Court File and Parties

Ontario Court of Justice Date: 2024 08 08 Court File No.: 23-48118832, 23-48125313-02, 23-48125314, 23-48125315, 23-48125317, 23-48127232, 23-48119888, 24-48111093 Toronto Region

BETWEEN: HIS MAJESTY THE KING

— AND — Kenny RAPOSO

Before: Justice Cidalia C.G. Faria

Heard on: July 19, 2024 Reasons for Judgment released on: August 8, 2024

Counsel: Ari Linds & Nicole Dinn, counsel for the Crown Michael Bartlett, counsel for the accused Kenny RAPOSO

Faria J.:

I. Introduction

Introduction

1On July 19, 2024, Kenny Raposo appeared before me and plead to 17 offences. Although the parties presented a joint position, the fact Mr. Raposo was not brought before the court in person until the afternoon, meant the lengthy hearing was not completed. It was adjourned to today for the that purpose.

II. Facts

Facts

[2] Mr. Raposo broke into 10 different locations in Toronto. i. On August 19, 2023, Mr. Raposo went to Nofa’s Coffee and Bakery on Lansdowne Ave. and ordered a coffee. He then asked to go to the washroom and went downstairs. Instead, he broke into the employee staff room and stole an employee’s wallet. He was seen on CCTV. ii. On September 17, 2023, he went to Loon’s Pub on Roncesvalles Ave. and asked to use the washroom. He went downstairs and broke into the office, pried open a safe with a crowbar, damaging it, and stole about $1100 in cash from inside the safe. He was seen on CCTV. iii. On September 22, 2023, Mr. Raposo went to Simply Social on Roncesvalles Ave. and asked to go to the washroom. He went downstairs and pried open the vent on the utility door beside the washroom, damaging it, and stole an employee’s belongings, including $300 in cash. He was seen on CCTV. iv. On September 26, 2023, just before midnight, he broke a window and entered The Learning Enrichment Foundation on Industry St. He pried open the door to the office, ransacked it, and stole Tim Horton’s gift cards worth $100 and an Apple iPad. He was seen on CCTV. v. On September 14, 2023, around 3:30 a.m. Mr. Raposo broke into the Super Coffee store on Weston Rd. by breaking the front door window. He ransacked the place, then stole an electronic tablet valued at $770 and causing $250 worth of damage. When a search warrant was executed at his home on December 5, 2023, the exact jacket and boots he wore during this break-in were located.

[3] Mr. Raposo surrendered to 11 Division of the Toronto Police Service on October 2, 2023, and was released on October 3, 2023, with terms which included a curfew between 10 p.m. and 6 a.m. vi. On October 14, 2023, police were called to Santa Maria Catholic School on Avon Ave. for an alarm call. Mr. Raposo had pried open and damaged a window and smashed open the door to the office. He stole just over $400 in cash from a cash box in the health room. He used a hammer and a screwdriver to break in. He was located inside the office of the school.

[4] Mr. Raposo was released with conditions. vii. On October 30, 2023, at about 3 a.m. Mr. Raposo broke into the XYZ Storage facility on Weston Rd. He broke a window with a rock, and went into the manager’s desk causing damage when he opened the drawers. He stole $1,141.00 in cash and fled. His was captured on CCTV wearing a distinctive jacket that was located in his home when police searched it pursuant on December 5, 2023. He had caused $6,000 damage and was in breach of his Release conditions. viii. On November 6, 2023, Mr. Raposo broke into the Salvation Army Church on Weston Rd. by breaking the front window. He stole a safe with donated gift cards, a laptop, a digital camera, and $2000 in currency. The gift cards were used at Food Basics on Jane St. which had CCTV footage of Mr. Raposo using the gift cards while with a co-accused. The total loss was $7,628.00. ix. On December 3, 2023, Mr. Raposo broke into a pharmacy on Jane St. He was seen on video prying the metal protective bars on the front door with a piece of wood and entering the pharmacy carrying a bag. He went to the cash resister, forced open a locked door at the rear of the store, and rummaged through the property there. He was breaching his Release conditions.

[5] After the execution of a search warrant in his residence on December 5, 2023, Mr. Raposo was released with conditions on December 11, 2023, one condition was to remain in his residence or be in the direct company of his surety. x. On December 29, 2023, police were called to the Family Food Mart Convenience Store on Eglinton Ave. W. by a witness observing Mr. Raposo breaking the front window to get into the place. Police attended and located Mr. Raposo close by in a bus shelter. He told police he was his brother Mike Raposo with a different date of birth than his own. He was in breach of his Release conditions.

6In addition to the 10 break and enter offences as described, Mr. Raposo also pled guilty to breaching his Release conditions 3 times, possessing break-in tools, obstructing justice by lying about his name, causing mischief over $5,000 and stealing over $5,000 as described above.

III. Circumstances of Kenny Raposo

Circumstances of Kenny Raposo

7Mr. Raposo is 45 years old.

8His criminal record began in 2001 when he was 23 years old. He has amassed 27 convictions which predominantly reflect a life challenged by an addiction to crack cocaine. The crimes consist predominantly of property offences and breaches of court orders with only 2 offences of violence. Most sentences were for short periods of incarceration – under 60 days. Two notable features of his criminal record are a gap between 2012 and 2020, and the more recent escalation of seriousness into break and enter offences.

9Mr. Raposo only has a grade 9 education but has managed to become gainfully employed as a construction worker and a member of Local 183 when not in custody.

10He financially supports his daughter and assists his mother. His father passed away when he was 27 years old which exacerbated his drug addiction. It is anticipated that he will serve his conditional sentence in his mother’s home.

11While in pre-sentence custody, Mr. Raposo advised the court that he was able to complete 16 of 17 programs available to him. He worked with the John Howard Society and completed the Drug and Alcohol Awareness Program (DAPP) and has been in contact with them regarding their relapse and post-release services.

12Mr. Raposo was also able to obtain a coveted job in the kitchen of the facility. He noted he accomplished these goals even though there were numerous and frequent lockdowns.

IV. Effect on the Victim

Effect on the Victim

13All the places Mr. Raposo broke into, were either small businesses, or community hubs with small amounts of money, relatively speaking, but amounts that were meaningful to those who lost it.

14There were no victim impact statements filed, but they are not necessary to deduce that in each case, each of the victims sustained financial loss. They suffered damage to property they had to fix or replace to carry on their business. Some lost cash that was meant to assist those in need, such as the Salvation Army gift cards. Others lost hard earned cash such as the employees of the restaurants. Still others had to replace their technology and/or their identification.

15In each case, and each time, there are real people who suffered a loss.

V. Positions of the Parties

Positions of the Parties

16Both the Crown and the Defence were recommending an 18-month Conditional Sentence on July 19, 2024, in addition to, pre-sentence custody, as well as a 3-year probation, a restitution order and a DNA order. The parties are ad idem on all terms.

17The Crown emphasized denunciation and deterrence as guiding principles while the Defence focused on the significant strides Mr. Raposo has made while in custody.

18As the sentencing was not to be completed that day, through no fault of Mr. Raposo, I alerted the parties they were to consider the additional time he was to spend in custody between July 19 and today’s date and provide additional submissions on the quantum by which the conditional sentence should be reduced.

19They both advised today that they will leave this reduction for me to determine.

VI. Sentencing Principles

Sentencing Principles

20Every sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful, and safe society by imposing just sanctions.

[21] The sanction that the court imposes should have one or more of the following objectives:

• to denounce unlawful conduct
• to deter the offender and other persons from committing offences
• to separate offenders from society, when necessary
• to assist in rehabilitating offenders
• to provide reparations for harm done to victims or to the community
• to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community.

22Given the efforts made by Mr. Raposo to deal with his addiction, the principle of rehabilitation is applicable as is the principle of parity, that similar offenders should receive similar sentences committed in similar circumstances applies,

23I must also consider aggravating and mitigating factors.

VII. Analysis

Analysis

24There are several aggravating factors. Mr. Raposo has a criminal record. He is familiar with the criminal justice system and previous sentences, specifically for the offences of break and enter have not deterred him from committing the ones before the court.

25He also went on what can be described as a crime spree. The number of break and enter offences, 10, are an aggravating factor, and he committed them over a period of 5 months.

26He targeted small community businesses who suffered financial losses to repair the damages he caused and sustained the loss of property.

27Many of the individuals he stole from work in the service industry, not a particularly lucrative sector, where people depend on tips, and hourly wages to make a living causing hardship.

28He stole wallets containing identification which undoubtedly caused inconvenience to replace.

29He also committed these offences while on probation, and while on releases.

30In mitigation, there are also several significant factors to consider. A guilty plea demonstrates remorse and Mr. Raposo reaps the benefit of that sentiment.

31Pleading to offences to numerous Informations also saved a very significant amount of criminal justice system resources. Trials would have required the attendance of a large number of witnesses. The plea also obviates all the complainants from having to testify about what happened to them.

32Mr. Raposo’s numerous programming efforts while in custody demonstrate a commitment to rehabilitation.

33His crimes were not committed because of greed or to gain a benefit, but rather motivated to feed an addiction which attenuates his moral culpability.

34Mr. Raposo has significant family support. He has a brother and a sister. His family came to Canada in the 1970’s like many other Azoreans to work for a better life and they continue to support Mr. Raposo in pursuit of that goal. His 73-year-old mother with mobility issues has attended court as has his 14-year-old daughter.

35Mr. Raposo is not a young man. He knows his relapse into offending has led to letting his family down, particularly his mother and his daughter whom he addressed during his allocution. He also articulated an understanding that his choices, as related to his addiction, have hurt them, and that he alone is responsible for those choices.

36I agree with both the Crown and the Defence that though denunciation and specific deterrence are the clear primary guiding principles, the lengthy period of pre-sentence incarceration, particularly in light of his previous relatively short periods of incarceration, his rehabilitation efforts, and the fact Mr. Raposo is capable of pro-social conduct as demonstrated in the 7-year gap in his criminal record indicate that further incarceration is not required if a strict conditional sentence and a lengthy period of probation are imposed.

37I am mindful of both the Supreme Court of Canada’s decisions, R. v. Anthony Cook, 2016 SCC 43 and R. v. Proulx, 2000 SCC 5.

38In Anthony-Cook, the Court stated that a joint submission should not be rejected lightly, and that it should be done only if I find that the proposed sentence is contrary to the public interest or that it would bring the administration of justice into disrepute.

39In this case, although somewhat lenient, given the number of break and enters Mr. Raposo committed, a conditional sentence is neither contrary to the public interest nor would it bring the administration of justice into disrepute in the circumstances. I therefore will not interfere with it.

[40] In Proulx at para.77, the Court stated: Once a sentencing judge has found the offender guilty of an offence for which there is no minimum term of imprisonment, has rejected both a probationary sentence and a penitentiary term as inappropriate, and is satisfied that the offender would not endanger the community, the judge must then consider whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

41There is no minimum term required for these offences. The gravity and number of the offences renders time served or a suspended sentence inappropriate. The circumstances, given the motivation for the offending, and the efforts made, do not warrant a penitentiary sentence.

42Mr. Raposo does have remorse. He does have some insight. He has acted on that insight. He is not violent or a danger to the community, even when he does offend as his criminal record shows. Mr. Raposo has a job to go to and a family to support him. He has had some counselling and is prepared to do more.

[43] As to whether a conditional sentence addresses the purpose of the sentencing principles to be considered, in this case, it does. The Court stated at paragraph 22: The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration. Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence. (emphasis added)

44As a result, I agree with the joint recommendation that a conditional sentence is a fit one in this case.

VIII. Sentence

Sentence

45Mr. Raposo, the pre-sentence custody you have served of 247 days is enhanced to be 370 days applicable to each of the Break and Enter counts.

[46] You will serve a 16-month Conditional Sentence on each of the Break and Enter counts, concurrent and a 3-year Probation Order. The terms will be:

• You shall report to your Conditional Sentence Supervisor for the purpose of arranging your enrollment in the GPS program.
  • After completing the intake process with your Conditional Sentence Supervisor, you shall go directly to your approved address and observe a term of complete house arrest until the required GPS unit is installed. There will be no exceptions to this house arrest condition but for a personal medical emergency.
  • You shall be subject to the GPS Monitoring Program for the first 8 months of this Conditional Sentence Order.
  • You will be subject to GPS monitoring by Recovery Science and agree to abide by all of its rules and protocols by providing your signature on the GPS Rules and Protocols which will be attached to this conditional sentence order as Schedule “A”. These rules and protocols form part of this Conditional Sentence Order.
• You shall remain on the property of your residence at 3561 Eglinton Ave. for the first 8 months of this Conditional Sentence Order except:
  • For medical emergencies involving your mother, your daughter or yourself.
  • To attend medical, dental, and legal, pre-scheduled appointments as approved by your Conditional Sentence Supervisor.
  • On Saturdays between 12 noon and 5 pm for the necessities of life.
  • When going to, from and during employment via Local 183 as approved by your Conditional Sentence Supervisor.
  • While in the direct presence of your mother.
  • When going to, from, and during counselling for substance abuse
• You will have a 10 p.m. to 5:30 a.m. curfew for the remainder of your Conditional Sentence.

47You will also be on a 3-year probation order. You will report within 48 hours of the end of your conditional sentence order, and thereafter, no less than once a month during this period.

[48] During both your Conditional Sentence and your 3-year Probation Order, you will:

• Attend counselling as directed by your Conditional Sentence Supervisor and your Probation Officer for substance use.
• Sign releases for your Conditional Sentence supervisor and your Probation Officer to monitor your attendance and completion of counselling for substance use.
• Not be in possession of any weapons as defined by the Criminal Code.
• Not be in possession of any tools except when going to, during, and returning from employment.
• Have no contact with Lorne Benoit except in the presence of or through legal counsel.
• Have not contact with Juddie Hamilton, Mark Crabb, Adriana Kusiv, Liijram Hodo, Hyun Jung Lee, Marina DeLima, Adriana Torres DeAndrade, Masoud Riyazati, and Jessica Sousa, except for the purposes of fulfilling the restitution order as directed by your Conditional Sentence Supervisor, and your Probation Officer.
• Not attend the following addresses in Toronto: Super Coffee at 1148 Weston Rd., Santa Maria Catholic School at 25 Avon Ave., Janedal Pharmacy at 965 Jane St. Family Food Mart at 3468 Eglinton Ave W. Crosette Coffee at 1751 Bloor St. W,. Simply Social at 89 Roncesvalles Ave., XYZ Storage at 207 Weston Rd., The Salvation Army Church at 1100 Weston Rd., Nofa’s Cofee & Bakery at 699 Lansdowne Av. Loon’s Pub at 416 Roncesvalles Ave. Samba Restaurant at 1646 St. Clair Ave. W., The Goods at 279 Roncesvalles Ave., and The Learning Enrichment Foundation at 116 Industry St.

[49] There will Restitution Orders as follows:

• $1000 to Liijram Hodo
• $300 to Jung Yun Lee
• $100 to Jessica Sousa
• $7,628 to the Salvation Army Church, c/o Mark Crabb, at 1100 Weston Rd.

50On the counts of Possessing Break-in Tools, Obstructing Justice, Causing Mischief Over $5000, Theft Over $5000 and breaching 3 Release Orders, the pre-trial custody of 247 days enhanced to 370 days will be reflected and you will be fined $1 on each count.

51Break and Enter, Theft Over, and Obstruct Justice are secondary designated offences, and you will provide your DNA today pursuant to s.487.04 of the Criminal Code.

52The Victim Fine Surcharge (VFS) will be waived as you have been incarcerated for a significant period with no income, and you have restitution to pay. The VFS will therefore cause you undue hardship.