A robber, who in an attempt to go back to prison held up the same bank he robbed five years earlier, will not have his jail sentence increased.
The B.C. Court of Appeal has dismissed an appeal by the Crown to increase Douglas McPherson’s sentence of two years less a day to five years.
On July 19, 2013, McPherson pleaded guilty in B.C. Supreme Court to robbing the Bank of Montreal on Douglas Street on Dec. 23, 2011. At the sentencing hearing, Justice Jacqueline Dorgan heard that McPherson, a man with a long criminal record, walked into the bank and waited in line for a teller. He was followed by Victoria police, who had been tipped off that he was going to rob the bank.
McPherson approached the teller and said “Don’t close your drawer and give me all your money.” The teller thought he was joking and laughed at him. But he repeated his demand. The teller handed over $1,745 and McPherson told her not to tell anyone. At no time did he threaten her or pull out a weapon, the court heard.
McPherson then walked across the street and was immediately arrested as he tried to bum a cigarette from a street person. After serving 18 months in pretrial custody, he pleaded guilty to robbery.
The Crown asked for a sentence of seven to nine years, noting that McPherson’s criminal record includes 20 prior convictions for robbery, break and enter and property crimes.
Defence lawyer Michael Munro argued that McPherson has no crimes of violence or weapons offences on his criminal record. The 57-year-old heroin addict had spent 22 of the last 25 years in prison, he said.
Munro told the court that McPherson received a five-year sentence for robbing the same branch of the Bank of Montreal in November 2006. He had been out of jail 38 days when he committed the second robbery.
Dorgan accepted that McPherson committed the robbery to return to prison because he found himself with no money, no home and unable to cope in the community. She imposed a sentence of two years less a day, in addition to the 18 months McPherson had already served, followed by three years of supervised probation.
At the hearing, McPherson produced two letters of reference. An officer at the Vancouver Island Regional Correctional Centre described him as a team player, who worked as a painter and was willing do almost anything requested of him.
A psychologist wrote that McPherson told him that he wished to develop the skills and support to make the transition from prison to the community.
Dorgan said she believed rehabilitation deserved a great deal of weight in this case.
“His description of his crimes, his lifestyle and his abilities to eventually integrate into society and to live a lawful life once out of jail are important to me,” she said.
The Crown appealed the sentence, arguing that Dorgan overemphasized rehabilitation at the expense of public safety. It said McPherson should have received a longer sentence for the second robbery than for the first.
The appeal court disagreed. It said no principle of sentencing requires a court to incrementally increase the severity of sentences for repeat offences.
The appeal court also found that the second robbery was an ill-conceived plan to hasten McPherson’s return to prison.
“The police had him under observation at all times and, indeed, could probably have prevented the robbery from occurring. He committed the offence so he could return to prison because he was not able to function in the community,” the judgment says.
Dorgan imposed a proportional sentence and took into account all the principles of sentencing, the appeal court said.
