ONTARIO COURT OF JUSTICE DATE: 2024 11 27 COURT FILE No.: Central East – Newmarket Information Numbers: 24-91100429 and 23-91105820
BETWEEN:
HIS MAJESTY THE KING
— AND —
DOMONIC ANDRE MUDAHY
Before: Justice M. Townsend
Reasons for Judgment
Released on November 27, 2024
Counsel: J. Arvizu................................................................................................ counsel for the Crown C. Barry....................................................... counsel for the defendant Domonic Mudahy
1Mr. Domonic Mudahy plead guilty before me on October 11th, 2024 on Information ending in 5820, to one count of robbery relating to Gilad Zarin, and further on the same date on Information ending in 0429, he plead guilty to the robbery of Pablo Sanders.
I. Facts:
2On July 7, 2023, at approximately 8:00 pm, three male suspects attended outside of the Rogers store located at 1430 Major Mackenzie Drive West in the City of Vaughan. At the time, the employees, Gilad Zarin and Nakiyah Mudahy, were in the process of closing the store for the night. Suspect 1 had a brief verbal interaction with Gilad Zarin. Shortly after, all three suspects entered the store, and Gilad Zarin was forced to his knees. He was then instructed to go to the backroom and open the safe, which he did, before being placed in the corner, while the suspects accessed the safe.
3The suspects acquired a bulk quantity of cellular phones and other electronic devices, valued at approximately $150,000.00. They also acquired Gilad Zarin’s black Samsung S22 cellular phone and Nakiyah Mudahy’s black iPhone 12 Pro Max, before fleeing in a white Ford Explorer with licence plate CYDY037 or CYDY038. A phone with tracking capabilities was included in the batch of merchandise stolen by the suspects.
4Suspect 1 was described as a black male around 25 years old, six feet tall, medium build, and a brown discoloration in his right eye. He was wearing an orange construction vest, and a blue surgical mask. Suspect 2 was described as a black male, approximately five to seven feet tall, wearing a black hoodie, dark clothing, and black surgical mask. Suspect 3 was described as a black male possibly wearing light clothing. The suspects used a black duffle bag to store the stolen merchandise.
5At 9:05 pm, based on information provided by 3SI Security Systems regarding the current location of the tracking device contained in the batch of stolen merchandise, plain clothed officers, operating unmarked police vehicles, attended the area of 4 Petworth Crescent in Scarborough.
6Investigators noted a Jeep Cherokee with license plate CYEY841 on the roadway close to the address. With the assistance of the York Regional Police Air Support Unit (YRP ASU), surveillance of the Jeep continued. As the vehicle travelled through the City of Toronto toward Durham Region, investigators receiving updates from 3SI on the live location of the tracking device and based on the travel route of the Jeep, determined the tracking device was onboard.
7Investigators observed a lone male occupying the Jeep as the driver. That individual was identified as the vehicle owner, Domonic Mudahy.
8At 9:14 pm, the Jeep stopped on Baylawn Drive in Scarborough, at which time, Mr. Mudahy, wearing a yellow T-shirt, exited, and met with an unidentified male and female who were travelling in a dark colored Honda CR-V. The unidentified male provided Mr. Mudahy with a portable gas canister. Shortly after, the Jeep departed and entered Highway 401, travelling in an eastbound direction. Surveillance continued.
9At approximately 9:46 pm, the Jeep exited Highway 401 at Westney Road in Ajax. Updates from 3SI on the location of the tracking device continued to remain consistent with the travel route of the Jeep.
10At 10:09 pm, the Jeep picked up a passenger from the parking lot of Tim Horton’s, located at 449 Westney Road South in Ajax, then continued on. The Jeep also picked up two adult passengers and one child from the roadway near a gas station located at 2 Westney Road South in Ajax. The adult passengers are believed to be Jovan Bryan and Brittany Rattray.
11At 10:31 pm, the Jeep stopped on Victoria Street West near Seaboard Gate in Whitby, at which time, a female passenger, Brittany Rattray, exited and ran to a railing, where she appeared to dispose of an object into a body of water. Investigators believed Rattray discarded product acquired during the robbery. She re-boarded the Jeep and it continued on.
12At 10:37 pm, investigators received information from 3SI that the tracking device had been compromised roughly eight minutes prior which led investigators to believe Brittany Rattray discarded the tracking device in the water.
13At 10:37 pm, the Jeep stopped near the Esso gas station located at 211 Bayly Street East in Ajax, at which time, a male passenger exited with the gas canister that had previously been seen during surveillance of the vehicle. That male attended the gas station, where investigators attempted to arrest him while he was fueling the gas canister. The male quickly dropped the gas canister and fled. While doing so, he dropped his cellular phone. Investigators seized the cellular phone and gas canister.
14At 11:09pm, the Jeep stopped on a residential street in front of 5 Ravenscroft Road in Ajax where a male passenger and child exited the vehicle. The male, Jovan Bryan, was later arrested by Durham Regional Police in the parking lot of Shoppers Drug Mart located at 15 Westney Road in Ajax, where he walked to with child after exiting the Jeep.
15At 11:12 pm, the driver, Domonic Mudahy, and the passenger, Brittany Rattay, exited the vehicle and were arrested.
16Search incident to the arrest revealed a large black duffle bag which contained a bulk quantity of boxed cellular phones and other electronic devices in the back of the Jeep. The duffle bag and its contents were seized by police. The vehicle also contained a variety of items including a blue medical mask, clothing, footwear, garbage bags, and other suspect property.
17Search incident to the arrest of Jovan Bryan revealed he was in possession of a Ford key fob. The key tag attached to the key fob had information associating it to a white Ford Explorer with license plate CWHN172. This vehicle had been located in Ajax and was associated to Ms. Rattray, through her employer who had rented the vehicle lawfully. This vehicle is very similar to suspect vehicle 1 and was found to have screws missing in the rear licence plate mount. Interior and exterior video footage from Rogers store located at G048-1430 Major Mackenzie Drive West in Vaughan was obtained, and that video footage captures the arrival and departure of the suspects, as well as the commission of the robbery using a white Ford Explorer. Subsequent investigation revealed that the white Ford Explorer has been rented out by Ms. Rattray’s employer days before the robbery.
18It is agreed by the parties that Mr. Mudahy was not one of the suspects that entered the Rogers Store.
19After his arrest for this offence, Mr. Mudahy was released on bail.
20At approximately 10:24 pm on January 11, 2024, York Regional officers were dispatched to the Best Buy at 225 High Tech Road Unit C, Richmond Hill, for a hold up alarm. Officers arrived on scene to the front door of the Best Buy with the inner gate partially open.
21Officer Armstrong, badge number 2933, remained on the exterior of the front of the store waiting for the second officer to arrive. While waiting for the second officer, a white male in a black jacket was seen on the interior of the Best Buy walking towards the entrance with a phone in his hands. Upon further observation, Officer Armstrong observed that the male hands had been laced together with a zip tie.
22The male verbally identified himself as Pablo Sanders and advised that he was abducted from his home at 44 Haverhill Terrace, Aurora, after he left work earlier that evening. Pablo Sanders was cut out of the zip tie, and then provided the following information.
23Mr. Sanders finished his shift at Best Buy at 9:00 PM when he started making his way home. Mr. Sanders believes he took about 30 minutes to get home at 44 Haverhill Terrace, Aurora, as that is his usual timeline. Mr. Sanders was in his driveway placing an order on Uber Eats. Once the order was placed, Mr. Sanders exited his vehicle, at which point two males surrounded him, catching Mr. Sanders by surprise by using his neighbour's cars as concealment.
24One of the suspects had Mr. Sanders get into the back of his vehicle which was a 2019 Genesis, in a beige colour, Ontario plate BKVE610 and placed a black bag over his head.
25At some point during the drive, the suspects threw Mr. Sanders’ iPhone, and Apple watch out the window. The suspects then stopped in a residential area and a third male suspect entered the vehicle and started driving. This suspect was a lot more aggressive than the first two suspects.
26Mr. Sanders believed that they made it to the Best Buy located at High Tech Road within four minutes of the third suspect being involved. Prior to the robbery, Mr. Sanders was given instructions by the suspect seated in the back seat about how he would be directing him on using his keys to open the store. Investigators learned that the three suspects were believed to be male, black, and wearing balaclavas at the time of the robbery.
27Once at the Best Buy, Mr. Sanders was forced to provide access to the store but was able to trigger the silent alarm. Mr. Sanders was tied up with zip ties. A large quantity of Apple products, including 28 MacBooks and 91 iPhones were taken. Among the iPhones was a bait phone that would later be used by police to access GPS information about the location of the bait phone. The suspects fled using Mr. Sanders’ vehicle.
28Video canvass resulted in the seizure of a residential video which confirmed that that the suspects had attended Mr. Sanders’ residence while driving a dark colored Civic which is seen dropping off the suspects and ultimately following the Genesis.
29Video surveillance also confirmed the sequence of events of the suspects forcing Mr. Sanders back into the Best Buy. Two of the suspects are seen using a large hockey style duffle bag. The third suspect, the driver, remained in the vehicle during the robbery and waited in the rear for the other two suspects before ultimately departing with them.
30At 1:49 am on January 12, the bait phone pinged and provided its GPS coordinates as being in the area of 200 McNaughton Road, Vaughan. Following the bait phone GPS, YRP investigators identified a suspect vehicle, a Jeep Cherokee, which was travelling westbound on Teston Road. This vehicle ultimately came to a stop at 601 City View Blvd., Vaughan. YRP investigators arrested Shaquan Brown from the rear of Jeep Cherokee. Mr. Domonic Mudahy was also arrested and found to be the driver of the vehicle.
31During a search incident to the arrest, officers located the black style duffle bag in the trunk of the vehicle with electronics from Best Buy. Also located in the trunk were shoes and other boxes. Throughout the rear passenger area there were also several Apple products and another black duffle bag. A total of 60 iPhones and 20 MacBooks were recovered.
32During a search incident to the arrest of Mr. Mudahy, he was found with receipts for duffle bags similar to what was seized from inside the Jeep Cherokee, that had been purchased a few hours before the robbery at Best Buy.
33Following his arrest for robbery and other offences, Mr. Brown provided a cautioned statement to police where he acknowledged he was one of the suspects who kidnapped Mr. Sanders. Mr. Brown stated that he sat in the rear with Mr. Sanders. Mr. Brown also acknowledged that he committed the robbery inside the Best Buy.
34Again, it was agreed by the parties that Mr. Mudahy was not one of the individuals involved in the kidnapping of Mr. Sanders, nor did he go into the Best Buy.
II. Circumstances of the Offender
35Mr. Mudahy comes before the Court with no prior criminal record, and as a relatively youthful first-time offender. He is currently 23 years of age and is in a stable long-term relationship.
36I have reviewed the pre-sentence report which has been filed as an exhibit on this sentencing hearing. The pre-sentence report provides great insight into Mr. Mudahy's background and history, the support he has in the community, and his educational and employment history.
37Mr. Mudahy has been very active in his community, most specifically with his involvement as part owner of the GTA Mavericks, which is a not-for-profit agency involved in basketball leagues and training for youth in the community. Mr. Mudahy has, according to the pre-sentence report, been involved in charity work, after school programs, and summer camps. All with a view to providing mentorship and opportunity to young members of the community.
38There were, on this sentencing hearing, many letters of support filed on Mr. Mudahy’s behalf. Similarly, the courtroom was full of individual friends and family members here to show their support for Mr. Mudahy.
III. Pre-Sentence Custody
39Mr. Mudahy has spent the following time in pre-sentence custody, all of which is to be taken into account on sentence:
- July 7, 2023 to July 8, 2023 = 1 day. Released on surety bail with no curfew or house arrest term.
- January 12, 2024 to February 6, 2024 = 26 days. Released on house arrest bail
- March 14, 2024 to present = 259 days
- Total = 286 days (real days)
40Pursuant to R. v. Summers, 2014 SCC 26, [2014] S.C.J. No. 26, and under section 719(3.1) of the Criminal Code of Canada, I am prepared to give Mr. Mudahy credit for 286 days on a 1.5:1 basis for a total enhanced credit of 429 days.
41Mr. Mudahy also filed an affidavit from the Central East Correctional Centre with respect to the time spent at that custodial facility. During Mr. Mudahy's time at the Central East Correctional Centre, there were 285 occasions when his unit was locked down for less than 6 hours and on 60 occasions when the unit was locked down for 6 hours or more. The total lockdown time for this period was 1,344.5 hours. Further, due to overcrowding, Mr. Mudahy was triple bunked 170 times while incarcerated at CECC.
42It must not, in my opinion, be forgotten that Mr. Mudahy did not spend all this pre-sentence custody right from his initial arrest. He was granted bail initially upon arrest, and then on two separate occasions breached his bail or committed new offences while on bail, such that it landed him back in custody. He was given two separate opportunities at release and twice found himself back in custody by his own action.
43Following the reasoning in R. v. Duncan, 2016 ONCA 754 and R. v. Marshall, 2021 ONCA 344, [2021] O.J. No. 2757 (CA), I am prepared to take into account the conditions in which Mr. Mudahy spent his pre-sentence custody, the lockdowns and triple bunking, and the overall conditions of the Central East Correctional Centre that I and my brother and sister judges in this region hear about on a daily basis.
44It is important to remember what we actually mean when we refer to “Duncan/Summers” credit. To this end paragraphs 51-53 of R. v. Marshall are instructive:
51It is also important to appreciate and maintain the clear distinction between the "Summers" credit and the "Duncan" credit. The "Summers" credit is a deduction from what the trial judge determines to be the appropriate sentence for the offence. The "Summers" credit is calculated to identify and deduct from the appropriate sentence the amount of the sentence the accused has effectively served by virtue of the pretrial incarceration. The "Summers" credit is statutorily capped at 1.5:1. It is wrong to think of the "Summers" credit as a mitigating factor. It would be equally wrong to deny or limit the "Summers" credit because of some aggravating factor, such as the seriousness of the offence: R. v. Colt, 2015 BCCA 190.
52The "Duncan" credit is not a deduction from the otherwise appropriate sentence, but is one of the factors to be taken into account in determining the appropriate sentence. Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence from which the "Summers" credit will be deducted. Because the "Duncan" credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors.
53Often times, a specific number of days or months are given as "Duncan" credit. While this quantification is not necessarily inappropriate, it may skew the calculation of the ultimate sentence. By quantifying the "Duncan" credit, only one of presumably several relevant factors, there is a risk the "Duncan" credit will be improperly treated as a deduction from the appropriate sentence in the same way as the "Summers" credit. If treated in that way, the "Duncan" credit can take on an unwarranted significance in fixing the ultimate sentence imposed: R. v. J.B. (2004), 187 O.A.C. 307 (C.A.). Arguably, that is what happened in this case, where on the trial judge's calculations, the "Duncan" credit devoured three-quarters of what the trial judge had deemed to be the appropriate sentence but for pretrial custody.
45I am prepared to give Mr. Mudahy Duncan/Marshall credit for 171 additional days for the conditions in which he spent his pre-sentence custody.
46This brings his total credit for pre-sentence custody to 20 months. I am mindful specifically of the wording in paragraph 52 of Duncan which states that the taking into account of “Duncan” credit cannot reduce a sentence such that it warrants the imposition of an inappropriate sentence. It is a mitigating factor to be taken into account.
47In calculating the total pre-sentence custody deduction at 20 months, the sentence I impose today remains, in my opinion, an appropriate one.
IV. Victim Impact Statement
48I have received the victim impact statement of Mr. Pablo Sanders. Not surprisingly, this incident has had a very significant impact on Mr. Sanders. In his victim impact statement, Mr. Sanders states the following:
"Since that day, I have experienced significant mental trauma that has disrupted my daily life. The fear and anxiety I felt during the incident have lingered, making it difficult for me to feel safe, even in familiar environments. I constantly relive the moments of terror and helplessness, which has led to severe anxiety and depression."
"The incident has not only impacted my mental and emotional well-being but has also altered my relationships with family and friends. I find it difficult to connect with others, as I often feel isolated by my experiences. The sense of security I once had has been shattered, and I struggle daily with feelings of vulnerability."
49Mr. Mudahy has expressed remorse for his actions and has apologized to the victims of these offences for the part that he played in their trauma.
50I cannot imagine the impact that this has had on the victim. While it is understood that Mr. Mudahy was not involved in the kidnapping and transport of Mr. Sanders with a bag over his head, and the “zip-tying” of Mr. Sanders at the Best Buy, Mr. Mudahy is a party to these offences. Presumably, Mr. Mudahy was aware of how the stolen merchandise was obtained prior to his involvement – at the very least, I was not told that he was not aware.
51Store clerks, cashiers, convenience store workers, gas station attendants are members of a vulnerable class that must be protected. All too often stores are robbed, convenience stores are held up, and clerks are terrorized because people think that they are easy targets. Mr. Sanders was followed to his home, had a bag put over his head, and forcibly taken back to his store where he was made to hand over merchandise to the assailants.
52In this Region, and all across Ontario, one simply has to turn on the news or read the paper to see that we are in a new kind of pandemic – violent thefts and robberies. Homes are being broken into, vehicles are being stolen, businesses are being burglarized. Victims of these offences must be protected, and sentences should reflect the serious harm that these offences have on our community.
V. Positions of the Parties
53The Crown's position is that a penitentiary sentence of 5 years is appropriate, less time that Mr. Mudahy had spent in pre-sentence custody. This sentence of 5 years is one that takes into account the Duncan credit.
54Mr. Barry, on behalf of Mr. Mudahy, submits that a conditional sentence is appropriate. Mr. Barry asks for significant credit for the lockdowns and triple bunking, and in particular the conditions at the Central East Correctional Centre while Mr. Mudahy was there.
VI. Analysis
55The Crown (see: R. v. Noor, 2015 ONCA 600, R. v. Nouri, 2015 ONSC 49, and R. v. Okito, 2023 ONSC 1112) and the defence (see: R. v. Thompson, 2009 ONCJ 359, [2009] O.J. No. 3330 (CJ), R. v. Gray, 2021 ONCA 626, and R. v. Ricketts, 2021 ONCJ 4096) have both provided caselaw which supports their respective positions.
56As outlined in section 718 of the Criminal Code of Canada, the fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, the respect for the law and the maintenance of a just, peaceful and safe society.
57Sentences imposed must denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct, deter the offender and other persons from committing offences, separate offenders from society, where necessary, assist in rehabilitating offenders, provide reparations for harm done to victims or to the community, and promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
58At the outset of this analysis, I note that Mr. Mudahy is a young black man. Paragraphs 74 – 77 of R. v. Morris, 2021 ONCA 680, [2021] O.J. No. 5108 (CA) are instructive when taking this into account on the seriousness of the offence:
74The trial judge indicated that if systemic racism effectively limited the choices available to an offender, general deterrence and denunciation should have a less significant role in sentencing.
75With respect, we do not agree that the gravity or seriousness of Mr. Morris's offences is diminished by evidence which sheds light on why he chose to commit those crimes. We do agree with the trial judge that an offender's life experiences can certainly influence the choices made by the offender, and can explain, to some degree at least, why an offender made a choice to commit a particular crime in the specified circumstances. Those life experiences can include societal disadvantages flowing from systemic anti-Black racism in society and the criminal justice system.
76Evidence that an offender's choices were limited or influenced by his disadvantaged circumstances, however, speaks to the offender's moral responsibility for his acts and not to the seriousness of the crimes. Possession of a loaded, concealed handgun in public is made no less serious, dangerous, and harmful to the community by evidence that the offender's possession of the loaded handgun can be explained by factors, including systemic anti-Black racism, which will mitigate, to some extent, the offender's responsibility: see Hamilton, at paras. 134-39; R. v. Hazell, 2020 ONCJ 358, at paras. 30-32; see also Dale E. Ives, "Inequality, Crime and Sentencing: Borde, Hamilton and the Relevance of Social Disadvantage in Canadian Sentencing Law" (2004) 30 Queen's L.J. 114, at p. 149.
77It is important to preserve the distinction between factors relevant to the seriousness or gravity of the crime on the one hand, and factors relevant to the offender's degree of responsibility on the other. Unless the distinction is maintained, the proportionality principle may be misapplied. A sentence, like the sentence imposed here, which wrongly discounts the seriousness of the offence to reflect factors which are actually relevant to the offender's degree of responsibility, will almost inevitably produce a sentence that does not adequately reflect the seriousness of the offence and, therefore, fails to achieve the requisite proportionality.
59As Justice Jones stated in R. v. M.L., 2024 ONCJ 3479 at paragraphs 45 – 47:
45A sentence must be proportionate to "the gravity of the offence committed and the moral blameworthiness of the offender": see Criminal Code section 718.1; R. v. Suter, 2018 SCC 34, at para. 4. The more serious the crime and its consequences, or the greater the offender's degree of responsibility or moral blameworthiness, the heavier the sentence: see R. v. Lacasse, 2015 SCC 64, at para. 12.
46Generally speaking, sentences imposed on young first offenders2 will stress individual deterrence, where necessary, and rehabilitation. General deterrence will play little, if any, role in fashioning the appropriate sentence in this category of offender: R. v. Ijam (2007), 2007 ONCA 597, 87 O.R. (3d) 81, [2007] O.J. No. 3395 (C.A.), at pp. 93-94 O.R.
47Serious crimes of violence provide an exception to this general rule. While all of the principles of sentencing remain important, including rehabilitation, for crimes involving significant personal violence, the objectives of denunciation and general deterrence gain prominence, even for first-time offenders: R. v. Thurairajah, 2008 ONCA 91, at paras. 41-42.
60With respect to the availability of a conditional sentence, I am guided by R. v. Fice, 2005 SCC 32, [2005] S.C.J. No. 30 at paragraphs 20-22. When considering the availability of a conditional sentence, I am not to use the total “post-sentence” custody remaining from an appropriate sentence after deducting “pre-sentence” custody in order to find that the sentencing length falls within the conditional sentence regime.
61The aggravating factors in this case are as follows:
- This offence was commercial in nature, in that the motivation was strictly greed and profit from the selling of high-end electronics.
- The victims involved fall into the vulnerable class of victims that ought to be afforded protection within our communities.
- The robberies themselves were somewhat sophisticated in nature in that they involved multiple stores, multiple suspects, multiple vehicles, pre-planning (in the nature of following a store employee, and the purchasing of duffle bags).
- Mr. Mudahy committed the second robbery while he was on release for the first robbery.
- The significant impact on the victim.
- The frequency with which these types of offences happen in our communities.
62The mitigating factors are:
- Mr. Mudahy is a youthful first-time offender.
- Mr. Mudahy plead guilty, which is seen as a genuine sign of remorse. This plea saved trial time, he is the first of his co-accused to plead guilty, and the victims are spared the trauma of testifying.
- Mr. Mudahy was not one of the suspects that went into the stores, nor was he one of the suspects that “kidnapped” Mr. Sanders – he was a party to those activities.
- Mr. Mudahy has incurred significant pre-sentence custody credit.
VII. Conclusion
63Based on the totality of the circumstances, the facts involved, the circumstances of Mr. Mudahy, the principles of restraint, general and specific deterrence and denunciation, the impact on the victims, and the aggravating and mitigating factors, I am of the opinion that an appropriate global sentence is one of 5 years in the penitentiary.
64This sentence reflects the seriousness of the offences, the ongoing serious nature of the offences, the fact that the second offence was committed while on bail for the first offence, and the particular impact that these types of offences have on our community.
65Members of the public need to know that whether you are the individual that goes into the store and inflicts violence on the store clerk, or you are the driver of the vehicle containing the suspects and the stolen merchandise after the offence, you are culpable as a party and these offences are taken very seriously.
66Given the prevalence of these offences in the community today, the need for general deterrence and denunciation is high, while still imposing an appropriate sentence that reflects the moral blameworthiness of the offender.
67Mr. Mudahy’s prospects for rehabilitation are high. He is involved in his community, he supports his community, and I strongly suspect that his community will be there to assist and support him when he returns. In the meantime, he needs to be held accountable for his actions.
68Given the above described 20 months of pre-sentence custody, that will be deducted from the overall global sentence.
69The global sentence imposed today will be one of 5 years in the penitentiary. Deducting 20 months pre-sentence custody, Mr. Mudahy I sentence you to a further 40 months in the penitentiary.
Released: November 27, 2024 Signed: Justice M. Townsend