Court File and Parties

Court File No.: Toronto 4817-998-11-70002389 Date: 2012-06-25 Ontario Court of Justice

Between: Her Majesty the Queen — and — Richard Joseph Busch

Before: Justice S. Ford Clements

Heard on: March 6, 2012, April 16, 2012, June 15, 2012 and June 25, 2012

Reasons for Judgment released on: June 25, 2012

Counsel:

• Jennifer Armstrong, for the Crown
• David Berg, for the accused Richard Joseph Busch

Clements J.:

Plea

[1] On March 6, 2012, Richard Joseph Busch entered guilty pleas to two counts of robbery and a count of weapons dangerous. It was alleged and admitted that on June 7, 2011, he robbed Afsaneh Aghajani, a bank teller, and Roberta Boughton, an innocent cyclist, outside the bank. He had in his possession a knife for the purpose of committing an offence.

Issue

[2] The issue on sentence is whether I should impose a penitentiary sentence in the range of three years as submitted by the Crown or whether I should impose a sentence of time served as submitted by the Defence. In addition, Defence Counsel submitted I ought to consider enhanced credit for pre-trial detention while the Crown argued that would be inappropriate. Even though Busch consented to his detention, Crown Counsel submitted that had he conducted a bail hearing he likely would have been detained because of his record. Defence Counsel submitted that with an appropriate plan and because of recent gaps in his record, he may have been eligible for release.

[3] Busch has been in pre-trial detention since June 7, 2011, a period of one year and one month or 13 months as of today's date.

[4] Both Crown and Defence Counsel clearly articulated their respective positions about the appropriate sanction. Even though the ranges of sentence being proposed were quite disparate their submissions were very helpful. I was referred to jurisprudence which was said to support their respective positions. In addition to Counsel's submissions I had Busch's Criminal Record to consider, a Pre-Sentence Report, a Psychiatric Report and Update, a letter from Sound Times Support Services and a Victim Impact Statement.

Facts

[5] At approximately 10 a.m. on June 7, 2011, Busch entered the Canadian Imperial Bank of Commerce at 245 Carlton St., Toronto, wearing a baseball cap on his head, a hoodie over that, gloves on his hands and sunglasses. He bypassed the customer line and went directly behind a teller's wicket. He approached the teller demanding money and brandished a knife while doing so. He stated, "you have 3 seconds to give me money or I will stab you". As he counted to three the teller opened the drawer and Busch removed a quantity of cash and placed it in a bag.

[6] Busch fled the bank followed by a bank customer. Busch approached a cyclist, and demanded her bicycle. When she refused, he knocked her off and tried to take the bike. Busch then approached another cyclist who he knocked from her bike and a struggle ensued. He then grabbed a cab and threatened to stab the driver if he did not drive away. Busch then got out of the cab. The customer who initially followed Busch from the bank hailed a police cruiser and identified Busch. He was arrested shortly thereafter and found in possession of $5100.

Criminal Antecedents

[7] There are 22 discrete entries on Busch's criminal record between 1981 and 2009. He was convicted of 95 offences during that period. The vast majority are property related and include 64 convictions for break and enter, ten for theft, five for possession of stolen property and one for possession of house-breaking instruments for a total of 80. There are nine convictions for breaches of bail and or probation. There are three convictions for unlawfully at large and escape lawful custody. He has a single conviction for obstruct police and very recently, two convictions for uttering threats.

[8] There were no convictions registered for the years 1985, 1988 to 1989, 1998, 2000 to 2001, 2003 to 2004 and 2006 to 2008.

[9] In 1987, Busch was sentenced to two years for three theft charges. In 1990, he was sentenced again to two years for 14 break and enter charges. In 1991, he was given a consecutive 18-month sentence to time being served for six break and enter charges. After being released on statutory release in 1992, he was recommitted as a parole violator in 1993. In 1994, he received an 11-month sentence for break and enter, which was consecutive to time being served. In 1996, he was sentenced to two years less a day in addition to 13 weeks of pre-trial detention. These appear to be the longest sentences imposed.

[10] Since 1999, there has been an apparent decline in the number of convictions and shorter and less intrusive sentences have been imposed. There are only three discrete entries consisting of 20 convictions including seven break and enter offences, two theft charges, two possession of stolen property offences, two threatening charges and seven offences relating to breaches of bail and or probation. The only actual jail sentences imposed was one of nine months in 2005 for break and enter offences. In 2009, the last entry on his record prior to the commission of the index offences, he was granted a conditional sentence of six months. This related to two offences of uttering threats and a breach of probation. These are the only offences of violence on his record until the commission of the index offences.

Jurisprudence Relied Upon by the Crown and the Defence

[11] While the Crown acknowledged that Busch had a very difficult and traumatized life, it was submitted that his chronic recidivism, poor response to supervision in the past and the element of planning and deliberation involved in the commission of the index offences meant that the Court ought to emphasize denunciation and deterrence in determining a fit sentence.

[12] I was referred to several trial judgments which were upheld on appeal in support of the general proposition that robbery was a serious offence of violence which in most circumstances demanded the imposition of a penitentiary sentence.

[13] In Slater, 2008 O.J. No. 4519, the 37-year-old accused was found guilty of robbery after a trial. Slater told a teller he had a gun and she complied with his demand for money. Slater had an upbringing characterized by physical abuse. He left school after grade nine and engaged in substance abuse from age 12 onward. He was addicted to opiates. Slater had an extensive criminal record that included nine robberies, and seven bank robberies. He was sentenced to 8.5 years imprisonment. On appeal at 2010 ONCA 376, the Ontario Court of Appeal upheld the sentence as being measured and, indeed, observed it was within the range suggested by trial counsel.

[14] Counsel to Busch distinguished this case on the basis that there was no mitigating guilty plea, no psychiatric issues and Slater had a significant prior record including nine robberies.

[15] In Wolynec, 2005 CarwellOnt 10269, the accused was convicted after trial of seven bank robberies and one attempt robbery. The robberies occurred within a short time period in 2001-2002 and typically involved the presentation of a hold-up note to a teller indicating that he had a gun. Wolynec was almost 52 years of age with a lengthy criminal history of some 70-odd convictions dating back to when he was 16 years old. He had spent most of his adult life in custody. Wolynec had serious health problems including hepatitis B, C, and D, as well as cirrhosis of the liver.

[16] While noting, Wolynec had a myriad of problems that placed him at high risk of re-offending, including a lengthy criminal record, his antisocial personality disorder, problems with drugs and alcohol, the trial judge concluded that his most pronounced problem was the degree of institutionalization that has occurred due to the amount of time he had spent been in prison.

[17] A total sentence of 13 years imprisonment was imposed. The Ontario Court of Appeal, at 2007 CarswellOnt 7734, noted that Wolynec extensive criminal record included a ten-year sentence for bank robberies. In upholding the sentence as being proportional, the Court of Appeal mentioned the regrettable circumstances of Wolynec's institutionalization and the fact he was a risk to reoffend.

[18] Busch's Counsel submitted that his client's risk of reoffending contrasted sharply with the assessment about Wolynec's likelihood to reoffend. As was the case in Slater, Wolynec did not have the benefit of a guilty plea to which Busch was entitled. Moreover, Busch was not institutionalized. For the past 16 year or so, he has only been in jail for a relatively short period of time and he has supported a family.

[19] In Lascelle 2006 CarswellOnt 7250, the accused pled guilty to four bank robberies, two at the same bank but involving four different tellers, who were all traumatized. It appeared that Lascelle was motivated to commit these offences to relieve his financial pressure or obligations. A sentence of four years was imposed without any credit for dead time nor was there any mention of any criminal antecedents.

[20] Defence counsel submitted that there was no direct evidence by way of victim impact statement that the teller robbed by Busch was traumatized. Crown Counsel submitted that could be inferred. Defence Counsel pointed to the fact that Roberta Boughton was relatively circumspect about the impact this offence had on her. I took from his submission that it would be speculative if not dangerous to draw an inference that the teller in this case was traumatized without the benefit of a victim impact statement or other direct evidence.

[21] In Cotterell 2003 CarswellOnt 6288, the accused plead guilty to the offence of robbery and admitted he walked up to a bank teller and handed her a note which indicated he had a weapon and that he wanted money. It was not clear whether the note referred to a gun. He was wearing a hooded sweatshirt at the time. The teller suffered from post-traumatic stress disorder and nightmares. The Crown sought a sentence in the range of three years, which was at the upper limit of the two- to three-year range suggested by the defence. It was acknowledged that the motivation for the robbery was simply greed. Cotterell used the money to purchase electronic equipment and food. While a Criminal Record was filed, there was little reference to its specific contents other than an acknowledgment that it was starting to grow. It did not include any previous convictions for robbery.

[22] Counsel distinguished Cotterell on the basis that there was no mental health concern as there is in this case and no evidence that the teller was traumatized. As well, and, no less significant, was the fact that the motivation for Cotterell offence was simply greed whereas Busch's motivation, albeit misguided, was to find money to support his child's requirement for dental surgery. While Defence Counsel argued that Busch moral blameworthiness was less than Cotterells', the Crown submitted that a financial motivation to commit the offence for whatever reason ought not to diminish Busch's level of culpability to any great extent.

[23] Finally, the Crown relied upon a case called Kaddoura, [2001] O.J. No. 3687, where the accused entered a bank wearing a mask. He threatened a teller with violence and indicated he had a bomb in his pocket. Kaddoura had a previous conviction for assault and a psychiatric illness. He was also addicted to cocaine. The Ontario Court of Appeal, at [2003] O.J. No. 224, upheld a 30-month sentence and in a brief endorsement observed that the trial judge was correct in imposing a sentence ... to reflect this society's repulsion and disapproval of the conduct committed by the accused. In assessing Kaddoura's level of culpability, the trial judge relied upon the offender's degree of planning and deliberation, which was reflected by the fact that he wore a hood and pantyhose as well as the fact that he appeared to have bomb.

[24] Busch's Counsel distinguished Kaddoura, in part, on the basis that the level of planning in that case was more extensive and that Busch's planning was minimal and without deliberation. Moreover, in Counsel's submission the trial judge emphasized the fact that Kaddoura had made a bomb. Counsel submitted that the existence of a bomb posed a significantly greater threat to the public at large than a knife.

[25] Busch's Counsel referred to a series of case that included: Strelocke, [2009] O.J. No. 2796; Perez, [1999] O.J. No. 559; Vaillancourt, [1999] O.J. No. 2502 and Lyn [2007] O.J. No. 3380 for the proposition that a penitentiary sentence is not required in all cases of bank robberies. The Crown submitted that in all these cases a departure from the normal penitentiary range of sentence was likely justified because the offender had no record or a minor one. Busch in the Crown's submission could not rely on that mitigating circumstance.

[26] To a great extent Counsel to Busch framed his submission in the context of the Ontario Court of Appeal's comments in Robinson, at paragraph 18 Brooke J.A. speaking for the Court talked about the difficulty of applying the principle of deterrence or punishing offenders with mental illness. While the emphasis must be on the protection of the public, where the offender poses a danger to the community that protection may be first achieved by curing the offender.

[27] Defence Counsel pointed out that the Ontario Court of Appeal reaffirmed this notion in Batisse, 2009 ONCA 114, at para 38, where it was held that deterrence and punishment assume less importance where the offender's mental health problems played a central role in the commission of the offence. Counsel submitted that Dr. Colleton's assessment confirmed that Busch's mental health issues were a contributing factor in the commission of the offences before the Court.

[28] To the point of the proportionality enquiry, the Court in Batisse held that severe punishment of persons with mental illnesses would be disproportionate to their degree of responsibility. E.E. Gillese J.A writing for the Court in Batisse at para 38 wrote: In such circumstances, the primary concern in sentencing shifts from deterrence to treatment as that is the best means of ensuring the protection of the public and that the offending conduct is not repeated. This is especially so where a lengthy prison term may be regarded as counterproductive.

[29] While Busch's Counsel submitted that this was precisely the approach to be taken in the matter before this Court, Crown Counsel pointed to the failure of Busch to consistently take his medication and his failure to see or take the advice of psychiatrists should not instill confidence that the could be treated effectively in the community.

Victim Impact Statement of Roberta Boughton

[30] The victim impact statement of Roberta Boughton indicated that being attacked out on the street, in broad daylight was somewhat traumatic. Immediately after the incident, she experienced an increase in her anxiety and stress levels. Her heightened sense of vulnerability and arousal lasted for hours and made it difficult to focus on her job. She also felt less trusting and secure while riding her bike but it did not approach anything like the level of post-trauma stress disorder. She had no fear about future contact, which I took to mean with the offender. Boughton did not suffer any injury or financial loss.

[31] Boughton also reflected on the experience of the crime itself, as she put it. She recalled the agitated and disjointed effort of the offender to stop vehicles and climb into them. She commented on the fact that the offender stayed so long on the scene that the police were able to arrest him without much investigation. From her perspective, the offender had no escape plan and was simply acting on impulse. She thought with sadness that the offender likely had mental health and addiction issues.

[32] Boughton indicated that she never felt she was in any personal danger because the offender was not aggressive apart from pushing her bike over and he showed no weapon nor did he utter any threats.

[33] The bank teller did not provide a victim impact statement but the Crown submitted it was a reasonable inference to draw at the very least that she was frightened and terrified by the experience.

Report of Dr. Colleton

[34] Dr. Colleton is a forensic psychiatrist and has been a part-time member of the medical staff at CAMH since July 2002. He also holds a lecturing position at the University of Toronto and is a consulting psychiatrist to the Roy McMurtry Youth Centre in Brampton and the Canadian Mental Health Association in Peel Region. He has appeared before the Consent and Capacity Board, the Ontario Review Board and Old City Hall Mental Health Court. He has a broad experience conducting court-ordered evaluations or assessments, assessing criminal responsibility and fitness to stand trial.

[35] Dr. Colleton was retained to provide a psychiatric diagnosis, the possible contribution of a psychiatric disorder to Busch's actions on June 7, 2011, treatment recommendations related to his release and a risk assessment for violence. The report is extensive and very thorough.

[36] At the time of Dr. Colleton's interview, Busch was 47 years old. Following his arrest and detention, Busch experienced severe depression and lost 30 pounds within two weeks. He was prescribed anti-depressant medication. He has been in protective custody primarily because of his macular degeneration. He has suffered about 75% visual loss and is legally blind. He cannot read or write as a consequence. In addition to anti-depressant medication, he is on a daily dose of methadone for opioid addiction and takes cholesterol medication.

[37] He apparently met with a psychiatrist for the first time about 15 years ago. He was referred for the purpose of dealing with his sexual abuse history and ongoing anger problems. He also dealt with those issues on at least two occasions when he was incarcerated at the Ontario Correctional Institute or OCI in Brampton in the 1990's. Dr. Colleton noted with some irony that Busch was in custody at OCI with Gordon Stuckless. Stuckless, a former employee of Maple leaf Gardens, along with John Paul Roby had sexually molested a number of young boys. Busch was one of John Paul Roby's victims when he was 12 years old. Stuckless was sentenced to custody in 1997. Busch was incarcerated with him and actually met with Stuckless. He found the confrontation helpful and somewhat of a turning point in his life. Dr. Colleton noted at page 4 of his report that .... following this incarceration, Mr. Busch was out of custody for most of the next 16 years, with few legal problems, in contrast to the prior 16 years. That observation is borne out by his Criminal Record as already noted.

[38] Dr. Colleton noted that Busch had experienced a number of traumatic episodes over the course of his life. Not only was he sexually abused by John Paul Roby at age 12, on two occasions he witnessed physical violence by his father as a young child and found his father dead (apparently by suicide) when he was six years of age. At age 22, he witnessed a cellmate who hung himself and who he unsuccessfully tried to revive. He also witnessed an inmate stabbed through the throat. Not insignificantly, Busch was the victim of an anal rape while in custody. Busch believes that the molestation by Roby had the worst impact on his life. He turned to drugs to deal with the emotional fallout from those events.

[39] Counsel to Busch referred the Court to the reasons for sentence in R. v. Roby, [2000] O.J. No. 5868 and, in particular, the review of Dr. Voysey's evidence at paras. 141 to 145. Dr. Voysey described the first direct impact on Roby's 13 victims as simple stress. The next direct effect was the syndrome called post-traumatic stress disorder. He testified that this often involved flashbacks. In addition, the victims experienced a group of conditions known as adjustment disorders, depressed mood, chronic depression and chronic anxiety over years. While not making a diagnosis of each victim, Dr. Voysey indicated that these facets of post-traumatic stress disorder were strikingly present in the statement of facts relied upon in Roby and manifested in quite a few of the victim impact statements.

[40] Dr. Colleton examined the possibility of whether Busch's traumatic life experiences and, in particular, the attacks by Roby met the criteria of post-traumatic stress disorder. While he could not conclude he met that criteria in full, he expressed the opinion that he has some trauma-related symptomatology, including intrusive memories and dreams of his sexual abuse, a non-specific sense of insecurity and dreams about the stabbing and hanging of inmates.

[41] Dr. Voysey also described drug and alcohol addiction as one of the direct life effects on Roby's victims. Dr. Colleton conducted an extensive review of Busch's drug and alcohol use and concluded that he had an extensive history of intravenous drug use during his adolescence when he used OTC stimulant medication and cocaine. He also noted that Busch also used cocaine intravenously between 2003 and 2005 when he was primarily using crack cocaine. Busch, according to Dr. Colleton, attributes many of his legal problems to his drug use. As well, it had a deleterious effect on his school, his employment and his health. In particular, he contracted Hepatitis C because of his intravenous drug use. Dr. Colleton concluded that Busch has had a significant and longstanding history of substance abuse. He met the criteria for cocaine dependency in the past and his use of prescription medication met the criteria for opioid dependence, which is currently being treated with methadone. That said, Dr. Colleton observed that substance abuse has not been a significant issue in the years prior to his arrest in June 2011 and the only current technical issue is his opioid dependence.

[42] Dr. Voysey was also cited in Roby at para. 144 for the proposition that there is a strong, positive correlation between sexual abuse and subsequent depression, although he could not say it was provable as causal. Dr. Colleton indicated that Busch considered depression a greater problem than his drug abuse. According to Dr. Colleton, Busch greatest period of depression was in late 2010 and early 2011. Dr. Colleton wrote at page 6 of his report that Busch's ... mood was very depressed and he felt like he had nothing left in life. He had no appetite and was losing weight. He felt sluggish and unmotivated. He was sleeping more than normal. His thinking felt slowed. He was suicidal at one point and thought about jumping in front of a subway train.

[43] Dr. Colleton saw Busch regarding his eligibility for Mental Health Diversion at Old City Hall Court on April 20, 2011, a few weeks prior to the robbery offences. He was accepted into the program. He learned after his interview with Dr. Colleton that his eye condition was worst than previously diagnosed and he likely would become blind. According to Dr. Colleton, Busch became quite depressed and experienced suicidal thoughts. He was not working or doing anything constructive or structured with his time and he did not see a psychiatrist or start taking anti-depressant medication as Dr. Colleton recommended.

[44] Dr. Colleton concluded that Busch likely suffers from a major depressive disorder. He identified the onset of this condition in adolescence. He noted that his depression has likely been affected by alcohol and drugs use as well as life stressors, such as incarceration. On the other hand, abstinence from drug and alcohol use, treatment with anti-depressant medication and his relationship with his children has had a positive influence.

[45] Dr. Voysey was also cited at para. 145 in Roby about indirect effects of sexual abuse on relationships and lack of self-confidence. In Dr. Colleton's review of Busch relationship history, he indicated that Busch considers that his depression has contributed to problems in his relationship with Tracy Cameron with whom he has had three children. When depressed he often did not communicate or left the family home for days at a time. Dr. Colleton's interview with Cameron confirmed that Busch's depression and drug use had a negative impact on their relationship. She also confirmed that two days prior to his arrest on the index offences, Busch learned he was legally blind.

[46] Busch apparently suffers from anxiety and depression and has over the years experienced panic attacks. Dr. Colleton, however, concluded that the attacks were not severe enough to support a diagnosis of a panic disorder nor was there any evidence he suffered from a generalized anxiety disorder. He suffers from some suicidal ideation but Dr. Colleton described it as relatively infrequent and superficial except for one occasion in 2010 when he contemplated jumping in front of a subway as a result of being charged with shoplifting.

[47] Even though Busch described his memory as poor, Dr. Colleton found that he had very good recall for details about various aspects of his history.

[48] Busch has apparently suffered from gout for the past 20 years and has a coronary artery disease, which was identified after a heart attack at age 38. He has had a successful angioplasty with no adverse symptoms. As previously mentioned he has hepatitis C, which was caused by intravenous drug use, which was diagnosed 22 years ago. As well, he suffers from macular degeneration and asteroid strikes, which were diagnosed six years ago.

[49] While he was not prepared to diagnose Busch as having a full personality disorder, Dr. Colleton formed the opinion that Busch had some maladaptive personality traits including occasional suicidal ideation, a sense of emptiness and occasional impulsivity. He wrote at page 25 to 26 of his report that Busch's ... antisocial personality traits are limited mainly to recurrent arrests, primarily for property related offences and some degree of impulsivity and irresponsibility.

[50] Dr. Colleton was clear that at the time of the index offences Busch retained the capacity to know that his actions were both morally and legally wrong. That said, Dr. Colleton at page 26 of his report wrote that Busch ... suffers from a major depressive disorder but was untreated prior to the index offences and was quite depressed at that time. His depression likely contributed in a non-specific fashion to his decision-making and the impulsive nature of his actions, although stress and personality factors were contributory as well. In response to the Court's concern about what Dr. Colleton was actually saying, Counsel arranged for a supplemental report to be filed with the Court. In the supplemental report, he described the various symptoms of depression and wrote that he did not ... think it's reasonable to conclude that his depression was non-contributory. He went on to explain that it was contributory in a less concrete fashion than in an NCR situation. While acknowledging there was some degree of speculation in trying to articulate the role that his depression played in the commission of the index offences, Dr. Colleton suggested the following as a reasonable hypothesis: Busch has struggled over many hears to be a good provider to his family. In 2011, prior to this offence, he was dealing with significant health concerns (progressive visual loss most significantly) that would further diminish his capabilities. He then learned that one of his children required expensive dental surgery. Without in any way excusing his actions, the robbery impressed as an impulsive and desperate act intended to address what probably felt like an overwhelming situation at the time. His depression likely amplified his feelings of failure and poor self-worth; diminished his ability to think through the key consequences of his actions; and rendered him more likely to see a desperate act as reasonable in the moment. He may not have really thought about the likely outcomes at the time and if he had, he may have been more likely to dismiss them out a sense of hopelessness and pessimism.

[51] Dr. Colleton concluded that despite his long history of criminal activity that Busch was not substantially an anti-social individual. Having regard to the fact that the vast majority of Busch's offences were property related, Dr. Colleton concluded that the index offences were outliers. The only other violence on his record was convictions for uttering threats, which occurred in the context of his belief that the victim had sexually assaulted his daughter. Having conducted risk assessment evaluations and even though his score on one of those test was moderately high, he concluded that Busch was a relatively low risk for violent re-offence.

[52] Dr. Colleton had a number of recommendations about how this risk could best be managed in the community.

Pre-Sentence Report

[53] Under the heading Character/Behaviour/Attitude, the probation officer wrote: The subject also presented as sad, pathetic, passive and helpless. The offender presented as an individual that has been victimized so many times that he has lost the ability to assert himself in a productive pro-social manner.

[54] The report also described Busch as a chronic recidivist and stated the obvious, that previous community supervision did not appear effective or instructive.

[55] In all other respect, the report mirrors the information that was provided by Dr. Colleton about Busch's background and circumstances although not in as much detail. The information provided by Busch to the probation officer is consistent with the information he provided to Dr. Colleton.

Letter from Sound Times Support Service

[56] Sound Time Support Service, a community support group funded by the Ministry of Health and Long Term Care, provided a letter of support in which it was indicated that Busch came to their organization in March 2011 seeking help. Busch has applied for housing and the letter indicated that upon his release they are prepared to assist in finding secure housing for him. The probation officer who spoke with Charlie Boyer, a community service worker and the author of the letter from Sound Times Support Service, expressed the belief that Busch committed the index offences because he was severely depressed and felt that he was desperate. Dr. Colleton confirmed in a brief letter he had from Charles Boyer that Busch self-reported a diagnosis of depression and post-traumatic stress disorder when he approached their organization in March 2011.

The Principles of Sentencing

[57] The Supreme Court of Canada in R. v. Ipeelee, 2012 SCC 13, at para. 36 has recently reaffirmed that ... the fundamental principle of sentencing is that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Whatever weight is given to other objectives and principles of sentence outlined in the Criminal Code ... the resulting sentence must respect the fundamental principle of proportionality. A sentence that reflects the gravity of the offence is closely tied to denunciation, justice for victims and the confidence of the public in the criminal justice system. That said, a proportional sentence should not exceed that which is appropriate having regard to the moral blameworthiness of the offender. This second aspect of proportionality serves as a restraining or limiting mechanism and is designed to provide justice to the offender. Neither aspect of the proportionality enquiry is elevated at the expense of the other. See: Ipeelee, supra at para.37.

[58] Indeed, the notion of restraint in sentencing has particular significance where incarceration is a potential disposition. Restraint not only means that imprisonment is a sanction of last resort but it also means that the sentencing court should seek the least intrusive and least quantum which will achieve the overall purpose of being an appropriate and just sanction. See: R. v. Hamilton, at para.95.

[59] In Ipeelee, which dealt principally with Gladue principles, the Supreme Court reiterated that sentencing judges are not prevented from considering background or systemic factors or alternative approaches to sentencing for non-aboriginal offenders and that sentencing is an individualized process. Therefore, the parity principle is not to be applied in a formalistic way and operates only to reduce disparities that cannot be justified. The Supreme Court indicated … that a sanction that takes account of the underlying causes of the criminal conduct may be more appropriate than one only aimed at punishment. See: Ipeelee, supra, at para.73. The Court also adopted the following language of Professor Quigley in relation to the principle of parity … uniformity hides inequity, impedes innovation and locks the system in its mindset of jail. See: Ipeelee, supra, at para. 79. The idea that systems often finds itself locked in a mindset of jail has itself become a formalistic approach when sentencing repeated offenders and I take from the Supreme Court direction in Ipeelee that the sentencing court ought to resist the knee jerk temptation to impose jail without regard to the idea, also expressed in Ipeelee, that imprisonment may not be conducive to individual and social healing.

[60] Justice Doherty noted in Hamilton, supra, that ... the gravity of the offence may point in a different sentencing direction than the culpability of the individual offender. (See: para. 93). In this context there must be a balancing of both sides of the proportionality enquiry recognizing that factors which mitigate the offender's culpability may require more emphasis than factors that emphasize the gravity of the offence and vice versa. Fixing a sentence that is consistent with Section 718.1 is particularly difficult where the gravity of the offence points strongly in one sentencing direction and the culpability of the individual offender points strongly in a very different sentencing direction. The sentencing judge must fashion a disposition from among the limited options available, which take both sides of the proportionality inquiry into account. As indicated in R. v. Priest (1996), ... factors which may accentuate the gravity of the crime cannot blind the trial judge to factors mitigating personal responsibility. Equally, factors mitigating personal responsibility cannot justify a disposition that unduly minimizes the seriousness of the crime committed. See: Hamilton, supra, at para. 93.

[61] Background or systemic factors relating to a particular offender may reduce or diminish his or her level of culpability. The moral blameworthiness, for example, of offenders suffering from mental illness is significantly reduced because the offender is viewed as less reprehensible. See: R. v. Pegg (1987), 24 O.A.C. 74 (OCA). Offenders with mental health issues often cope poorly in prison. See: R. v. Brown (1972) and a reduced sentence may ensure that the offender receives needed psychiatric treatment. See: R. v. Wallace (1973). The principles of general and specific deterrence have at least reduced significance if no relevance at all. See: R. v. Robinson (1974) and R. v. Valiquette (1990).

Sentence

[62] Robbery is a very serious offence largely because it involves the threat or actual application of violence in the course of stealing from the victim. Bank robberies tend to be regarded as more serious than robberies of individuals or small commercial businesses and as a class attract some of the highest sentences for this offence. Despite the general seriousness with which bank robberies are regarded the courts nonetheless remain responsive to individual circumstances and in the past when such orders were available for these type of offences, conditional sentence have been imposed.

[63] This is a particular difficult case in which to fashion a fit sanction having regard to my conclusion that the gravity of the offences points in a different sentence direction than the moral blameworthiness of Busch.

[64] Busch's lengthy record is at first blush an aggravating factor in my sentence analysis. In that context, I am aware that it is the practise to punish repeat or persistent offenders more severely than those who have not previously offended. In R. v. McArthur, the Ontario Court of Appeal noted that a lengthy record was usually indicative of a person who was a danger to the public, which usually results in a heavier sentence. That said, the length of the record, however, is not everything and the Court has to assess the seriousness of the record by the length of sentences imposed in the past and, in particular, the length of sentence imposed for similar offences committed in the past. A pattern of similar offences committed in the past can be indicative of an offender dedicated to a life of crime and therefore more of a danger because previous attempts to deal with the individual have failed.

[65] Busch, of course, has no prior convictions for robbery. Indeed, he has no prior convictions for violence save for two counts of threatening which occurred in the context of a mistaken belief that the victim had sexually assaulted one of his children. There is nothing about his criminal antecedents from which one could reasonably infer a life dedicated to violent crime and the use of force. Indeed, Dr. Colleton has indicated, as I have already noted in these reasons, that Busch is at a relatively low risk to reoffend violently. I accept that opinion. Indeed, the resort to the use of violence would appear to be of out of character and I likewise accept Dr. Colleton's observation that Busch's conduct in relation to the index offences was more likely an impulsive response to feelings of desperation fuelled by his depression.

[66] While Busch has a lengthy criminal record and has served significant periods of time in jail for break and enter, I think it can be said that his criminal activity over a period of 16 years prior to the commission of the index offences has decreased significantly both in terms of the nature of offences committed and the sentences imposed. Indeed, as previously noted, there are only three discrete entries out of 22 since 1997. Clearly, the frequency of offences being committed dropped drastically in that period and the only period of actual imprisonment imposed was one of nine months in 2005. Even the most hardened cynic would acknowledge that there has been a steady decline in criminogenic behaviour and the commission of the index offences stands out in stark contrast to the pattern of behaviour established over that 16-year period.

[67] I do not conclude on this record that Busch is more of a danger because previous efforts to deal with Busch have failed and I find that the steady decline in the commission of offences has a mitigating effect. On the totality of the evidence, I find the robberies to be isolated and impulsive acts and they do not fit neatly into any relevant pattern established by his prior record of criminal conduct.

[68] There is little doubt in my mind that Busch's sexual victimization at the age of 12 has had a profound impact on his sense of self and wellbeing. Add to that experience the further trauma he experienced in jail, there can be little doubt that any mortal could survive without damage. Likewise, I am satisfied that his victimization led directly to substance abuse which further impaired his ability to function as a law abiding member of the community. He has in later years suffered a heart attack, been diagnosed with hepatitis C and is now said to be legally blind. Dr. Colleton has diagnosed Busch as suffering from a major depressive disorder. Considering the history of sexual and physical abuse, his substance abuse issues, and his mental health diagnosis, I am satisfied that his level of moral blameworthiness is significantly diminished.

[69] I am mindful that there were aspect of his conduct that suggested a degree of planning but I find that there was little deliberation. I find support for that conclusion in Dr. Colleton's opinion. His conduct is more consistent with being impulsive, as Dr. Colleton suggested, than being an act of considered deliberation. This context lessens his level of moral blameworthiness.

[70] While the author of the Pre-Sentence Report did not consider Busch a good candidate for community supervision, I find that Dr. Colleton's assessment of Busch's ability to respond to community supervision more nuanced and positive. Indeed, Busch's efforts to deal with his issue of sexual and substance abuse offer some reasonable prospects that with proper community support he can manage, if not overcome, many of the issues he faces. It is not insignificant, in my view, that when he met Gordon Stuckless he had a minor breakthrough in dealing with his victimization by Roby. As I read Dr. Colleton's report and Busch's response to that encounter, it represented a turning point in Busch's life and for the better part of the next 16 years, he had fewer and less significant encounters with the criminal justice system. Likewise substance abuse and, in particular, cocaine use has not been an issue for many years. Indeed, as Dr. Colleton pointed out, his only real issue at this time is opioid dependence and is currently in ongoing methadone treatment to deal with that issue.

[71] Notwithstanding the commission of very serious index offences and the existence of a long record of convictions, I am satisfied on the totality of the evidence that Busch is a good candidate for reform. The principle of rehabilitation remains important, particularly when the principles of denunciation, deterrence and separation do not trump the long-term requirements of community safety, as best ensured by the rehabilitation of an individual. Given the isolated nature of the index offences, albeit grave, given the level of declining criminal activity over the past 16 years, given the reasonable prospect of Busch responding to community supervision and support, and given his diminished level of culpability, the gravity of the offence does not displace leniency to enable rehabilitation. Accordingly, when I balance Busch's diminished level of culpability against the gravity of the offences I am persuaded that a sentence of time served after giving enhanced credit for pre-trial detention meets the test or requirements of proportionality in this case. In these unique circumstances, I conclude that the pre-trial custody, about which I will say more in a moment, serves the principle of denunciation in this case.

[72] Busch has spent 13 months in pre-trial detention, which is the equivalent of 19 and one half months in pre-trial detention. I find it appropriate on the basis of Johnson to grant enhanced credit. While there was no indication on the Information that Busch was detained in custody on the basis of his record, I do not accept the argument that because of his record, had he not consented to his detention, he likely would have been detained. Given his background as outlined in these reasons and, in particular, the decline in criminal activity in recent years, he may well have been released had there been a proper plan of release in place.

[73] Accordingly, the information will be endorsed to reflect the fact that Busch spent 19 and one half months in pre-trial custody. I am suspending the passing of sentence and placing Busch on probation for a period of three years. He shall report forthwith to the adult probation office and thereafter as directed and be amendable to their supervision. Busch shall reside at an address approved by his probation officer and shall not change his residence except with the written permission of his probation officer unless he is removed from his residence for cause. Busch shall seek and maintain psychiatric counselling as well as any other form of counselling recommended to him by his probation officer. He shall sign all necessary releases to enable his probation officer to monitor and confirm his attendance and participation in any form of counselling, treatment or assessment. Busch shall take any anti-depressant medication as prescribed by a qualified physician/psychiatrist and shall provide proof that he is doing so to the satisfaction of his probation officer. He shall abstain from the possession, consumption and purchase of alcohol and all non-medically prescribed drugs. He shall have no contact directly or indirectly with Afsaneh Aghajani, Roberta Boughton and Katherine Easton, nor shall he attend at or be on the premises of the Canadian Imperial Bank of Commerce located at 245 Carlton Street, in the City of Toronto. He shall have no weapons in his possession as defined in the Criminal Code of Canada.

Released: June 25, 2012

Signed: "Justice S. Ford Clements"