Court File and Parties

Date: 2015-12-18

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Kunle Banjoko

Before: Justice P.J. Wright

Reasons for Judgment released on: December 18, 2015

Counsel:

• D. Slessor, for the Crown
• A. Akinyemi, for the accused Kunle Banjoko

WRIGHT J.:

[1] Guilty Plea

[1] On August 17, 2015, the Defendant, Kunle Ajadi Banjoko, pled guilty to attempted theft while armed with an offensive weapon – bear spray, contrary to s. 343(d) Criminal Code of Canada and, secondly, with intent to commit an indictable offence had his face masked contrary to s. 351(2) of the Criminal Code of Canada.

The Position of the Parties

[2] The Crown is seeking a penitentiary sentence of four to five years. The Crown is also seeking a mandatory weapons prohibition order under s. 109 of the Criminal Code of Canada for life. Finally, the Crown is seeking an order that the Defendant provide a sample of his bodily fluid for D.N.A. registration.

The Crown is opposed to a reformatory sentence, but requests a probation order for the maximum period of three years on a number of terms in the event this Court imposes a reformatory sentence.

[3] The Defence is seeking a reformatory sentence in the range of 18 months to two years less one day. The defence is not opposed to the ancillary orders for probation, weapons prohibition or D.N.A. sought by the Crown.

Overview

[4] In considering the proper and fit sentence to be imposed upon the Defendant, I must consider the facts and circumstances of the offences and the offender, the evidence, the aggravating and mitigating circumstances, the sentencing principles set out in s. 718, s. 718.1 and s. 718.2, the jurisprudence and the submissions of counsel.

The Circumstances of the Offences

[5] On December 10, 2014, at approximately 11:43, two masked men armed with bear spray attempted to rob guards of Garda Security as those guards were making a delivery of approximately $200,000.00 to a T.D. Bank at Westney Road and Kingston Road in Ajax, Ontario.

[6] Surveillance video from the T.D. Bank revealed that a silver coloured Honda with black rims parked at the T.D. bank entrance at approximately 10:32 p.m., December 10, 2014, more than an hour before the attempted robbery. The video showed the driver exit a silver Honda motor vehicle shortly thereafter and walk away from that vehicle.

[7] At 11:43 the passenger who was masked ran toward two Garda Security guards who were wheeling $200,000.00 toward the T.D. Bank for deposit. The masked man is seen in the video emitting bear spray from a canister in his hand at the two Garda Security guards.

[8] The driver of the silver Honda, who was also masked, appeared from behind the Garda security guards spraying them with the bear spray as he ran past. The guards retreated after having been sprayed with bear spray.

[9] The two masked assailants then ran into the cloud of bear spray they had emitted. The Garda security guards retreated. The assailants ran to the silver Honda vehicle and drove away without obtaining any of the $200,000.00.

[10] On December 11, 2014, the same silver Honda that was involved in the attempted robbery was found abandoned on Bramwell Drive just west of Kirkham Drive, approximately two kilometres from the T.D. bank at which the attempted robbery had occurred.

[11] A variety of personal items were found inside the silver Honda motor vehicle. These items included a coffee cup, a glove, a pop can and an aerosol pepper/bear spray can wrapped in duct tape. All items were analyzed for D.N.A. and fingerprints.

[12] A "D.N.A. hit" was obtained from the glove for the Defendant, Kunle Ajadi Banjoko.

[13] Further investigation by the police, including the examination of surveillance videos and items seized through the execution of search warrants, tied the Defendant to the attempted robbery. Part of that investigation included a video surveillance at a Canadian Tire store which actually showed the Defendant purchasing bear spray just prior to the attempted robbery.

The Circumstances and the Offender

[14] The Defendant is 25 years old. He enjoyed a positive upbringing. He was raised by his mother, as his father had left the family when the Defendant was 11 years old. The Defendant has a close and supportive relationship with his mother and his girlfriend of nine years, Divalid Noel, and their three daughters.

[15] The Defendant is reported to be a very involved and devoted father.

[16] The Defendant has completed a grade 12 education. He has held various jobs, however, was unemployed for about three months prior to his arrest on the charges before the Court.

[17] The pre-sentence report (Exhibit 1) is positive on the whole, but confirms that the Defendant is a repeat offender having been previously convicted of robbery November 18, 2011, for which he received a custodial sentence of 12 months to be served in the community as a conditional sentence plus probation for 12 months.

[18] The Defendant attributed his criminal behaviour to "looking for a short cut" to help his "troubled financial situation".

[19] The Defendant expressed remorse for the commission of the offences before the court and to the victims of these offences. He states that he has matured since his incarceration January 19, 2015, realizing how his criminal behaviour has put his family in "turmoil".

[20] The Defendant states "he is done with criminal activity" and that he is committed to focusing on his family and getting a job on his release from custody.

[21] The Defendant and his mother share a good relationship. She is an assistant pastor at a church in Scarborough. The Defendant has had an "amazing" relationship with Divalid Noel and their three daughters as reported by mother.

The Evidence

[22] The evidence filed in this sentence hearing includes:

1. The Pre-Sentence Report – Exhibit 1
2. The Victim impact statement of the victim Mike Lake written by his wife Krista Lake – Exhibit 2.
3. The criminal record of the Defendant – Exhibit 3

The Aggravating Circumstances

[23]

1. These offences were carefully planned. The Defendant purchased bear spray and possessed a mask. He and his confederate were at the location of the robbery at least an hour before committing the attempted robbery. The Defendant planned to overcome armed guards with bear spray and steal a large sum of money. The Defendant would have succeeded had he not been overcome by his own bear spray.

2. The terrible damage sustained by the victim Mike Lake as evidenced by the victim impact statement – including physical injury, psychological injury, damage to the relationship with his wife and children. No regard was given by the Defendant to the impact that this bear spray could have had upon the victims of serious bodily harm or even death.

3. The vulnerability of armed guards who protect the property of others and, in this case, $200,000.00 of cash. These guards were targeted because the Defendant knew they worked alone at night.

4. Society demands that armed guards such as the victims are to be protected by law as they put themselves at substantial risk in discharging their duties.

5. The circumstances of the robbery were violent including the administration of bear spray to the armed guards in a surprise attack by the Defendant who was armed with the bear spray, while masked, to avoid detection.

6. The large amount of money at risk, $200,000.00 in the attempted robbery.

7. The motivation of the Defendant to engage in a daring criminal attack to achieve capture of a large sum of money for pure greed.

8. The criminal record of the Defendant including a prior conviction for a robbery in which he had attacked and robbed a person before that person was able to deposit money at a bank. That robbery was observed by the police, who pursued the Defendant in a high speed chase and captured the Defendant in a high risk takedown.

9. The serious nature of the offences to which the Defendant pled guilty and the maximum sentences associated with those offences of:

   (a) Life in prison for the attempted robbery;

   (b) Up to 10 years for the offence of Wear a face mask while committing an indictable offence.

The Mitigating Circumstances

[24]

1. The plea of guilty by the Defendant to both charges before the Court.

2. The Defendant's stated remorse for the commission of these offences and the damage/injury to the victims.

3. A pre-sentence report which had positive aspects to it.

4. The support the Defendant enjoys from his family.

5. The Defendant's stated desire to stay away from criminal activity and to effect his own reformation and rehabilitation.

Cited Cases

[25] Crown counsel has submitted that this Court consider:

• R. v. Hartwell, [2015] O.J. No. 1800
• R. v. Perciballi, [2001] O.J. No. 1712
• R. v. Moradi, [2012] O.J. No. 4727

[26] Defence counsel has submitted that this Court consider:

• R. v. McLaughlin, [2014] ONSC 307
• R. v. Abdi, [2011] ONSC 4165
• R. v. Miller, [2009] 19943 (ONSC)
• R. v. Burnett, [2007] ONCA 478

Principles of Sentencing

[27] Section 718(1) of the Criminal Code establishes the fundamental purpose of sentencing: to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society of imposing just sanctions that have one or more of the following objectives:

(a) To denounce unlawful conduct;

(b) To deter the offender and other persons from committing offences;

(c) To separate offenders from society; where necessary;

(d) To assist in rehabilitating offenders;

(e) To provide reparations for harm done to victims or to the community; and,

(f) To promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community.

These principles of sentence, complimented by the jurisprudence must be carefully considered in determining a fit and proper sentence.

Analysis – The Appropriate Jail Sentence

[28] This case involves the robbery of an armoured car.

[29] Without lessening the importance of the remaining factors enumerated in s. 718 of the Criminal Code, I consider principles of denunciation and deterrence to be of paramount significance in this case. Attempted robbery, while armed with an offensive weapon, is an extremely serious offence. Substantial sentences are warranted to send a clear message that offences of this nature will be severely punished.

[30] These very principles were discussed by Justice Leslie Pringle in R. v. Hartwell supra at para. 21 and 22 – a case involving the robbery of an armoured car:

"The most important principles of sentence in a case such as this are denunciation of violent crime and deterrence of planed 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.

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."

[31] None of the cases submitted by the Defendant involved a robbery of an armoured car. Their value is further dismissed by virtue of the fact they are distinguishable from the case at bar - each in a significant manner.

[32] R. v. McLaughlin supra involved a young man who was only 19 at the time of the commission of the offence of robbery. The Defendant had no adult record for robbery. The Defendant received a sentence of three years which was sentence submission of Crown counsel. A firearm was used.

[33] R. v. Burnett supra involved a young man with no criminal record or history of behavioural problems at time of the commission of the offence of robbery. The Crown was seeking a sentence of two and a half to three and a half years. Defence counsel was seeking sentence of two years less one day. The Defendant was sentenced to two years less a day.

[34] R. v. Abdi supra involved a Defendant who received a sentence of seven and a half years for four bank robberies while using an imitation firearm.

[35] R. v. Miller supra involved a Defendant who was a youthful first time offender with no record. He pled guilty to robbery. Another party Defendant had used a firearm, but not Mr. Miller. Nevertheless the Defendant Mr. Miller received a sentence of two and a half years.

[36] Two cases submitted by the Crown did involve robberies of an armoured car. Both also involved firearms.

[37] In R. v. Perciballi supra the Defendant received a sentence of ten years after trial.

[38] In R. v. Hartwell supra the Defendant received a sentence of six years on a plea of guilty.

[39] In R. v. Hartwell, Justice Pringle reasoned that the Defendant should receive full credit for plea of guilty. Justice Pringle rendered a sentence of eight to nine years had the Defendant been found guilty after a trial to six years on the basis that the Defendant pled guilty.

[40] The Defendant, Kunle Banjoko, pled guilty to an attempted theft using the offensive weapon of bear spray. He is entitled to significant credit for taking responsibility for the offence and demonstrating his remorse up front by his plea. While the Crown's case was strong against him, he did not require a preliminary inquiry or a trial to determine his fate. Rather he stepped forward to meet it. Such pleas should be encouraged. In this case, the Defendant's conduct in entering a guilty plea speaks to mitigation of sentence.

[41] On the other hand, the Defendant has a recent prior conviction in 2011 for robbery for which he received a custodial disposition of 12 months, to be served as a conditional sentence. This speaks to aggravations of sentence.

[42] Giving the Defending full credit for his plea and taking into consideration the sentencing factors I have reviewed, I believe the appropriate sentence here is one of four years less pre-trial custody.

[43] In accordance with the principles set out in R. v. Summer, the Defendant is given enhanced credit for the 11 months he has spent in pre-trial custody on the basis of 1.5 months credit for every 1 month spent in actual custody, for a total of 16.5 months of credit. After subtracting 16.5 months from the appropriate sentences of 4 years or 48 months of custody, the Defendant is sentenced to 31.5 months in custody.

Ancillary Orders

[44] In addition, the Defendant is subject to the following order:

1. A life-time weapons prohibition order pursuant to s. 109 of the Criminal Code;

2. A forfeiture order of all items seized by the police;

3. An order that the Defendant have no communication, directly or indirectly, with the victims, Mike Watts or Mike Lake, pursuant to s. 743.21 of the Criminal Code;

4. An Order that the Defendant provide a sample of his D.N.A. pursuant to s. 487.051 of the Criminal Code, given that these offences are primary designate offences.

Released: December 18, 2015

Signed: "Justice Wright"

THIS WRITTEN JUDGMENT CONSTITUTES THE FINAL JUDGMENT. WHERE THERE IS A VARIATION BETWEEN THE ORAL REASONS FOR JUDGMENT AND WRITTEN REASONS FOR JUDGMENT, THESE WRITTEN REASONS PREVAIL.