Court File and Parties

Court File No.: Halton 12-751; 12-752; 11-3730 Date: 2012-10-29 Ontario Court of Justice

Between: Her Majesty the Queen — and — Henry Lee Bouwman

Before: Justice Lesley M. Baldwin

Heard on: April 18, 2012 and August 22, 2012

Reasons for Sentence released on: October 29, 2012

Counsel:

• T. Mackinnon for the Crown
• A. Manek for the accused Henry Lee Bouwman

BALDWIN J.:

Guilty Pleas

[1] On April 18, 2012, Henry Lee Bouwman pled guilty as follows:

(1) on July 29, 2011, in Hamilton, he robbed Ray Wassef of money and narcotics (with co-accused Sean Contesti) contrary to s. 343 of the CCC;

(2) he committed the robbery with his face masked, contrary to s. 351(2) of the CCC;

(3) during the course of the robbery, he used an imitation firearm to wit: a pellet gun, contrary to s. 85(2)(a) of the CCC (this carries a mandatory minimum one year sentence);

(4) on September 18, 2011, in Burlington, he committed a robbery on Lisa Vogt, contrary to s. 344(1)(b) of the CCC (this was a plea to the lesser and included offence. The original charge was robbery with use of a firearm, contrary to s. 344(a.1) of the CCC, which carries a mandatory minimum one year sentence);

(5) during the course of that robbery, he had his face masked contrary to s. 351(2) of the CCC.

Facts

Hamilton Robbery

[2] On July 29, 2011, at approximately 1:20 p.m., the offender and his co-accused, entered the Aid Plus Pharmacy located at 252 Dundas Street East, Waterdown, in the City of Hamilton, Ontario. Both had their faces covered with masks. The co-accused pulled out a black (BB) hand gun and pointed it at the victim Mr. Wassef stating, "Put your head down and don't move." The offender walked behind the counter and removed approximately $400.00 from the cash register. He then took a number of Clonazepam from the shelf.

[3] The co-accused then went into the unlocked safe and removed an unknown number of 10 mg., 20 mg., and 40 mg. Oxycontin pills. He then looked at Wassef and stated, "Don't move or you will be killed, I'm going to jail soon so it doesn't matter to me."

[4] The two then fled the store on foot. As the co-accused was walking out the door, he stated, "If you did anything wrong you're going to be dead." Witnesses on the street then saw the two men jump into a green pick-up truck and drive away.

Burlington Robberies

Attempt Robbery read-in at the time of the guilty pleas - to be considered on sentencing (Garcia and Silva principle):

[5] On Sunday September 18th, 2011, at approximately 2:50 p.m., the offender and another male entered the clinic located at 141 Plains Road West, in Burlington, Ontario. The offender and the other male both had firearms in their hands.

[6] They ran into the clinic and then abruptly left after seeing that there were customers inside the pharmacy. They ran out of the clinic east towards Howard Road. Nothing was stolen at this time.

[7] The offender and the other male were wearing black ski masks, dark hoody-style sweatshirts with the hoods over their heads to conceal their identities.

[8] On Sunday September 18, 2011 at approximately 3:15 p.m., Lisa Vogt was alone in the Aldershot Guardian Pharmacy located at 185 Plains Road East, Burlington. At this time, the offender and another male ran into the store armed with BB guns.

[9] The offender was wearing a black ski mask, a black hoody, black pants and gloves.

[10] The males yelled at Ms. Vogt to get on the ground. They told her she would be shot if she looked at them.

[11] The offender and the other male went to the cash register and stole approximately $170.00 in cash. They went to the rear cash safe and stole approximately $250.00.

[12] They stole numerous drugs from the drug safe; amphetamine, butrenorphine, butalbital, codeine-phosphate, dextroampheamine, fentanyl, hydromorphone hcl, methylphenidate, methylpredisolone, morphine sulphate and oxycodone.

[13] The offender and the other male fled the store and threw the bags containing the stolen items into the back of a green truck. They drove away.

Arrest

[14] On November 10th, 2011, members of the Hamilton Police Service arrested the offender for the Hamilton robbery.

[15] The offender provided investigators with an inculpatory audio/video interview admitting to his role in the Hamilton robbery as well as his role in the robberies committed in the City of Burlington.

[16] On November 21st, 2011, the offender was contacted and arrangements were made for him to turn himself in to HRPS. On November 24, 2011, he turned himself in. He was arrested and released on a Form 10/11.1.

[17] At the time of the plea, the Court was advised that the offender had no prior record.

[18] The offender suffers from schizophrenia and is a drug addict on the methadone program.

[19] His mother, who is his surety on a house-arrest bail, was with him in Court.

[20] A pre-sentence report was ordered.

Sentencing Exhibits

[21] Sentencing submissions were heard August 22, 2012.

[22] Exhibits were filed:

• #1 – PSR
• #2 – Victim Impact Statement of Ray Wassef
• #3 – Victim Impact Statement of Lisa Vogt
• #4 – Witness Statement of Lisa Vogt
• #5 – Witness Statement of Ray Wassef
• #6 – CMHA Mental Health Court Support Services letter dated April 17, 2012; Dr. G. Sidhu letter dated February 27, 2012; Shelia Cvetas (family friend) letter dated April 2, 2012; Glenn Harkness reference letter dated March 26, 2012; Pastor Aasoman, reference letter, dated March 8, 2012; Dr. Voytek Czernikiewicz, psychiatrist at St. Joseph's Healthcare in Hamilton, letter dated March 16, 2012
• #7 – Halton Robberies synopses
• #8 – Hamilton Robbery synopsis
• #9 – Text messages between the offender and co-accused Sean Contesti, dated July 28 and 29, 2011.

Summary from the PSR

[23] The offender is 35 years of age and has no prior record.

[24] He currently lives with his parents and brother in the east end of Hamilton.

[25] He has been with his girlfriend, Leanne Daniels, for one and half years. They plan to marry. Leanne gave birth to their son in August of 2012.

[26] Leanne has a two year old daughter from a previous relationship. She reports that she has known Mr. Bouwman for two and half to three years. They have a "really good" relationship and he is "great" with her daughter. Mr. Bouwman's family is supportive of this relationship.

Education/Employment

[27] The offender did not do well in school due to learning disabilities. He completed grade 10 and dropped out at age 19 to go to work.

[28] He worked in the construction field with his father for 7 years.

[29] For the past two years, his source of income has been ODSP due to his schizophrenia diagnosis.

Addictions

[30] His drug use began at 17 and he admitted using cocaine, ecstasy and prescription pills.

[31] He has been addicted to oxycontin from the age of 29 until as recently as November 2011. (note: post-offences)

[32] Since November 2011 he has been on the Methadone program. Dr. Sidhu, family physician, from the John Street Methadone Clinic, confirmed that he has treated Mr. Bouwman for opiate dependence and substance abuse since March 2010 and sees him on a weekly basis. He stated that he suffers from schizophrenia and has been compliant, reliable and stabilized on his medication. Dr. Sidhu confirmed that Mr. Bouwman has been clear of opiate use since November of 2011.

Mental Health

[33] The offender advised he was diagnosed with schizophrenia around the age of 27. He stated that he noticed the symptoms (heard voices) around the age of 20 but blamed it on his drug abuse and tried to control it by self-medicating. He indicated he suffered from depression and had suicidal thoughts during his twenties but these symptoms went away after he sought psychiatric help.

[34] The offender is currently on a wait list for the Schizophrenic Clinic which offers special programming and supports, including employment assistance.

[35] Mr. Bouwman has been actively engaged with the Mental Health Court Support Services since March 13, 2012. His worker states that he has created a strong support network for himself in the community and has strong support from his family.

[36] "In regards to the offence, the subject claims that he was a totally different person and was in a different state of mind because he was no longer taking his medication or seeing his psychiatrist at the time. He stated he was living on his own and felt that he no longer needed to take his medication. He admitted that he used oxycontin and other prescription pills in excess. He stated the co-accused planned the robberies and he went along with it. He admits he did not make a rational decision because he was un-medicated. He expressed guilt and remorse for his actions. He commented that he 'has a difficult time sleeping at night and feels remorseful for traumatizing the victims'." (PSR p. 5,6)

Victim Impact Statements and Witness Statements

Statement to Police – Ray Wassef – Exhibit #5

[37] During the course of the robbery, the following threats were made to Mr. Wassef:

"Put your head down and don't move". "Don't move or you will be killed. I'm going to jail soon so it doesn't matter to me". "If you did anything wrong you're going to be dead".

Victim Impact Statement – Ray Wassef – Exhibit #2

[38] "On July 29, 2011, at lunchtime I was in the pharmacy when two masked men came into the pharmacy. I did not know how to react and before I knew what was happening, one of them pushed me down and pointed a gun at my head. All I could think about this entire time is if I would ever see my kids again. Who would care for them? My daughter had just finished her first year of university and my son had just begun high school. How would they manage without me? How would my wife be able to care on her own? We were supposed to be going on a family trip the following day. Easily, this was the scariest moment of my life. When they left, I could not move for several minutes and feared that they would come back to finish me off. This began the worst chapter of my life, as I had just been diagnosed with cardiovascular disease, and since the experience I began feeling heart palpations and angina, and would 5 months later. I underwent open heart surgery. I had recurrent nightmares, and became paranoid both at home and in the pharmacy. For a long time, I considered selling the pharmacy. I spent $4000 installing cameras and metal bars, in addition to the $2000 spent on repairing the fence and the $5500 lost in stolen medication. I stopped my methadone program, which lead to a great loss in revenue…While I am thankful to still be alive, the impact of this robbery has been huge on both me and my family and it is not fair that individuals who shatter lives seem to only pay a small price. I would hate for this to happen to another family."

Statement to Police – Lisa Vogt – Exhibit #4

[39] The following threats were made to Ms. Vogt during the commission of the robbery:

"Get down, get down, don't look at me, don't you look at me, I'll shoot you". "Don't get up, don't get up, I'll shoot you".

Victim Impact Statement – Lisa Vogt – Exhibit #3

[40] "…I believe that the armed robbery decreased my ability to handle the other stressors leading to the death of my business…I suffered extreme nervousness in late afternoon on my shifts…my gastric reflux was much worse….short term memory loss continued for 7 more months…I cried a lot more after the robbery when the store started its downward spiral and I had to increase my anti-depressant dose…now I have to sell my house to cover the rest of the debt (from selling the pharmacy) and move to Haldimand-Norfolk Region away from my friends and family".

[41] In her statement, Ms. Vogt lists the value of the stolen drugs as $4931.00.

Submissions

Defence Position

[42] Mr. Manek acknowledged that the impact of these offences on the two victims was traumatic and devastating. They have both suffered long-term emotional, economic and medical harm.

[43] It is submitted that the PSR is favourable and reflects that the offender has done everything possible to rehabilitate himself since his arrest on these matters.

[44] He has complied with the terms of his strict house-arrest bail, imposed on the Hamilton charges. Mr. Manek suggests that this is a significant mitigating factor on sentence and he references the Ontario Court of Appeal decision in R. v. Downes, released February 14, 2006, 79 OR (3d) 321; 205 CCC (3d) 488; 37 CR (6th); 208 OCA 324.

[45] Mr. Bouwman has the support of his family, including his girlfriend. He has a son born just one month ago.

[46] He is back under psychiatric care and is on methadone for his addictions. Mr. Manek submits that these are significant mitigating factors on sentencing.

[47] Mr. Manek submits that, in addition to the 4 days of pre-trial custody served before bail was granted on the Hamilton charges, the Court should impose a 12 month sentence, which is the mandatory minimum sentence that the Court must impose on the Hamilton Robbery with firearm charge, and that the sentence should be concurrent on all the other counts. Alternatively, the sentence should be suspended on all the other counts.

Crown Position

[48] The Crown's ultimate position is that each of the robberies merit a sentence of 18 months, in addition to the one year mandatory minimum sentence on the Hamilton robbery. The Crown submits that the sentences on the other counts could be concurrent.

[49] The DNA orders and the s.109 orders are mandatory.

[50] The Crown submits that the need for general deterrents and denunciation is high. The offender has committed 2 robberies using firearms, and one attempted robbery with a firearm.

[51] Narcotics and money were taken in the robberies which points to the offender's greed, not just to his drug addiction.

[52] The 3 robberies all were planned in advance with a co-accused.

[53] Exhibit #9, the text exchange between the offender and Sean Contesti, speaks to the planning involved.

[54] The Crown submits that the offender suffered from his mental illness and his addiction problems before these robberies were committed. The offender had been successfully treated for both problems in the past. It was the offender's choice to abandon his treatment programs and leave the stability offered by his family and girlfriend.

[55] The Crown submits that this offender made a choice to commit violent crimes that have had a devastating impact on citizens going about their daily work in the health care system.

[56] The Crown submits that this offender made a choice to commit violent crimes that put his family at risk of being separated from him.

[57] Only a penitentiary sentence will properly address the relevant sentencing principles required here.

[58] The Crown submits that such a sentence would not compromise the offender's rehabilitation as there are treatment programs available in the penitentiary setting.

[59] The Crown submits that the effect of imposing the one year mandatory minimum sentence required on the Hamilton robbery, concurrently on all the other charges, would be to dilute the minimum sentences required for gun offences. The Crown refers to the case of R. v. Hechavarria [2006] O.J. No. 450 (OCA) in support of this submission.

(Note to reader: During the course of submissions, the Court was referred to at least 18 other cases dealing with sentencing principles and robberies in particular. It is not necessary for me to cite all those cases in these reasons. The case books are attached to the Exhibits and are available for reference if need be.)

Decision

Garcia and Silva Considerations

[60] The sentences to be imposed must reflect significant aggravating factors that were acknowledged at the time of the guilty pleas. This offender has acknowledged that he committed an attempted robbery, masked and armed with a gun, at another Burlington pharmacy just 25 minutes before he robbed the Aldershot Guardian Pharmacy. Further, the completed robbery was committed with the use of a firearm. Although the Crown accepted a plea to the lesser offence of robbery, the Court must take this significant aggravating factor into account.

Aggravating Factors

[61] The robberies involved the use of guns and threats to kill innocent citizens in their workplace.

[62] The robberies were planned and committed with a co-accused.

[63] Significant amounts of narcotic drugs of various descriptions were stolen as well as cash.

[64] Nothing has been recovered. No restitution has been paid or offered.

[65] The trauma suffered by the two victims in the completed robberies has been profound and is on-going emotionally, financially and medically.

[66] The need to address general deterrents and denunciation is high.

Mitigating Factors

[67] The offender has no prior record.

[68] The offender provided inculpatory statements upon his arrest.

[69] He pled guilty to the charges.

[70] He is sincerely remorseful.

[71] He has complied with all terms of his house-arrest bail.

[72] He has successfully managed his opiate addiction with the methadone program.

[73] His schizophrenia has been stabilized with intensive support on the part of his psychiatrist, family physician, CMHA worker. He is on the wait list for even more support to manage his mental health needs, and hopefully get back into the work place.

[74] He has family and community support.

[75] He has a successful relationship and plans to marry and raise his son in a strong family unit.

Additional Factors

[76] At the time Mr. Bouwman committed these offences, he was living on his own and was not taking his prescribed medication to stabilize his schizophrenia.

[77] He did not turn to his health care providers, family or girlfriend for support when it should have been obvious to some of them that he was very much in need of their supervision.

[78] He was being supported financially through the Ontario Disability Support Program.

[79] He was not engaged in any pro-social activities and was associating with persons involved in the criminal drug world.

[80] The sentences being imposed must address all of these competing factors. The offender must be held accountable for his criminal behaviour, yet at the same time, the sentences must reflect the extent of his rehabilitation and must not undo those efforts. Totality must also be considered.

Sentencing

[81] Accordingly the sentences are as follows:

• Count (1) – July 29, 2011, Hamilton Robbery – 6 months;
• Count (2) – Face masked while committing Robbery – 6 months concurrent;
• Count (3) – Use imitation firearm while committing Robbery – 1 year consecutive (credit 4 days pre-trial custody);
• Count (4) – September 18, 2011, Burlington Robbery – 5 months consecutive;
• Count (5) – Face masked while committing Robbery – 5 months concurrent.

[82] Therefore, the total jail sentence to be served is 23 months, with credit for 4 days pre-trial custody.

[83] DNA samples are mandatory on counts #1, #3 and #4.

[84] Section 109 Orders are also mandatory for life on those counts.

[85] The victim fine surcharges are waived.

[86] There will be a 3 year reporting probation order on all counts with the following conditions:

(1) Report as directed;

(2) Reside at an address approved of by your probation officer;

(3) Attend for all recommended counselling or treatment including counselling for substance abuse and mental health issues, and sign releases so that attendance and progress can be monitored with all health care providers;

(4) Abstain absolutely from the purchase, possession or consumption of non-medically prescribed drugs;

(5) Have no contact or communication with Ray Wassef or Lisa Vogt;

(6) Have no contact or communication with Sean Contesti;

(7) Abstain from owning, possessing or carrying any weapon as defined in the Criminal Code;

(8) Keep the Peace and be of Good Behaviour.

[87] I thank both counsel for their assistance throughout this complicated sentencing matter.

Released: October 29, 2012

Signed: "Justice Lesley M. Baldwin"