Court Information

Ontario Court of Justice

Between: Her Majesty the Queen — and — Jason Brown

Before: Justice A. Hall

Heard on: April 16, 2012

Reasons for Judgment released on: May 1, 2012

Counsel:

• Greg Scott for the Crown
• Ari Goldkind for the accused

HALL, A. J.:

Charges and Plea

[1] On the 5th February 2012, Mr. Brown pleaded to the following charges:

• Robbery
• Wear disguise with intent
• Fail to Comply with Probation

The facts supporting the plea were read in on the 16th of April 2012.

Facts

[2] On November 1st 2011, Mr. Brown and the co-accused Mr. Marsh robbed Dales Pharmacy, located at 9a Chelwood Rd of a quantity of narcotics including oxycontin, morphine and some other prescription drugs.

[3] The value of the stolen drugs is estimated at $14,329.00

[4] Mr. Marsh was armed with a kitchen knife during the robbery and Mr. Brown was herding the employees to the back of the pharmacy. Both men were wearing disguises at the time of the robbery.

[5] Both men made good their escape by the use of a stolen vehicle. The robbery was captured on the pharmacy's surveillance security system. The police investigation discovered a fingerprint belonging to Mr. Brown in the stolen vehicle that was used for the escape.

The police later located Mr. Brown at Mr. Marsh's address. At this address a search warrant was executed and the police found the clothing that both men wore during the robbery of the pharmacy, plus a quantity of narcotics that were stolen from the pharmacy.

[6] During the police investigation Mr. Brown provided a statement detailing his involvement in the robbery of Dale's pharmacy on the 1st of November 2011.

Circumstances of the Offender

[7] Mr. Brown is 37 years of age, with an extensive history of substance abuse. His criminal record started in 2000. According to the pre-sentence report, Mr. Brown reported much of the offences were committed while he was under the influence of drugs. His counsel submits he was also under the influence of drugs during this robbery. He reported that his mother was alcoholic and his father led a "bikers" lifestyle, dealing drugs and abusing alcohol. His parents are now deceased. Mr. Brown has two children with Ms. Andrea Baxter, both children are living with their maternal grandmother. According to Mr. Brown, he plans to address the addiction question and provide for the children and their mother and reunite as a family.

Impact on the Victims and the Community

[8] No victim impact statements were filed in this case. However, common sense would suggest the robbery of the pharmacy by these two men must have been a terrorizing experience for the employees of Dale's pharmacy, despite Mr. Brown's attempt to comfort and or console them during the robbery.

Legal Parameters

[9] The penalty for a conviction of this kind of offence, i.e., robbery of a pharmacy with the use of a weapon, depending on the circumstances, can attract a sentence of a reformatory term to a substantial penitentiary term.

Position of the Parties

[10] The Crown's position is that of a sentence of two years less pre-trial custody, plus ancillary orders, DNA and firearms prohibition for life.

[11] The defence submits a proper sentence would be in the range of 9 to 12 months plus pre-trial custody. And that I should take note that Mr. Brown is seriously willing to change his life for the better because he is finally willing to address the addiction problems he has been struggling with for most of his life.

Mitigating and Aggravating Factors

[12] A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances.

[13] Mitigating factors are to be found on a balance of probabilities, while aggravating factors are to be considered after a finding beyond a reasonable doubt (s. 718.2 C.C.C.). Mitigating and aggravating factors are only those that are related to the gravity of the offence or the moral blameworthiness of the offender.

[14] This offender, with a record and was on probation at the time of the offence, and those are the aggravating factors in this case.

[15] On the other hand, it is also a significant mitigating factor that a plea of guilt was entered to the charge and by doing so there is substantial savings of resources. The plea of guilt alleviates the need of the witnesses to testify at a preliminary inquiry and possible trial.

[16] Another mitigating factor is that Mr. Brown admitted his involvement at the initial stages of the police investigation.

Principles of Sentencing

[17] The fundamental purpose of sentencing and its objectives are denunciation, general and specific deterrence, separation of offenders from society, rehabilitation, making reparations and promotion of a sense of responsibility in the offender (s. 718 C.C.C.).

[18] When sentencing adult offenders for offences such as robbery, the objectives of sentencing that must be of primary focus are those of denunciation and deterrence.

[19] The question of rehabilitation must be of some consideration, particularly given Mr. Brown's age and history of substance abuse.

[20] A sentence must be proportionate to the gravity of the offence and the moral blameworthiness of the offender.

[21] Consideration must be given to similar sentences for similar offenders for similar offences in similar circumstances.

[22] Reviewing the case law of robberies of this kind, the sentencing is quite varied, from the reformatory to the penitentiary. It is further complicated when the offender is addicted to illicit substances. It makes determining the appropriate sentence even more challenging.

Reasons

[23] The main principle that must be considered is denunciation and general deterrence. Mr. Brown is a man suffering from addiction and has an unenviable criminal record. However, he appears to be willing to take on the challenges of dealing with that addiction to the extent where he has devised a release plan.

[24] His role in the robbery was not that of initiator. During submissions in this case, I earlier described his role as that of a junior partner in the enterprise. His role was lesser than that of the co-accused Mr. Marsh, who was armed with the knife.

[25] Mr. Brown has substantial family support in the community, namely: his sister and the mother of his children. These individuals are willing to assist him in the community to deal with addiction issues.

Final Decision

[26] Given the circumstances of Mr. Brown, I am imposing a sentence of 20 months for the robbery, 15 months concurrent for wearing a disguise with intent and 5 months for the failing to comply, less his pre-trial custody.

[27] In addition, two years probation with statutory terms.

[28] Take counseling as directed by probation officer for substance abuse.

[29] Sign all releases to allow probation to monitor his compliance and participation in treatment programs.

[30] I am going to impose a Section 109 order pursuant to the Criminal Code that you do not possess any firearm for the rest of your life, and that you provide a sample of your DNA for the National Data Bank.

Released: May 1, 2012

Signed: Justice A. Hall