S.C. in banco); R. v. Proulx 2000 SCC 5; R. v. Shropshire, [1995] 4 S.C.R. 227 (S.C.C.); R. v. M. (C.A.), [1996] 1 S.C.R. 500 (S.C.C.); R. v. McDonnell (1997), 114 C.C.C. (3d) 436 (S.C.C.); R. v. Wust 2000 SCC 18; R. v. Callan, [1999] O.J. No (QL) (Ont. S.C.); R. v. Ross, [1999] M.J. No. 238 (QL) (Man. C.A.); R. v. Klopcic, [1997] B.C.J. No (QL) (B.C.S.C.) STATUTES CONSIDERED: CRIMINAL CODE, R.S.C. 1985, c. C-46, s.85, s. 109, s-s.109(1), s-s.109(1)(d), s-s.109(3), s.303, s-s.343(d), s.344, s-s.344(a), ss.718, s.718.1, s.718.2(a) and (b), s-s.718.3(1) and (2), s-s.719(3),; Firearms Act, S.C. 1995, c.39 Canadian Charter of Rights and Freedoms, being Part I of the

3 Constitution Act, 1982, s.12 Darrell E. Coombs, for the appellant W. Kent Brown, Q.C., for the respondent

4 McQUAID J.A.: FACTS AND BACKGROUND [1] On August 23, 1999 at approximately 6:00 p.m., the respondent was driven to the Oak Tree Place Mall on Upper Queen Street, Charlottetown, P.E.I. The driver of the vehicle parked in front of the parcel pickup exit of the Island Food Centre Co-op. The respondent exited the vehicle and entered the Co-op through the parcel pickup exit door, walked down a dimly lit alley which led to a small office where the head cashier was totalling the cash and preparing a bank deposit. [2] The respondent wore a dark blue nylon stocking over his face. He was dressed in black, carried a 12-gauge sawed-off shot gun and wore two belts full of shotgun shells, one around his neck and one around his waist. There were very few customers in the store when the respondent entered and only two cashiers were working. [3] The respondent opened the door to the office where the head cashier was working and said give me all your money. The head cashier initially thought another employee was playing a practical joke. The respondent pointed the sawed off shot gun at her and shouted I am not fucking around. [4] He opened his jacket and showed the clerk the gun belts full of shot gun shells. He then threw a black nylon bag on the floor and ordered the clerk to fill it with money. She emptied her cash tray and was ordered by the respondent to fill the kit bag with cash and cheques from a locked cabinet. The total amount of cash put into the bag was $10, and cheques in the amount of $3, He left the store through the alley leading to the parcel pickup exit. The robbery was witnessed by one of the cashiers whose work station was close to the office of the head cashier. [5] The respondent drove off in the vehicle and proceeded directly to a residence situated at 10 Young Street in Charlottetown. The residence was occupied by the former common law spouse of the respondent and the mother of his two teenage daughters. The arrival at the residence by the respondent and his accomplice was both unannounced and uninvited.

5 Page: 2 [6] The respondent ordered his former common law spouse to get rid of the vehicle. In accordance with these orders the vehicle was driven to premises located at Jordan Crescent in Charlottetown. He also ordered one of the occupants of the home at Young Street to dispose of the shot gun, and it was dismantled as ordered by the respondent and thrown in the marsh near Jordan Crescent. Without informing the occupants, the respondent hid the two gun belts and shot gun shells in the basement of the residence at Young Street, where they were discovered a few days following the robbery. [7] The respondent phoned a taxi from the residence at Young Street and directed the taxi driver to drive him and his accomplice to Summerside. On the way to Summerside, he directed the taxi driver to take them to Moncton, N.B. At approximately 8:30 p.m., while driving to Moncton, the taxi was stopped by the R.C.M.P. The respondent and his accomplice were arrested and found to be in possession of $9, in cash. The cheques in the amount of $3, were not recovered. [8] The respondent was charged with having committed robbery in contravention of s-s.343(d) of the Criminal Code. He was held in custody from the time of his arrest until sentencing, a period of approximately four months. After a preliminary inquiry, where he was committed to stand trial in the Supreme Court, he entered a plea of guilty before a judge of the Trial Division and a sentencing hearing was held on November 26, There was no presentence report. On November 29th the Trial Division judge imposed a sentence of five (5) years in a Federal prison and pursuant to s.109 of the Code he imposed a weapons prohibition for ten years. THE DECISION OF THE SENTENCING JUDGE [9] The sentencing judge acknowledged the seriousness of the offence and the need of the criminal justice system to protect the public from offenders who use weapons in the commission of an offence. He indicated that while the rehabilitation of the offender was a consideration in all sentences, in this case the sentencing objective of general deterrence was to have paramountcy particularly in view of the fact that Parliament had amended the Criminal Code in 1996 to provide that the minimum sentence for the use of a weapon in the commission of a robbery was four years in prison. He then went on to review a number of authorities in this jurisdiction and others where varying terms of

6 Page: 3 imprisonment were imposed for robbery. Some of the offences he reviewed involved robbery with the use of a weapon, others did not. He specifically relied upon a decision of this court, R v. Doughty (1978), 40 C.C.C. (2d) 224 (P.E.I.S.C. in banco). [10] The sentencing judge concluded that the amendment to the Criminal Code which resulted in the provision of a minimum punishment of four years imprisonment did not emasculate the principles of sentencing set forth in Doughty and that these principles continued to apply. He found the range of sentence for an offender like the respondent and for a robbery similar in circumstances to the one committed by the respondent was six years. The sentencing judge gave weight to the fact a guilty plea had been entered, and he also took into account the respondent s expression of remorse, which he concluded was genuine. He found, however, that even with due consideration for the four months spent in custody prior to sentencing, the sentence to be imposed should not fall below five years. THE OFFENDER [11] The respondent is 38 years old. He has a long history of personal problems which include an addiction to drugs, attempted suicide, the inability to retain employment and a lengthy criminal record spanning a period of 20 years. His criminal record as admitted for the sentencing is as follows: JAMES PATRICK CULLEN CRIMINAL RECORD SENTENCING DATE OFFENCE SENTENCE September 1, 1979 Break & Enter with intent $250. and Probation for 6 months sec.306(1)(a) C.C. July 9, 1981 Common assault sec.245(1) C.C. $300. August 31, 1981 Possession of a narcotic sec.3(1) Conditional discharge - Probation N.C.A. for 3 months and Restitution of $50. April 20, 1983 Possession of a narcotic for the $750. and Probation for 1 year purpose of trafficking sec.4(2) N.C.A. February 17, 1986 Possession of a narcotic sec.3(1) $250. N.C.A. December 4, 1987 Armed robbery sec.303 C.C. 30 months

7 Page: 4 October 3, 1988 Paroled March 13, 1990 Threaten to use a weapon in 3 months committing assault sec.267(1)(a) C.C. August 22, 1991 Obstruction of a police officer $750. sec.129 C.C. December 7, 1992 Robbery sec.344 C.C. 3 years December 7, 1992 Use of a firearm during commission 1 year consecutive of an offence sec.85(1)(a) C.C. April 8, 1994 Paroled May 25, 1995 Assault on a peace officer sec months consecutive with C.C. unexpired portion of sentence July 2, 1995 Parole violator Recommitted June 26, 1997 Fail or refuse to provide sample 7 days and $700. sec.254(5) C.C. [12] A review of this criminal record will disclose that the respondent has not only a previous conviction for armed robbery in 1987 but, as well, a conviction for robbery, a conviction for the use of a weapon in the commission of an offence and a conviction for threatening to use a weapon in the commission of an assault. Finally, it should be noted that his criminal record includes eight violence-related offences, three of which involved the use of a weapon or threatening to use a weapon. [13] At the time of this robbery, the respondent was under the influence of drugs. He committed the offence to obtain money to repay approximately $15,000 in drug debts. DISPOSITION [14] I would allow the appeal and set aside the sentence imposed by the sentencing judge. I would impose a sentence of seven and one-half years imprisonment, allowing for time spent in pre-sentence custody. I would also impose a lifetime weapons prohibition. ANALYSIS [15] An appellate court may interfere with the discretion exercised by a sentencing judge in two kinds of cases. The first is where the sentencing judge

8 Page: 5 commits an error in principle. Such an error arises when the sentencing judge fails to take into account a relevant factor; takes into account an irrelevant factor; fails to give sufficient weight to relevant factors; overemphasizes relevant factors, and generally, when the sentencing judge commits an error of law. The second situation is where a sentencing judge may not have committed an error in principle but yet imposed a sentence which is outside an acceptable range of sentence. In such situations, the appellate court might consider whether the sentence imposed is clearly unreasonable, clearly excessive or inadequate, demonstrably unfit, or a substantial and marked departure from other sentences imposed for like offences by like offenders. See: R. v. Proulx 2000 SCC 5; R. v. Shropshire, [1995] 4 S.C.R. 227 (S.C.C.); R. v. M. (C.A.), [1996] 1 S.C.R. 500 (S.C.C.); R. v. McDonnell (1997), 114 C.C.C. (3d) 436 (S.C.C.). [16] In this case the sentencing judge imposed a sentence which was outside an acceptable range of sentence having regard to: (i) the fact the Criminal Code was amended in 1996 to provide for a minimum punishment of four years in prison for the use of a firearm in the commission of a robbery; and (ii) the objectives, purposes and principles of sentencing set forth in the Criminal Code. In light of Parliament s clear direction to the courts to mete out harsh punishment for the use of a firearm in the commission of a robbery, the sentencing judge also erred in principle when he gave too much weight to the range of sentence set forth in the decision of R. v. Doughty supra. In the circumstances of this offence and this offender, the sentencing judge imposed a sentence which was demonstrably unfit. [17] The offence of robbery always included the theft from another... while armed with an offensive weapon or imitation thereof. See: Section 343(d) of the Code. In 1977 & 1978 at the time of the decision in Doughty supra, the offence was described in s.303. The maximum punishment was always life imprisonment. There was no minimum punishment prescribed. [18] Prior to 1996 s.85 of the Criminal Code provided that it was an offence to use a firearm in the commission of an indictable offence, including robbery. There was a minimum punishment of one year prescribed for a first offence and three years for a second or subsequent offence. As counsel for the respondent points out in his factum it was, therefore, the practice in each case, prior to 1996, to charge both robbery - s.344, and using a firearm - s.85. Section 85 was proclaimed on January 1, 1978 as part of a number of amendments addressing

9 Page: 6 Firearms and Other Related Offences. Prior to 1978 there was no specific offence for the use of a firearm in the commission of an offence. [19] It was not until 1996 that Parliament prescribed not only a separate punishment for the use of a firearm in the commission of a robbery but most significantly it prescribed a severe minimum punishment. Section 344(a) of the Criminal Code was proclaimed into force on January 1, It was one of the amendments to the Code arising from the enactment of the Firearms Act, S.C. 1995, c. 39. The relevant part of the section provides as follows: ROBBERY Every person who commits robbery is guilty of an indictable offence and liable (a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years;... [20] The legislative history of the offence of robbery and the prescribed punishment illustrates two points: (1) that Parliament has progressively recognized the seriousness of the use of a firearm in the commission of a robbery by prescribing a minimum mandatory punishment; and (2) the reasoning in Doughty supra, which may have been sound in the context of the law in relation to sentencing as it existed in 1977 and 1978, is not applicable in the context of the law today as it relates to punishment and sentencing for the use of a firearm in the commission of a robbery. [21] In passing the most recent amendments to s.344, courts may assume Parliament was directing particular effect should be given to the sentencing objectives of denunciation, deterrence (of both the offender and other members of the public), and the separation of the offender from the public. Except as to the imposition of punishment in excess of the minimum mandatory four years imprisonment, Parliament has removed from the courts any discretion it may have had in passing sentence on an offender who uses a firearm in the commission of a robbery, subject to s.719(3) of the Code (consideration of time spent in pre-sentence custody) and s.12 of the Charter (the minimum punishment, constituting in the particular circumstances, a punishment which

10 Page: 7 is grossly disproportionate to the circumstances of the offence and the offender). See: R. v. Wust 2000 SCC 18. Parliament has sent a clear message that for the protection of the public it wants to eradicate firearms related crimes and in particular the use of a firearm in the commission of a robbery. [22] R. v. Doughty supra, should no longer serve as a guide to the imposition of a sentence where a firearm, as opposed to another offensive weapon, is used in the commission of a robbery. MacDonald J. (as he then was) wrote separate reasons in Doughty which were concurred in by the other two members of the court. He reviewed a number of sentencing decisions from courts in other provinces and concluded, that with respect to the range of sentence for robbery, seven years in prison was the high end of the range of the sentence to be imposed where the robbery took place in a private dwelling (the place of the robbery in Doughty) and a firearm was used. He also reviewed sentencing decisions in the courts of this province up to that time and concluded that where an armed robbery is committed, where there has been no violence in the sense of injury to the person and where the offender has a lengthy criminal record, the upper limit of the range of sentence would be five years. See: pp.236 & 237. In my view, a range of sentence for the use of a firearm in the commission of a robbery, where there is no physical injury and where the offender has a lengthy criminal record, which has as its high end five years, is simply inadequate in the context of the overall sentencing scheme now in place under the Criminal Code and in the context of a provision in the Code which provides for handing out a minimum punishment of four years in prison to a person who may be a first offender, who inflicted no bodily injury and who had no criminal record. [23] There is always an element of violence inherent in the commission of robbery when a firearm is used, even if the firearm is never discharged and no bodily injury is inflicted. The sentencing judge put it this way and he put it correctly when he made the following comment in passing sentence on the respondent: The gist of the offence of armed robbery is taking by force and terror; not the value of the property taken. The offence is essentially one against the person, involving the victim s life, security and liberty. [24] Regardless of whether physical injury has occurred, robbery with a firearm involving an encounter with a person is an act of violence against the

11 Page: 8 person, despite the fact it is included in Part IX of the Criminal Code Offences Against Rights of Property. Reference to the victim impact statement of one of the clerks who witnessed the robbery by the respondent will illustrate that the act of using a loaded firearm in the commission of a robbery is an act of violence, even if the victim is so fortunate as to escape or avoid physical injury. Should the victim be so unfortunate, the fact of bodily injury becomes yet another aggravating factor in determining a fit sentence. [25] As I have concluded the sentencing judge erred in principle in imposing sentence on the respondent, or alternatively, he erred in imposing a sentence which was demonstrably unfit, it is necessary for this court to determine a sentence which is fit. The issue on this appeal is how much greater than the minimum punishment should the punishment be and what are the factors to be considered in imposing such a punishment. [26] As a basic sentencing principle s of the Code provides that a sentence must be proportionate to the gravity of the offence and the responsibility of the offender. Section of the Code sets forth other sentencing principles and those in ss (a) - a sentence should be increased or reduced having regard to any relevant aggravating and mitigating circumstances, and (b) - a sentence should be similar to those imposed on similar offenders for similar offences committed in similar circumstances - are applicable to this case. [27] Subsection 718.3(1) of the Code provides that, subject to the provisions of an enactment, the form and the measure of the punishment in respect to an offence is in the discretion of the court that convicts the offender. Furthermore, s-s.718.3(2) provides that, subject to the limitations set forth in the enactment, the punishment to be imposed upon the offender is in the discretion of the court imposing the conviction, and that there is no minimum punishment unless the enactment specifically declares a certain punishment to be a minimum punishment. [28] In R. v. Wust supra, the Supreme Court of Canada very recently (April 13, 2000) had occasion to consider the provisions of s-s.344(a) in the context of the allowance against the minimum punishment of time served in pre-sentence custody as provided for in s-s.719(3) of the Code. While the latter provision is not directly in issue here, some of the general comments about s-s.344(a) made

12 Page: 9 by Arbour J., who wrote for the Court, merit consideration in the determination of what would be a fit sentence to be imposed in this case. [29] In paras. 18 to 23 of her reasons Arbour J. points out that mandatory minimum sentences are more the exception than the rule in Canada, and they may frequently detract from the fundamental principle of sentencing set forth in of the Code. As a result, she notes that courts have frequently struck down a mandatory minimum sentence as being in violation of s.12 of the Charter or they have, alternatively, created a constitutional exemption from the mandatory minimum sentence and in some cases where they have been upheld as constitutionally valid, courts have commented they may be demonstrably unfit or harsh. As she concludes this part of the discussion with respect to s.344(a), she states it is important to deal with legislation which provides for mandatory minimum sentences in a manner consistent with the general principles of sentencing, and it is required such provisions be understood in the full context of the sentencing scheme. [30] Parliament has clearly provided for a minimum punishment of four years in prison for a person convicted of using a weapon in the commission of a robbery. Therefore, the discretion of the convicting court generally conferred by s-ss.718.3(1) & (2) to impose the form and measure of punishment has been removed, at least to the extent of imposing the minimum punishment of four years in prison. The convicting court continues to have the discretion to impose further punishment, above the statutorily prescribed minimum punishment, if the circumstances of the offence and the offender would so warrant. Such punishment must, as Arbour J. stated, be meted out and the sentence must be imposed having regard to the purpose and principles of sentencing set forth in ss.718, and of the Code. [31] The quantum of the sentence should be broadly commensurate with the gravity of the offence committed and the moral blameworthiness of the offender. This is one of those offences and the court has before it one of those offenders where punishment at least twofold greater than the mandatory minimum would be proportionate to the gravity of the offence and the responsibility of the offender. The integrity of the criminal justice system and the confidence of the public in that system is undermined if the punishment imposed is inadequate and likewise if it is too severe. A sentence of eight years in prison in this case strikes the proper balance and would not undermine

13 Page: 10 confidence in the criminal justice system. [32] The circumstances surrounding the commission of this offence are extremely serious, and only one where shots were fired and/or individuals injured, could have been more serious. The potential for bodily injury to the staff at the Co-Op was very real in this case given the firearm the respondent was brandishing, the extra ammunition he carried on his person, his apparent desperation to acquire cash to pay his drug debts and his state of mind, which was impaired by drugs. Add to these circumstances the fact the relatively large food market, which was the subject of his robbery, was located in a shopping mall, a place where, potentially, a large number of people might possibly have congregated on an evening in August. [33] The respondent who has, as I have pointed out above, an unenviable criminal record, must assume a very high degree of moral blameworthiness for the offence. The manner in which he committed the offence indicates it was carefully and meticulously premeditated. According to Crown counsel and this was not disputed, there was evidence at the preliminary inquiry the respondent had been in the store a few days prior to the robbery. He obviously had to obtain the firearm and the additional ammunition. He planned a selective entry to the mall with his face covered, and he proceeded directly to an office he obviously knew was occupied by a person in the possession of cash at a time of day when it would be reasonable to assume much of the cash from the day s sales would still be on hand. Following the commission of the offence, he went to a residence and involved innocent third parties, no doubt under some threat as he was still armed, to assist him in covering up the offence by disposing of his vehicle and the firearm. Without their knowledge, he used their basement to store his ammunition. Finally he involved an innocent and vulnerable cab driver, although there is no indication he commandeered the cab. [34] There are only two mitigating circumstances against the imposition of a severe punishment. They are, the respondent s guilty plea at a relatively early stage in the proceedings, although he put the victims through a preliminary inquiry and his expression of remorse which must be taken lightly because of the respondent s lengthy involvement in criminal behaviour. [35] The second principle of sentencing which I indicated was applicable here is that the sentence should be similar to sentences imposed on similar

14 Page: 11 offenders for similar offences in similar circumstances. See: s-s.718.2(b) of the Criminal Code. Fortunately the incidence of the use of a firearm in the commission of a robbery is not high in this province and thus there are no reported decisions of this court since the amendment to s.344 providing for a minimum mandatory punishment. I do not consider decisions from this court prior to 1996 of much assistance as they relied upon the decision in Doughty. [36] Upon reviewing a number of decisions from other provinces, I am satisfied that a sentence of eight years in prison for this offender is within the range of sentence imposed on similar offenders for similar offences committed in similar circumstances. I will briefly review three of these decisions. [37] In R. v. Callan, [1999] O.J. No (QL) (Ont. S.C.), the offender committed five bank robberies over a period of one year using a handgun, although no shots were fired. There was one incident of physical harm to a bank employee. The offender was 30 years of age and he had only one prior conviction of assault. Rehabilitation was found by the court to be a substantial but not a dominant consideration and there was no remorse shown as the offender continued to deny responsibility for the offences. He had served seventeen months of pre-sentence custody. The court considered that a sentence of fifteen years in prison was fit sentence; however giving credit for the pre-sentence custody this was reduced to twelve years. [38] In R. v. Ross, [1999] M.J. No. 238 (QL) (Man. C.A.), the offender pleaded guilty to a charge of break enter and theft and using a firearm in the commission of a robbery. The victims who were the occupants of the home were awakened and confronted by the offender who was pointing a weapon. At one time the gun was pointed at the victim s head, the trigger was pulled but the gun did not fire. The offender was nineteen years of age with a prior youth record and he showed no remorse. There was an indication that rehabilitation was unlikely. He was sentenced to serve eight years in prison. [39] In R. v. Klopcic, [1997] B.C.J. No (QL) (B.C.S.C.), the offender was charged with robbery and assault with a weapon. He had robbed an elderly lady at an automated banking machine and assaulted her when she tried to escape. The offender had a significant criminal record over a long period of time including several convictions for robbery. He had spent fourteen months in pre-sentence custody and taking this into account he was sentenced to serve

15 Page: 12 ten years in prison. [40] Sentencing is a very individualized process having regard to the offender and the circumstances of the crime; however, the above sentences indicate that a sentence of eight years in prison for the respondent and for the commission of this offence is within an acceptable range of sentence. The protection of the safety of the residents of this province, by deterring this offender and others from committing these kinds of offences, must be the paramount consideration in the imposition of the sentence. [41] The sentencing objective of rehabilitation cannot be entirely ruled out when imposing a sentence on the respondent, as it would be inconsistent with the existing sentencing scheme to conclude the respondent can never be rehabilitated. However, in light of his criminal record, which includes other violence related offences over a prolonged period of time, and the need to separate him from society, rehabilitation will have to take place when the respondent is incarcerated and separated from the public. Through a gradual release program available through the corrections system, officials will be in a position to monitor the rehabilitation of the respondent and to know when it will be safe to return him to society. Hopefully, when he does return to society he will be of a mind to complete this rehabilitation and take up a life as a law abiding citizen. [42] In the context of the entire sentencing scheme as now provided for in the Criminal Code, having regard to the applicable objectives of sentencing, applying the principles of sentencing, considering the relevant aggravating and mitigating factors, as well as the sentences imposed on similar offenders for similar offences committed in similar circumstances, the sentence imposed by the sentencing judge should be set aside. A fit punishment, having regard to the foregoing, would be to serve a sentence of eight years imprisonment. The respondent spent four months in custody after the commission of the offence and before he was sentenced. Having regard to s.719(3) of the Code, which provides that in determining a sentence the court may take into account any time spent in custody prior to sentence and as the result of the commission of the offence, I would reduce the sentence by six months. The respondent will, therefore, be sentenced to serve seven and one-half years in a Federal institution.

16 Page: 13 [43] Finally, it is necessary to address the firearms prohibition of 10 years imposed by the sentencing judge. This was also in error as the respondent had previous convictions for offences referred to in s-s.109(1)(d) of the Code. [44] In conclusion, the appeal is allowed, the sentence and the firearms prohibition imposed by the sentencing judge are both set aside. The respondent is sentenced to imprisonment for a term of seven and one-half years. In accordance with s-s.109(3) of the Criminal Code, he is prohibited from owning or possessing firearms, or any item listed in s.109(1) of the Code, for the remainder of his life. McQuaid The Honorable Mr. Justice J.A. I AGREE: The Honorable Chief Justice N.H. Carruthers I AGREE: The Honorable Mr. Justice G.E. Mitchell