Court of Appeal

NOVA SCOTIA COURT OF APPEAL

Citation:   R. v. O’Brien, 2011 NSCA 112

Date:  20111206

Docket:  CAC 310964

Registry: Halifax

Between:

Marty David O’Brien (No. 2)

Appellant

v.

Her Majesty the Queen

Respondent

Judges:                 The Honourable Justice Joel E. Fichaud with Farrar, J.A. concurring; and Beveridge, J.A. dissenting.

Appeal Heard:      April 8, 2010

Subject:                Sentencing - Robbery - Totality Principle

Summary:             Mr. O’Brien robbed a convenience store at night by threatening a solitary clerk with a large knife while wearing a mask.  He was convicted of robbery, disguise with intent and possession of a weapon contrary to ss. 344, 351(2) and 88 of the Criminal Code.  The trial judge sentenced him to six years, six months  incarceration for the robbery, two years concurrent for the disguise, and three years concurrent for the weapon.  He had a record of approximately 70 convictions over many years.  These included previous convictions for break and enter and a robbery.  At the time of the sentencing under appeal, he was serving time for other offences.  Mr. O’Brien applied to the Court of Appeal for leave to appeal his sentence.  He submitted that the sentencing judge failed to apply the totality principle.

Issue:          Did the sentencing judge commit an appealable error, in  particular respecting the totality principle?

Result:                  The Court of Appeal granted leave to appeal, but dismissed the appeal.  The majority concluded that Mr. O’Brien’s sentence was within the range, given the circumstances and his record, was not unfit, and did not offend the totality principle under s. 718.2(c) of the Criminal Code.

Beveridge J.A. (dissenting) would grant leave and allow the appeal, substituting a sentence of four years for the robbery consecutive to the sentences the appellant was serving.  The trial judge did not discuss the principle of totality, nor show any appreciation that the offences the offender was being sentenced for were committed in the same time period, and that a sentence of 6.5 years would amount to an effective sentence of 12.5 years.