Court File and Parties

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Aundre Hartwell

Before: Justice Leslie C. Pringle

Heard: November 14, 2014 and April 7, 2015

Reasons for Sentence released on: April 7, 2015

Counsel:

• J. Callaghan, for the Crown
• G. Cudjoe, for the Accused

Reasons for Sentence

Pringle, J.:

1. Overview

[1] Not long after midnight, in the early morning hours of Sunday, April 14, 2013, there was an armed robbery at the headquarters of an armoured car service at Inkas Security Services Ltd. at 64 Signet Drive in North York.

[2] At approximately 12:30 a.m., a driver dropped off two masked men armed with a handgun on the outside of the property. Devon Hartwell was one of the masked men: he used an Inkas identification badge to gain entry into the building. Relying on inside information provided by his brother Aundre Hartwell, (who was an employee of Inkas), Devon Hartwell and the second robber located the guard on duty at Inkas, tied him up with plastic zip ties, and threatened to shoot him. The second robber also struck the guard in the face with the handgun.

[3] Again using knowledge provided by Aundre Hartwell, Devon Hartwell and the second robber quickly located the keys to open a cage where a large quantity of cash from the Toronto Transit Commission was stored for the night. Eventually Devon Hartwell and the second robber made off with $702,552, fleeing the scene with the assistance of the waiting getaway car.

[4] In the weeks following the robbery, the police observed Aundre and Devon Hartwell go on a shopping spree with the proceeds of the robbery. As a result of further investigation and the execution of a search warrant at his home, the police were able to identify and seize some of the proceeds of the crime (as well as property purchased with the proceeds of the crime). However, as of today, well over half a million dollars of the stolen money remains outstanding and unaccounted for.

[5] After the preliminary inquiry, an exit pre-trial was held. Aundre and Devon Hartwell entered guilty pleas to charges of robbery with a firearm, forcible confinement of the guard, and possession of the proceeds of crime. In addition, Devon Hartwell pleaded guilty to a charge of failing to comply with a condition of his recognizance. A detailed Agreed Statement of Facts was signed and adopted under oath by each of them.

[6] After his guilty plea and before the imposition of sentence, Devon Hartwell absconded, and there is a warrant out for his arrest. The other two men charged, Rickardo Huie (alleged to be the second robber), and Cecil Stewart (alleged to be the driver), have been committed for trial in the Superior Court.

[7] These reasons deal with the appropriate sentence for Aundre Hartwell.

2. Victim Impact Statements

[8] Ilya Kershtein was the lone guard on duty at Inkas on the night of the robbery. In his Victim Impact Statement he indicated that when he was struck in the face with the gun, he suffered a fracture to the bones in his nose and face. He spent a night in hospital, and continued to have pain in his cheek and nose for some time after. For the first few days after, he couldn't eat or sleep well. He also suffered from what he called "mental problems" as a result of the offence, particularly because the robbers threatened to kill him with the firearm they were carrying.

[9] Margarita Simkin is the CEO of Inkas Security Services Ltd. In a Victim Impact Statement filed with the court on behalf of the company, she stated that $702,552 was stolen that night, and Inkas had to pay the deductible portion of their insurance which was $100,000. As a result of the robbery, Inkas lost their lucrative contract with the TTC. Their insurance has substantially increased, and the company's reputation and credibility have been severely damaged within the industry.

3. Factors Relating to Aundre Hartwell

[10] Aundre Hartwell is 31 years old and is the older brother of Devon Hartwell. Both men come from a tight knit family and were raised with Christian values and beliefs. The family have expressed their disappointment as a result of the charges, but continue to remain supportive of Aundre. Aundre has no prior criminal record.

[11] Aundre Hartwell worked at various restaurants and had a paper route throughout high school, and he graduated with his Ontario Secondary School Diploma at age 19. He worked at several security companies prior to working for Inkas Group. There is no evidence of drug or alcohol abuse.

[12] Aundre Hartwell was polite and cooperative during preparation of the Pre-Sentence Report. He told the author of the PSR that he takes responsibility for his actions, although he does not feel his involvement warrants the extensive sentence he is expecting. He also stated, "whatever decision is made on the day of sentencing I will stick by it and learn from my mistakes in order to become a better person".

[13] On today's date, Mr. Hartwell confirmed that he is ready to be sentenced and to move forward. He expressed hope for his future, and gratitude to his family for their support. In the circumstances, I find that he has good potential for rehabilitation.

[14] Mr. Hartwell spent 22 days in pre-trial custody after his initial arrest, when he was released to reside with his grandparents on strict terms of house arrest bail. When his grandparents recently applied for surety relief on March 9, 2015, he spent a further 28 days in custody until today's date. The parties agree that following the decision of the Supreme Court of Canada in R. v. Summers, 2014 SCC 26, the aggregate of this pre-sentence custody, (50 days), should be credited on the basis of 1.5:1, for a total credit of 75 days.

[15] Aundre Hartwell's grandmother reported to the author of the PSR that Aundre was obedient and adhered to all the conditions of his bail. This was a very strict bail that required him to remain under house arrest at all times except when in the constant company of a surety. As a result, he was unable to work or even attend court on his own (although a variation was permitted during the preliminary inquiry). After his plea, I am advised that his grandparents applied for surety relief as a result of the onerous obligations to be with Aundre constantly whenever he was out of the premises. In the circumstances, I am satisfied that the bail restrictions in this case were a significant restriction on Mr. Hartwell's liberty.

[16] Time spent on stringent pre-sentence bail conditions, especially house arrest, is a relevant mitigating factor which can be taken into account on sentence: R. v. Downes. In Downes, the Court of Appeal gave the appellant 5 months credit for 18 months of house arrest, where there was little evidence how the strict conditions affected his liberty. Here, I accept Mr. Cudjoe's submission that the conditions were onerous for both Mr. Hartwell and his sureties.

[17] While some cases after Downes have highlighted that "bail is not jail", and emphasized that the amount of credit, (if any), to be attributed to pre-sentence bail conditions may depend on the impact on the accused, I believe it is appropriate to recognize some credit for the 22 months strict terms of bail in this case. (The Crown made reference to R. v. Ijam, 2007 ONCA 597 at para. 36; R. v. McNelis, 2007 ONCA 777 at para. 5; R. v. Lawes, 2007 ONCA 10; and R. v. Lindsay, 2009 ONCA 532 at para. 44-45).

[18] In my view, 6 months credit is appropriate here.

4. Position of the Parties

[19] On behalf of the Crown, Mr. Callaghan submits that a sentence of 8 years in the penitentiary is appropriate for the offences arising out of the Inkas robbery. The Crown also seeks an order forfeiting the property and proceeds seized, a fine in lieu of forfeiture for the outstanding balance, an order of restitution, a DNA order, and a lifetime prohibition against possessing firearms.

[20] On behalf of Aundre Hartwell, Mr. Cudjoe submits that a sentence of 5½ to 6 years is appropriate. He does not dispute that the other orders sought by the Crown should be made, although he disagrees with some aspects of the orders requested.

5. Analysis: The Appropriate Jail Sentence

[21] The most important principles of sentence in a case such as this are denunciation of violent crime and deterrence of planned and deliberate schemes to steal large sums of money. If the high stakes and high drama of this kind of inside job might appear attractive to others, the court has to make it crystal clear that it is simply not worth it. Participants in this kind of crime will not profit from it, and they will pay with long periods of their life in jail when they are caught.

[22] Therefore, in a crime of this gravity, the personal circumstances and prospects of rehabilitation of the accused will pale in comparison to the need for denunciation and deterrence. While a judge must not lose sight of the circumstances of the offender or his potential for rehabilitation, these factors will not be foremost in assessing the appropriate sentence.

[23] I agree with the Crown that the robbery offence in this case is punishable by a minimum sentence in the penitentiary of 5 years. The Agreed Statement of Facts makes it clear that the firearm used in this case was a handgun and not an air pistol or CO2 pistol. Since the Criminal Code defines a restricted firearm as a "handgun that is not a prohibited firearm", and since there is no evidence before the court that this handgun was a prohibited firearm, it follows that it was a restricted firearm. Robbery with a restricted firearm has a minimum 5 year sentence: s.344(a)(i).

[24] There are a number of additional aggravating factors in this case:

1. This robbery was obviously carefully planned and executed with the assistance and cooperation of four people who each played a critical role.

2. The armoured car service was a business vulnerable to this type of robbery because of the large quantities of cash found at the premises; and the guard was a vulnerable victim who was targeted precisely because it was known that he would be alone, and working at night.

3. The circumstances of this particular robbery were violent: they included Devon Hartwell ordering the guard to the ground at gunpoint, kneeling on him, threatening to shoot him, and tying him up with plastic zip ties. Devon Hartwell's accomplice also pistol whipped the guard in the face, which we now know fractured the bones in his face and nose. The accomplice further put a plastic bag over the guard's head, which Devon Hartwell removed after a few seconds. One only needs to listen to the piteous crying of Mr. Kershtein on the video as he was confined and threatened, to understand what a terrifying ordeal this was for him.

4. There was a very large amount of money stolen in this case, most of which has not been recovered. Beyond the substantial financial loss to Inkas and its various insurers, Inkas lost a valuable contract with the TTC and has suffered severe damage to its reputation within the industry.

5. The motivation for the robbery appears to have been pure greed: Aundre Hartwell comes from a good family and does not appear to have been driven by an alcohol or drug addiction. After the robbery, he went on a shopping spree and purchased many of the numerous items set out in Part G of the Agreed Statement of Facts.

[25] There are some mitigating factors that have to be considered as well:

1. Aundre Hartwell entered a plea of guilty after a preliminary inquiry, and Mr. Kershtein was spared the need to testify at that hearing;

2. There is no evidence that the handgun was loaded;

3. Based on the support of his family and the comments in the PSR, Aundre Hartwell appears to have real potential for rehabilitation upon release from jail.

[26] In respect of sentence, Mr. Cudjoe on behalf of Aundre Hartwell, made reference to the case of R. v. Dawson-Jarvis, 2013 ONSC 6317. In that case, Justice Ratushny sentenced a young man to 3½ years in jail for bank robbery of a bank where he was an employee. Two female accomplices carried out his plan using a knife and tying up and confining the bank employees. He also pleaded guilty to money laundering, attempted extortion and fraud over. The women received 1 year and 2 year sentences. The total loss to the bank was approximately $130,000.

[27] Mr. Cudjoe concedes that a sentence in that range is not available here due to the mandatory minimum sentence required by law. However, he points to the fact that in that case, Justice Ratushny recognized that the accused did not initiate the violence carried out by the two women during the robbery. I agree. At the same time though, Justice Ratushny made it clear that even though he didn't perpetrate the violence himself, he was nonetheless a full participant in the robbery and bore responsibility for recruiting others to carry out the criminal actions.

[28] In this case, I find that Aundre Hartwell bears equal responsibility with his brother and the other robber for the crimes carried out at Inkas that night. Indeed, without his inside knowledge, his uniform and his badge, these crimes could not have taken place. Based on the calls between himself and his brother Devon on the day of the robbery, I infer that he was a full participant in the plan, and understood all of what was contemplated. While he may not have carried out the violence and unlawful confinement himself, he is equally responsible in law for what happened in the premises at Inkas that night, and he clearly shared equally in the proceeds.

[29] One further case mentioned by the Defence was that of R. v. Nouri, 2015 ONSC 116. After trial, Ms. Nouri received a sentence equivalent to 6 years for her role in planning a robbery of a jewellery store with what appeared to be a firearm. The court found that the robbery was carefully planned and executed, and included violence in roughing up the victims and threatening them with death. Although she was not present for the actual inside execution of the robbery, the accused made arrangements for a make-up artist to assist with disguises, and drove her accomplices to and from the scene of the crime, knowing that violence was inherent in the plan. Approximately $700,000 worth of jewellery was taken. A co-accused who actually entered the premises and pleaded guilty after pre-trial motions received a sentence of 7 years.

[30] For his part, the Crown Mr. Callaghan relies primarily on the case of R. v. Perciballi, and submits it is highly persuasive as a similar case in relation to an armed robbery of an armoured car service. As set out in para. 1 of the decision, the four men in that case were tried and convicted for their roles in a $3.1 million robbery of a Loomis armed truck in 1995. The masterminds of the operation were Angelo Portante, himself a Loomis guard at the time, and Piero Perciballi, an active duty police officer. The Court of Appeal upheld their sentences of 10 years in jail, with a compensation order for the total missing proceeds in the amount of $2.38 million.

[31] In Perciballi, the trial judge found that Perciballi and Portante planned the operation using a police uniform provided by Perciballi, and inside information about Loomis' operations provided by Portante.

[32] The Crown acknowledges that there are some important distinguishing features between that case and the one before me. In the first place, the amount of money stolen was much greater in Perciballi than it is here ($3.1 million v. approximately $¾ million). In addition, the accused parties in that case did not plead guilty, but instead took their matter to a full trial. It is also fair to say that the involvement of an active duty police officer presented an aggravating breach of trust factor that is not present here.

[33] Considering Nouri and Perciballi, it appears to me that the range of 6 to 8 years is the appropriate one here. Using Perciballi as a bench mark, it's my view that if convicted after trial, Aundre Hartwell would be looking at a somewhat lower sentence than 10 years due to the lesser amount of money involved and the lack of involvement of a police officer, possibly in the range of 8-9 years.

[34] Taking into account the fact Aundre Hartwell has pleaded guilty before trial, I believe he is entitled to significant judicial recognition and sentence credit for taking responsibility and demonstrating his remorse up front. While the Crown's case is strong case against him and all of the accomplices, Aundre Hartwell has not waited to have his fate decided by a jury, but rather, has stepped forward to meet it. Such pleas are to be encouraged.

[35] This plea will also assist the administration of justice. While the Crown will still be proceeding to trial against Rickardo Huie and Cecil Stewart, the process will be streamlined to some extent by Aundre Hartwell's plea of guilt and the Agreed Statement of Facts that was acknowledged by him.

[36] Giving full credit for the plea, I believe the appropriate sentence here is one of 6 years in the penitentiary.

6. Forfeiture Order

[37] It is agreed that half the value of the proceeds and property seized from 17 Ferncastle Cres. is attributable to Aundre Hartwell, while the other half is attributable to his brother Devon Hartwell. Accordingly, all the property and proceeds listed in Part G, para. 1 of the Agreed Statement of Facts shall be forfeit to the Crown. Half the proceeds, reflecting Aundre Hartwell's share, will be applied to reduce the amount of the fine in lieu of forfeiture order and the free standing restitution order made against him.

[38] With respect to the property seized from Nadia Brooks, based on the evidence before me, it does not appear that she has any valid interest in the property. However, out of an abundance of caution, I will not make an order in respect of those properties at this time, although the Crown may serve notice of an application of forfeiture pursuant to s.462.41(1).

7. Fine in Lieu of Forfeiture

[39] There is no dispute that a fine in lieu of forfeiture is appropriate here. Section 462.37(3)(a) of the Criminal Code stipulates that:

If a court is satisfied that an order of forfeiture under subsection (1) or (2.01) should be made in respect of any property of an offender but that property or any part of or interest in the property cannot be made subject to an order, the court may, instead of ordering the property or any part of or interest in the property to be forfeited, order the offender to pay a fine in an amount equal to the value of the property or the part of or interest in the property. In particular, a court may order the offender to pay a fine if the property or any part of or interest in the property…

(a) cannot, on the exercise of due diligence, be located.

[40] Here, the police have been unable to recover the vast majority of the cash stolen from Inkas, and it is unknown what the robbers did with that portion of the proceeds.

[41] In R. v. Lavigne, 2006 SCC 10, the Supreme Court of Canada noted at paras. 16 and 18:

Parliament's intention in enacting the forfeiture provisions was to give teeth to the general sentencing provisions. While the purpose of the latter provisions is to punish an offender for committing a particular offence, the objective of forfeiture is rather to deprive the offender and the criminal organization of the proceeds of their crime and to deter them from committing crimes in the future. The severity and broad scope of the provisions suggest that Parliament is seeking to avert crime by showing that the proceeds of crime themselves, or the equivalent thereof, may be forfeited.

… Forfeiture of the proceeds of crime is not always practicable, however. The proceeds of a crime may have been used, transferred or transformed, or may simply be impossible to find. To ensure that the proceeds of a crime do not indirectly benefit those who committed it, Parliament has provided that the court may impose a fine instead of forfeiture of the proceeds of crime…

[42] Here, the Crown fairly suggests that the responsibility for the amount of stolen proceeds be shared equally amongst the four accomplices in the amount of $175,000. The Defence does not dispute this amount.

[43] Therefore I will make a fine order in lieu of forfeiture for $175,000. Further, it is agreed that Aundre Hartwell's share of the proceeds as reflected by the fine should be reduced by the value of the property recovered from him at 17 Ferncastle Crescent.

[44] According to s.462.37(4)(a)(v), the court shall impose a term of imprisonment for wilful default of payment of a fine of $175,000 for a period of not less than 2 years and not exceeding 3 years. In R. v. Khatchatourov, 2014 ONCA 464, the Ontario Court of Appeal held at para. 56:

If the offender does not pay the fine in lieu of forfeiture without reasonable excuse, the offender serves a mandated period of imprisonment. This is a substitute for the fine: R. v. Lavigne. As this court noted some years ago, "a subsequent imprisonment imposed for a default in payment of a fine imposed under s.734.7 [a warrant of committal for non-payment of a fine] is not a punishment; rather it is an enforcement mechanism designed 'to give serious encouragement to offenders with the means to pay a fine to make payment'": R. v. Bourque. (citations omitted)

[45] In this case, the parties are agreed that the term of default should be 2 years.

[46] With respect to time to pay, I rely on the decision of R. v. Garrick, 2013 ONSC 1798 for guidance. In that case the amount of the fine was $172,000, and McCombs J. gave the accused 3 years to pay the fine.

[47] In Khatchatourov, the Court of Appeal upheld a time to pay of four years, but called it "very generous". In that case, I note that the amount owing for at least one of the appellants was far greater than the amount owing here.

[48] Accordingly, considering the similar amount in Garrick, I will give Aundre Hartwell 3 years after his release from jail to pay the fine in lieu of forfeiture of $175,000.

8. Restitution Order

[49] A restitution order operates entirely independently of the forfeiture provisions of the Criminal Code, and will survive regardless of whether the accused is imprisoned for default of paying a fine in lieu of forfeiture: see Khatchatourov at paras. 53 and 57. In other words, regardless of whether a court finds an accused is wilfully refusing to pay a fine, the victims of the crime can still rely on the restitution order as a convenient and inexpensive means of recovery by filing the order in civil court.

[50] However, a restitution order should not be made mechanically. Care must be taken not to simply add a restitution order to a sentence of imprisonment which in itself is a fit punishment for the crime, as this can amount to excessive punishment and offend the totality principle: see R. v. Castro, 2010 ONCA 718 at para. 23.

[51] In Castro, Justice Weiler explained:

To summarize, a restitution order is simply part of the determination of an overall fit sentence, and general sentencing principles apply. While consideration of the offender's ability to pay and the impact of a restitution order on an offender's rehabilitation are factors to be considered, the weight to be given to these factors will vary depending on the nature of the offence and the circumstances of the offender. When the offence involves a breach of trust, a primary consideration is the effect on the victim; rehabilitation is a secondary consideration. Furthermore, consideration of the ability to pay includes the ability to make payment from the money taken as a source of restitution.

[52] In this case, the Crown seeks a restitution order in the full amount of the loss, less the value of the property recovered from Aundre Hartwell at 17 Ferncastle Crescent. The Crown submits that Aundre Hartwell should be jointly and severally liable for the full amount of $702,522 with his co-accused, and points to the Khatchatourov case where the Court of Appeal held that such an order in addition to a fine in lieu of forfeiture is not unfair.

[53] On the other hand, other cases in the Court of Appeal have held that where the co-accused parties bear equal responsibility for the amount of the loss, the restitution order may be apportioned in accordance with that responsibility: R. v. Solleveld, 2014 ONCA 418 at paras. 43-45.

[54] Aundre Hartwell has remained mute regarding his portion of the proceeds. However, he has a previous work history and he has good prospects of rehabilitation upon his release and I believe there is a realistic potential for repayment of restitution by him. Based on his past and current circumstances and absent any further tracing of the proceeds, it appears that his means of repayment will be modest at best.

[55] I can also say that, from my perspective as the judge who conducted the preliminary inquiry, there is a strong Crown case against each of the remaining accomplices. Accordingly, I anticipate that each of Rickardo Huie and Cecil Stewart will have to ante up their share of the restitution at the end of the day. Eventually, Devon Hartwell will be apprehended and he too will have to face the final reckoning. In these circumstances, I believe that especially in light of Aundre Hartwell's early guilty plea and acceptance of responsibility, it is a heavy burden to saddle him with the others' portion of the repayment.

[56] It also has to be acknowledged that some of the goals of a restitution order will be accomplished by the fine in lieu of forfeiture. Although separate, these orders share some common goals in emphasizing the sanction imposed on the offender by preventing him from profiting from his crime and holding him responsible: see R. v. Devgan at para. 26.

[57] Looking at the totality of the sentence imposed, including the substantial penitentiary term for the robbery, in addition to having to pay a fine in lieu of forfeiture, and considering Aundre Hartwell's ability to pay, it's my view that a restitution order that reflects this accused's responsibility for the crime is appropriate.

[58] The free standing restitution order will therefore be in the same amount as the fine in lieu of forfeiture, that is, $175,000.

9. Summary

[59] Jail: With respect to jail, Aundre Hartwell will be sentenced to an equivalent sentence of 6 years in jail. As indicated, he will receive credit for 75 days of pre-sentence custody and 6 months for time spent under house arrest, making the total credit: 8 months and 15 days. Therefore on today's date, he will be sentenced to 63 months and 15 days.

[60] Forfeiture: The property and proceeds listed in Part G, para. 1 of the Agreed Statement of Facts shall be forfeit to the Crown for the purposes of returning those proceeds to the insurer of the victim, Great American Insurance Co./Group. Half the proceeds shall be applied to reduce the amount of the fine in lieu of forfeiture order and the free standing restitution order made against Aundre Hartwell.

[61] Fine in lieu of forfeiture: The fine in lieu of forfeiture is $175,000, to be reduced as restitution is paid. Aundre Hartwell will have 3 years to pay this fine upon his release from custody, and in wilful default of payment there will be a sentence of 2 years on top of any time already served.

[62] Free standing restitution order: Restitution shall be in the amount of $175,000. Any recovery from the funds and property seized as set out in Part G, para. 1 of the Agreed Statement of Facts, and all further restitution made by Aundre Hartwell or any of the other accomplices, shall be applied to Great American Insurance Co./Group.

[63] Other orders: There is no dispute that a DNA order is required here, as well as a s.109 order prohibiting Aundre Hartwell from possessing firearms and other weapons for life. In light of his circumstances, I will waive an additional victim fine surcharge.

Justice Leslie Pringle

Released: April 7, 2015