Court File and Parties

Court File No.: Toronto Date: 2015-07-28 Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Mario Mikhail

Before: Justice Fergus O'Donnell

Reasons for Judgment Delivered on: 28 July, 2015

Counsel:

• Mr. David Wright for the Crown
• Ms. Jessyca Greenwood for the defendant, Mario Mikhail

Judgment

Fergus O'Donnell, J.:

Overview

1 I am required today to deal with one of a criminal court judge's greatest challenges: blending the complex and often conflicting objectives of sentencing to define an appropriate sentence for a teenage adult with no prior criminal record who, for reasons nobody seems to understand, embarked with a friend on a spree of six knifepoint robberies of young women walking alone at night and who has shown remorse, both by pleading guilty and by engaging in a substantial amount of pre-sentence mitigation. The task is not made any simpler by the significant divergence between the position of the Crown and defence with respect to the appropriate sentence (I stress that it is not the job of the Crown or defence to make my job easy). The Crown seeks a sentence of eighteen months to two-years-less-a-day imprisonment followed by probation, while the defence says that an appropriate custodial sentence for Mr. Mikhail would be in the six to nine month range plus probation, but that credit for his pre-sentence custody and time on restrictive bail conditions could justifiably bring the custodial portion down into the intermittent range and thereby facilitate his ongoing rehabilitation.

The Facts

2 Mr. Mikhail pleaded guilty to four counts of robbery, but admitted the facts of six robberies committed in concert with Palwinder Aulakh over about a two-month period in the winter of 2013-2014. Mr. Mikhail drove while Mr. Aulakh confronted and robbed the victims. They sought out women victims, typically walking with a purse. I refer to all six events as robberies for convenience's sake, although one ended up being an attempted robbery. In the circumstances of this case, nothing hangs on that "distinction".

3 Snapshots of the robberies are as follows.1 I have left out specific times since all of the robberies occurred between about 9 p.m. and 10:30 p.m., all at a time of year when the victims were walking in darkness. None of the victims was seriously physically injured. In each case, Mr. Mikhail drove while Mr. Aulakh committed the actual robbery. For sentencing purposes, I treat that particular distinction as entirely irrelevant. This was a crime of common intention and the conversations make it clear that Mr. Aulakh was concerned about having an easy avenue of escape, i.e. close access to Mr. Mikhail's get-away car. Each of Mr. Mikhail and Mr. Aulakh was as essential to the prosecution of these robberies as the other and their degree of moral and legal culpability cannot be differentiated based on who robbed and who drove. The fact that Mr. Mikhail may not have been privy to every nuance of the face-to-face confrontation is not, on the facts disclosed to me, a material distinction for sentencing purposes.2 I also do not consider it a material distinction that Mr. Mikhail says it was Mr. Aulakh who came up with the plan and he went along with it. It's not as if someone was holding a knife to his face to get him to go along.

[4] I have consciously left the names of the victims out of these reasons.3

[5] The first robbery was on 29 November, 2013. Mr. Aulakh confronted the first victim with his face partially covered. He fought with her for her purse and grabbed her by the waist, warning her that she was being watched and that she would be stabbed if she did not give up the purse. He held his knife to her abdomen, got the purse and ran to the car, fleeing with the purse, the victim's wallet, $20 Canadian, $200 American and an iPhone 4.

[6] A week later, Mr. Aulakh got out of the car and confronted victim two, again with the lower part of his face covered. He brandished a knife with a 6-8" long serrated blade and demanded her purse and phone. He cut her purse strap and threatened her before running to the car. This robbery netted Mr. Mikhail and Mr. Aulakh sixteen dollars, an iPhone 5S, an iPod Nano and a Canadian passport, keys and debit cards.

[7] Six weeks later, Mr. Aulakh got out of the car with the lower part of his face covered, confronted the third victim, demanded her purse and then cut the strap and ran with it to Mr. Mikhail's waiting get-away car. This robbery got them a purse, a wallet, fifteen dollars and a phone charger.

[8] Eleven days after that, on 31 January, 2014, Mr. Aulakh got out of Mr. Mikhail's car and ran up behind the fourth victim, pressing an unknown object against her back and threatening to shoot her.[4] She believed the object was a gun. He cut her purse strap, grabbed her purse, grabbed her mobile phone from her hand and fled to the waiting car. In her victim impact statement this victim referred to minor injuries from the purse being grabbed and also to her knee when she fell trying to chase the robber. This victim lost her salary from work, her purse, her identification and her jewellery. Half an hour later, Mr. Mikhail selected another victim, who had just gotten off a TTC bus. Mr. Aulakh ran up behind her and she turned around. He grabbed her purse and tried to cut the strap, but this victim resisted and was knocked to the ground, striking her left elbow and the back of her head on the ground. She screamed for help and Mr. Aulakh ran to the car with nothing for his troubles. This victim suffered a minor cut to her wrist from Mr. Aulakh cutting at her purse strap and bruising and swelling to one elbow, as well as headaches for several days and back pain that required massage therapy. Her $300 purse was ruined as were her $250 boots.

[9] The first five robberies all took place in the north-west corner of Toronto, four of them in a tight area at the west end of 31 Division. A week later Mr. Mikhail and Mr. Aulakh went west, to Brampton, where Mr. Aulakh once again concealed his lower face with a bandana and grabbed the sixth victim's purse. She resisted, but the strap broke and Mr. Aulakh got away with the purse and an iPhone 4S.

[10] Mr. Mikhail was first arrested on 15 February, 2014, soon after he had sold one of the mobile phones stolen from a victim. He was charged with possession of property obtained by crime and possession of a flick-knife. He was released on 18 February, 2014. When police executed a search warrant at his home a week later and arrested him for the constellation of offences, they found a dash camera mounted on his father's car. Examination of the dash camera showed that it contained dialogue between Mr. Aulakh and Mr. Mikhail. The recordings, which bear a date stamp a couple of days after the last robbery, reflect Mr. Mikhail and Mr. Aulakh engaging in analysis and selection of potential victims, including analysis of the risk inherent in committing a robbery in a particular location, obstacles to flight and so on. One of the exchanges is as follows:

• You know what the problem is, half of them you think they don't even call the cops.

• Yeah I don't think they do because we('d) have been on the news by now.

• It's so stupid like fuck why wouldn't they call the cops.

• They know the cops can't do anything.

• I know they would but the last two that we got a lot of money from, they couldn't even live in Canada, they called the cops, like especially that black lady, she had everything in Jamaica or whatever, she had like fucking 600,000 in Jamaican money, and she couldn't call the cops, cause it's like if she calls the cops, they're gonna ask for her papers and then she's getting deported.

[11] I have not cited all of the transcripts provided. They show, at least at the time of the offences, a remarkably matter-of-fact attitude towards what they were doing (other than the risk to themselves) and a complete absence of any awareness of the impact of their behaviour on their victims. The references to the vulnerability of any of their victims who lacked status in Canada reflects a strategic cynicism that may well be realistic but is no less unflattering for that realism. It also reflects, from their own mouths, the likely existence of victims beyond the six reflected in the plea materials. For example, I note that there is no reference in the plea materials to a victim being robbed of six hundred thousand Jamaican dollars (roughly equivalent to six thousand Canadian dollars), although Mr. Mikhail and Mr. Aulakh specifically refer to such a victim, and to her lack of recourse to the police, in their dash-cam conversations.

Victim Impact

[12] I have been provided with victim impact statements by three of the victims. None of them is particularly surprising. For example, one victim described being mentally unstable for a very long time after the robbery and described how she wanted someone to go with her wherever she had to go. She always rushes home and thinks twice before leaving the house at night. Another victim expressed similar concerns and described how the fact that she was robbed has affected not only her but also her family and the tenants in their basement. Whenever she leaves the house she worries about being robbed again. She feels unsafe walking in her own neighbourhood. Her parents worry about the safety of their children and her mother sometimes goes to the bus-stop to pick her up. The third victim described how she was having trouble sleeping since the robbery and has recurring nightmares about it. She reacts quickly to sudden movements and loud noises and feels frightened and vulnerable (I stress that these victim impact statements were all written more than a year after the robberies, reflecting long-term rather than transitory impacts). She is afraid to get off the bus at night and, like the previous victim, someone from her family has to meet her at the bus stop and escort her home. She cannot enjoy after-work activities or sports because of fears for her safety. When she walks around the neighbourhood or to the bus-stop, she feels paranoid and looks over her shoulder every few seconds. The robbery by Mr. Mikhail and Mr. Aulakh was the second time she was robbed. She also described the second-hand impact of the robbery on her family and friends who worry about her and are stressed over what happened.

Events Since Mr. Mikhail's Arrest

[13] Mr. Mikhail has seven days of pre-sentence custody between his two arrest dates. He has been on a strict house-arrest bail since his arrest seventeen months ago. He has not been charged with any other offences while on release. As I mentioned at the outset, he has no previous criminal record and was nineteen years old at the time of these offences. He was raised by parents who have been married for about thirty years and who suffer from no substance-abuse, medical or mental health issues. His parents are both employed and his relationship with them both is good. Mr. Mikhail was not the victim of any form of abuse. He has a close relationship with his brother, who is close in age to him. His parents have always been able to provide for their children and he has never suffered from want. Other than these robberies, he appears to have exhibited no anti-social behaviour, not even in the form of any serious acting out in school. He attended architectural studies briefly but left because it did not interest him and because he felt that automotive mechanics was his forte. He has been pursuing that career through a combination of class-work and apprenticeship. He has been working since he was seventeen and, until his bail conditions interfered, he was actually working two jobs, one during the week and the other on weekends.

[14] Mr. Mikhail has attended at thirty-eight hours of counseling plus sixty hours of group counseling and a four-hour assessment with Dr. Julian Gojer, which he started about six months after his arrest and about six months before he entered his guilty plea. Mr. Mikhail told Dr. Gojer that at the time of the offences he felt he was not getting ahead in life and that he could supplement his income. He knew the robberies were morally and legally wrong all along. He was remorseful for what he had done. This reflects the solid moral foundations that were appropriately instilled in him by his parents. The substance of Dr. Gojer's report is that Mr. Mikhail is a perfectly normal young man with no psychological, substance abuse or other developmental or emotional challenges, raised in a stable and loving environment, who decided to go along with the suggestion of a friend he met in grade twelve to rob random women in the street and then went on to do it again and again. He describes Mr. Mikhail as a regular and punctual participant in the counseling sessions who consistently demonstrated remorse and the ability to empathize with his victims. Dr. Gojer attributes these very serious offences against the backdrop of an otherwise pro-social life with no complicating or underlying problems to "very immature thinking". On a psychopathy checklist in which a score of thirty labels a person a psychopath, Mr. Mikhail scored seven: "he does not come close to being a psychopath. Absence of these traits is positive for future non-offending." On another assessment tool, Mr. Mikhail scored in the low range for risk of violent re-offending.

[15] Mr. Mikhail has paid money to his lawyer in trust to make restitution to his victims. This is said to be more than was sought by the Crown, but does not include losses suffered by one of the victims. That oversight is understandable insofar as the calculation was made before that victim's victim impact statement was prepared and it is in that document that the loss is specified.[5]

The Principles of Sentencing

[16] The principles of sentencing are as easily stated as they can be difficult to apply. Every sentence should be proportionate to the gravity of the offences (which are serious) and the degree of responsibility of the offender (which in this case was central to the successful commission of the offences). The fundamental purpose of sentencing is to enhance respect for the law and contribute to the creation of a just, peaceful and safe society by imposing sanctions that are themselves just and that serve to denounce unlawful behaviour, deter the individual and others from committing offences, separate offenders from society when required, rehabilitate offenders, provide reparations to victims or the community and promote a sense of responsibility on the part of the offender. Jail is to be used with restraint: only when necessary and to the extent necessary. The relative weighting to be given to the objectives of sentencing tools will vary with the offender and with the offence. Thus, for example, the weight to be given to general deterrence and denunciation and the use of incarceration ought to be more restrained with youthful first offenders. That restraint, however, will carry less force as the seriousness of the offence increases, especially with offences involving serious violence. Bail conditions are a relevant consideration in imposing sentence but their weight will vary substantially depending on the circumstances and sentencing judges are permitted but not required to attribute a numerical credit for bail conditions. In granting credit for onerous bail conditions, sentencing judges should keep in mind that, however onerous those conditions might be, "bail is not jail".[6]

[17] It is unsurprising that, against this backdrop, reasonable people can disagree quite dramatically over what sentence should be imposed on a particular set of facts. It is unsurprising that, against this backdrop, the range of precedents for sentencing diverge similarly.

Aggravating Factors

[18] There are both aggravating and mitigating factors here. The aggravating factors include the following:

a. There were six robberies, as Mr. Wright said, not one or two or three, but six.

b. However unsophisticated they were, the robberies do not appear to have been spontaneous. The dash-cam audio reflects a degree of rational (but odious) target selection and risk analysis.

c. Both disguise and a knife were used.

d. On one occasion, a threat was made by Mr. Aulakh that he had a gun. On the evidence and the general pattern of the robberies, I very much doubt that there really was a gun, although that would have been of no comfort to the victim.

e. Most of the offences involved no actual physical violence, but that was not universally true.

f. Mr. Mikhail was in possession of a flick-knife on his first arrest.

g. Crimes committed in concert are more troubling because the likelihood of success and/or avoiding apprehension are greater.

[19] I am not sure that the impact on the victims is truly an aggravating feature because it strikes me as an inherent reality of robberies of this nature, but it has to be addressed somewhere. However low the economic value of the items taken (and that is always relative to the economic status of the individual victim), the psychological impact, both immediate and ongoing is neither trivial nor surprising. A sense of safety is as much a psychological construct as it is a physical reality. Once a person's sense of safety within her community is shattered by an offence like these, it is often like Humpty Dumpty, in that it can often never be made whole again. Unsurprisingly, the impact of Mr. Mikhail's offences impacted the families of his victims also.

[20] This, too, is not, strictly speaking an aggravating factor, but it is relevant, perhaps more as the absence of a mitigating factor: there is nothing untoward in Mr. Mikhail's upbringing that helps make "sense" out of these offences: no mental health issues, no substance abuse issues, no childhood or teen trauma or familial abuse that might dilute his culpability. All he can call on in aid appear to be immaturity and stupidity, despite what appears to have been a perfectly aligned moral compass provided to him by his parents.

Mitigating Factors

[21] The mitigating factors include the following:

a. Mr. Mikhail has pleaded guilty. This is significant not because it saves the Crown proving its case; on the evidence laid out before me, it seems that the Crown had a formidable case for Mr. Mikhail to answer. Rather it is significant for the fact that it shows remorse and that it saves the victims from having to testify at a preliminary inquiry and at trial. Being forced to relive the events would simply prolong the psychological harm described in the victim impact statements.

b. Mr. Mikhail has no previous criminal record.

c. Mr. Mikhail is a youthful first offender. He turned nineteen about a month before the start of his two-month crime spree.

d. Mr. Mikhail has served seven days of pre-sentence custody, which is worth the equivalent of an eleven-day sentence.

e. Mr. Mikhail has spent about seventeen months on a house-arrest bail, albeit with an exception that allowed him to keep one of his jobs.[7]

f. Mr. Mikhail has not only promised to pay restitution, he has put funds for that purpose in his lawyer's hands.

g. Mr. Mikhail has performed 297 hours of community service.[8]

h. Mr. Mikhail has participated in a very large number of counseling hours and has received a positive report from Dr. Gojer, which expresses confidence in genuine remorse and a low likelihood of recidivism. I think Mr. Mikhail's reference to his awareness that members of his family could easily be subjected to the treatment he inflicted upon his victims is a significant observation on his part.

[22] I am not sure that it is truly a mitigating factor, but it bodes well for Mr. Mikhail's rehabilitation that he has come through the bail period without being charged with any other offences and he has continued with his apprenticeship during that time.

[23] It was suggested to me that the content of the dash-cam audio reflected a misogynistic outlook on Mr. Mikhail's part that was capable of triggering the aggravating circumstances principle of s. 718.2 (a)(i) of the Criminal Code. I have met a few misogynists and I am not convinced that Mr. Mikhail is one. In my opinion, the material on which the Crown relies reflects immaturity and perhaps a certain unattractive machismo or bravado on Mr. Mikhail's part, combined with a lack of couth that one hopes he will grow out of. I think the selection of women as victims was nothing more than a strategic choice, reflecting Mr. Mikhail's and Mr. Aulakh's view that women would generally make less formidable victims. Interestingly, on one occasion, Mr. Mikhail is heard to suggest that they should rob a man for a change, for reasons that are not clear.

Coming To An Appropriate Sentence

[24] The gap between the Crown and defence here is a substantial one. I accept that these are violent crimes as the Crown says; violence or the threat of it are an inherent reality in every robbery charge. I do not agree with the Crown that the degree of violence, including the number of offences, is such as to obliterate the principle that jail for youthful first offenders should be used with particular restraint. The facts of this case lie in stark contrast to the gratuitous, horrific and prolonged violence to which the victim was subjected in the Court of Appeal decision of R. v. Brown to which the Crown adverts in support of the principle that serious violence requires a re-jigging of sentencing priorities even for youthful first offenders. I note also that in R. v. Thurairajah, an earlier decision to which the Court of Appeal in Brown adverted, the language of Justice Doherty referred to "serious crimes involving significant personal violence". These robberies were clearly serious crimes, but, without for a moment wishing to minimize their immediate or ongoing impact on the victims, which is both palpable and understandable, they fall much closer to the lower end of the violence scale than to the middle or upper end.

[25] The Crown has stressed the importance of identifying appropriate individual sentences for each offence before applying aggravating and mitigating factors, including bail, proportionality and totality. In the course of its arithmetic, the Crown suggests that three of the offences that Mr. Mikhail has admitted would justify four to six month sentences each, while the offence where the knife was pressed to the abdomen would merit six to nine months, the threat to shoot one of the victims would justify a nine to twelve month sentence and the case in which the victim was forced to the ground and cut on the wrist (plus the other injuries described above) would merit a twelve to fifteen month sentence, for a total sentence range of thirty-nine to fifty-four months. Once the appropriate adjustments are made, the Crown says that the appropriate sentence would be eighteen months to two-years-less-a-day.

[26] I can certainly see that sentences of four to six months for offences of this nature would be justified, although how that would square with the restraint in the use of imprisonment generally and for youthful first offenders specifically in the case of one or two offences is open to debate. I do not accept the Crown's significant escalation of the sentence range for the offences that varied from the norm. Those offences obviously involved aggravating circumstances relative to the other three offences, but the effective tripling of the sentence range for the struggle that pushed the victim to the ground, for example, strikes me as untenable.

[27] I accept that it may, as a general rule, be preferable to approach sentencing for multiple offences in the manner set out by the Crown. There is clearly respected authority for that proposition. I believe that if I were to apply that approach, I would tend to see the appropriate individual sentences as all being within the four to six month range, with the application of mitigating and aggravating factors, totality, the need to avoid crushing sentences where possible for youthful offenders and the like leading to a total sentence more in the range suggested by Ms. Greenwood than that suggested by the Crown. While I am not required to attribute a number to it, I would think that the total credit for pre-sentence custody and house-arrest would probably come in around the five month range, keeping in mind that this was almost a year-and-a-half of house arrest other than for limited exceptions and did not involve weekends at Wasaga Beach unlike the defendant in the Ijam decision of the Court of Appeal.

[28] However, sentencing, like life is not always suited to one-size-fits-all approaches. There is a potential danger in some cases that the strict adoption of the analytical approach advanced by the Crown might discourage the sentencing judge from using the whole range of sanctions available to him or her. It is self-evident that not all of the sanctions available to a judge will be suitable to all offenders, but it is equally true that for some offenders the use of multiple sanctions and of various refinements within sanctions might best tick off the greatest number of boxes in s. 718 of the Criminal Code and might thereby best serve its objectives and safeguard the interests of the victim, of society and of the offender. That is the prime directive of sentencing.

[29] There is no such thing as a single correct sentence. There are fit sentences and there are unfit sentences. Every sentence should be tailor-made for the individual offender and his crimes against the backdrop of the Criminal Code and the guidance of the Court of Appeal and the Supreme Court of Canada. In the circumstances of this case, considering all that can be said for and against Mr. Mikhail I am of the view that the following sentence is best suited to serve the maximum number of sentencing principles, including sending a deterrent message to him and to others, denouncing his conduct as entirely unacceptable, requiring him to make reparations to society and to the individual victims (at least for their monetary loss), reinforcing in him a sense of personal responsibility, providing a structure that will enhance his rehabilitation and, lastly, separating him from society, but only as much as is necessary in the circumstances.

The Sentence Imposed

[30] Accordingly, my sentence for Mr. Mikhail is as follows:

a. On each count, he is sentenced to ninety days' imprisonment to be served intermittently.[11] This will allow him to continue with his apprenticeship, including the college component of that apprenticeship, which is important to his rehabilitation and to his ability to fulfill other parts of the sentence.

b. In order to avoid the further dilution of his sentence that is often occasioned by allowing sentences to be served intermittently from Friday evening to early Monday morning (with four days credit earned for less than two-and-a-half days of actual deprivation of liberty), he shall surrender on Saturday mornings not later than seven a.m. and be released on Sunday evening not earlier than 11 p.m.

c. Any weekend that he does not serve in actual custody within the detention centre will not count towards his sentence.

[31] Mr. Mikhail will be on probation while serving his intermittent sentence. The terms of that probation shall include the following:

a. He shall live with his parents and shall notify his probation officer of any change of address at least twenty four hours in advance of any move

b. He is not to have any contact directly or indirectly with any of the victims.

c. He is not to be within 500m of Cabana Drive, Navenby Crescent, Duncanwoods Drive or John Garland Boulevard in Toronto or of Flatlands Way in Brampton

d. He is not to possess any weapons. He is not to apply for any FAC or permit.

e. He shall observe a curfew from seven p.m. to five a.m. every day except:

i. for medical emergencies involving him or a member of his immediate family

ii. to travel directly from his home to the detention centre on Saturday mornings and to return directly home on Sunday evenings after his release from serving his intermittent sentence

f. While subject to the curfew, he shall present himself at the front door of his residence within five minutes of any inquiry by the police or probation

g. He shall make reasonable efforts to maintain full-time occupation and/or education

h. He shall report to the detention centre sober, with a blood alcohol concentration of zero and neither under the influence of nor in possession of any controlled substance unless he has a valid prescription for it.

[32] After completing his intermittent sentence Mr. Mikhail will be on probation for three years. Given the nature of the offences and the inherent immaturity and abysmally poor judgment reflected in them, I am satisfied that the maximum period of probation is called for here. The terms of that probation include the following:

a. He shall live at an address approved of by his probation officer

b. He shall report to probation within seven days of the completion of his intermittent sentence and thereafter as required.

c. He is not to have any contact directly or indirectly with any of the victims.

d. He is not to be within 500m of Cabana Drive, Navenby Crescent, Duncanwoods Drive or John Garland Boulevard in Toronto or of Flatlands Way in Brampton

e. He is not to possess any weapons. He is not to apply for any FAC or permit.

f. For the first twelve months of the probation order he shall observe a curfew from seven p.m. to five a.m. every day except:

i. for medical emergencies involving him or a member of his family

ii. with the advance written permission of his probation officer for specific exceptions

g. While subject to the curfew, he shall present himself at the front door of his residence within five minutes of any inquiry by the police or probation

h. He shall make reasonable efforts to maintain full-time occupation and/or education

i. He shall attend for assessment and counseling as directed by his probation officer including continued attendance with Dr. Gojer if deemed necessary

j. He shall perform 240 hours of community service at a rate of not less than ten hours per week, starting not later than thirty days after the start of the three year probation order

k. He shall make restitution in accordance with the chart at tab 4 of the defence sentencing materials within thirty days from today and he shall pay restitution to the victim GS in the amount of $550 within six months of today and shall make additional restitution to the victim D.K. for the cost of replacing her passport fixed at $225 and he shall provide proof of payment to his probation officer. I shall hear submissions about restitution for miscellaneous other items not covered by tab 4.[12]

l. He shall sign releases to enable his probation officer to confirm his compliance with any of the terms of this order.

[33] The victim surcharge in s. 737 of the Criminal Code has been the object of intense scrutiny and judicial vilification over the past eighteen months or so. Mr. Mikhail's offences were all committed after the victim surcharge was increased and after judicial discretion to waive it was removed. As these are indictable offences, the presumptive victim surcharge would be two hundred dollars per count for a total of eight hundred dollars. While judges have been dissecting the removal of the judicial power to waive the surcharge, very little consideration has been given to s. 737(3) of the Criminal Code, which allows a sentencing court to increase the surcharge if it is appropriate in the circumstances and if the court is satisfied the offender has the ability to pay the amount.

[34] I have made inquiries about Mr. Mikhail's income and his cost of living at home. I am satisfied that he has very good prospects for rehabilitation, a good work ethic and every likelihood of being able to maintain, and eventually increase, that income as he progresses through and completes his apprenticeship. I am satisfied that he is capable of paying an increased victim surcharge of two thousand dollars per count for a total of eight thousand dollars. He shall pay that surcharge at a rate of not less than two hundred dollars per month, starting not later than 28 August, 2015. The imposition of a significantly increased victim surcharge is appropriate in the totality of the sentencing structure of this case and is sufficient to contribute to the deterrent, reparative and sense of responsibility objectives of s. 718 of the Criminal Code, while contributing, together with the mitigating circumstances, pre-sentence custody, house arrest and probationary terms to my ability to keep Mr. Mikhail within the intermittent range of sentence, which is an important component of maximizing the likelihood of his rehabilitation. I am satisfied that the cumulative sting of these various components will be at least as effective as a longer term in jail would be in deterring Mr. Mikhail and in sending a message to others who might be so inclined, while advancing that rehabilitative goal, which is in all of society's interests.

[35] There are elements of this sentence that will be highly inconvenient to a young man who has a life to live and who has already spent a significant period of time on house arrest. The selection of those elements has been a considered one and is intended to build on the mitigating work Mr. Mikhail has done since his arrest. The selection of sentencing components and details is also intended to reflect the fact that Mr. Mikhail has only begun to repay his debt to society and that, however inconvenient these requirements may be, curfews and surcharges and community service hours are not jail and they are a fitting price to pay for his serious misconduct and a small price to pay for the ability to keep himself on track for his career. I believe that every component of today's disposition as I have structured it is essential to it being an overall fit sentence.

[36] There will be an order that Mr. Mikhail provide a sample of his DNA for inclusion in the DNA data bank on the primary designated offence of robbery.

[37] There shall be a weapons prohibition order against Mr. Mikhail under s. 109(2)(a) of the Criminal Code commencing today and ending ten years after he has completed his intermittent sentence and under s. 109(2)(b) for life.

28 July, 2015

Footnotes

1 The relatively brief descriptions of the events is not meant to diminish either their seriousness or the nature of the impact each of them would have had on the victims. It simply reflects the relatively short encounters and the common modus operandi.

2 There is one area in which this general rule may not apply, to which I shall refer later in these reasons.

3 Mr. Mikhail robbed the victims of their property and their sense of security; no public purpose would be served by me compounding that by depriving them of their anonymity and privacy in these reasons.

[4] This is the one occasion on which it may be that there is a distinction to be drawn between Mr. Mikhail and Mr. Aulakh. Since Mr. Mikhail was safely ensconced in the car, he was not privy to the fine details of Mr. Aulakh's words, so he may not have been aware of the aggravating feature of claiming that he had a gun and threatening to use it.

[5] Defence counsel's calculation also did not allow for several items for which values were not immediately apparent, an issue with which I deal below.

[6] In the words of MacPherson J.A. in R. v. Ijam, 2007 ONCA 597 (Ont. C.A.), at para. 36

[7] House arrest is a significant deprivation of liberty and, while "bail is not jail", a defendant who has spent a considerable period of time subject to a substantial loss of freedom of movement and action is entitled to appropriate credit for it if he is found guilty.

[8] The Crown raised the concern that Mr. Mikhail had prolonged his resolution in order to facilitate the performance of these hours. I think it is fair to say that this was certainly not the earliest of guilty pleas, but the amount of community service done is noteworthy, the equivalent of seven or eight weeks of full-time employment.

[9] R. v. Brown, 2015 ONCA 361

[10] R. v. Thurairajah, 2008 ONCA 91

[11] The ninety days is in addition to the seven days of pre-sentence custody, which are the equivalent of eleven days at the recognized ratio of 1.5:1.

[12] As discussed with counsel, the value of the passport was derived from the Passport Canada web-site. I heard submissions about requiring Mr. Mikhail to make restitution beyond that mentioned by Ms. Greenwood, whereupon I ordered additional restitution for lost purses, wallets, mobile phones and the like for which Ms. Greenwood had not been given dollar values. The total restitution payable by Mr. Mikhail comes in just over three thousand dollars.