COURT OF APPEAL FOR ONTARIO DATE: 20210705 DOCKET: C68738
Rouleau, Pepall and Roberts JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
Romy Desir Appellant
Counsel: Marianne Salih, for the appellant Gerald Brienza, for the respondent
Heard: in writing
On appeal from the sentence imposed on August 14, 2019 by Justice Laura A. Bird of the Superior Court of Justice.
Pepall J.A.:
[1] This is a sentence appeal by the appellant, Romy Desir, who was 16 years old at the time of the offences. He was given an adult sentence.
[2] He committed serious crimes. He and others robbed three jewelry stores. On one occasion, he repeatedly struck an employee with his pellet gun. He pled guilty to ten counts: three counts of robbery using a restricted firearm; four counts of disguise with intent to commit an indictable offence; attempted robbery; aggravated assault; and failure to comply with a recognizance. At the time of the offences, he had no criminal record or youth court record, but he was on bail on account of charges of possession of a loaded firearm and assault with a weapon and was supposed to be abiding by a house arrest condition.
[3] The sentencing judge imposed a global sentence of seven years less 31.6 months on account of pre-sentence custody. The sentencing judge arrived at this global sentence by imposing concurrent sentences of five years less credit for pre-sentence custody on the robbery counts, a consecutive sentence of two years on the aggravated assault count, and concurrent sentences on the remaining counts.
[4] The appellant submits that the sentence should be reduced. He makes two submissions. First, he states that the sentencing judge erred in imposing an adult sentence because the Crown had failed to rebut the presumption of diminished moral blameworthiness and because a youth sentence would be sufficient to hold the appellant accountable. Second, he states that the sentencing judge failed to give effect to the principle of restraint and that a first penitentiary sentence for a youthful offender should be as short as possible. He submits a six-year custodial sentence is fit in all the circumstances.
[5] For the following reasons, I agree with the appellant’s second submission and would reduce the sentence to six years less credit of 31.6 months.
(1) The Crimes
[6] The appellant committed three robberies in quick succession. The sentencing judge found them all to be well-planned and executed.
[7] On March 3, 2017, in under four minutes, the appellant and two others robbed a jewelry store in Stouffville. They all wore masks, smashed display cases and stole jewelry. One brandished a handgun.
[8] On March 13, 2017, after unsuccessfully attempting to gain access to a jewelry store in Ajax, the appellant and four others robbed another jewelry store in Ajax in under three minutes. They were disguised and brandished two pellet guns. The appellant pointed his gun at an employee and forcefully pulled her to the back of the store and demanded that she open the safe. When she fumbled with the code, he put the gun to her head and told her he wasn’t fooling. The gun was pointed at her for a significant period of time. Meanwhile, one of the others used a hammer to smash the display cases while another scooped up the jewelry. The appellant later assisted in smashing cases and gathering up jewelry.
[9] On March 14, 2017, the appellant and others entered another jewelry store. Again, they wore disguises and the appellant was armed with a pellet gun. The appellant repeatedly struck an employee in the head with his pellet gun. The sentencing judge found the violence inflicted upon him to be completely unnecessary and troubling. The employee was alone in the store, outnumbered four to one, and significantly older than his assailants. At the hospital, he was treated for cuts to his head that required staples.
[10] The appellant and the others were arrested later that day. As mentioned, at the time, the appellant was on a recognizance of bail as a result of firearm charges he was facing in Toronto. He had been arrested on February 12, 2017, just one month before the robberies, and had been subsequently released on bail with conditions including one of house arrest with limited exceptions and another prohibiting him from possessing weapons. As evident from the crimes that are the subject matter of this sentence appeal, the conditions proved to be meaningless. On November 21, 2017, he was sentenced for possession of a loaded firearm and assault with a weapon. He received a sentence of time served and probation of 18 months.
(2) The Circumstances of the Appellant
[11] The appellant is a black youth who grew up in poverty in the Jane and Finch area of Toronto. Prior to his arrest, he lived with his mother on Driftwood Avenue, which as the sentencing judge noted, is a high crime area in the city. His mother struggled to provide financially for her family. His father lives in Florida. The appellant experienced instability in his childhood. Growing up, he attended five different elementary schools. He does not appear to have had much family guidance. Neither his mother nor his father participated in the preparation of the pre-sentence report or the s. 34 report.
[12] The sentencing judge found that his motivation to commit these crimes was financial. The appellant reported having some acquaintances who were members of a street gang although he denied membership himself. He began regularly using marijuana between the ages of 12 and 14. He is an American citizen and never had an Ontario health card or a Canadian social insurance number. As such, he did not believe he was eligible for employment.
[13] When he was arrested, he was attending high school and had completed 18 high school credits. The sentencing judge reviewed the progress he had made:
Between the date of his arrest and August of 2018, he earned an additional 14 credits and obtained his O.S.S.D. His grades in the high school courses he completed in custody are generally very good and demonstrate a strong academic ability. Two of the courses R.D. took were dual credit courses meaning that he got both high school and college credits. After finishing his O.S.S.D., R.D. participated in a further online learning program for several months. According to the Section 34 report, R.D.’s grades in this program were “exceptional” and he demonstrated full participation and commitment. R.D. wants to pursue post-secondary education in the field of auto mechanics. Based on his academic achievement while in custody, he clearly has the ability to do so.
In addition to the high school and college classes he completed, R.D. has participated in many group programs related to employment, gang involvement, substance use and pro-social thinking. He has obtained certificates in WHMIS, first aid and forklift operation. R.D. has regularly engaged in Brookside’s Spiritual Care Program. At the time the pre-sentence report was written, R.D. had committed to working with a psychometrist for at least six individual sessions to examine the attitudes that led him to offend. The unit manager at Brookside told the author of the pre-sentence report that she meets with R.D. on a weekly basis and is of the opinion that he has made “huge strides” in how he approaches things. In her view, R.D. has become a leader who has demonstrated an increased ability to resolve conflict in a mature and respectful manner.
[14] That said, while institutionalized, the appellant was involved in five altercations with other youth and staff and found in possession of contraband including marijuana on four occasions. His behavior was described as threatening and bullying.
[15] The appellant expressed remorse and feels a great deal of guilt. He advised the sentencing judge that he is committed to bettering himself by pursuing further education and lawful employment. The sentencing judge noted that he appeared to be sincere and this boded well for his rehabilitation.
(3) Pre-Sentence, s. 34 and s. 76 Reports
[16] The sentencing judge described the appellant’s pre-sentence report as very positive. His strengths include being academically capable with strong vocational interests. As for areas of need, he can be strongly influenced by his peers and thus there were concerns about contact with gangs.
[17] The s. 34 report was in part prepared by Dr. Szanto, a registered psychologist. She opined that the appellant presents a moderately high risk and was not ready to re-enter the community. She was of the view that it was important for him to engage in offence-based counselling and to deal with his past gang affiliation.
[18] Following the sentencing, it was jointly proposed that the appellant serve the remainder of his sentence in the adult penitentiary system. This was suggested by the appellant’s counsel. The appellant had availed himself of all programming available in the youth facility and new programming would be available in an adult facility. As a result, no s. 76 placement report was filed for the purposes of the placement hearing.
(4) Discussion
(a) Standard of Review
[19] Recently, in R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1, the Supreme Court again emphasized the deference generally afforded to sentencing judges’ decisions. The sentencing judge sees and hears all the evidence and submissions, has regular front-line experience, and, in the absence of good reason to interfere, deference avoids delay and misuse of judicial resources: at para. 25.
[20] An appellate court can only intervene if the sentence is demonstrably unfit or the sentencing judge made an error in principle that had an impact on the sentence. As stated in Friesen, at para. 26:
Errors in principle include an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor. The weighing or balancing of factors can form an error in principle “[o]nly if by emphasizing one factor or by not giving enough weight to another, the trial judge exercises his or her discretion unreasonably”. Not every error in principle is material: an appellate court can only intervene if it is apparent from the trial judge’s reasons that the error had an impact on the sentence. If an error in principle had no impact on the sentence, that is the end of the error in principle analysis and appellate intervention is justified only if the sentence is demonstrably unfit. [Citations omitted.]
(b) Presumption of Diminished Moral Blameworthiness
[21] The appellant argues that the sentencing judge erred in imposing an adult sentence and in finding under s. 72(1)(a) of the Youth Criminal Justice Act, S.C. 2002, c. 1 (“YCJA”) that the presumption of diminished moral blameworthiness had been rebutted. In this regard, he submits that she relied on improper factors. Although he concedes that the sentencing judge considered the correct factors under the second prong of the test found in s.72(1)(b), the appellant argues that in concluding that an adult sentence was necessary to hold the appellant accountable, the sentencing judge did not sufficiently account for the appellant’s strong rehabilitative prospects.
[22] Section 72 of the YCJA gives direction to sentencing judges on the question of whether the presumption of diminished moral blameworthiness has been rebutted. It provides:
72 (1) The youth justice court shall order that an adult sentence be imposed if it is satisfied that (a) the presumption of diminished moral blameworthiness or culpability of the young person is rebutted; and (b) a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and section 38 would not be of sufficient length to hold the young person accountable for his or her offending behaviour. (1.1) If the youth justice court is not satisfied that an order should be made under subsection (1), it shall order that the young person is not liable to an adult sentence and that a youth sentence must be imposed. (2) The onus of satisfying the youth justice court as to the matters referred to in subsection (1) is on the Attorney General.
[23] The trial judge commenced her analysis by recognizing that the Crown had to rebut the presumption of diminished moral blameworthiness or culpability. Citing R. v. M.W., 2017 ONCA 22, 134 O.R. (3d) 1, leave to appeal refused, [2017] S.C.C.A. No. 109, she stated that to do so, the evidence had to support a finding that the young person demonstrated the level of maturity, moral sophistication and capacity for independent judgment of an adult. She proceeded to enumerate the factors she took into account in assessing the appellant’s level of maturity at the time of the offences. This included: he was three months past his 16th birthday; while having a mild learning disability, was of at least average intelligence; he did not suffer from any mental illnesses; and he was not under the influence of substances at the time of the offences.
[24] As the Crown concedes, standing alone, the appellant’s age, average intelligence, lack of mental illness and substance use at the time of the offences were incapable of rebutting the presumption of diminished moral blameworthiness. While these factors do not all serve to rebut the presumption, they are all properly considered as part of the context of the sentencing judge’s assessment of the appellant’s maturity.
[25] Having considered these factors and the appellant’s decision to participate in the robberies because he wanted money, the trial judge turned to the offences themselves. Importantly, they provided compelling evidence of the appellant’s level of maturity at the time. She wrote at para. 40(f):
[T]he offences provide compelling evidence of R.D.’s level of maturity at the time. These were not impulsive or unsophisticated offences. To the contrary, the evidence establishes that they were very well planned and executed. Based on the videos, the participants were fully prepared to carry out the robberies and they each seemed to have roles that were understood. R.D. and his accomplices were armed with weapons, gloves, masks and bags. They ransacked each store in a fairly brief period of time which is evidence of a high level of preparation and sophistication. The fact that the robberies occurred on three different days is further evidence that R.D.’s involvement in them was considered and not spontaneous. Each day he had to meet up with his accomplices and drive to the stores. He needed to arm himself and make sure he had the necessary tools to commit the offences. Each day, R.D. made a deliberate choice to engage in a terrifying take-over style robbery of a targeted location. These offences are the antithesis of impulsivity and immaturity.
[26] The sentencing judge also considered the appellant’s tremendous progress while in custody but was not prepared to find that this meant he had a diminished level of moral blameworthiness or culpability when he committed the offences. That finding was open to her. The sentencing judge conducted a full and balanced assessment of the presumption of diminished moral blameworthiness or culpability. I see no basis on which to interfere with her conclusion.
[27] As for the sentencing judge’s treatment of the second step found in s. 72(1)(b), the appellant concedes that the sentencing judge considered the correct factors but argues that insufficient weight was given to the appellant’s rehabilitative prospects.
[28] The sentencing judge properly instructed herself on the seriousness of imposing an adult sentence stating:
An adult sentence must be imposed if I am satisfied that a youth sentence would not be sufficient to hold R.D. accountable for his offending behavior. As noted in R. v. A.O., 2007 ONCA 144, [2007] O.J. No. 800 (C.A.), the decision to impose an adult sentence is a very serious one and should only occur after a careful consideration of all of the relevant factors. The Court explained that accountability is achieved through the imposition of meaningful consequences for the offender and sanctions that promote his rehabilitation and reintegration into the community. As with all sentences, the principle of proportionality applies. Any sentence imposed must be proportionate to the seriousness of the offences and the degree of responsibility of the offender.
[29] She considered relevant factors, as conceded by the appellant, and concluded that the maximum youth sentence, even taking into account the appellant’s pre-sentence custody, was insufficient to hold him accountable for his offending behavior. As a result, she decided that he was to be sentenced as an adult.
[30] Absent reviewable error, it is not for this court to reweigh the evidence. The conclusions reached by the sentencing judge were available to her. I see no error in her reasons relating to the rebuttal of the presumption of diminished moral blameworthiness or whether a youth sentence would be sufficient to hold the appellant accountable and would dismiss this ground of appeal.
(c) Principle of Restraint
[31] The appellant’s second ground of appeal is that the sentencing judge failed to consider the principle of restraint and that a first penitentiary sentence should be as short as possible as set out in R. v. Borde (2003), 63 O.R. (3d) 417 (C.A.) and other decisions of this court. In Borde, Rosenberg J.A. articulated this principle as follows, at para. 36:
The length of a first penitentiary sentence for a youthful offender should rarely be determined solely by the objectives of denunciation and general deterrence. Where, as here, the offender has not previously been to penitentiary or served a long adult sentence, the courts ought to proceed on the basis that the shortest possible sentence will achieve the relevant objectives.
[32] The appellant submits that the seven-year sentence given by the sentencing judge was crushing. It removes the appellant from the community for several formative years and places him in the company of negative peers. This will only serve to harden him.
[33] The Crown responds that the sentencing judge dealt with the principle of proportionality and that the sentencing judge necessarily considered the concept of restraint. Moreover, the Crown had sought eight years and the imposition of seven years was a form of restraint.
[34] In addressing an appropriate sentence, the sentencing judge observed that the sentence had to be proportionate to the gravity of the offence and the degree of responsibility of the offender. Citing R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, she stated that the gravity of the offence, the offender’s degree of responsibility, the specific circumstances of the case and the circumstances of the offender should be considered. In this regard, she noted the seriousness of the offences and the high level of the appellant’s blameworthiness.
[35] The sentencing judge then stated that she had to balance the aggravating and mitigating factors and take into consideration the principles of sentencing set out in s. 718 of the Criminal Code, R.S.C. 1985, c. C-46. She accordingly identified the appellant’s pleas of guilty and accepted as genuine his expression of remorse and his commitment to change. Further, she identified his youth and excellent prospects for rehabilitation as significant mitigating factors. She also treated his insight into his wrongdoing as a mitigating factor.
[36] The aggravating factors she identified included the degree of planning and sophistication involved in the robberies, the use of disguises and weapons, the harm done to the victims, the violence inflicted on one of the victims, and the fact that he was on release for firearms offences at the time of the robberies and was in violation of his bail conditions.
[37] She closed her analysis by stating:
I have taken into account the principles of sentencing as outlined in Sections 718, 718.1 and 718.2 of the Criminal Code. I have attempted to strike the appropriate balance between the mitigating and aggravating factors that are present in this case paying particular attention to the fact that R.D. was a youth at the time of the offences.
[38] The restraint principle is reflected in ss. 718.2(d) and (e). Section 718.2(d) provides that an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances. Section 718.2(e) states that all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
[39] Other than the passing reference to the relevant sections of the Criminal Code, the sentencing judge did not mention the principle of restraint nor ss. 718.2(d) and (e) in particular, nor did she mention the principle reflected in Borde. While it is well settled that the sentencing judge was not required to state the restraint principle explicitly, her reasons do not reflect that she applied the concept.
[40] Borde involved an 18-year-old appellant convicted of aggravated assault and various firearms offences. In two of the incidents, he used handguns, and he was also in breach of his probation at the time of the offences. He had a substantial youth record that included crimes of violence. Aside from the gravity of his offences, the overwhelming factor in the sentencing was his youth. Rosenberg J.A. wrote that the trial judge did not give proper consideration to both his youth and that a first penitentiary sentence should be as short as possible. The appellant’s sentence was accordingly reduced from five years and two months to four years and two months.
[41] The principle of restraint serves to minimize a youthful first offender’s sentence in that it requires a sentencing judge to consider all sanctions apart from incarceration and where incarceration is required, make the sentence as short as possible and tailor it to the individual circumstances of the offender: R. v. Batisse, 2009 ONCA 114, 93 O.R. (3d) 643, at para. 32; R. v. Priest (1996), 110 C.C.C. (3d) 289 (Ont. C.A.). The principle also requires the sentencing judge to consider rehabilitation in determining the appropriate length, recognizing that in very serious cases and cases involving violence, rehabilitation alone is not the determinative factor and general deterrence and denunciation must also be considered: Batisse, at paras. 33 and 34. As stated in Priest, the primary objectives in sentencing first offenders and youthful offenders are individual deterrence and rehabilitation, except in cases involving very serious offences and offences of violence: at pp. 294, 296.
[42] I agree with the sentencing judge that a meaningful period of incarceration was required due to the serious nature of the offences. However, as in R. v. Rocchetta, 2016 ONCA 577, 352 O.A.C. 130, at para. 35, the restraint principle should have been one of the primary considerations in fixing the appropriate period of incarceration, but the sentencing judge failed to apply the principle. In Rocchetta, at para. 35, this court determined that the failure to apply the principle “necessarily impacted materially on the length of the jail term imposed by the trial judge. Appellate intervention is justified: see R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 43-44, 83. The sentence should be varied downward.”
[43] At the time of the robberies, the appellant did not have a criminal record or a youth court record. Although this is mentioned early in the sentencing judge’s reasons, it played no role in her assessment of an appropriate sentence. At the time of the robberies, he had never been sentenced to time in custody before, let alone in the penitentiary. In fairness to the sentencing judge, when she delivered her reasons for sentence, she had not yet determined the placement for the appellant. She ordered a placement hearing pursuant to s. 76 of the YCJA and a placement report for that purpose. In light of his failure to avoid an adult sentence and having exhausted the available programming in the youth facility, it was jointly proposed by the Crown and the appellant that he serve the remainder of his sentence in the penitentiary. That said, this served to exacerbate the failure to apply the principle of restraint.
[44] The failure of the sentencing judge to consider the relevant factor of restraint affected the sentence imposed and requires this court to perform its own sentencing analysis. We must determine a fit sentence, applying the principles of sentencing afresh to the facts, without deference to the existing sentence, even if that sentence falls within the applicable range, although deference should be shown to the sentencing judge’s findings of fact or identification of aggravating and mitigating factors, to the extent that they are not affected by an error in principle: Friesen, at paras. 27-28.
[45] The gravity of the appellant’s crimes, the use of a firearm, the breach of his recognizance, and the harm to his victims all merit a lengthy sentence. However, these factors must be balanced against his age and his very difficult personal circumstances. Moreover, he has made tremendous progress while in custody and was described as having “excellent prospects for rehabilitation”.
[46] Applying the restraint and other sentencing principles to the circumstances of the offence and the offender as described by the sentencing judge, I conclude that a global sentence of six years less credit for pre-sentence custody would be a fit sentence. This is a very significant jail term for this first-time offender and does not fail to adequately denounce his behavior.
[47] In reaching this determination, I am mindful of the standard of review and the deference generally afforded to a sentencing judge’s decisions. That said, in this case, the sentencing judge’s failure to apply the principle of restraint and the principle that a first penitentiary sentence for a youthful offender should be as short as possible justifies appellate review. The sentence imposed was crushing and for this young man in his particular circumstances, a reduction in his sentence from seven to six years is merited.
[48] For these reasons, I would grant leave to appeal sentence, allow the sentence appeal and reduce the appellant’s sentence by one year so that the global sentence is six years less credit on account of pre-sentence custody. To arrive at this global sentence, I would reduce the appellant’s concurrent sentences of five years less credit for pre-sentence custody on the robbery counts (Counts 1, 6, and 9) to four years, concurrent, less credit for pre-sentence custody. The sentence in all other respects remains as imposed by the sentencing judge.
Released: July 5, 2021 “P.R.” “S.E. Pepall J.A.” “I agree. Paul Rouleau J.A.” “I agree. L.B. Roberts J.A.”
