Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Terry Robert Fuller
Before: Justice Robert S. Gee
Heard on: October 24, November 27 and December 11, 2017
Reasons for Judgment released on: December 20, 2017
Counsel:
- Derek Zuraw, for the Crown
- Dale Henderson, for the accused
Introduction
[1]
Introduction
On September 20, 2017 the accused, Terry Fuller entered the Rexall Pharmacy located at 260 St. Paul Avenue in the City of Brantford. At the time he was wearing dark sunglasses, a baseball hat, a grey hoodie and beige shorts. As he approached the pharmacy counter he put his hood up, pulled out a knife and demanded narcotics. He ended up grabbing 110 bottles and packages of narcotics, including fentanyl patches, hydromorphone, oxycodone and dilantin amongst others and putting them in a large blue duffel bag he brought with him.
2While the robbery was in progress, pharmacy staff called 911 and notified police. Mr. Fuller ran from the store and fled the scene on his bicycle. He rode down St. Paul Avenue and turned onto Lawrence Street where he collided with a fully marked Brantford Police cruiser that was responding to the robbery in progress call.
3A brief foot pursuit ensued and Mr. Fuller was apprehended. At the time, he was carrying the blue duffel bag containing the drugs he had taken from the pharmacy as well as a stainless steel knife with a five inch blade and a wooden handle. He has been in custody since.
4On October 24, 2017, Mr. Fuller pled guilty to the robbery. At the time I was advised that counsel had a joint submission on sentence. It was agreed that in addition to his 34 days of presentence custody, Mr. Fuller should be sentenced to two further years. I advised counsel that I had difficulty with the proposed joint submission and the matter was adjourned to November 20, 2017 for the preparation of a presentence report and to give counsel a further opportunity to make submissions in relation to the joint submission.
5After receipt of the presentence report and hearing further submissions, I advised I was still not satisfied with the joint submission. Counsel for Mr. Fuller advised in light of that, he would like an opportunity to withdraw his guilty plea. The matter was further adjourned to December 11, 2017 to allow counsel to make that application.
6These reasons will explain why Mr. Fuller's application to withdraw his plea is dismissed and as well will explain the reasons for the sentence I am about to impose upon him.
Mr. Fuller's Background
[7]
Mr. Fuller's Background
Mr. Fuller was born on October 18, 1962, which made him 55 years old on the date of his plea. To say he has a lengthy criminal record could be considered an understatement. It begins in 1982 and continues, practically uninterrupted to the present. During the course of submission in this matter I attempted to count the number of convictions and came up with 54. After reserving I undertook a more careful count and realized I was mistaken, he actually has 70 prior convictions; his conviction for this robbery is his 71st.
8The majority of his criminal record is for thefts, property offences, crimes of dishonesty and offences against the administration of justice. His record consists of 19 convictions for theft or possession of stolen property, 15 convictions for fraud or related offences, three break and enter or attempt break and enter convictions, 16 convictions for breaching court orders, two convictions for possessing a controlled substance and two convictions in 2009 for trafficking in a schedule 1 controlled substance.
9In addition, he has three prior convictions for robbery. On October 30, 1991 he was convicted of two robberies. For these he received a sentence of three years custody for each, concurrent to each other. More recently, on September 7, 2011 he was convicted of his third robbery. On this robbery he was sentenced to 182 days on top of 88 days presentence custody. It is unclear, so depending on how his presentence custody was credited, this was the equivalent to a 9 month to 10.5 month sentence.
10The longest he has gone between convictions is just under four years, from the time of his first conviction in July 1982, to his second in April 1986.
11Mr. Fuller also has a longstanding drug addiction. His addiction first started when he was prescribed percocet for an injury to his tailbone when he was 16. His addiction progressed to heroin and then dilaudid, both of which for a time he used intravenously. In the near 40 years since his addiction surfaced, he has not been able to overcome it. At best he was able to stop using intravenously about 15 years ago. He has been on methadone for the past 20 years and when that was not giving him a high, he began using cocaine. More recently, he has started using fentanyl and was under its influence when he committed this robbery.
12In the past he indicates he has attended many day treatment programs and was sent to a treatment centre for approximately 8 months during a prior penitentiary sentence. His response to community supervision and probation has been poor. He has been sent to programs and other community supports but he struggles to report to probation and consistently fails to follow through with rehabilitative efforts.
13As well, he has few supports in the community. His parents are both deceased and he has minimal contact with his brother. His son, passed away as a result of a motor vehicle accident. He is not currently connected to any counselling or community agencies which would offer him pro-social ties.
14He has a high school education and does not suffer from any learning disabilities nor does he have any mental health issues. When he was young, Mr. Fuller began to work in his father's janitorial business. He did this he states for approximately 20 years however acknowledges his employment history was often interrupted by periods of custody. He also worked for approximately 4 years in an automobile manufacturing plant in London, Ontario. He was not able to maintain this employment in part due to his drug use but also he indicates due to the fact he developed Guillain-Barre Syndrome for which he was hospitalized in 2007. Since November 2006, his source of income has been ODSP.
15As mentioned, his response to community supervision has been poor. He has been on probation, on and off for the past 35 years. During his most recent period on probation he struggled to report as required. He expressed a desire to improve his life but failed to follow through. According to the presentence report, his lack of stability in the community and his continued substance abuse plays a significant role in his struggles with probation. As well, while on probation, rehabilitative efforts are frustrated because he has consistently incurred new charges.
Procedural History
[16]
Procedural History
As noted Mr. Fuller pled guilty to this matter on October 24, 2017. At that time I heard counsels' submissions and was advised that they had arrived at a joint submission on sentence of time served of 34 days plus two years jail. The 34 days presentence custody was to be calculated at the rate of 1.5 days to 1 for the equivalent of 51 days credit. This resulted in a sentence equivalent to 25 months and three weeks jail.
17I advised counsel that given the facts, the nature and quantity of narcotics stolen and Mr. Fuller's antecedents, I was troubled by the joint submission. The matter was adjourned to November 20, 2017 for the preparation of a presentence report and to give counsel an opportunity to make further submissions in support of their joint submission and to address the concerns the court had with it.
18At the return date on November 20, 2017, the presentence report was available. As can be seen from above, it did not portray Mr. Fuller in a flattering light. In addition to this, an additional fact was agreed to by the parties, that being that at the time of the robbery, Mr. Fuller was high on fentanyl.
19In terms of the joint submission itself, it became apparent that the joint submission was for 2 years on top of whatever presentence custody Mr. Fuller had accumulated. As of November 20, I was told that was 61 days so when given enhanced credit was equivalent to just over 90 days so the joint submission now resulted in an effective sentence of approximately 27 months.
20As for further submissions to justify the joint submission, defence counsel reviewed some of Mr. Fuller's background as set out in the presentence report and he emphasized his most recent robbery conviction resulted in a sentence of less than a year of custody.
21Two other points defence counsel made were directed at comments I had made on October 24. First was that the crown had not alleged nor had Mr. Fuller admitted that he intended to traffic in the stolen drugs and second that while committing the robbery, he was not taking an inventory as he described it, of what he was stealing. He did not know the precise quantities or the nature of the drugs he had taken.
22At the guilty plea on October 24, part of my concern was the quantities of drugs stolen, 110 bottles and packages, the nature of them, particularly fentanyl, and that Mr. Fuller has a not so distant history of drug trafficking. It is these concerns that defence counsel seemed to direct his comments to.
23For its part, the crown's justification for the joint submission was that it was in the appropriate range of sentences for this offence and this offender though on the low end of the range. He pointed out the sentence Mr. Fuller received for his last robbery conviction and suggested this was a significant "step up" from that sentence. He as well commented that Mr. Fuller's other two robberies were from 1991, some 26 years ago.
24Neither counsel provided the court with any case law that was supportive of their position that the sentence proposed was within the range for an offence similar to this committed by a similarly situated offender.
25At the end of submissions, I advised counsel I was still not satisfied with the joint submission and was advised by defence counsel that in light of that, Mr. Fuller wished to make an application to withdraw his plea. The matter was then adjourned to December 11, 2017 for counsel to prepare and file such an application.
Mr. Fuller's Application to Withdraw His Plea
[26]
Mr. Fuller's Application to Withdraw His Plea
On December 11, the matter returned to court for Mr. Fuller's application to withdraw his plea. In his application materials, Mr. Fuller cited two grounds for his request. The first was simply a reference to the Supreme Court case of R. v. Anthony-Cook, 2016 SCC 43. The second ground was that comments I made during the course of submissions resulted in there being an appearance of a reasonable apprehension of bias.
27In submissions at the application, the comments pointed out by defence counsel that raised the possibility of bias were comments I made on October 24 at the time of Mr. Fuller's plea that if the fentanyl ended up on the streets it could have caused someone's death. Further comments I made were that this was not like a convenience store robbery where a person steals money, but this was a robbery where he stole quantities of drugs greater than needed for personal use. Defence counsel's position again was that this was a situation where Mr. Fuller did not take an inventory of what he was stealing and that whether it could result in someone's death was speculation.
28Although not argued in oral submissions, in the application materials another example of a comment I made that Mr. Fuller alleges displays a reasonable apprehension of bias was during questioning of the crown on November 20, I made a comment that given Mr. Fuller's record and history, he was not the type of offender for whom I should be emphasizing rehabilitation as a sentencing objective, a comment with which the crown agreed.
29It was conceded that otherwise Mr. Fuller's plea met the requirements for a valid plea in that it was voluntary, unequivocal and informed. He was represented by experienced counsel, he was aware of the nature and extent of the allegations against him and the sentence sought was not one which was otherwise unavailable.
30Furthermore, there was no indication that Mr. Fuller pled in the face of any weakness in the crown's case, or that in pleading guilty he agreed to forgo any arguable Charter defences that may have been available to him on the facts nor was there any other basis for the joint submission such as other assistance given to the police or crown in exchange for his agreement to plead guilty.
31From all appearances, as can be gleaned from the facts, his decision to plead guilty came from a recognition of the inevitability of the outcome. He was guilty, he got caught and the case against him was overwhelming.
Discussion – Should the Plea Be Withdrawn
[32]
Discussion – Should the Plea Be Withdrawn
Joint submissions have long been recognized as an important and integral part of the criminal justice system. When done properly they provide benefits to all justice system participants, the accused, crown, victims, witnesses, counsel and the administration of justice in general. Their value to the proper functioning of the justice system has long been recognized and as such, there is a high expectation, and rightfully so, by accused persons, crowns and all participants that courts will respect and follow them. (see: Anthony-Cook, par 35-45, the Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions (1993) (the "Martin Committee Report") and R. v. Cerasuolo)
33The Supreme Court in Anthony-Cook reaffirmed the importance of joint submissions, settled the test to be applied when courts are considering departing from them and setting the procedure to follow when a court is troubled by a joint submission.
34The threshold for when a judge is justified in not adhering to a joint submission is high. Departure from a joint submission should only occur when the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest. This would only happen where the proposed sentence would be viewed by a reasonable and informed person as a breakdown in the proper functioning of the justice system. See Anthony-Cook at paragraphs 32 and 42.
35The Court set out five steps to follow when considering departing from a joint submission (see paragraphs 49-60 of Anthony-Cook).
36First, the joint submission must be taken on an "as-is" basis. In this case I have done that. It is for two years jail on top of any presentence custody followed by 12 months' probation, a DNA order and a weapons prohibition order pursuant to s. 109 of the Criminal Code.
37Second, the public interest test as mentioned above should be applied by the judge. In this case I have endeavoured to do so.
38Third, the judge should enquire of any benefits received by the crown in exchange for the accused's agreement to plead guilty such as assistance in other matters or a plea in the face of weaknesses to the crown's case. Here, as noted earlier no such benefits were gained by the crown in exchange for Mr. Fuller's plea.
39Fourth, counsel should be given the opportunity to make further submissions in order to attempt to address the court's concerns. That as well was done here.
40Fifth, if the judge's concerns are not alleviated then the judge may allow the accused to apply to withdraw his plea. That is the step we are at here. Mr. Fuller has applied to withdraw his plea.
41The Supreme Court though in Anthony-Cook did not set out the circumstances under which a withdrawal of a plea ought to be granted. The only example it gave, which is inapplicable here, is where counsel have made a fundamental error about the legality of the proposed sentence, such as recommending a conditional sentence where one is not available.
42In order for a guilty plea to be valid, it must be voluntary, unequivocal and informed. If it can be demonstrated that in one respect or another it was not voluntary, unequivocal or informed, the plea will be invalid and may be struck. See: R. v. T. (R.).
43However even where the plea is otherwise valid, there remains a residual discretion in the court to allow a withdrawal of the plea. When such a discretion ought to be exercised was discussed by the Manitoba Court of Appeal in the case of R. v. Jawbone. Scott J.A. stated at paragraph 6:
The circumstances justifying the exercise of such a discretion are not confined to circumstances where there is a suggestion of impropriety or error in the formal plea itself, rather "valid grounds"…..for the accused being permitted to withdraw his plea should not be too narrowly defined or rigidly applied. The essential question to be determined in each case is whether it is justified in the interests of justice.
44See also R. v. Adgey, where the Supreme Court held:
…an accused may change his plea if he can satisfy the Appeal Court "that there are valid grounds for his being permitted to do so."
45In this case as conceded, Mr. Fuller's plea was valid. The question is whether the court should exercise its discretion to allow him to withdraw it as a result of the court's indication it was not satisfied with the joint submission.
46Before answering that question, Mr. Fuller's allegation of a reasonable apprehension of bias should be addressed. All persons are entitled to have their cases decided fairly and impartially. If it can be demonstrated that they were not, then that would be a basis for allowing a withdrawal of the plea.
47What constitutes a reasonable apprehension of bias was set out by the Supreme Court in R. v. S.(R.D.), as follows:
the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. . . . [T]hat test is "what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly." …. The grounds for this apprehension must, however, be substantial and I . . . [refuse] to accept the suggestion that the test be related to the "very sensitive or scrupulous conscience".
48See also R. v. Brown, where the Court of Appeal also endorsed this test.
49Applying that test to the matter at hand, I find that Mr. Fuller has failed to demonstrate any reasonable apprehension of bias. The matters to which he referred to support such a claim to any reasonable observer were valid points that counsel ought to have anticipated could arise when proposing such a joint submission.
50I would echo the comments of my brother Justice Duncan that he so aptly put it when faced with a similar allegation in the case of R. v. C.N.H., [2002] O.J. No. 1112 at paragraph 14:
In my view it is self-evident that a court is not biased against a party simply because it questions the merits of that party's position. If it were otherwise, every counsel who receives a rough reception in the Court of Appeal could claim bias
51Comments which I would note were upheld by the Court of Appeal, see R. v. C.N.H.. As such, there is no basis to allow Mr. Fuller to withdraw his plea for any alleged apprehension of bias.
52I also find that there is no other basis upon which I should exercise my discretion and allow Mr. Fuller to withdraw his plea. I find it would not be in the interests of justice to do so.
53As the Supreme Court noted in Anthony-Cook, there are many valid reasons for encouraging and acceptance of joint submissions by a court. However, that deference to joint submissions is not absolute. The Court recognized there are situations where a judge can rightfully reject a joint submission. Rejection of joint submissions in the right circumstances is as much a fundamental part of the proper functioning of the administration of justice as is the expectation that they will, in all but the rare case be accepted.
54Even though the Supreme Court suggested the withdrawal of guilty pleas in some cases may be appropriate the first thing to recognize is this was framed as a permissive and not mandatory form of relief. The Court said a judge may allow an accused to apply to withdraw his plea. Given this, it is obvious that there would be circumstances where withdrawal of a plea is not justified.
55In my opinion, it comes down to a matter of fairness. If the accused gave up something and agreed to plead guilty in exchange for a joint submission on sentence he otherwise may not get, then it may be argued that it is appropriate to allow him to withdraw his plea. If as mentioned earlier, the crown case had some weaknesses, or if the accused gave up arguably valid Charter arguments which could have brought into question the crown's prospects of conviction, then fairness would dictate the accused be restored to his previous position and allow him to argue these issues.
56In this case there was nothing of the sort. As noted the case against Mr. Fuller was overwhelming and his decision to plead guilty was a recognition of that. There was no quid pro quo, he gave up nothing in that sense. The only thing he gained was the certainty that usually comes from a joint submission and the mitigation that comes with pleading guilty early, which I would note, is still available to him.
57This was not a situation where I was told that Mr. Fuller would, if his plea was withdrawn, run a trial; this was, if his plea was withdrawn, simply destined to be a guilty plea again. In that situation I would find it would be inappropriate to condone such a procedure.
58This is what was argued and rejected by the Court of Appeal in R. v. Rubenstein, [1987] O.J. No. 1118. In that case the court stated as follows:
…It is argued in this court that when a trial judge regards the joint submission with respect to sentence as unreasonable or in error he should so inform an accused and give that accused an opportunity to withdraw the plea. It is argued that to do otherwise would be fundamentally unfair since an accused in the position of an appellant offers the plea in the expectation that the joint submission will be followed. It was further argued that the joint submission was the quid pro quo for the pleas of guilty and therefore the failure of the trial judge to heed the joint submission entitled the accused to be restored to his original position; i.e. he could force the Crown to prove its case against him in full.
I disagree with this proposition. The power of the trial judge to impose a sentence cannot be limited by a joint submission, and the joint submission cannot be the basis upon which to seek to escape the sentencing judge when it appears that he chooses to reject the joint submission. As Judge Draper observed, an accused who could thus withdraw his plea could simply keep doing so until he found a trial judge who would accept a joint submission. A plea of guilty in the same way as a finding of guilt after trial exposes an accused to a proper sentence to be determined by the trial judge. In the case on appeal the difference between the sentence sought by the joint submission and that imposed by the trial judge was stark but that does not affect the principle involved. To permit an accused to withdraw his plea when the sentence does not suit him puts the court in the unseemly position of bargaining with the accused.
59Notwithstanding this case was decided nearly 30 years before Anthony-Cook, I find that the reasoning in it is still valid and applicable today.
60It is for all these reasons that I find there is no valid basis for me to exercise my discretion and allow Mr. Fuller to withdraw his plea. As such, his application to do so, is hereby dismissed.
The Appropriate Sentence
[61]
The Appropriate Sentence
In considering the appropriate sentence in this matter, I find that the joint submission as proposed would bring the administration of justice into disrepute and is contrary to the public interest. A reasonable person, fully informed about the circumstances of the offence, the nature and quantity of the drugs stolen and the antecedents and circumstances of Mr. Fuller would view the joint submission as a breakdown in the proper functioning of the justice system.
62I find it is contrary to the public interest because it fails to reflect the seriousness of the offence and the level of moral culpability of Mr. Fuller.
63Robberies, especially ones with a weapon as here, are particularly serious crimes. Robbery is one of the few offences in the Criminal Code for which a life sentence is available. It is a crime of violence that terrifies its victims. This case is no exception. The pharmacist who was robbed in her Victim Impact Statement speaks of her ongoing fear. She is afraid to go outside alone and is fearful of working in the evenings now. She now has trouble sleeping and has had to resort to taking sleeping pills to fall asleep. This is the second time she has been robbed and now approaches her work assuming she will be robbed again.
64As well, the amount and nature of the drugs stolen here make this a particularly serious offence. I was never, throughout the course of these proceedings provided with an itemized list of the actual nature and quantities of drugs stolen. I was only told in somewhat broad terms what was taken. I was advised 110 bottles and packages of drugs were taken including oxycodone, hydromorphone and dilantin. However, by a wide margin, the most serious of the drugs stolen was fentanyl. In relation to the fentanyl, during submissions on December 11, the DVD containing the police photos of the entire quantity of drugs stolen was reviewed. It was determined Mr. Fuller had stolen a total of 75 fentanyl patches at a strength of 50 micrograms per hour.
65Oxycodone and hydromorphone are serious, dangerous hard drugs that courts have been dealing with for a number of years. People addicted to these drugs are frequent visitors to courts across this province and elsewhere. Many crimes such as the one here and other property crimes are committed by people addicted to these substance as they try to support their habit.
66Fentanyl though, is an entirely different class of drug. It is exceedingly dangerous. In its pure form even in very small quantities it can be lethal. It is 100 times more powerful than morphine and 20 times more powerful than heroin. The abuse of fentanyl patches has resulted in many deaths. In the case of R. v. Loor, 2017 ONCA 696, the Court of Appeal's review of the evidence of Dr. Karen Woodall, a toxicologist with the Centre of Forensic Sciences, at paragraphs 33 to 39, is particularly illustrative of the danger of fentanyl and its widespread abuse.
67The potential for this fentanyl and the other drugs stolen by Mr. Fuller to cause harm to him and potentially others in this community was very real and significant and cannot be overlooked.
68Mr. Fuller's moral culpability for this crime was also particularly high. This flows both from the manner in which he committed the offence and from his personal circumstances.
69In terms of the offence itself, he wore dark sunglasses and put his hood up over the baseball hat he was wearing in order to make his identification more difficult. He brought a large blue duffel bag to put the stolen drugs in. This indicates both a level of planning and if not an intention to take a large quantity of drugs, at least a desire on his part to steal a large quantity. He as well, brandished a knife at the pharmacist.
70His personal circumstances too increase his level of moral culpability. As noted he is 55 years old and this is his 71st conviction. More disturbing, it is his fourth conviction for robbery. As he ages, not only is his criminality not waning, it is if fact becoming more serious. This offence at 55 years old, represents the most serious offence for which Mr. Fuller has been convicted.
71As well, he has a longstanding drug addiction and he has throughout his life been resistant to all efforts at addressing it and at other efforts designed to rehabilitate him. Nothing to date has worked to address his underlying crimogenic factors, nor does he seem interested or capable of addressing them.
72Both the crown and defence pointed out his first two convictions for robbery were from 1991 and his third attracted a shorter sentence. The implication is this somehow lessened his culpability for this fourth robbery. I disagree. Yes, it has been some 26 years since his first two but I would note his criminal activity did not cease or even slow after. In fact since those convictions in 1991 he has amassed approximately 50 further convictions, 12 of which have come since his third robbery conviction in 2011.
73Defence counsel has also argued that during the robbery Mr. Fuller was grabbing and filling his bag with whatever and as much as he could get but was not taking any sort of inventory of the items he was stealing or noting the nature of the drugs he was stealing. The implication is since he was unaware of the precise quantities stolen and what he was taking this lowers his level of moral culpability.
74Again I would disagree. He attend the pharmacy with the large duffel bag and he was the one grabbing the drugs and filling it. He would have had an awareness of the amount he was taking while he was doing so. He also when he entered, demanded narcotics and to a large extent, that is what he got. He entered the pharmacy intending to steal as much of the narcotic drugs he could get and he succeeded in getting a large quantity. The fact that he was not aware by the time of his arrest how successful he was in carrying out his plan, in no way lessens his moral culpability for his crime.
75It is for these reasons that I find the joint submission as proposed would be contrary to the public interest. As such it falls to me to determine what the appropriate sentence is in the circumstances.
76The guiding principle in all sentencing matters is that of proportionality. All sentences must be proportionate to the gravity of the offence and the level of culpability of the offender. The more serious the offence, or the greater the offender's level of culpability, the harsher the sentence to be expected. See: R. v. Lacasse, 2015 SCC 64. In this case, both the offence is serious and the Mr. Fuller's level of culpability is high.
77As noted, I was not provided with any case law by counsel in this matter in support of the joint submission. I have attempted to find some myself and found several however none involving fentanyl.
78The one that most closely resembles this case is that of R. v. Chuvalo, [1987] O.J. No. 1177, a case of the Ontario Court of Appeal. In that case brothers George and Steven Chuvalo robbed a drug store while armed with weapons; one a knife, the other a hatchet. During the course of the robbery they terrorized the employees and made off with a quantity of drugs.
79Steven Chuvalo was initially sentenced to 14 months imprisonment while his brother George, who had a much lengthier record and history of drug addiction, was sentenced to 22 months. The sentences were appealed and in increasing the sentence of George Chuvalo to four years, the Court of Appeal explained its reasoning for doing so as follows:
At the time of the sentencing, George Chuvalo was 24 years of age. He has a criminal record dating back to 1981 when he was 17 years of age, which included previous convictions for possession of a dangerous weapon and for robbery. In 1985, he was sentenced to 12 months and given two years' probation for the robbery offence and was on probation at the time that this offence was committed.
The trial judge, in imposing the sentence of 22 Months' imprisonment plus two years' probation for the offence of robbery on the respondent, George Chuvalo, was quite understandably concerned with the lengthy history of narcotic and alcoholic addiction. The sentence imposed was one which reflected a paramount concern for his rehabilitation on the premise that his drug addiction could be better treated in a reformatory setting. However, the material before us discloses that although the respondent, George Chuvalo, appears to be cognizant of his problem, he has not demonstrated any desire or motivation to change his lifestyle. The post-sentence information provided to us does not disclose that he has yet shown any desire or motivation on his part to respond to treatment, and the prospects for rehabilitation are bleak.
Notwithstanding George Chuvalo's very serious addiction, the paramount consideration in determining an appropriate sentence for this offence is one which would properly reflect the gravity of this very serious robbery, and for the protection of the public. In the past, the lenient sentences imposed upon him have not met with any response for rehabilitation. With his criminal record and the violence which attended this particular robbery, a penitentiary sentence should have been imposed.
We are all of the opinion that leave to appeal should be granted, the appeal allowed, and in the case of the respondent, George Chuvalo, the sentence for robbery be varied to that of four years' imprisonment.
80The next case is that of R. v. Murchison, [2013] O.J. No. 1746. In that case, Mr. Murchison was being sentenced for a number of offences, including the robbery of a pharmacy. During the robbery he had an expandable baton and stole a few Ritalin tablets. At paragraph 7, Justice Fuerst of the Superior Court summarized Mr. Murchison's background as follows:
Mr. Murchison is 27 years old. He has a very lengthy criminal record that dates back to 2001, when he was a young person. It includes numerous property offences and more than a dozen failures to comply with court orders. Of most concern is that Mr. Murchison was convicted of assault with a weapon on two separate occasions in 2008, and of robbery in 2010. He received a sentence of 18 months in jail, which is the longest jail term imposed on him to date. A weapons prohibition order was made. He breached that order by carrying the baton he used in the robbery of the convenience store. He also was bound when he committed the pharmacy and convenience store robberies by a probation order imposed in 2010.
81In that case she sentenced Mr. Murchison to 4 years and seven months for the pharmacy robbery.
82Another pharmacy robbery case is that of R. v. Taylor, [2017] O.J. No. 139, the facts of that case are as follows from paragraph 4:
On March 3, 2015, the IDA Pharmacy in downtown Huntsville was the subject of an armed robbery. Allan Norton was the pharmacist on duty. The pharmacist's assistant on duty that day was Marcia Oke. …. Just before noon on March 3, 2015, an intruder forced his way into the dispensary area of the Huntsville IDA Pharmacy. The intruder was dressed in dark clothing with a hoodie pulled down over his forehead. His face was masked with a scarf or similar object of clothing. He demanded opioids and when the pharmacist, Allan Norton initially resisted, he struck Mr. Norton across the forehead with a weapon, which was held in his hand. Opioids were then provided to him in the form of full and partially full bottles from the opioid counter in the dispensary by Mr. Norton. Mr. Norton not only saw a gun in the intruder's hand, he felt it as it struck him across the forehead. Marcia Oke, the pharmacist's assistant, also observed the intruder and saw the gun in his hand. The whole incident lasted about one minute.
83At the time of the robbery, Mr. Taylor was 23. He had a criminal record but had never served a penitentiary sentence. He had a High School education and was intending on attending college. He had an addiction to drugs and stated he was amenable to programming to address it while incarcerated. For this offence he was sentenced by Justice Mulligan of the Superior Court to 5.5 years in jail.
84As can be seen, sentencing is an individualized process. Each case must be assessed on its own facts and circumstances particular to the offender. However what can be gleaned from these case is that robberies like this attract, and have for a long time, significant penitentiary sentences.
85I also find that in this case the amount of drugs stolen, the kind stolen and in particular that fentanyl was taken in what can only be described as a significant quantity, makes this a very serious offence.
86I was unable to find any pharmacy robbery cases where fentanyl was stolen. Most cases involving fentanyl come in the form of trafficking convictions. Although not entirely comparable, the seriousness with which the courts treat fentanyl in those cases can provide some guidance.
87In Loor, at paragraph 50 the Court of Appeal had this to say about trafficking in fentanyl:
Few fentanyl trafficking cases have reached this court. It is thus perhaps too early in our jurisprudence to establish a range. But I think it fair to say that generally, offenders -- even first offenders -- who traffic significant amounts of fentanyl should expect to receive significant penitentiary sentences.
88I can think of no valid reason why a person who robs a pharmacy of a significant quantity of fentanyl, even a first offender, ought to expect any less. I would note too, that Mr. Loor, who trafficked in 45 fentanyl patches had his sentence of 6 years upheld by the Court of Appeal.
89I should state, that defence counsel went to great lengths to point out that the crown did not allege as an aggravating factor that Mr. Fuller intended to traffic in any of the drugs he stole. To be clear I am not finding that he did nor am I sentencing him on that basis.
90However, having said that I do find the inescapable inference I am entitled to draw from the agreed facts is that the sheer quantity of drugs taken and in particular the 75 patches of fentanyl, in the hands of a lifelong, untreated addict like Mr. Fuller, has the very real potential to cause significant harm to him and other members of this community.
91In this case, the sentencing principles to be emphasized are that of denunciation, deterrence and the protection of the public from Mr. Fuller. Rehabilitation is not a significant consideration. Given his history, his prospects for rehabilitation seem bleak at best. I conclude that the range for a robbery such as this, committed by someone like Mr. Fuller with his personal circumstances, criminal record and background, is mid to upper single digits in the penitentiary. Anything less would not strike the proper balance between the seriousness of the offence and Mr. Fuller's moral culpability.
92As noted earlier in these reasons, Mr. Fuller is entitled to the benefit of the mitigation that comes with pleading guilty and doing so early. I am also keeping in mind the other factors mentioned by counsel such as the age of his prior robbery convictions and the sentences he received for them.
93Keeping all that in mind what I find to be the proper sentence in this case is five years in the penitentiary less any presentence custody. As of today, Mr. Fuller has 3 months custody awaiting sentence. At the usual credit of 1.5 to 1, that equals 4.5 months. As such Mr. Fuller will serve a further 4 years and 7.5 months in the penitentiary. There will be a lifetime weapons ban pursuant to s. 109 of the Criminal Code and a DNA order.
94Given the length of the sentence, I grant Mr. Fuller 5 years to pay any applicable surcharges.
Signed: Justice R.S. Gee
