Court File and Parties

Court File No.: Toronto 12-40005077

Date: 2012-03-08 (Replacement information)

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Kevin Woodley

Before: Justice Charles H. Vaillancourt

Heard on: May 29, 2012

Oral Reasons for Judgment: August 21, 2012

Counsel:

• Matthew Bloch, for the Crown
• Anthony De Marco, for the accused Kevin Woodley

VAILLANCOURT J.:

Guilty Plea

[1] The Accused, Kevin Woodley, pleaded guilty to two counts of robbery while armed with a firearm and one count of being disguised with intent. The matter of sentence was adjourned for sentencing to today's date.

Agreed Statement of Facts Filed

[2] On Friday, June 18, 2010, at approximately 7:45 a.m., the Accused, Kevin Woodley, went to the Easy Shopping Grocery, a convenience store, located at 2521 Eglinton Avenue West in Toronto operated by Soon Boon Park, with his accomplice, Andrew McLennan. Both Kevin Woodley and Andrew McLennan wore bandanas over their faces in order to conceal their identity.

[3] Kevin Woodley and Andrew McLennan approached the rear counter where Ms. Park was standing. Andrew McLennan was armed with a Walther model CP 99, a .177 calibre semi-automatic CO2 gas operated pellet handgun, which was later certified to be a firearm under the Criminal Code.

[4] Mr. McLennan took approximately $200.00 from the cash register and approximately $1000.00 in cash and a cheque for $8,500.00 from Ms. Park's purse. This money was shared with Kevin Woodley. There is no indication that the $8,500.00 cheque was ever cashed.

[5] Ms. Park activated the store panic alarm at which point Kevin Woodley and Andrew McLennan fled out the front entrance of the convenience store.

[6] On Tuesday, June 22, 2010, at approximately 10:35 a.m., the Accused, Kevin Woodley went to a convenience store located at 201 Lambton Avenue in Toronto operated by Li Fen Lu, with his accomplices Andrew McLennan and a young offender, M.C. They all wore bandanas over their faces and hoods in order to conceal their identities. Andrew McLennan was armed with the aforementioned Walther model CP 99.

[7] Ms. Lu had the gun pressed against her head while Kevin Woodley robbed her convenience store of cigarettes and a quantity of money. During the robbery, Ms. Park was kicked to the ground and punched in the face with sufficient force for her to lose consciousness. She received swelling and lacerations to the face. It is not alleged that Kevin Woodley was the person holding the gun or that he participated directly in any of the violence against Ms. Lu.

[8] On Wednesday, June 23, 2010, at approximately 8:10 a.m., Andrew McLennan went to the Lamezia Grocery, a convenience store located at 2 Branstone Road in Toronto operated by Ming-Fang Zhai with his accomplices Kevin Woodley, Daisha Lewis, Christopher Bramley and a young offender, M.C.

[9] Christopher Bramley was assigned the role of driver. He waited outside in a stolen car.

[10] Kevin Woodley, Andrew McLennan, Daisha Lewis, and M.C. entered the Lamezia Grocery with bandanas over their faces and hoods over their heads. Andrew McLennan was armed with the Walther model CP 99 CO2 gas-operated pellet handgun.

[11] At the time, Ming-Fang Zhai was in the grocery store. Christopher Huynh, a sales representative with Imperial Tobacco, was also in the grocery store working on his laptop computer.

[12] Kevin Woodley and his accomplices stole cigarettes, lottery tickets, and a quantity of money from Ming-Fang Zhai.

[13] Kevin Woodley and his accomplices stole a laptop, a wallet containing $100.00, and identification from Christopher Huynh. Mr. Huynh was made to crawl on the floor while being kicked by the group. It is not alleged that Kevin Woodley was the person holding the gun or that he participated directly in any of the violence against Mr. Huynh.

[14] Kevin Woodley and his accomplices left the Lamezia Grocery in the stolen Honda Civic driven by Christopher Bramley at approximately 8:20 a.m.

[15] A short while later, at approximately 8:38 a.m., Kevin Woodley and his accomplices Andrew McLennan, Daisha Lewis, Christopher Bramley and a young offender, M.C. went to the Winona Market, a convenience store located at 400 Winona Road in Toronto operated by Yu Zhang.

[16] As before, Christopher Bramley waited outside in a stolen 1991 Honda Civic, licence plate BBZJ232.

[17] Woodley, McLennan, Lewis and M.C. entered the Winona Market with their faces covered. Andrew McLennan was armed with a Walther model CP99 handgun.

[18] Kevin Woodley's accomplices pushed Yu Zhang to the floor while Mr. McLennan pointed his gun at him. The accused and his accomplices stole a quantity of money and cigarettes.

[19] Wen Jun Wang, Mr. Zhang's wife, left the store and called for help.

[20] Kevin Woodley and his fellow accomplices left the Winona Market in the stolen Honda Civic driven by Christopher Bradley at approximately 8:45 a.m. A passerby noted the licence plate of this vehicle.

[21] Shortly after 9:00 a.m., police began to pursue the stolen car on Pleasant Boulevard. Mr. Bramley drove at high speed towards Yonge Street where he turned right and drove north in the southbound lanes. He then turned right on Heath Street only to arrive at a dead-end at a ravine near an elementary school.

[22] The five individuals fled into the ravine that borders Mount Pleasant Cemetery with police officers in hot pursuit. Mr. Woodley was able to evade the police in the ravine.

[23] A search of the stolen vehicle revealed Mr. Huynh's laptop and wallet containing his identification, as well as a quantity of cash, cigarettes and lottery tickets. In the trunk of the car, police located a black garbage bag on which a fingerprint belonging to Kevin Woodley was found.

[24] Furthermore, a Walther model CP 99, a .177 calibre semi-automatic CO2 gas operated pellet handgun with a magazine wrapped in a blue bandana was also found in the vehicle. An examination of this weapon revealed that it was a firearm as defined by the Criminal Code capable of projecting projectiles at velocities exceeding 246 feet per second.

[25] Police investigation lead to the arrest of Kevin Woodley on June 23, 2010. In his statement to police, Mr. Woodley admitted his involvement in the robberies of the four convenience stores between June 18th and June 23rd, 2010. He also identified himself and his accomplices Andrew McLennan and M.C. as members of the Eglinton West Crips.

Victim Impact Statements

[26] Not too surprisingly, the aforementioned robberies had a profound impact on the victims.

[27] One of the victims noted that:

"After the incident occurred, I could not stand in the counter area by myself. I'm afraid of working alone."

[28] Another victim stated that:

"I'm afraid to run the store now, especially after the incident occurred. I do not want to talk to people including my friends and neighbours. I even did not know how to face my relatives when I went back to China. I could not run the business and I had to close the store after two and one-half months. Now, I always feel numb on my nose that was broken in the incident. It's worse when it rains or snows."

[29] Yet another victim observed that:

"I feel nervous when I face any stranger. By instinct, I will check the surroundings of my store both inside and outside. I never used to feel the need to do this before. I experience nightmares while I sleep. I am so nervous that I will use the electric lock to keep the door locked during the day and night time, especially if there aren't many people in the street. After it gets dark, I'm afraid to stay alone in the store and always hope that my wife can be in the store with me. When strangers come, I will observe them very carefully and open the door when I feel there is no problem. I will by instinct stare at the surveillance monitor and feel nervous."

[30] Finally, one of the victims commented as follows:

"I sometimes think about the scenario I encountered last year when I either watch the news or read the newspaper and it makes me feel very uneasy emotionally. I would hope this occurrence will never happen to me or other victims again. No one would understand the fear, the anger, and how life is so fragile until you have a gun pointed at you. You see violence in movies everyday and you think nothing of it until it happens in front of you. I would be lying if I said I will forget or get over the situation I encountered last year."

Pre-Sentence Report

[31] A Pre-sentence Report was prepared in this matter and some of the highlights of that document reveal that:

[32]

• (1) The accused has two drug related entries when he was a young offender on his record.
• (2) He was raised in a loving and supportive environment.
• (3) He has earned some grade eleven credits.
• (4) He has not had gainful employment but did support himself in the past through the sale of cocaine.
• (5) The accused advised the probation officer that he wanted money so badly that the idea of committing robberies sounded like a good idea at the time. The accused told the probation officer that he now feels like he has wasted a large portion of his life and stated that if he could go back and do things differently that he would.
• (6) It was noted that the accused presented with a very calm, quiet and polite temperament and displayed a positive attitude and was forthcoming with information.
• (7) His aunt, Lucy Carr, described him as a "really good person" who ended up associating with a negative peer group. She could not understand why her nephew would commit the index offences since he never was in desperate need of money.
• (8) The accused indicated that he joined the Eglinton West Crips simply because of the neighbourhood he grew up in and because he associated with these friends while attending high school.
• (9) The police noted that the robberies were very violent and extremely serious. However, the investigating officer acknowledged that the accused was cooperative with the police after his arrest.
• (10) The probation officer concluded that the accused appeared remorseful for his part in the index offences and informed the officer that he was sorry for the negative effect his actions have caused to all involved especially the disappointment he has caused his own family.
• (11) The report concludes that the accused plans on bettering his life by maintaining employment and working hard for the things he wants out of life. The accused expressed that he would like to put his problems from his past behind him and looks towards the future.

Community Support for the Accused

[33] Throughout the court process, I noticed that a number of relatives and community members have been in attendance to demonstrate their support for the accused.

[34] I have read the letters that have been filed as part of the sentencing hearing and filed as exhibits.

[35] These letters make it clear that Kevin Woodley is remorseful for his conduct and desires to turn his life around and become a productive member of society. One of the exhibits offers the accused an employment opportunity once he has been released from custody.

[36] It is clear that the authors of the various support documents are law abiding citizens that find the accused's conduct completely unacceptable as it relates to the offences he has committed. Several of the people have also made it clear to the accused that they are very displeased that he would have involved himself in the index offences.

[37] In spite of any displeasure that the various supporters have regarding the accused's involvement in the robberies, they believe that he is worthy of a second chance and if given the opportunity, he will embrace it.

Crown's Position on Sentence

[38] Mr. Bloch suggested that a total sentence of eight years less pre-trial custody is warranted. He stressed that denunciation of the accused's conduct required such a lengthy period of incarceration.

[39] Mr. Bloch highlighted several aggravating circumstances to support his position. The fact that a firearm was used in the commission of the robberies trigger a four year minimum sentence. There was also the use of gratuitous violence in some of the occurrences. Although the accused is not alleged to have actually possessed the firearm or participated in any of the actual violence against the victims, he was part of the group that carried out the offences.

[40] Another aggravating circumstance is the fact that the perpetrators were masked thereby escalating the fear factor on the part of the victims.

[41] Mr. Bloch stressed that the impact on the victims was significant as borne out by their victim impact statements.

[42] The accused was on probation for a Youth Court matter at the time of these offences. This is an aggravating factor.

[43] Finally, the Assistant Crown Attorney indicated that the accused's gang affiliation should be kept in mind when considering an appropriate sentence.

Defence Position on Sentence

[44] Mr. De Marco stressed that his client was a youthful offender. He was a mere twenty-nine days from his eighteenth birthday when he was involved in the first robbery on June 18th, 2010 and thirty-four days from his eighteenth birthday when the last robbery occurred.

[45] He advised the court that the co-accused, M.C., who was a young offender benefited very much by his youth offender designation when it came to his sentence.

[46] Counsel also pointed out that the traditional 2:1 credit for pre-trial custody had been eliminated as of February 2010 and was no longer available to his client.

[47] Mr. De Marco noted that the accused entered a plea of guilty to the charges; he was very cooperative with the police upon his arrest; he did not actively participate in the violence; he never had the firearm in his possession; and he was a follower of the older and more experienced Mr. McLennan.

[48] Counsel explained that the accused grew up in a rough neighbourhood and became involved with a gang out of fear and hopelessness.

[49] Mr. De Marco explained that his client never appreciated the impact his conduct might have on the victims. Now that the accused has been made aware of the situation, he is remorseful for his actions.

[50] Mr. De Marco highlighted the fact that these convenience store robberies occurred in the morning as opposed to the middle of the night.

[51] Counsel characterized the offences as a short spree.

[52] Mr. De Marco stated that his client's short Youth Court record was unrelated to the offences before this court.

[53] Mr. De Marco requested the court to consider crafting a sentence that reflects the positive factors that are at play and not to forget the principle of rehabilitation when arriving at the final sentence.

[54] The accused's counsel pointed out that there is hope for his client; that his client wants to rehabilitate himself; and that he can be rehabilitated.

[55] At the end of the day, Mr. De Marco asks the court to consider a sentence in the range of two years less a day plus three years probation in addition to pre-trial custody.

Parity of Sentences

[56] I am aware that other parties to the robberies in question have been sentenced and I would like to indicate what dispositions have been made to date.

[57] M.C., a young person, within the meaning of the Youth Criminal Justice Act, pleaded guilty to two counts of robbery and two counts of using an imitation handgun while committing the indictable offences of robbery. M.C. was a few days shy of his sixteenth birthday at the time of the commission of the robberies. M.C.'s antecedents included a finding of guilt for robbery in 2009. It should be noted that he was also on three probations at the time of the incidents. M.C. had served ten-and-a-half-months pre-trial detention and under the Youth Criminal Justice Act was credited with fifteen-and-three-quarter months secure custody. Justice A. Tuck-Jackson imposed an additional three-months custody and supervision order, with the first sixty days to be served in open custody followed by thirty days of community supervision. Following the custody and supervision order, M.C. was placed on probation for seventeen months.

[58] When dealing with the issue of disparity of sentences imposed upon adults and young offenders, one must be mindful of the observations of the Ontario Court of Appeal in R. v. Wobbes, [2008] O.J. No. 2999 (Ont. C.A.) wherein Justice G.J. Epstein noted at paragraph 73 that:

The primary difficulty the appellant faces in relying on the parity argument is that the co-accused were young offenders sentenced under the regime established under the Youth Criminal Justice Act S.C. 2002, c. 1 ("YCJA") – a regime completely different from the established under the Criminal Code. Most notably the sentencing principles of general deterrence found in s. 718(1)(a) of the Criminal Code are not applicable under the YCJA. Furthermore, the YCJA places mandatory restrictions on the use of custodial sentences.

[59] Mr. DeMarco plaintively pointed out that the accused committed the initial offence a mere twenty-nine days after his eighteenth birthday and was involved in the last offence thirty-four days after his eighteenth birthday.

[60] Regrettably, once an individual crosses the line of adulthood, the rules and procedures that apply to young offenders cease to be available. Nevertheless, I take Mr. DeMarco's point that but for a few days, his client would have benefited from the advantages of a young offender's sentence.

[61] However, it is to be remembered that the accused was a very young adult at the time of the commission of these offences.

[62] Mr. Christopher Bramley entered pleas of guilty to one count of armed robbery and one count of failing to stop for police. He drove the getaway car. At the time of the offences, he was nineteen years of age.

[63] Between 2006 and 2008, Mr. Bramley was before the Youth Court on six occasions resulting in a dozen findings of guilt including a charge of dangerous operation of a motor vehicle in 2008.

[64] Justice L. Favret sentenced Mr. Bramley to an effective sentence of six years. I am not aware of any of Mr. Bramley's personal circumstances save and except what is indicated in the preceding paragraphs.

[65] I dealt with Mr. McLennan on March 21, 2012 and imposed an effective sentence of ten years for two counts of robbery while armed with a firearm.

[66] A review of the facts makes it abundantly clear that Mr. McLennan was the main player in the various robberies. It was Mr. McLennan who had possession of the firearm and directed the actions of his co-accused. He was twenty-two years of age at the time of the robberies. Mr. McLennan's criminal antecedents demonstrated his propensity to be involved in robberies. He had two robbery findings as a young offender. In 2008, he commenced his adult record with an offence of robbery with a firearm for which he was sentenced to an effective sentence including pre-trial custody of five years. Later in 2008, he received an additional one year consecutive sentence for another robbery.

[67] At the time of his arrest for the index offences herein, Mr. McLennan was wearing an electronic monitoring ankle bracelet since he was on parole for the aforementioned robberies.

[68] Needless to say, Mr. McLennan readily sets himself apart from his co-accused.

[69] I am mindful that there is a disparity among the sentences of the various accused persons. The disparities reflect the personal circumstances of each accused and the roles each played in the offences.

General Principles Regarding Sentence

[70] Robbery is one of the more serious charges under the Criminal Code. Parliament has provided a maximum sentence of life for robbery and the courts have regularly imposed penitentiary sentences. Furthermore, as in the case at bar, where there is a firearm used in the commission of the offence, there is now a minimum sentence of four years.

[71] Deterrence and protection of society are the primary principles when considering an appropriate sentence for those who are engaged in this type of anti-social activity.

[72] The Ontario Court of Appeal in R. v. Danvers, [2005] O.J. No 3532 at paragraph 78 expressed its view on gun-related crimes in the Greater Toronto Area as follows:

There is no question that our courts have to address the principles of denunciation and deterrence for gun related crimes in the strongest possible terms. The possession and use of illegal handguns in the Greater Toronto Area is a cause of major concern in the community and must be addressed.

[73] One must also keep in mind that convenience stores have been recognized as vulnerable targets by the courts. Convenience stores do not usually have elaborate security measures in place. They are often staffed by a sole person and have items that are sought by thieves, namely, cash, cigarettes, and lottery tickets. Often, those who choose to prey upon these locations, strike at night when the vulnerability quotient is highest. Although the current offences occurred during the day, that factor does not take away from the need to recognize the need to protect these business operations.

[74] In R. v. Dirie [2011] O.J. No. 5460, Justice I. A. MacDonnell of the Ontario Superior Court of Justice addressed the principles of denunciation and general deterrence regarding convenience store robberies while at the same time he noted the need to not forget the principle of rehabilitation at paragraphs 23 and 24 of his judgment as follows:

[23] As I have said, the objectives of denunciation and general deterrence must be at the forefront of a consideration of the appropriate sentence for Mr. Dirie. Persons are required to work late at night in retail establishments such as Fortino's store are in a vulnerable position. The timing of the robbery in this case was calculated to take advantage of that vulnerability. The protection of persons in the position of the Fortino's employees require a sentence that unequivocally condemns the conduct to which they were subjected. Mr. Dirie's moral blameworthiness in relation to the robbery was very high. The role he played - brandishing what appeared to be a genuine machine gun while the victims were rounded up – was a central component to the scheme.

[24] However, denunciation and deterrence are not the exclusive sentencing objectives in this case. Mr. Dirie's prospects for rehabilitation must not be overlooked. While there is little before the court in relation to those prospects apart from Mr. Dirie's youth and his lack of a prior criminal record, those are important considerations. As Mr. Genua quite rightly reminded the court, we should not give up on Mr. Dirie.

[75] I have reviewed the cases presented by counsel and appreciate the guidance as contained in the authorities. Sentencing is not an exact science and the role of any court is to craft a sentence that incorporates the principles of sentencing with the unique factors of the particular accused before it.

[76] In R. v. Borde (2003), 172 C.C.C. (3d) 225 (Ont. C.A.), Rosenberg J.A., addressed the issue of penitentiary terms for youthful first offenders thusly at paragraphs 3 and 36:

[3] However, this appellant was only 18 when he committed these offences. In my view, the trial judge did not give proper consideration to the appellant's youth and that a first penitentiary sentence should be as short as possible.

[36] Aside from the gravity of the appellant's crimes, the overwhelming factor is his youth. In my view, the trial judge erred in principle in focusing almost exclusively on the objectives of denunciation and general deterrence, given the appellant's age and that this was his first adult prison sentence and his first penitentiary sentence. The length of a first penitentiary sentence for a youthful offender should rarely be determined solely by the objectives of denunciation and general deterrence. Where, as here, the offender has not previously been to a penitentiary or served a long adult sentence, the courts ought to proceed on the basis that the shortest sentence will achieve the relevant objectives. The trial judge's repeated reference to the need to send a message and his statement that the sentence was meant to deter others who resort to guns make it clear that general deterrence and to a less extent denunciation determined the length of the sentence. In my view, this error led the trial judge to impose an excessive sentence for the aggravated assault.

[77] When one is considering the appropriateness of any sentence, the principle of rehabilitation cannot be disregarded.

[78] In R. v. Burnett, 2007 ONCA 478, Justice Rouleau writing for the Ontario Court of Appeal noted at paragraph 55:

I agree with the sentencing judge's observation that for robberies of this type general deterrence and denunciation are important factors in determining the appropriate sentence. A substantial sentence is normally warranted to convey the clear message that offences of this type will be severely punished. On the facts of this case, I believe that the sentencing judge erred in placing undue emphasis on the principle of deterrence without giving adequate weight to the rehabilitation of this youthful first offender.

[79] Finally, it is important to consider the issue of the totality of the sentence imposed.

[80] Chief Justice Carruthers of the Prince Edward Court of Appeal observed in R. v. Cameron 1995 Can LII 8967 at paragraphs 45 and 46 that:

The totality principle comes into play when consecutive sentences are imposed as the sentencing judge must ensure that the totality of the consecutive sentences is not excessive. Clayton C. Ruby discusses the totality principle in his text Sentencing (4th Ed. 1994) Butterworths, and he states the purpose of the principle at pp. 44-45 as being:

The purpose is to ensure that a series of sentences, each properly imposed in relation to the offence to which it relates, is in aggregate 'just and appropriate'. A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of a sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender "a crushing sentence" not in keeping with his record and prospects. The first limb of the principle can be seen as an extension of the control idea of proportionality between offence and sentence, while the second represents an extension of the practice of mitigation.

[46] The sentencing judge must, therefore, ensure that a series of sentences, each properly imposed in relation to each offence, is, in total just and appropriate. As Mr. Ruby points out, the total sentence will offend the principle if it is substantially higher than the normal level of sentence imposed for the most serious of the individual offences. It will also offend the principle if it is a particularly severe sentence inconsistent with the accused's record and prospects for the future. It must also be kept in mind that when one applies the totality principle and the end sentence must result in a sentence which only encourages individuals to multiply their crimes and thus have the effect of defeating the deterrence aspect of sentencing.

Sentence

[81] The accused finds himself at an important crossroad in his life. He can complete the sentence I am about to impose and tap into his positive attitude going forward and use the support that he has in the community or he can do life on the instalment plan. The choice is ultimately the accused's. He is remorseful for his conduct and recognizes the foolishness of it.

[82] Considering the accused's youth, his plea of guilt, his minimal Youth Court record, his cooperation with the police, and the fact that he did not handle the firearm or become directly involved in any of the gratuitous violence, I am prepared to sentence him to the equivalent of a four year and one month sentence of incarceration to be followed by three years probation. This option is available because the accused has already served 792 days of pre-trial custody.

[83] Accordingly, the accused is sentenced to 668 days concurrent on each of the robbery counts plus three years probation. There will be a Section 109 Order for life and a DNA order. For the wear a disguise offence, there will be a sentence of 30 days consecutive.

[84] The total jail sentence that will be served is a significant period of incarceration but is not so lengthy as to be crushing. The probationary period is designed to assist the accused's reintegration into society while at the same time providing a measure of control over him.

[85] The terms of the probation are:

1. Report to a probation officer within 48 hours from your release from custody;
2. Be of good behaviour and keep the peace;
3. Not to carry or possess weapons as defined by the Criminal Code;
4. Reside at an address approved of by your probation officer;
5. Seek and attend counselling and rehabilitative programs as deemed appropriate as directed by your probation officer and provide written proof of compliance;
6. Not to associate, contact, or communicate directly or indirectly with the named complaints herein and your named co-accused.

Released: Written reasons released October 1, 2012

Signed: "Justice Charles H. Vaillancourt"