Court File and Parties

Court File No.: Newmarket Courthouse 11-01954 & 11-03314 Date: 2012-02-27 Ontario Court of Justice

Between: Her Majesty the Queen — and — Gordon Francis Bowden

Before: Justice Peter N. Bourque

Oral Reasons for Sentence released on: February 27, 2012

Counsel:

• J. Fuller, Esq., for the Crown
• K. Murray, Esq., for the accused Gordon Francis Bowden

Reasons for Sentence

Bourque J.:

[1] The defendant, Mr. Bowden, has plead guilty to a series of five bank robberies. The facts were submitted by an agreed statement of facts. In those robberies, he attended and handed a note to a bank teller demanding money. He indicated in all of these notes that he had a gun. There is no evidence that he did indeed have a gun. I note that in some of the robberies he noted a time limit for compliance. I note, as well, that in the agreed statement of facts, he has accepted the facts of two other robberies, although he did not specifically plead to them.

[2] Notwithstanding the lack of a gun, I am mindful that any teller would have been put in a position of great fear for their safety. Several filed victim impact statements which I have considered carefully. It is clear that these events have had a real impact on them.

[3] Those tellers had no way of knowing whether the attitude of the defendant would have changed. They could have been subject to personal violence if they had not complied with the defendant's requests. I am impressed by the way that all of these tellers comported themselves during the robbery. I have no doubt that their fears and unease came on over time and has affected their lives. All of these people are especially deserving of the consideration and protection of the law as represented by this court.

[4] To his credit, the defendant, in his remarks directly to the court, spoke only of his remorse for the suffering that he has caused to these people.

[5] I accept his remarks especially as he has plead guilty to these offences and he has spared them the further need to testify in court about these unpleasant happenings.

[6] I have reviewed the pre-sentence report. In totality, it is somewhat unremarkable.

[7] There is no indication of any substance abuse other than the four impaired convictions up to 1992. He has not had a good family life.

[8] I note that he has been a printer and has worked extensively, however, he has not been able to get employment and that is his explanation for the robberies. I accept the explanation up to a point. While he felt under pressure to pay debts, and indeed the pressure may have come from some unsavoury characters, there were other options available to him without resorting to robbery. Certainly the police could have been involved.

Sentencing Positions

[9] In this matter, the Crown is seeking a total concurrent sentence of 6 years in a federal penitentiary. The crown urges that I give him pre-sentence credit of one for one, for a net sentence of 5 years.

[10] The defence asks that the total net sentence for the defendant, after taking into account pre-trial custody, be between 3 and 4 years.

Sentencing Principles

[11] The principles of sentencing are set out in s. 718 of the Criminal Code. They are as follows:

• (a) to denounce unlawful conduct;
• (b) to deter this 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 in the community.

[12] I note, as well, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[13] A court that imposes a sentence shall also take into consideration the following principles:

• (a) and it should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or to this offender.
• (b) a sentence should also be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[14] Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh.

[15] I am mindful that I must take into account the doctrine of totality, and I will do so. While rehabilitation is always a consideration for offenders, (at least those who do not commit the most serious crimes), I believe that I must be guided by the directions of the Court of Appeal in dealing with the offences that are before us here, namely, multiple bank robberies, with multiple victims.

Comparative Case Law

[16] I note the case of R. v. Wolynec, 2007 ONCA 826.

The court stated:

"The appellant has a substantial criminal record, including a ten-year sentence for two bank robberies. On this occasion, the appellant was convicted of seven bank robberies and one attempted bank robbery. These are grave offences, even though the appellant was not armed. The effective sentence of thirteen years imprisonment was fit in the circumstances."

[17] In our case, the defendant has a criminal record from 1979 to 1992 of six separate sentencings and ten offences. Eight of these offences are drinking and driving offences. One is for an assault and another possession of a controlled drug for the purpose of trafficking. While this has some relevance, I do distinguish this from the case sited above where there was a previous conviction for a bank robbery.

Relevant Factors in Bank Robbery Sentencing

[18] Several other cases have also been brought to my attention. With regard to bank robberies, I feel the important factors to consider in determining the length of the sentence are as follows:

• Whether there has been actual harm inflicted on anyone;
• The presence of an offensive weapon, and whether it was a firearm and whether it was used or "brandished" by the defendant;
• If no offensive weapon was used, was there a threat to use the weapon?

[19] As stated in R. v. Slater, the lack of a weapon in these circumstances is not a mitigating factor but demonstrates the lack of the further aggravating factor of actually having the weapon.

Aggravating and Mitigating Factors

[20] The record of the defendant, especially as it may include previous robberies. The aggravating factors, I think, are as follows:

• The defendant committed multiple bank robberies. I do not accept that for the purpose of sentencing that I just treat them as a continuum although the principle of totality must be respected.
• The defendant made the explicit threat that he had a gun, and left the implicit threat that it could be used.
• The defendant has a criminal record.
• The defendant has caused psychological harm to the other individuals.

[21] The mitigating factors I see as follows:

• He did not in fact have a gun and did not brandish a gun.
• He did not inflict any physical injuries on anyone.
• The defendant's record is somewhat dated. It involves mainly drinking and driving offences and does not include a previous offence for robbery, and he has indeed plead guilty and accepted responsibility.

Determination of Sentence

[22] Taking all of these factors into account, I feel that the Crown's position of six years in total is a very reasonable one. I believe it does take into account the factors that I have noted.

Pre-Trial Custody Credit

[23] I am going to go on and discuss the issues for credit for pre-trial custody.

[24] This gentleman has been in custody for a few days short of a year. That is a significant period of time.

[25] While in custody, he suffered several very serious medical conditions which involved a cardiac arrest and several surgical procedures.

[26] I accept that he received adequate medical care, but I am also mindful of the fact that a serious illness and operative procedures must be by their nature, be more difficult when one is not with one's family, and receiving their immediate and continuing support.

[27] I also note that as a result of these medical procedures, the defendant did not complete this matter, as originally planned. The defendant was going to appear in court on June 6, 2011, after entering his first plea on April 20, 2011. It was assumed that all these matters would be complete at that time. But for his illnesses, that would have happened. Defence counsel has also pointed out the significant number of lockdown days that the defendant was subject to.

[28] I feel that the above factors alone would entitle the defendant to enhanced credit for pre-trial detention.

[29] In addition, I note the following. There is no endorsement of a Justice of the Peace under s. 515(9.1), and there is no detention under section 524(4) or 524(8). Therefore, I am not precluded from considering credit for time served up to 1.5 times the number of days actually spent in custody.

[30] I believe I can consider the following institutional and legal factors in applying an enhanced credit:

1. I take judicial notice of the more severe conditions in the holding facilities in contrast to the conditions in a Federal Prison or Provincial Reformatory.
2. I take judicial notice of the fact that in a holding facility there are no significant programs available to assist in the rehabilitation of the defendant.
3. I take judicial notice of the fact that the parole provisions for this offence do not give credit to the time served before sentence and thus the statutory remission does not apply to the pre-trial custody.

[31] I note the cases of R. v. Hanson, 2011 ONCA 396 where the Court of Appeal referred to a trial judge's reasons for giving a 1.5 to 1 credit and approved it.

[32] I also note the case of R. v. Monjoe ONCA where they stated:

"I would note parenthetically that, to the extent that the recently legislated "new rules" concerning credit for pre-sentence custody limit an offender's entitlement on a 2:1 basis, the reality of what "dead time" is remains. That is, pre-sentence custody continues to be "dead time" for the same reasons as one of the most punitive forms of imprisonment in Canada."

[33] Several other cases in trial courts in Canada have stressed that the lack of credit for remission of sentence for pre-trial custody is a specific factor that can be taken into account in considering enhanced credit, even if the full 1.5 to 1 is not given. (R. v. Jones, 2011 ONSC 5330 and R. v. Johnson, 2011 ONCJ 77).

[34] While I appreciate that there are some other conflicting decisions on this point, I feel I am bound by R. v. Hanson. (After all, I was the judge at the sentencing and specifically set out the reasons I have noted above), and I believe the Court of Appeal specifically referred to it in their decision.

Final Disposition

[35] Therefore, the finality of this matter is as follows: concurrent on all counts, a total of 6 years less the enhanced credit and 1.5 to one of 1½ years for a net, this day forward, of 4 years and 6 months in a Federal Penitentiary.

[36] I also order that he provide a sample of his DNA and I make an order under s. 109 of the Criminal Code that he be prohibited from owning or possessing firearms and other like substances as set out in that section for life.

[37] All the other charges against this defendant which have not been dealt with in this comprehensive plea are marked withdrawn by the Crown. I also waive the victim fine surcharge.