Court File and Parties

Court File No.: St. Catharines - 2111-998-13-W0948-01 and -02 Date: 2014-12-23 Ontario Court of Justice

Between: Her Majesty the Queen — And — Brandon Porter and Robert Osborn

Before: Justice D.A. Harris

Heard: May 15 and September 30, 2014 in St. Catharines and November 18, 2014 in Milton

Reasons for Sentence: December 23, 2014 in St. Catharines

Counsel:

• J. Richardson, counsel for the Crown
• J. Bothwell, counsel for the Accused, Brandon Porter
• B. Walker, counsel for the Accused, Robert Osborn

Reasons for Sentence

HARRIS J.:

Overview

[1] Brandon Porter and Robert Osborn both pled guilty to robbery using a firearm and to having their faces masked with intent. Mr. Osborn also pled guilty to discharging a firearm with intent to endanger.

[2] They are both before me today to be sentenced.

[3] Crown counsel suggested that a global sentence of imprisonment for seven years is appropriate for both men.

[4] Counsel for Mr. Porter and counsel for Mr. Osborn suggested that a global sentence of imprisonment for four years is appropriate.

[5] All three counsel agreed that both men should receive enhanced credit for their pre-sentence custody, at the rate of 1.5:1.

[6] All counsel agreed that firearms prohibitions and DNA orders were appropriate.

[7] All counsel agreed that I should impose the same sentence on both offenders.

[8] My task then is to determine the appropriate period of imprisonment. In reaching this determination, I must consider the fundamental purpose and principles of sentencing, the facts underlying the offences and the backgrounds of Mr. Porter and Mr. Osborn.

The Fundamental Purpose and Principles of Sentencing

[9] The fundamental purpose and principles of sentencing are set out in sections 718 to 718.2 of the Criminal Code.

[10] The fundamental purpose of sentencing as expressed in section 718 is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation; deterring the offender and other persons from committing offences; separating offenders from society, where necessary; assisting in rehabilitating offenders; providing reparation for harm done to victims or to the community; and promoting a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[11] The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender.

[12] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence.

[13] Doherty J.A. of the Ontario Court of Appeal stated in R. v. Hamilton that:

The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence. For example, in drug importation cases, the nature and quantity of the drug involved will impact on the gravity of the offence.

[14] He went on to state that:

The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime. In drug importation cases, the offender's role in the importation scheme will be an important consideration in assessing the offender's personal responsibility.

[15] He then quoted Rosenberg J.A. who had previously described the proportionality requirement in R. v. Priest:

The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.

[16] On this point, Doherty J.A. concluded by stating that:

Fixing a sentence that is consistent with s. 718.1 is particularly difficult where the gravity of the offence points strongly in one sentencing direction and the culpability of the individual offender points strongly in a very different sentencing direction. The sentencing judge must fashion a disposition from among the limited options available which take both sides of the proportionality inquiry into account.

[17] Proportionality is the fundamental principle of sentencing, but it is not the only principle to be considered.

[18] I must specifically consider section 718.2(d) which provides that "an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances".

[19] I must also consider the impact of section 718.2(e) which provides that "... all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders."

[20] The Supreme Court of Canada discussed the application of this section in Gladue v. The Queen and said that section 718.2(e) applies to all offenders, and that imprisonment should be the penal sanction of last resort. Prison is to be used only where no other sanction or combination of sanctions is appropriate to the offence and the offender.

[21] The Supreme Court also noted that section 718 now requires a sentencing judge to consider more than the longstanding principles of denunciation, deterrence and rehabilitation. Now a sentencing judge must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender. As a general matter restorative justice involves some form of restitution and reintegration into the community.

[22] There is a mandatory minimum sentence of imprisonment for four years with respect to both the robbery with a firearm and the discharge firearm with intention to endanger offences.

[23] In R. v. Wust, the mandatory minimum sentence for robbery with a firearm was found not to infringe section 12 of the Canadian Charter of Rights and Freedoms.

[24] In the Supreme Court of Canada judgment in Wust, Arbour J. set out how courts should apply mandatory minimum sentences, writing:

Consequently, it is important to interpret legislation which deals, directly and indirectly, with mandatory minimum sentences, in a manner that is consistent with general principles of sentencing, and that does not offend the integrity of the criminal justice system.

[25] Arbour J. elaborated upon this in obiter comments that she made in a concurring judgment in R. v. Morrisey. She wrote:

To the extent possible, mandatory minimum sentences must be read consistently with the general principles of sentencing expressed, in particular, in ss. 718, 718.1 and 718.2 of the Criminal Code. By fixing a minimum sentence, particularly when the minimum is still just a fraction of the maximum penalty applicable to the offence, Parliament has not repudiated completely the principle of proportionality and the requirement, expressed in s. 718.2(b), that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Therefore, in my view, the mandatory minimum sentences for firearms-related offences must act as an inflationary floor, setting a new minimum punishment applicable to the so-called "best" offender whose conduct is caught by these provisions. The mandatory minimum must not become the standard sentence imposed on all but the very worst offender who has committed the offence in the very worst circumstances. The latter approach would not only defeat the intention of Parliament in enacting this particular legislation, but also offend against the general principles of sentencing designed to promote a just and fair sentencing regime and thereby advance the purposes of imposing criminal sanctions.

[26] Even before the mandatory minimum sentence provisions were enacted, the Ontario Court of Appeal had already directed that "in a case of armed robbery where the weapon is loaded … the sentencing factor of rehabilitation must yield to that of general deterrence" and that "a heavy sentence is required in cases of armed robbery to act as a deterrent to others".

[27] Ontario courts have also repeatedly noted the proliferation of guns in our cities and stressed that sentences imposed must leave no doubt in the minds of anyone who might be tempted to commit firearm offences that, upon conviction for such an offence, the sentence will be severe.

[28] The Ontario Court of Appeal has stated that it is an even more aggravating factor if the gun is actually fired during the course of a robbery.

[29] I must however keep in mind the direction from the Ontario Court of Appeal that a first penitentiary sentence should be as short as possible.

The Offences

[30] On Friday, December 27, 2013 at 2:08 a.m., Mr. Porter and Mr. Osborn entered a Mac's convenience store in Welland. Mr. Osborn had a shotgun stuck in the leg of his pants. He was wearing a green striped toque which covered his face. Mr. Porter carried a pellet pistol in his right hand and wore a black balaclava over his head. When the store clerk Mr. Sandhu came to the counter, Mr. Porter raised the pistol at him and demanded money. Mr. Osborn removed the shotgun from his pants and pointed it toward the clerk. He then racked the shotgun, and discharged a round into the ceiling. Mr. Sandhu removed about $200 in cash from the till and placed it on the counter in front of Mr. Porter who took the money and left the store. Mr. Osborn remained behind and demanded that Mr. Sandhu give him lottery tickets. After receiving the lottery tickets Mr. Osborn left. Both fled towards Mr. Porter's car, dropping a number of lottery tickets as they fled.

[31] Douglas Caddick was getting home from a family gathering when he noticed the commotion at the Mac's store. Mr. Caddick ran over, chased Mr. Osborn and Mr. Porter and pushed one of the two men to the ground. The other one was armed with the shotgun and pointed the shotgun at Mr. Caddick and racked it. At that point Mr. Caddick retreated and both Mr. Osborn and Mr. Porter got into the car and fled. They subsequently abandoned the car.

[32] At the time, Mr. Osborn was bound by a youth probation order which contained a condition to keep the peace and be of good behaviour.

[33] Mr. Caddick later took police to the area where he struggled with Mr. Porter and Mr. Osborn. The police recovered a balaclava and some lottery tickets there.

[34] The police also located the car abandoned in the Town of Pelham. The officer investigating it looked in the back of the vehicle and saw a green and white striped toque. The vehicle was locked. Police sealed the vehicle and had it towed pending the obtaining of a search warrant. The subsequent search turned up a number of $10 and $20 bills, lottery tickets and the toque.

[35] When Mr. Porter arrived at the police station to ask about his car, his description matched that of one of the robbers and he was arrested.

[36] When interviewed, Mr. Porter said that he and Mr. Osborn met on December 26, 2013 at about 10:30 p.m. They drank some spiced rum and then they headed out to the "boonies" where they fired a shotgun. The other gun was a pellet gun. Mr. Porter admitted his involvement in the robbery. He said that it was a spur of the moment decision. After the robbery, they drove the car to Pelham where they crashed it.

[37] Police also met Mr. Osborn and his mother Jennifer Henning. They had arrived at the station with Mr. Porter and were waiting for him.

[38] Mr. Osborn also matched the description of one of the robbers and he was arrested too. He was searched and found to be in possession of $5, $10 and $20 bills, along with two 12 gauge shotgun rounds, one of which was spent and one of which was live.

[39] The police interviewed Mr. Osborn who admitted his involvement in the robbery. He said that the pistol was a pellet gun and that he did not know where it was. He purchased the shotgun from a guy in Hamilton about six months earlier. He said that he and Mr. Porter made the decision to rob the store while they were at his mother's house. He needed money to give his girlfriend for her rent. They went to an Avondale in Wainfleet and purchased two bottles of rum and then went back and robbed the store. He admitted to racking the shotgun but denied intentionally firing it.

[40] Ms. Henning told the police that at approximately 11:30 p.m. on December 26, 2013 Mr. Osborn called her and asked her if he could come over because he had been fighting with his girlfriend. He and Mr. Porter arrived at her home in Welland a short while later. Both had been drinking. They left her home. Then, around 3:00 a.m. on December 27, 2013 they called her and asked her to pick them up in Fenwick where they were stuck in a ditch. She picked them up. Both were quite drunk and appeared upset when she picked them up. Mr. Osborn told her that Mr. Porter locked his keys in his vehicle while it was running.

[41] Ms. Henning gave police permission to search her residence where they located a Remington Magnum 870 shotgun. This was insecurely stored and ammunition for it was located right beside the gun. Police found two spent and two live shotgun shells as well as additional live rounds of ammunition and one spent .22 calibre shell. They also found six lottery tickets and two rum bottles. One bottle was empty. The other was two-thirds empty.

[42] Further investigation revealed that the shotgun had been stolen during a home invasion robbery in Dunnville in July 2010.

[43] Neither Mr. Porter nor Mr. Osborn had a licence to acquire or possess firearms.

Background of Brandon Porter

[44] I have a Pre-Sentence Report with respect to Brandon Porter. I also have eight reference letters. Finally I have a letter from Mr. Porter himself. These have provided me with the following information.

[45] Mr. Porter is now 22 years of age.

[46] He was raised by his single mother until he was about 10 years old. They then moved so that she and her boyfriend could live together. This was a good relationship until they broke up about four or five years later.

[47] Mr. Porter reported that his childhood was good.

[48] He moved out of his mother's home briefly following a difficult breakup with his girlfriend. He ended up moving back in with his mother later and was living there at the time of these offences.

[49] He is single and he has no children.

[50] He is not involved in organized activities nor does he have hobbies. He spends his free time with friends and family. He is very close with his mother and his siblings.

[51] He completed his high school diploma.

[52] For the six months prior to his arrest he was working as a flat roofer. He hopes to resume similar employment once he is released from jail.

[53] He believes he has a problem with excessive alcohol consumption. He would often binge drink with Mr. Osborn. He notes that they were drinking together on the night of the offences.

[54] He indicated that he was addicted to cocaine for about four to six months in 2012 but stopped using the drug when he could no longer afford it.

[55] Mr. Porter admitted making a series of poor choices on the day of the robbery. It was completely out of character for him. He is not a violent person and he is disappointed in himself. He drank to excess however he does not recall any drug use. He turned himself in the next day when he realized that the description of his tattoo would identify him easily. He did not know the clerk who was working at the convenience store but he realized his actions likely had a significant impact on the clerk.

[56] In his letter to me, Mr. Porter made it clear that he had never expected to find himself in jail and that he does not want to ever be in jail again. He expressed immense remorse for the victim working in that store and indicated he was very sorry for causing the man trauma and terror. He expressed very real remorse and the desire to turn his life around again.

[57] When asked if he had anything to say, Mr. Porter stated that he was remorseful. He had never hurt anyone in his life. He has to go through the process now. This sort of event will never happen again.

[58] The reference letters all make it clear that this offence was out of character for Mr. Porter. All of the friends and family members who wrote on his behalf expressed total surprise at his being involved in this matter. A number of his family members were in court to offer their support for him when submissions were made with respect to sentence.

Background of Robert Osborn

[59] I have a Pre-Sentence Report with respect to Mr. Osborn. I also have been given eight reference letters and letters from Capstone Mental Health, Community Addiction Services of Niagara, and the Canadian Mental Health Association - Niagara. These provided me with the following information.

[60] Mr. Osborn is now 20 years old.

[61] His father was extremely emotionally and physically abusive towards his mother and himself. He saw his father choke his mother and drag her around by the hair. He was abused by his father from a very young age until he was about 15 years old and he was able to fight back. His father had punched and kicked him, stabbed him with a screwdriver and choked him. At age eight he was removed from his home and placed into foster care. He spent several months in foster care before moving in with his grandmother. When he was about nine years old his mother left his father and fled with him and his sister to British Columbia.

[62] His mother became involved with a new partner who was also verbally and physically abusive towards his mother, his sister and Mr. Osborn. Eventually his mother terminated that relationship and they moved back to Ontario.

[63] His mother then got involved with another man who Mr. Osborn did not get along with. On a few occasions he got into fist fights with this man. His mother chose the boyfriend over the son and Mr. Osborn moved out and went to live with his father. After about a year his father once again began to be abusive towards him. There were frequent physical confrontations and the police were called several times.

[64] With no parental support he ended up living on his own at age 15 and engaging in criminal endeavours to support himself.

[65] At age 19 he entered into a romantic relationship with his mother's best friend who was 18 years his senior. His mother threw him out of the house when she learned of this as she did not approve of the relationship. Mr. Osborn lived with this woman for about a year. The relationship ended while he was incarcerated for these offences.

[66] His mother has indicated that she suspects Mr. Osborn was sexually abused by an uncle who was babysitting him.

[67] Mr. Osborn has completed grade 10 in high school.

[68] He is a binge drinker who drinks to the point of excess and blacks out. Every time that he drinks he gets into trouble. He occasionally uses marijuana.

[69] His mother says that he has been using cocaine since he was 16, at times using drugs heavily and stealing money to support his habit. She found out recently that he was also using opiates.

[70] He has also struggled with a gambling addiction in the past.

[71] He has been diagnosed with depression, anxiety and bipolar disorder. He was not taking his prescribed medication at the time of the robbery.

[72] While in detention he has sought out assistance with respect to his various problems and has been attending addictions counselling and mental health counselling. He would like to see a psychiatrist again and feels that he needs to get back on his medications.

[73] He was on probation at the time of these offences. His youth record involves findings of guilt for possession for the purpose of trafficking and dangerous driving. He has no adult record.

[74] The reference letters on his behalf all make it clear that this offence was also out of character for Mr. Osborn. All of the friends and family members who wrote on his behalf expressed total surprise at his being involved in this matter. A number of his family members were in court to offer their support for him when submissions were made with respect to sentence.

[75] When asked if he had anything to say, Mr. Osborn stated that he was sorry and that he hoped to become a contributing member of society.

Analysis

[76] Doherty J.A. aptly described my task here when he began the judgment in R. v. Hamilton by stating:

The imposition of a fit sentence can be as difficult a task as any faced by a trial judge. That task is particularly difficult where otherwise decent, law-abiding persons commit very serious crimes ...

[77] This is a case where pretty much everything about the offences qualifies as an aggravating factor on sentence, whereas most everything about the offenders can be categorized as a mitigating factor.

[78] Crown counsel fairly and accurately set out the mitigating factors as well as the aggravating factors present here.

[79] He noted that both young men had positive Pre-Sentence Reports.

[80] Mr. Osborn had a deprived background and it could be said that not all of his problems were of his own doing. The same could also be said of Mr. Porter, albeit to a much lesser degree.

[81] The offences were out of character for both of them. Mr. Osborn had a minor record only and Mr. Porter had no record at all.

[82] Both pled guilty and both expressed genuine remorse.

[83] Crown counsel also enumerated the many aggravating factors present in this case.

[84] Mr. Osborn did have a youth record and was on probation at the time.

[85] The robbery was planned to the extent that Mr. Porter and Mr. Osborn armed themselves and put on disguises before entering the store.

[86] Mr. Osborn was armed with a loaded shotgun which he discharged during the course of the robbery.

[87] Mr. Porter was armed with an imitation handgun.

[88] They robbed a vulnerable victim, a convenience store clerk who was working alone late at night. It is settled law in Ontario that courts must protect these store clerks, as well as taxi-drivers and others who, like them, are vulnerable to robbery. The most effective way to provide this protection is to impose sentences that make it clear that anyone who preys upon such vulnerable victims should expect to go to jail for a very long time.

[89] In this case, the store clerk Mr. Sandhu did not prepare a Victim Impact Statement. He did speak to the Probation Officer who prepared Mr. Osborn's Pre-Sentence Report, and said that he had been scared during the robbery because both men had guns pointed at him and one man had fired his gun to scare him. He feared for his life briefly. He was not injured physically and he did not suffer from any long term trauma. He returned to work the following night and he is not worried about the possibility of being robbed again.

[90] The same cannot be said of Mr. Caddick. When he confronted the two men that night, one of them threatened him with the shotgun. Mr. Caddick later reported that he was too frightened to file a Victim Impact Statement and, in fact, he did not do so.

[91] The shotgun had been obtained by crime. While both men admitted to their part in the robbery, neither provided any information as to how or where they had obtained the shotgun.

[92] After the robbery, they stored the shotgun carelessly at the home of Mr. Osborn's mother with ammunition readily available nearby.

[93] Neither Mr. Porter nor Mr. Osborn had a licence to acquire or possess firearms.

[94] After considering all of the above, I find that a sentence of imprisonment for between five and six years would be appropriate here. A sentence in this range reflects all of the circumstances present here including the particularly egregious fact that Mr. Porter and Mr. Osborn brought a loaded firearm into the store that night and then fired it.

[95] I will impose a sentence at the low end of that range, taking into account the relative youth of both Mr. Porter and Mr. Osborn, the fact that neither of them has been to jail of any sort, let alone a penitentiary, before this, the high degree of remorse expressed by both of them and their potential for rehabilitation.

[96] Both men have been in custody since December 27, 2013. That works out to 362 days. Crown counsel agreed that in light of the Supreme Court of Canada's decision in R. v. Summers I should give them enhanced credit for that at a rate of 1.5:1. This would reflect the fact that they would otherwise lose out on the statutory remission to which they would otherwise have been entitled.

Sentences

[97] The sentences are therefore as follows.

[98] With respect to the charge of robbery using a firearm, I sentence both Brandon Porter and Robert Osborn to time served, being pre-sentence custody of 362 days, credited as 18 months, plus imprisonment for a further 42 months.

[99] With respect to the charge of having their faces masked with intent, I sentence both Brandon Porter and Robert Osborn to imprisonment for two years, to be served concurrently.

[100] With respect to the charge of discharging a firearm with intent to endanger, I sentence Robert Osborn to time served, being pre-sentence custody of 362 days, credited as 18 months, plus imprisonment for a further 42 months, to be served concurrently.

[101] Consecutive sentences are inappropriate here in light of the principle of totality.

[102] With respect to the robbery and the discharge firearm charges, both Brandon Porter and Robert Osborn are prohibited, pursuant to section 109 of the Criminal Code from owning, possessing or carrying any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for life.

[103] Robbery is a primary designated offence and I make an order authorizing the taking of any number of samples of one or more bodily substances, including blood, that is reasonably required for the purpose of forensic DNA analysis from both Brandon Porter and Robert Osborn.

[104] Each of them has four months, following his release from prison, to pay the victim fine surcharges.

Released: December 23, 2014

Signed: "Justice D.A. Harris"

Justice D.A. Harris