IN THE COURT OF APPEAL OF NEWFOUNDLAND AND LABRADOR HER MAJESTY THE QUEEN

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1 IN THE COURT OF APPEAL OF NEWFOUNDLAND AND LABRADOR Citation: R. v. Martin, 2018 NLCA 12 Date: February 22, 2018 Docket: H0055 BETWEEN: HER MAJESTY THE QUEEN APPELLANT AND: SKYE MARTIN RESPONDENT Coram: Welsh, White and O Brien JJ.A. Court Appealed From: Provincial Court of Newfoundland and Labrador St. John s Appeal Heard: January 12, 2018 Judgment Rendered: February 22, 2018 Reasons for Judgment by Welsh J.A. Concurred in by White and O Brien JJ.A. Counsel for the Appellant: Sheldon Steeves Counsel for the Respondent: Joan Dawson

2 Page: 2 Welsh J.A.: [1] Skye Martin pleaded guilty to and was convicted of ten offences including armed robbery, assaults and breaches of probation. She was sentenced to fifteen months imprisonment for the robbery, with the sentences for all remaining offences to be served concurrently. [2] Leave to appeal was granted at the hearing. The Crown s appeal raises questions as to when multiple offences constitute a single criminal venture, application of the principle of totality, and the effect of the offender s mental health issues in the context of sentencing. BACKGROUND [3] For purposes of this appeal it is necessary to review the circumstances surrounding the offences for which Ms. Martin was convicted on April 27, In summary: (1) January 15, 2017 While an outpatient at the psychiatric hospital, Ms. Martin scratched the face and wrenched the neck of an employee. At the time, she was subject to an April 11, 2016 probation order. (Assault thirty days imprisonment, consecutive; breach of probation thirty days, consecutive) (2) Later in the day on January 15, 2017 After purposely injuring herself, Ms. Martin was taken from the general hospital to the psychiatric hospital where she assaulted three patients. She was agitated and rude to the hospital staff upon arrival and eventually evaded two police officers and a security guard. She jumped on one patient who was trying to run away from her. She grabbed a second patient by the face, broke her glasses and dragged her by the hair. She grabbed a third patient who attempted to intervene, pushing her face into a table and injuring her lip. She was subdued by police and subsequently certified as an involuntary patient under the Mental Health Care and Treatment Act, SNL 2006, c. M-9.1. (Assault forty-five days, consecutive; breach of probation thirty days, consecutive.) (3) January 24, 2017 While still certified as an involuntary patient, Ms. Martin assaulted a nursing student. No charge was laid for that incident. She also assaulted a nurse who intervened by grabbing her by the face, scratching her face, grabbing her hair, shaking her head,

3 Page: 3 and attempting to knee the nurse in the face. Ms. Martin claimed that she had no memory of the incident. (Assault forty-five days, consecutive; breach of probation forty-five days, consecutive.) (4) February 15, 2017 Ms. Martin took a kitchen knife from her mother s residence and, as she left, she told her mother she wanted to go back to jail. She entered a convenience store where she was known to the clerk. She presented a knife and a broken beer bottle to the store clerk and asked for a package of cigarettes and $20 cash (decision of the trial judge, 2017 NLPC 0117A00223, at paragraph 1). The judge explained, at paragraph 1: 4. Initially the clerk did not realize she was being held up. When Ms. Martin advised the clerk that she was holding her up, the clerk gave her a package of cigarettes but said, Honey, I am not giving you any money. Ms. Martin took the cigarettes, threw the beer bottle on the floor and left the store. She stood outside a nearby Tim Hortons franchise and smoked the cigarettes. Eventually, the clerk approached Ms. Martin and retrieved the package of cigarettes from her. Two cigarettes were missing. The clerk advised police that she was familiar with Ms. Martin and knew her to have mental health issues. She said she felt sorry for the offender. (Armed robbery fifteen months imprisonment; breach of probation forty-five days, consecutive.) (5) February 17, 2017 During a court-ordered evaluation, Ms. Martin pushed Dr. Gill, forcefully pulled her hair with both hands, and pushed her thumbs into Dr. Gill s eyes. (Assault forty-five days, consecutive; breach of probation forty-five days, consecutive.) [4] The trial judge explained that the fifteen month sentence for armed robbery, which was at the low end of the range of sentence, gives weight to Ms. Martin s mental health issues and to the less serious nature of the armed robbery (paragraph 20). The judge continued: [21] I must now decide whether the sentences should be served consecutively or concurrently on the ground that they constitute a single criminal adventure. [22] As I have already stated, the evidence establishes that Ms. Martin was experiencing a significant mental health crisis between January 15 and February 17 of this year. I am satisfied that the offender s mental health crisis causes all of these offences to amount to one criminal adventure. Therefore, all other prison

4 Page: 4 ISSUES sentences shall be served concurrently to the 15 month sentence for the armed robbery conviction. [23] Because I have made all the offences concurrent to the armed robbery conviction, a totality assessment is not necessary. [5] At issue is whether the trial judge erred (1) by characterizing the offences as a single criminal venture, (2) in her consideration of Ms. Martin s mental health issues, (3) in imposing concurrent sentences for breaches of probation, and (4) in failing to address the principle of totality. ANALYSIS Leave to Appeal [6] Leave to appeal is required because this is an appeal by the Crown as to sentence only (section 676(1)(d) of the Criminal Code). The test to be applied is whether the appeal is frivolous in the sense of having no arguable basis or sufficient merit (R. v. Blok-Andersen, 2016 NLCA 9, 376 Nfld. & P.E.I.R. 130, at paragraph 8). [7] This appeal raises questions as to what constitutes a single criminal venture, application of the principle of totality, and the effect of Ms. Martin s mental health issues on sentencing. Accordingly, the Court was satisfied that the test for leave to appeal was met and leave was granted at the hearing. The Appeal The Legislation [8] Section 343 of the Criminal Code describes the offence of armed robbery: Every one commits robbery who (d) steals from any person while armed with an offensive weapon or imitation thereof.

5 Page: 5 Commission of an armed robbery is an indictable offence for which the offender is liable to imprisonment for life (section 344(1)(b) of the Criminal Code). [9] The Crown proceeded by way of summary conviction on the assault and breach of probation charges. Sentencing for Multiple Offences [10] In R. v. Hutchings, 2012 NLCA 2, 316 Nfld. & P.E.I.R. 211, this Court described a three-step approach to be applied in sentencing for multiple offences. The first step is to assign an appropriate sentence for each offence. The second step is to determine whether any of the offences should be ordered to be served concurrently on the basis that they constitute a single criminal venture. The third step requires consideration of the principle of totality. Step One A Sentence for Each Offence [11] The trial judge began by assigning a sentence for each offence. The sentences are at the very low end of the range. In reaching her conclusion, the trial judge addressed aggravating and mitigating factors. First, she discussed the aggravating factors: [3] The facts of these offences are patently aggravating. Armed robbery is a serious offence and the assaults were explosive and violent. Persons working in the health care system and other psychiatric patients should not be subjected to this violence. This criminal behaviour must be clearly and decisively denounced. [4] Ms. Martin has a related and recent criminal record, including a conviction for a September 9, 2015 attempted armed robbery with violence for which she received a sentence of 1 year. [In that case] Walsh, P.C.J. emphasized many of the mitigating factors that are present in the subject case. Ms. Martin entered guilty pleas, she had the support of her mother and she was suffering from mental illness. However, he cautioned Ms. Martin that she must work with her medical care providers and her mother to address her issues. [5] The remainder of her record is comprised of thefts, uttering forged documents, mischief relating to property, fraud and breaches of court orders. It is noteworthy that she has no prior record for violent offences, but for the 2015 robbery. Her first convictions were for offences that occurred in June of I would note that Ms. Martin did not carry a weapon during the 2015 robbery, but did elbow an employee in the face.

6 Page: 6 [12] The judge continued: [6] There are mitigating factors. Ms. Martin entered guilty pleas to the offences at the first opportunity and she takes responsibility for her actions. [7] Ms. Martin s culpability is also mitigated by her mental illness and her drug addiction. Her mental health issues are obvious from the evidence supporting these convictions and are acknowledged by the Crown. In the 2000 decision in R. v. Peters [2000 NFCA 55, 194 Nfld. & P.E.I.R. 184], Green, J.A. (as he then was) stated the following at paragraph 19: the mental illness of an offender will often be considered a mitigating factor in sentencing even though it is not of the sort that would establish a verdict of not criminally responsible on account of mental disorder at the time of the commission of the offence. The focus in sentencing such offenders may properly therefore be placed on mechanisms that will promote rehabilitation and treatment, rather than on punishment. This is especially so where lengthy prison terms are often regarded as counterproductive, even in cases not involving the mentally afflicted. [13] The judge considered Ms. Martin s certification as an involuntary patient at the psychiatric hospital at the time of the robbery to be a mitigating factor. The judge was of the view that Ms. Martin should have been held at the hospital and that she should not have had an opportunity to commit this offence, a factor that is most unique to her circumstances (decision of the trial judge, at paragraph 14). [14] In reaching this conclusion, the judge failed to recognize that Ms. Martin had been released from the hospital on a pass. Before committing the robbery, she had gone to her mother s residence. She left there with the stated purpose of committing an offence so that she would be sent to prison. [15] In the situation where a person has been certified as an involuntary patient at a psychiatric hospital, the attending physicians will have the difficult responsibility of determining whether it is appropriate to issue a pass to leave the facility, as authorized under section 37 of the Mental Health Care and Treatment Act. There is no basis on which to assume the correct procedures were not adhered to when Ms. Martin was granted an unaccompanied pass. The fact that she was released from the hospital on a pass as authorized under the Act cannot be considered to be a mitigating factor.

7 Page: 7 [16] That said, Ms. Martin s mental health issues could properly be taken into account by the judge. At the sentencing hearing, medical reports from three psychiatrists were entered into evidence by Ms. Martin. I note that the psychiatric reports indicate that Ms. Martin s mental health difficulties are based to a large extent on behavioural and substance abuse issues. Ms. Martin had previous admissions to the psychiatric hospital in August 2014 and June The judge found that the evidence establishes that there was a linkage or nexus between Ms. Martin s mental health condition and the commission of all the offences. [17] The seriousness and relevance of Ms. Martin s mental health issues must be assessed for purposes of sentencing in light of the circumstances surrounding the robbery and the assaults and her significant criminal record beginning in The level of violence associated with the offences had increased significantly from her previous criminal activity. Presenting the knife and broken beer bottle during the robbery was very serious given the potential danger to the store clerk. Fortunately, the clerk, who knew Ms. Martin, acted with compassion and understanding and was able to deescalate the situation. [18] The trial judge also considered Ms. Martin s mother s support to be a mitigating factor. The basis for this proposition is unclear. The judge wrote: [15] Ms. Martin has a supportive mother, which is also a mitigating factor. The medical reports confirm that she has been a constant in her daughter s life and has been open and cooperative with her medical care providers. The offender s mother will also involve the police if the circumstances require it and this is equally important. [19] Whatever action her mother was able to take prior to the robbery was ineffective, and she was not present during the commission of the other offences. While her mother s support may assist in Ms. Martin s possible rehabilitation, it cannot be considered to be a mitigating factor in respect of the offences. [20] At the sentencing hearing the Crown submitted that a sentence of two years imprisonment would be an appropriate sentence for the robbery, with a total term for all the offences of two years and five months. Defence counsel submitted an appropriate sentence would be a total of one year imprisonment.

8 Page: 8 [21] On appeal, the Crown s submissions focus on steps two and three of the analysis. While not conceding that the sentence for the robbery was appropriate, counsel did not seriously argue the issue, and did not propose an alternative sentence for any of the offences. [22] In the circumstances, and applying the principles discussed in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paragraphs 43 and 44, I conclude that, while the trial judge erred in the manner in which she dealt with mitigating factors, the errors could not be said to have had an impact on the sentences. [23] In the result, there is no basis on which to disturb the sentences imposed by the trial judge for the individual offences. However, I caution that they should serve as a precedent only in the context of the particular circumstances that occurred here. Step Two Single Criminal Venture [24] The trial judge sentenced Ms. Martin on the basis that all the offences from January 15 to February 17, 2017 constituted one criminal venture because, during that time, she was experiencing a significant mental health crisis. Without further analysis, the judge concluded that the sentences for assault and breach of probation should all be served concurrently with the sentence for armed robbery. This approach amounted to error. [25] I begin by cautioning that, when a judge assesses offences as a single criminal venture, concurrent sentences may, but are not required to be imposed. As discussed in R. v. O Quinn, 2017 NLCA 10, at paragraphs 20 and 21, while sentences for a single criminal venture would generally be made concurrent, there are exceptions such as breaches of court orders, including probation orders, which ordinarily would result in a sentence consecutive to the related offence that constitutes the breach. [26] Further, in order to be characterized as a single criminal venture, the offences must be connected or linked. Examples have been described as a single rampage, repetition of the same behaviour towards the same victim, a crime spree (O Quinn, at paragraph 18). In this case, Ms. Martin committed several assaults. However, they were committed against different victims, in different circumstances and over several weeks. I would distinguish that situation from, for example, the circumstances in O Quinn where the offender broke into three cabins sequentially, in roughly

9 Page: 9 the same location, over a few hours while Mr. O Quinn was under the influence of drugs. Those offences were found to constitute a crime spree, a single criminal venture. [27] In the case on appeal, the assaults lack a linkage in time and were committed against different victims. In characterizing these as a single criminal venture, the trial judge exercised her discretion unreasonably. Finding that Ms. Martin was experiencing a significant mental health crisis over the weeks during which the offences were committed does not provide a basis for concluding that the assaults constituted a single criminal venture as that term has been considered in the case law. This was not a crime spree, but rather individual offences committed at distinct and unrelated times. [28] Similarly, the breaches of probation which occurred over time and related to different assaults would not meet the requirements for characterization as a single criminal venture. Further, absent some explanation by the trial judge, and subject to the principle of totality, such breaches would ordinarily result in a sentence consecutive to the related offence that constitutes the breach (O Quinn, at paragraph 21). [29] In summary, the judge exercised her discretion unreasonably in characterizing any of the multiple offences as a single criminal venture. Accordingly, imposing concurrent sentences on that basis amounted to error. It is necessary, then, to proceed to the third step in the analysis, consideration of the principle of totality. Step Three Applying the Principle of Totality [30] The principle of totality, together with the appropriate analytical approach, is discussed in R. v. Hutchings, supra. The question is whether the total sentence for multiple offences is unduly long or harsh, in the sense that it is disproportionate to the gravity of the offence and the degree of responsibility of the offender (Hutchings, at paragraph 84, point 4). Factors to be considered in the analysis include (Hutchings, at paragraph 84, point 5): (a) the length of the combined sentence in relation to the normal level of sentence for the most serious of the individual offences involved; (b) the number and gravity of the offences involved; (c) the offender s criminal record;

10 Page: 10 (d) the impact of the combined sentence on the offender s prospects for rehabilitation, in the sense that it may be harsh or crushing; (e) such other factors as may be appropriate to consider to ensure that the combined sentence is proportionate to the gravity of the offences and the offender s degree of responsibility. I would note that an offender s mental health issues may be a relevant consideration in the totality analysis where such issues affect his or her degree of responsibility and prospects for rehabilitation. [31] The total sentence imposed in this case is twenty-seven months (less 5 days), that is, fifteen months for the robbery plus 360 days for the assaults and breaches of probation. The Crown submits that a sentence of that length is not unduly long or harsh in the circumstances and that no adjustment should be made for totality. Counsel submits that the total sentence reflects Ms. Martin s overall culpability and responsibility. [32] Applying the factors set out in Hutchings, particularly the number and gravity of the offences and Ms. Martin s criminal record, would not immediately indicate a reason for reducing the total sentence. The sentence imposed for the robbery is at the very low end of the range. Ms. Martin wielded a kitchen knife and a broken beer bottle, a circumstance that had the potential for serious consequences for the victim, particularly when considered in light of the assaults which involved significant violence against innocent strangers. Further, the fifteen month sentence imposed by the trial judge does not reflect consequences for the assaults or breaches of probation. [33] The individual sentences for the assaults are also at the low end of the range, given the number of offences and the violence involved. As stated by the trial judge, patients and health care professionals have the right to a safe place in which to live and work. [34] That said, it is clear that the trial judge was satisfied that the total sentence would not result in an appropriate disposition. While the judge erred in the analytical approach she adopted, some accommodation for totality is warranted. Underlying the low sentences imposed by the trial judge is a concern, given Ms. Martin s mental health issues, that her level of responsibility was reduced and that a sentence of twenty-seven months would be unduly long and harsh and may impact her prospects for rehabilitation.

11 Page: 11 [35] While I am satisfied that a reduction in the total sentence is warranted, I would not reduce the total sentence to fifteen months. That sentence fails to take account of the numerous, serious assaults and the attendant breaches of probation. [36] Balancing all the above considerations, I would reduce the total sentence to twenty-one months imprisonment, less 152 days to account for time served by Ms. Martin while on remand. To achieve that total, in accordance with the principles discussed in Hutchings, at paragraph 84, I would order the following sentences to be served concurrently with the sentence for robbery: assault on February 17, 2017; and breaches of probation on January 24, February 15 and February 17, I would order all remaining sentences to be served consecutively. SUMMARY AND DISPOSITION [37] In summary, in determining sentences for the individual offences and in applying the analytical approach applicable in the case of multiple offences, the trial judge erred by: (1) considering Ms. Martin s release from the psychiatric hospital on a pass as a mitigating factor; (2) determining her mother s support to be a mitigating factor; and (3) characterizing all the offences as a single criminal venture under step two of the analysis with the result that the sentences for assault and breach of probation were ordered to be served concurrently with the sentence for the robbery, thereby obviating the need to proceed to the third step of the analysis. [38] Despite the trial judge s errors regarding mitigating factors, there is no basis on which to disturb the sentences imposed by the trial judge for the individual offences. [39] In assessing the application of the principle of totality, an offender s mental health issues may be a relevant consideration where such issues affect his or her degree of responsibility and prospects for rehabilitation. [40] While the trial judge s total sentence of fifteen months does not reflect any punishment for the several assaults and breaches of probation, a reduction in the total sentence of twenty-seven months is warranted. In the

12 Page: 12 circumstances, as set out above, I would reduce the total sentence to twentyone months imprisonment, less 152 days to account for time served by Ms. Martin while on remand. [41] Accordingly, leave to appeal having been granted, I would allow the appeal and vary the sentence as set out above. B. G.Welsh J.A. I Concur: C. W. White J.A. I Concur: F. P. O Brien J.A.