Court File and Parties
COURT FILE NO.: 17-73 DATE: 20190702 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – Matthew Armstrong Defendant
Counsel: Elaine Evans, counsel for the Crown Henry Burr, counsel for the Defendant
HEARD: June 13, 2019
Reasons for Sentence
LACELLE, J.
Introduction
[1] The offender, Matthew Armstrong, is before me for sentencing on a number of serious offences. They relate to events surrounding his participation in a robbery of a Shoppers Drug Mart while armed with a knife and with his face masked. The offences were committed with another man, Adam Martin, after the offender stole a motor vehicle and drove it to the robbery. This has resulted in two further convictions for stealing the motor vehicle and driving while disqualified.
[2] The defence argues that the court should impose a sentence of 5-6 years while the Crown seeks a sentence of 8-10 years. The issue for me to decide is what constitutes a fit sentence for this offender having regard to the circumstances of the offences, the circumstances of the offender, and the principles of sentencing that apply in this case.
The circumstances of the offences
[3] The additional circumstances of the offences are fully set out in my reasons for judgment in this case (R. v. Armstrong, 2019 ONSC 791). I bear them in mind in determining a fit sentence.
[4] Additional evidence has been presented during the sentencing hearing. I accept that while the value of the drugs to the pharmacy owner was approximately $9,500, the street value of the drugs taken during the robbery is estimated at $167,479.50. The drugs stolen included oxycodone, morphine, hydromorphone, dilaudid, and fentanyl. Two-hundred and forty-eight fentanyl patches were stolen. The estimated street value of the fentanyl alone is approximately $56,000.
The positions of the parties
[5] The defence submits that a sentence of 5-6 years is fit and that the sentence sought by the Crown represents too great an increase from his last sentences for robbery. Counsel argues that the jump principle is not really appropriate in this case. He relies on the decision in R. v. Fuller, 2017 ONCJ 865, [2017] O.J. 6741 (S.C.J.) to support his position that a doubling of the offender’s previous sentence is not required for a fit sentence. Counsel argues that the accused’s prior 5 year sentence for 2 robberies suggests that he received 2.5 years for each offence. He argues there is no justification for the significant bumping up in sentence sought by the Crown. He submits that many of the cases relied upon by counsel are instructive but are not on point here and often involve more aggravating factors. He asks the court to consider the time the offender has served in segregation while at the Ottawa-Carleton Detention Centre [“OCDC”] in considering its sentence. Finally, he emphasizes that the offender had a very difficult childhood in an environment that was unlikely to breed success. This history and the offender’s substance abuse have a role to play in determining a fit sentence for Mr. Armstrong.
[6] As I have indicated, the Crown seeks a sentence of 8-10 years and various ancillary orders. Counsel submits that this position reflects the principle of totality and the fact that the offender is serving an existing sentence which will not expire until December of 2021. Counsel argues that this position reflects the many aggravating factors in this case and is supported by the range of cases in the case law. The Crown places particular emphasis on the developing case law that recognizes the extreme danger posed by offences involving fentanyl. The Crown argues that the offender is unrepentant, ungovernable, and extremely dangerous to the public. Counsel argues that the evidence before the court shows that the offender’s rehabilitative prospects are limited, particularly given his continued offending while in custody.
The relevant principles of sentencing
[7] The Criminal Code sets out a number of principles of sentencing which must be considered in determining a fit sentence.
[8] The fundamental purpose of sentencing is confirmed in s. 718. That section provides that the sanction imposed by the court should have one or more of the following objectives:
a. To denounce unlawful conduct; b. To deter the offender and other persons from committing offences; c. To separate offenders from society, where necessary; d. To assist in rehabilitating offenders; e. To provide reparations for harm done to victims or to the community; and f. To promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
[9] In sentencing an offender, s. 718.1 provides that the court must adhere to the fundamental principle of ensuring that the sentence imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender.
[10] Section 718.2 of the Code identifies additional principles of sentencing, including that the court should increase or decrease the sentence to account for any relevant aggravating or mitigating factors.
[11] The principle of parity is reflected in s. 718.2(b), which directs that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.”
[12] Section 718.2 also codifies the principle of restraint in paragraph (e).
The totality principle
[13] Section 718.2(c) of the Code provides that “where consecutive sentences are imposed, the combined sentences should not be unduly long or harsh”. This expression of the principle of totality is an important component of the fundamental principle of proportionality: R. v. Johnson, 2012 ONCA 339 at para. 16.
[14] What this means for sentencing judges is that care must be taken in sentencing to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender, and that the sentence is not crushing having regard to the accused’s age, circumstances, and rehabilitative prospects. The Supreme Court has directed in R. v. M.(C.A.), [1996] 1 S.C.R. 500 at para. 42 that
[t]he effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate sentence is “just and appropriate”.
[15] As summarized in R. v. Johnson, 2012 ONCA 339 at para. 18,
… a combined sentence must not be unduly long or harsh in the sense that its impact simply exceeds the gravity of the offences in question or the overall culpability of the offender. The overall length of the custodial period imposed must still relate to and reflect the variety of sentencing goals, including denunciation, deterrence (specific and general), rehabilitation, the need to separate offenders from society where necessary, and the general imperative of promoting respect for the law and the maintenance of a just, peaceful and safe society: Criminal Code, s. 718. In this regard, the authorities recognize that where the ultimate effect of the combined sentences is to deprive the offender of any hope of release or rehabilitation, the functional value of these sentencing principles meets the point of diminishing returns. [citations omitted]
[16] The totality principle applies even where part of the total term of incarceration includes a pre-existing sentence. In these circumstances, the totality of all the sentences must satisfy the proportionality requirement: see R. v. Parry, 2012 ONCA 171 at paras. 18 and 23, and Johnson at paras. 19-20. However, in these circumstances, the totality principle has a “somewhat tempered effect”: see Johnson at para. 22. A sentence cannot be either unduly harsh and excessive, or overly lenient and unresponsive to other purposes and principles of sentencing, including denunciation, deterrence, the promotion of a sense of responsibility in offenders and acknowledgement of harm done to victims and the community, and the protection of the public. Our Court of Appeal has held that it is in this sense that an offender “ought not to be seen to be reaping benefits from his previous serious criminal misconduct”: see Johnson at para. 23.
[17] Accordingly, as directed in Johnson at paras. 24 and 25, a sentencing judge must consider that in addition to the principle of totality,
there are other considerations regarding the need to protect the integrity of the sentencing process – public “confidence in the fairness and rationality of the system” … This need to protect the integrity of the sentencing process, and the overall purposes and goals of sentencing, are to be balanced against the recognition that there will be situations where, globally speaking, a combined sentence will simply be too harsh and excessive … at the end of the day, the subsequent sentencing judge will determine how much weight to give to the existing remaining sentence by assessing whether the length of the proposed sentence plus the existing sentence will result in a “just and appropriate” disposition that reflects as aptly as possible the relevant principles and goals of sentencing in the circumstances. [citations omitted]
The circumstances of the offender
[18] The offender is 32 years old. The pre-sentence report [“PSR”] provides me with a great deal of information about his prior circumstances.
[19] The offender’s childhood was marked by various traumatic events. He experienced abuse by one of his mother’s boyfriends. At the age of six, his mother placed him in care which resulted in him being placed in a programme at the Royal Ottawa Hospital. His mother advised the author of the pre-sentence report that her separation from the offender’s father negatively impacted her son and said he was in trouble “all the time”. She dealt with that by seeking assistance through the CAS and other medical professionals.
[20] At the age of 12, the offender ran away from his mother’s residence several times and lived on the streets for a period. When he was located, he was placed in a group home. The first night in the group home the offender learned his father died. The offender struggled to deal with this.
[21] At the age of fifteen, the offender’s mother kicked him out after a conflict between the offender and her husband. The offender went to his brother’s residence. When his brother was incarcerated, the offender was again homeless. He reports his life has been unstable since then. He has coped by consuming alcohol and drugs which, according to the PSR, “quickly landed him in prison”.
[22] The offender’s history with alcohol began as an 8 year old. He reports he was an alcoholic by the age of 16. His consumption of alcohol helped him to numb the pain he experienced. He started using drugs at the age of 16. At 23 he tried opiates after being released from a federal sentence. According to the PSR, “[t]his consumption grew into an astronomical addiction”. The offender committed crimes to fuel this addiction. Recognizing this he made his first attempt at treatment in his early twenties while serving a custodial sentence in a federal penitentiary. However, his drug issues increased over time and culminated with several robberies of drugstores and thefts in an effort to obtain opiates. During the 5 year sentence he received for his robberies, he attended some programming and participated in a methadone programme. Reportedly the offender was compliant with the programming.
[23] As far as his education is concerned, the offender stopped school at the age of 14. He reports that he obtained his high school diploma while incarcerated at Millhaven penitentiary in 2014. The offender would like to attend college in the future and work in the trades. He has a limited employment history, but has worked at a tire recycling plant and as a roofer.
[24] The offender has been diagnosed with a number of conditions while incarcerated, including ADHD, antisocial personality disorder, and polysubstance abuse. He is noted to have had a history of impulse control disorder and possible trauma related symptoms due to his chaotic childhood. He has been followed by a psychiatrist while at OCDC and is taking a number of medications for his issues.
[25] While the offender is not indigenous (I am advised by counsel that this issue was extensively canvassed by the court which last sentenced the offender), he finds indigenous teachings and programmes helpful. It appears he has a genuine desire to continue with indigenous programmes. He sees a future where he would attend college, secure employment in a trade, and maintain his sobriety. He reports being “tired of this life” and wanting to change.
[26] The offender has had a few relationships. His current girl-friend is described by the offender and his mother as a positive influence. It is Mr. Armstrong’s hope to build a future with her.
[27] For her part, the offender’s mother says that her son is good-hearted, kind and polite when he is “is not trying to reflect his tough guy image”.
[28] While at OCDC, the offender has participated in some programming, including an anger management course and a course entitled “Change is a Choice”. The certificates confirming the offender’s completion of these courses are dated “April 2017”. I note that this is shortly after the March 21st attack by the offender on another inmate at OCDC. The attack left the victim with fractured bones and possible brain damage. It resulted in a conviction for aggravated assault for the offender.
[29] The offender has served two penitentiary sentences. It appears he did poorly on parole after each sentence. His threatening and violent conduct toward staff while incarcerated most recently has resulted in him being placed in segregation.
The mitigating factors
[30] The offender comes from an extremely disadvantaged background. I agree completely with his counsel’s remark that he was not the product of an environment that breeds success. His background provides considerable context for the development of his narcotics addiction and his criminal offending.
[31] Counsel argues that the time the offender has spent in segregation while in custody at OCDC should be considered in mitigation of sentence. I do not have an evidentiary record that provides me with details about what time has been spent in segregation. As for the circumstances that led to the decision to so confine the offender, the only evidence I have is contained in the PSR. It suggests the offender was removed from the general population because of his conduct towards staff. Having regard to the limited evidentiary record before me, I am not persuaded that the sentence should reflect a credit for the time the offender has spent in segregation.
[32] Insofar as the offender’s rehabilitative potential is concerned, he has expressed to the author of the PSR and to me his interest in changing his life. He has attended programmes while incarcerated awaiting trial on this matter. He has participated in treatment and other programmes during his previous periods of incarceration. I accept the sincerity of the offender’s expressed desire to change. However, given the offender’s history of returning to violent criminal offending even after having participated in treatment and other rehabilitative programmes, I give this factor modest weight.
The aggravating factors
[33] There are a number of aggravating factors in this case. They include the following:
a. The offender’s prior criminal record is lengthy and significant. There appear to be no gaps other than for periods where Mr. Armstrong was incarcerated. In addition to a myriad of other types of offences, it includes numerous convictions for offences of violence and driving offences. Most critically, it includes 2 convictions in 2012 for robbery. The first robbery on February 1, 2012, involved the robbery of a retail pharmacy with a knife. Using the knife, the offender demanded oxycontin and fentanyl patches. He received $15,000 in oxycontin, fentanyl, hydromorphone and codeine. The second robbery, committed 6 days later, was also of a pharmacy. Armed with a knife, the offender demanded drugs and that the safe be opened. He obtained $100 cash as well as a bag filled with narcotics. On each robbery, the offender was sentenced to 5 years concurrent in addition to 111 days in pre-sentence custody for an effective sentence of approximately 5.5 years for each offence. b. The offender was on parole as a result of the 2012 robbery convictions at the time he planned and committed these offences. c. The robbery involved a pharmacy. The vulnerability of pharmacies and the ongoing fear instilled in persons who are on staff during a robbery has been well-described in the case law: see R. v. Taylor, [2017] O.J. No. 139 (S.C.J.) at para. 35 and Fuller at para. 63. d. The victim impact of these offences is significant: i. Ms. Bougie was an employee in the Shopper’s Drug Mart at the time of the robbery. She has been affected emotionally by the robbery. She feels insecure at work and is scared something similar will happen again. Her sleep has been affected – she has nightmares where she replays the robbery. She has been financially affected since she missed two weeks of work as a result of her emotional difficulties following the robbery. Even when she is not at work and is going about her everyday life she feels less trusting of people. ii. Ms. Kuhn was also working at the Shoppers Drug Mart when the offender and Mr. Martin robbed it. That experience was also traumatic for her. She describes having lost her sense of safety and well-being in her workspace. She struggles to deal with the anxiety she now feels when she goes to work. She has difficulty with the closing shift and is frightened or uncomfortable about things like people wearing hats and scarves. She has reduced her work week to 4 days from 5 to help her deal with her anxiety. Further, the experience of testifying during the trial was very stressful for her and has also caused her to fear for her safety. This stress has been so significant for her that it has aggravated a health condition and she missed work the day after the trial. iii. The pharmacy owner, Eslam Hamed, lost approximately $9500 in narcotics and $300 cash. He had to incur additional expenses to provide security for the store in the week following the incident. He has also incurred additional expenses to provide counselling for the store and pharmacy staff, two of whom left their employment because of the traumatic nature of their experience during the robbery. e. The nature and amount of the drugs stolen here are serious aggravating factors. As highlighted by the Crown, the case law reflects an increasing understanding of the dangers of fentanyl for anyone who might come into contact with even minute amounts of that substance. The Court of Appeal in R. v. Loor, 2017 ONCA 696, referenced the evidence of Dr. Karen Woodall, at paras. 35-39, which had been accepted by the trial judge. Identical evidence from Dr. Woodall, a toxicologist from the Centre of Forensic Sciences, has been provided in this proceeding. It establishes that fentanyl is up to 100 times more powerful than morphine and 20 times more powerful than heroin. When abused, fentanyl patches are extremely dangerous. A number of deaths have been associated with its abuse. Loor concluded that offenders involved in trafficking fentanyl, even where no violence is involved, can expect significant penitentiary sentences. Fuller recognizes the real and significant potential for fentanyl stolen during a robbery to cause harm to the offender and potentially others in the community (see paras. 64-67; see also R. v. MacPherson (unreported) September 7, 2016, Ont. S.C.J., Austin J., and R. v. Joumaa, 2018 ONSC 317 at paras. 11-19, and 31). The robbery of fentanyl, particularly in the quantities involved here, is a significant aggravating factor given its potential to cause devastating harm. f. The offender initiated the robbery and planned it. He drove the get-away vehicle. His moral blameworthiness for the offences is high. g. The offender was armed with a knife, in this case, a box-cutter. The use of such a weapon increased the likelihood of causing fear and trauma to those in the pharmacy during the offence. h. The offender was masked. This also had the potential to increase the fear experienced by those in the store. It further reduced the prospects that the offender could be identified as a perpetrator of the robbery.
The range of sentence
[34] In illustrating the range of sentence for offences of this kind, the Crown relies on R. v. Colasimone, [2018] O.J. 1426 (C.A.), R. v. Taylor, [2017] O.J. 139 (S.C.J.), Fuller, MacPherson, and R. v. Spiedel, [2013] A.J. 672 (Alta. P.C.). The defence relies on the following additional cases: R. v. Chuvalo, [1987] O.J. No. 1177 (C.A.), R. v. Brown, [2012] O.J. No. 1960 (C.J.), and R. v. Mawut, 2017 ONCA 168.
[35] The cases cited by counsel demonstrate a broad range where the ultimate sentence imposed reflects a number of factors, including the offender’s prior history for similar offences, aggravating factors like the use of a firearm or additional violence during the robbery, and other circumstances, such as whether the robbery involved fentanyl. I have reviewed and considered these cases and I am guided by the range of sentence they demonstrate.
[36] I agree with counsel for the defence that the Fuller case, where a sentence of 5 years was imposed, presents with a number of factual similarities to this case. It is therefore particularly helpful in determining where in the range of sentence a fit sentence in this case should fall. However, Fuller also has some important differences in the aggravating and mitigating factors at play, including the fact that the offender had pleaded guilty in that case just over one month after the offence, he had not committed the additional offences at issue here (e.g. theft of a motor vehicle and driving while disqualified), two of his three prior robbery convictions were 26 years old, and the offender was not on parole when he committed the offence.
[37] I also agree with the Crown that Colasimone involves similar elements to the offences and the circumstances of the offender. In that case, the accused was also on parole and living in a half-way house when he committed the offences, which involved the robbery of a bank with a box-cutter. He was convicted after a trial. He had a cocaine addiction and significant prior record, including for prior robberies. He had mental health issues and his record was, for the most part, dated. There were gaps in his record that suggested he might be amenable to some form of control or rehabilitation, such as a five year gap when the accused was married, employed, and raising a family. This ended when he was sentenced to 9 years for two counts of robbery. Finding that a total sentence of around 15 years exceeded his most significant prior sentence by 6 years, that the rehabilitative prospects of the accused had not been given sufficient weight, and that a sentence of 15 years was crushing, the Court of Appeal reduced the sentence imposed to 10 years.
Analysis
[38] In addition to all of the above, there are other issues to be considered in determining a fit sentence.
[39] I consider that the offender has been convicted of further offences since committing those at issue here. In January of 2018, the offender pleaded guilty to several offences he committed in the aftermath of the robbery. The offences included dangerous operation of a motor vehicle, flight while pursued by police, and failing to stop at the scene of an accident. He also pleaded guilty to an aggravated assault on another inmate at OCDC. The sentence resulting from those offences (3 years and 11 months in addition to 27 months of pre-sentence custody) will expire in December 2021. I am mindful that these convictions relate to events which occurred after this offence and the accused had not had the benefit of any rehabilitative aspects of his sentence on those matters at the time this offence was committed: see R. v. Skolnick, [1982] 2 S.C.R. 47 and R. v. A.E., [2013] O.J. No. 5299 (C.A.) at para. 10. These subsequent offences are relevant, however, to the issues of specific deterrence, protection of the public, and the offender’s rehabilitative potential. They are also relevant to the principle of totality insofar as the offender is serving his sentence for those offences currently and this court’s sentence must consider the remnant of that sentence.
[40] I also consider that the co-accused in this matter, Mr. Martin, received a sentence of 4.5 years following his mid-trial guilty plea. I agree with the Crown’s submissions as to what distinguishes Mr. Martin and the offender for the purposes of sentencing, including the increased moral blameworthiness of the offender who initiated and planned the offence, the fact that the offender was on parole for two similar offences, the differences in their prior criminal records, and the mitigation of sentence available to Mr. Martin in view of his guilty plea and acceptance of responsibility for the offence.
[41] Insofar as the jump principle is concerned, counsel for the offender argues that the jump principle does not apply in this case because the robbery committed in this instance was substantially similar to his previous robberies. Because his conduct cannot be said to be escalating, counsel says the jump principle ought not to apply. He argues that the Crown’s position of 8-10 years erroneously relies on that principle.
[42] The jump principle is discussed in each of R. v. Borde, [2003] O.J. No. 354 (C.A.) and R. v. Courtney, 2012 ONCA 478. Borde directs at para. 39 that
[the jump] principle cautions a court against imposing a dramatically more severe sentence than the sentences imposed upon the offender for similar offences in the recent past. It has little application where the severity of the offender’s crimes shows a dramatic increase in violence and seriousness.
Courtney confirms at para. 10 that the rationale for the jump principle is that “successive sentences should be increased gradually”. In applying this principle, I consider that unlike his prior two robberies of pharmacies, the offender was masked for this offence. Nevertheless, in determining a fit sentence, I am mindful of the principle of restraint generally, as well as the need to apply the jump principle. In doing so, however, I do not agree with the submission that the prior sentences for the offender were the equivalent to 2.5 years each. The criminal record shows an endorsement of effective sentences of 5.5 years for each offence. The offender pleaded guilty to those offences (a mitigating factor not present here) and received the benefit of serving those sentences concurrently. This does not permit him to now argue that the sentences were half as lengthy.
[43] Ultimately, I conclude that the goals of sentencing that have primacy in this analysis are those of deterrence and denunciation, specific deterrence, and the protection of the public. Mr. Armstrong’s rehabilitative potential is secondary to these considerations. In any event, it is not a strong mitigating factor given the evidence before me. Bearing these goals in mind, the additional principles I have discussed, the range of sentence for similar offences, and Mr. Armstrong’s circumstances, I conclude that a global sentence of 8 years is just and appropriate. I confirm that in arriving at this determination I have considered the totality principle and the remnant of the sentence the offender is currently serving.
Conclusion
[44] In the result, the offender will be sentenced as follows:
a. Count 1, robbery while armed with a knife: 8 years consecutive to the sentence he is currently serving; b. Count 2, having his face masked with intent to commit an indictable offence: 2 years concurrent to count 1; c. Count 3, driving while disqualified: 2 years concurrent to count 1; d. Count 4, possession of a weapon for a dangerous purpose: this count is stayed pursuant to the principles in Kienapple; and e. Count 5, theft of a motor vehicle: 1 year concurrent to count 1.
[45] The following ancillary orders shall also issue: 1) Section 109 order for life; 2) an order for DNA under s. 487.051 of the Code; and 3) an order pursuant to s. 743.21 of the Code prohibiting the accused while he is in custody from having any communication directly or indirectly with the victims, witnesses and co-accused in this matter.
[46] In view of the proportionality and totality principles and the length of total time the offender has yet to serve in custody (which exceeds a decade), and the very limited means of the offender, I decline to impose a restitution order in favour of the owner of the pharmacy.