R. v. Brown, 2015 ONCJ 843

CITATION: R. v. Brown, 2015 ONCJ 843

DATE: 2015-08-12

COURT FILE No.: 13-08120 Central East Region-Newmarket

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

VASHON NATHANIEL BROWN

Before Justice Peter C. West

Submissions Heard on May 6, 2015 and August 4, 2015

Reasons for Judgment delivered orally on August 12, 2015

Mr. A. Barkin............................................................................................................. for the Crown

Mr. C. Slattery................................................................................. for the accused, Vashon Brown

WEST J.:

Introduction

[1] Mr. Brown was charged on November 1, 2013, with the offence of attempted robbery, contrary to s. 344 of the Criminal Code. A preliminary hearing was held on March 16 and 17, 2015. At the conclusion of the preliminary hearing an exit pre-trial was conducted with counsel and the matter was adjourned for counsel to receive instructions. On June 18, 2015, Mr. Brown re-elected to be tried in the Ontario Court of Justice with the consent of the Crown. He entered a plea of guilty to the charge of attempted robbery and a pre-sentence report was ordered.

Facts Pertaining to the Offence

[2] The complainant attended the Cash4Gold in the Vaughan Mills Complex to see whether a ring he had previously pawned was still there. Mr. Brown was observed outside the store in the parking lot and later in front of the store. At one point Mr. Brown entered the store but left after only a brief time and remained outside. The complainant was inside the store for approximately seven minutes.

[3] When he exited the store he went directly to his car, which was parked in front. As he attempted to close the driver’s door, Mr. Brown stepped between the door and the complainant. He asked the complainant for money. His right hand was in his jacket pocket and it caused the complainant to believe he had a gun. The complainant told Mr. Brown he did not have any money. Mr. Brown then reached into the car and searched the complainant’s pants and jacket pockets. He did not find anything. He then left the car and began walking across the parking lot. The complainant testified during the preliminary inquiry the entire encounter lasted 50 seconds to a minute. He testified he was scared by Mr. Brown’s actions.

[4] The complainant followed Mr. Brown in his car as Mr. Brown walked towards the bus station. While following Mr. Brown the complainant called 911. The complainant saw Mr. Brown get onto the York Regional Transit Bus #917. Police officers arrived on scene and entered the bus and apprehended Mr. Brown. The complainant identified Mr. Brown as the man who attempted to rob him.

[5] The complainant advised the 911 dispatch Mr. Brown was wearing a black hoody sweat shirt with an orange logo and carrying a black back pack. When the police searched Mr. Brown, as well as the back pack, they did not find a gun.

[6] Mr. Brown accepted those facts as correct and a conviction was entered.

Facts Pertaining to the Offender

[7] Mr. Brown was born on July 13, 1991. At the time of the commission of this offence he was 22 years of age.

[8] Mr. Brown has a Youth Court Record from July 21, 2009, for theft under and possession of property obtained by crime where he was placed on probation for one year. In addition, he has an adult record for assault, from October 28, 2009, where he received a suspended sentence and probation for one year. His youth court and criminal record were marked as Exhibit 1 on sentence.

[9] A pre-sentence report (PSR), dated July 29, 2015, was prepared by Adam Kain, Probation and Parole Officer, and marked as Exhibit 2 on sentence. I have received from the probation officer a section 34 (YCJA) Report, dated February 26, 2009, which was prepared for the youth court charges. This report was prepared by Ms. Samantha Dworsky, Psychometrist and Dr. Jeffrey Wong, Ph. D., C. Psych., Clinical and Forensic Psychologist. The section 34 Report was extensively referred to in the PSR and consequently, I requested a copy of it through the Probation and Parole Services office here at the courthouse. I have provided copies to the Crown and defence. It is marked as Exhibit 6 on sentence.

[10] Mr. Brown was raised primarily by his mother, Dean Green, who he has a good relationship with. He has an older brother, who he has a good relationship with but does not see very much currently because his brother now works in Alberta. He is also close to his grandmother and his maternal uncle, with whom he also resides. Mr. Brown’s parents separated when he was five years old and he has had very little contact with his father since then. The Psychological Assessment reflects that Mr. Brown would often make a fist with a very dark scary look on his face in an attempt to intimidate his family members. Ms. Green indicated to the probation officer she currently is not afraid of her son despite his mental health issues.

[11] According to his mother, Ms. Green, Mr. Brown was diagnosed with Attention-Deficit Hyperactivity Disorder in Grade 2 when he was seven or eight years old and Paranoid Schizophrenia at 16 years of age. The section 34 Report reflects Mr. Brown in April 2008 was diagnosed by a psychiatrist at the FACT Peel Clinic, CAMH, with Marihuana Abuse, a substance-induced Psychotic Disorder and Developmental Delay.

[12] I was also provided two letters: Exhibit 4 is a letter dated June 9, 2015 by Steven Morris, Addiction Support Worker ACT Team, CMHA Peel, Canadian Mental Health Association Peel. Mr. Morris is Mr. Brown’s ACT worker and he indicates Mr. Brown has been a participant with the Assertive Community Treatment Team program since December 2009. He is also under the care of resident ACTT psychiatrist Dr. Jagtaran Dhaliwal, whom Mr. Brown sees regularly. Mr. Brown has a mental health diagnosis of Schizophrenia and receives regular biweekly injections and is currently medication compliant. He is seen twice a week in his home by multiple members of ACT Team where he receives comprehensive support and medication. Mr. Morris was contacted by the probation officer and indicated on several occasions when attending Mr. Brown’s home he has detected the odour of marihuana.

[13] Exhibit 5 is a letter dated November 8, 2013, by Dr. Jagtaran Dhaliwal, Mr. Brown’s psychiatrist. Dr. Dhaliwal indicates Mr. Brown was diagnosed with paranoid schizophrenia since the age of 16 years and struggles with a learning disability. Mr. Brown sees Dr. Dhaliwal monthly. The ACT team has been working with Mr. Brown since January 10, 2010 and they have noticed a significant improvement in Mr. Brown’s behaviour, mood and motivations in recent months. Dr. Dhaliwal opines that as a result of Mr. Brown being involved in weekly counselling sessions with the ACT team and taking his medication weekly, Mr. Brown’s chances of showing previous behaviours is greatly reduced. Dr. Dhaliwal also indicated to the probation officer Mr. Brown has poor coping skills and has little insight into his mental illness as Mr. Brown maintains he does not have any mental health concerns.

[14] The highest level of education achieved by Mr. Brown was Grade 10. According to Mr. Brown’s mother he was placed in a class receiving specialized attention. Ms. Green advised the probation officer her son suffered from poor social skills and was always fighting in school. Ms. Green related her son had been suspended over 30 times for fighting. In Exhibit 6, the authors reflect that school records disclose Mr. Brown was suspended a total of thirty-five times for infractions including physical assault, physical aggression, verbal aggression, fighting, profanity, persistent opposition to authority, bullying, possession of a large “exacto knife” and possession of marihuana, and marihuana paraphernalia. The section 34 Report further assessed Mr. Brown as having an IQ score that was borderline or at the 3rd percentile. His academic functioning is extremely low and was found to be the equivalent to the performance of a six to nine year old child.

[15] Mr. Brown has been in receipt of Ontario Disability Support Program since 2010 and he currently receives $1098.00 a month, which was confirmed by the probation officer. In addition, Mr. Brown works for an employment agency, MaxSys Staffing & Consulting, on a part-time basis, since March 20, 2014. Exhibit 3 is a letter from Maria (Laurie) Morado, Associate, dated April 11, 2014. Mr. Brown has been working part-time with Waste Management Systems through MaxSys since May 2014. This was also confirmed by the probation officer.

[16] Ms. Green advised the probation officer of the fact her son has attempted on numerous occasions to commit suicide, the most recent incident in April 2015 when he attempted to cut himself.

[17] Mr. Brown has accepted responsibility for his actions of attempting to rob the complainant by pleading guilty to the offence of attempted robbery. His plea is entitled to mitigation. Mr. Brown apologized to the complainant and court for his actions when I asked him if he wanted to say anything before he was sentenced. He also apologized to his mom for what he did. In my view Mr. Brown’s guilty plea is a reflection of remorse. Further, by Mr. Brown’s plea of guilty he has saved the time and expense of a jury trial in the Superior Court.

[18] Mr. Brown was held in custody for six days after his arrest until he was released on stringent bail conditions; namely a house arrest provision which only permitted him to leave his residence in the company of one of his sureties, his mother or his grandmother. This term was varied slightly in May 2014 to allow him to work part-time for the MaxSys employment agency and to perform community service. The pre-sentence report reflects that Mr. Brown’s house arrest condition prevented the ACT Team from involving Mr. Brown in community support programs to assist him in developing and working on basic social interaction skills, which Mr. Brown lacks. I was advised that Mr. Brown has been arrested on new charges in Peel Region (in April and May 2015) and there were periods of time he was in custody prior to being released on bail. He is currently in custody awaiting a bail hearing on August 14, 2015. I am not taking into consideration any new charges Mr. Brown might be facing in terms of my sentence; however, Ms. Slattery has reduced the time he has been on house arrest release by the periods he has been in custody. It is her submission Mr. Brown has been on the house arrest release for 20 months, on terms more stringent than most conditional sentences.

Position of the Parties

[19] It is Ms. Barkin’s position the appropriate sentence is a jail sentence in the range of 9-12 months.

[20] Ms. Slattery, for the defence, argues Mr. Brown has been on stringent house arrest conditions since his arrest on November 1, 2013. Pursuant to R. v. Downes, 2006 CanLII 3957 (ON CA), [2006] O.J. No. 555, Ms. Slattery argues Mr. Brown has already served the equivalent of a 20 month conditional sentence and there should be some credit assessed in determining an appropriate sentence. It is her submission a suspended sentence and probation is the appropriate sentence having regard to the unique circumstances of Mr. Brown’s background and the relatively minor nature of the attempted robbery.

Analysis

[21] The determination of a proper sentence in this case calls for a consideration and balancing of the principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code, as well as the aggravating and mitigating factors which exist in this case. I have set out above a number of mitigating factors and circumstances which I must consider in determining an appropriate sentence.

[22] A street-level robbery is a serious offence which usually requires a sentence that reflects the principles of deterrence and denunciation. In most cases, these principles will be paramount and will require a custodial disposition. Sentencing is highly individualized and must be proportionate to the gravity of the offence and the degree of responsibility of the offender. It is to be increased or reduced to account for any aggravating or mitigating circumstances. It should strive to be similar in relation to other sentences imposed on similar offenders in similar circumstances.

[23] Sentencing authorities for street-level robberies carry a wide disposition range with the facts of each case being determinative. The jurisprudence indicates a range of sentence for these types of robberies from non-custodial dispositions to conditional sentences (pursuant to the original s. 742.1 provisions) to jail sentences ranging from low to upper reformatory. It is clear that any sentence must focus on the protection of the public by the imposition of a penalty that denounces this type of conduct and provides for both general and specific deterrence. At the same time, the sentence must be individualized, as well as reflect and encourage as much as possible any apparent rehabilitative prospects.

[24] Mr. Brown is a youthful offender who has one entry on his youth court record and one entry on his adult criminal record, as reflected above. He has never been to jail and there is a four-year gap between his record and the offences before me. This is a fairly significant gap having regard to his youth.

[25] Mr. Brown has spent six days in pre-trial custody, which on a 1.5-1 basis amounts to 9 days of actual pre-trial custody. He has also spent 20 months, as a youthful offender who suffers from significant mental health issues, namely paranoid schizophrenia and attention deficit hyperactivity disorder. Initially his house arrest condition only allowed him to leave his residence in the company of one of his sureties. This is more restrictive and stringent than the usual provisions relating to exceptions surrounding house arrest in a conditional sentence. There can be no doubt that the “house arrest” provision of Mr. Brown’s bail impacted Mr. Brown. As I referred to above, his house arrest prevented the ACT Team from involving him in community support programs. On May 27, 2014, his recognizance was varied to allow him to be out of his residence to perform community service at South Fletcher Sportsplex in Brampton and to work through MaxSys with Waste Management Services in Brampton. Consequently, his house arrest condition was still more onerous and stringent than what is typically found in the exceptions to house arrest under a conditional sentence. The length of time is significant as reflected in the later decision of the Court of Appeal in R. v. Ijam, 2007 ONCA 597, [2007] O.J. No. 3395, at paragraphs 28-29. I also recognize that being released on bail, even with strict, restrictive conditions, is far different from pre-trial custody awaiting trial in jail (see Ijam, supra, at paragraphs 36-37). The decision whether to give any credit for stringent bail conditions is within the discretion of the sentencing judge based on the considerations outlined by Justice Rosenberg in paragraph 37 of R. v. Downes, supra.

[26] In R. v. Downes, supra, Rosenberg, J.A. held that “time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance.” (See para. 33)

Stringent bail conditions, especially house arrest, represent an infringement on liberty and are, to that extent, inconsistent with the fundamental principle of the presumption of innocence. House arrest is a form of punishment, albeit of a different character than actual incarceration. Pre-sentence house arrest varies little in character from the house arrest that is often imposed as a term of a conditional sentence under s. 742.1 of the Criminal Code. (See para. 29)

Thus, a trial judge faced with an offender who has spent time on bail under house arrest should adopt a flexible approach. In the end, the amount of credit and the manner in which it is taken into account as a mitigating factor is a matter for the trial judge. That factor must be considered along with the myriad of other mitigating and aggravating circumstances that may impact on the sentence in a given case. (See para. 36)

[27] When one considers Mr. Brown’s youthful age, his mental health issues, the length of time he has been on house arrest, in my view the impact on his liberty interests as a result of the stringent terms of his bail has been significant. Having regard to all of the above circumstances, an appropriate credit for the 20 months spent on bail under “house arrest” conditions, keeping in mind there is no “rigid formula” to be applied in determining what credit will be given, it is my view the appropriate credit is six months.

[28] I am mindful of the provisions of s. 718.2 (d) and (e) which provide “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances” and “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.” Mr. Brown has a minor youth and criminal record and has never been sentenced to a period of incarceration. As I have indicated, a street level attempted robbery is a serious offence; however, in my opinion the unique facts of this matter place the seriousness at the lower end of the scale. The incident was extremely brief – approximately a minute in length. No money was taken from the complainant. There was no actual assault by Mr. Brown towards the complainant. Mr. Brown was not armed with any weapon. The police did not find a gun or anything else in Mr. Brown’s pocket, which leads to the reasonable inference he was using his finger to pretend he had a gun.

[29] The Crown advised me the complainant refused to provide a Victim Impact Statement as he indicated to the officer he now felt sorry for Mr. Brown as he apparently was provided some information concerning Mr. Brown’s mental health issues.

[30] Taking into account all of the mitigating and aggravating factors it is my view the appropriate sentence would have been a custodial sentence in the range of six to nine months. Mr. Brown spent six days in custody prior to being released on a recognizance of bail. I have determined the appropriate credit to be given to Mr. Brown for the stringent bail conditions he has been subject to for the past 20 months is the equivalent of six months of pre-trial custody. Considering Mr. Brown’s youth, the minor nature of his criminal record, his mental health issues, the fact he has, on his own initiative taken steps and continues to take steps to address his mental health issues, the relatively minor nature of the attempted robbery, and the pre-trial credit I have determined should be considered, it would be counter-productive to impose any further period of incarceration. The appropriate sentence therefore is a suspended sentence with a term of probation for three years.

[31] The information will reflect the nine days of pre-trial custody and 6 months of credit pursuant to R. v. Downes. Counsel did discuss the specific terms of probation with me during submissions.

[32] Mr. Brown, the appropriate sentence is a suspended sentence with probation for three years. The terms of your probation are as follows:

Keep the peace and be of good behaviour;

Report to a probation officer forthwith and thereafter as required;

Reside at an address approved by your probation officer;

Abide by the rules of the household where you reside;

Not to contact or associate directly or indirectly with the complainant, Sayad-Barya-Bakhsh;

Be subject to a curfew from 10 p.m. to 6 a.m., 7 days a week, except with the written permission from your probation officer to be outside your residence;

Not to attend at the Vaughan Mills or the surrounding big box stores;

Continue counselling and treatment with Dr. Jagtaran Daliwal and the ACT Team;

Attend any counselling as recommended by your probation officer;

Sign any waivers or release of confidential information, in favour of your probation officer, to your doctor/counsellor/therapist to permit your probation officer to confirm your attendance or completion of your counselling or treatment.

Not to be in possession of any weapons as defined by the Criminal Code;

[33] There will be a mandatory weapons’ prohibition order, pursuant to s. 109 of the Criminal Code, prohibiting you from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for 10 years.

[34] Further, I am ordering the taking of samples of bodily substances from you that are reasonably required for the purpose of forensic DNA analysis pursuant to s. 487.051(1). It is my understanding you are currently in custody on other charges so I am ordering the DNA sample to be taken today.

Released: August 12, 2015

Signed: “Justice Peter C. West”