Court Information

Ontario Court of Justice

Date: 2016-02-11

Court File No.: Toronto 15-25081

Parties

Between:

Her Majesty the Queen

— And —

Dontray Williams

Hearing Details

Before: Justice P. Robertson

Heard on: November 17-20, 23, 26, 27, 30, December 1, 8, 21, 2015, and January 21, 2016

Reasons for Judgment released: February 11, 2016

Counsel:

• G. Botherston, for the Crown
• J. Meyers, for the accused Dontray Williams

ROBERTSON, J.:

Introduction

[1] This is sentencing of Dontray Williams. He has plead guilty to the following offences:

• robbery while armed with a loaded prohibited firearm
• wear disguise
• possess a prohibited firearm without a licence
• possess a firearm while in a motor vehicle
• conspiracy to possess cocaine for the purpose of trafficking

[2] The pleas were entered partway through his preliminary inquiry.

[3] There is not a substantial difference in the respective sentencing positions of the Crown and the defence. The Crown seeks a sentence of 6 years, while the defence submits a sentence slightly in excess of 5 years is appropriate.

Facts

[4] A brief review of the facts: Mr. Williams with two others conspired and planned over a number of days the robbery of a cheque cashing, money loan business known as Cash Max. Although Mr. Williams was not the mastermind of the robbery, he was an important principal player. He was engaged in the planning of the robbery, responsible for recruiting the third assailant, made suggestions as to the execution of the robbery and was the individual who armed himself with a loaded prohibited firearm, entered the store with his co-accused and held the firearm on the store clerk while his co-accused bolted over the counter, pushing the clerk to the floor, in what turned out to be a failed attempt to rob the premises.

[5] The drug conspiracy charge arises as a result of Mr. Williams being captured on judicially authorized wiretaps of which he was not the target. He is recorded on the relevant intercepts conspiring with his co-accused to possess cocaine for the purpose of trafficking, over roughly a one month period.

Aggravating and Mitigating Factors

[6] Any sentencing starts with a consideration of the aggravating and mitigating factors.

Aggravating Factors

[7] The aggravating factors:

• use of a firearm in the commission of an offence
• the firearm was loaded, with a bullet in the chamber
• the robbery was planned and somewhat sophisticated in that everyone had assigned roles
• you were masked
• the victim suffered extreme psychological trauma which continues to affect her emotionally; the effects of which was a contributing factor to the loss of her employment and resulting financial hardships; the full impacts on Ms. Khan are set out in exhibit 2, her Victim Impact Statement
• the drug to which you conspired to traffic was cocaine and crack cocaine; the latter, a particularly dangerous and insidious drug due to it being relatively cheap and highly addictive; crack cocaine is a source of great misery for many users, addicts and the community at large as well as being associated with other criminal activity in the community

Mitigating Factors

[8] The mitigating factors:

• guilty plea; though it was entered part way through your preliminary inquiry in a crown's case fairly characterized was very strong or even overwhelming, it is nevertheless a guilty plea, a sign of remorse and with the related saving to the administration of justice for the continuation of the preliminary inquiry and the subsequent jury trial
• you have no criminal record
• you are youthful; in fact at the time of the robbery having just passed your 18th birthday; and today, just 20 years old
• I accept your statements to me to be genuine, as to your remorse for the impacts of the robbery on the victim, Ms. Khan
• time served in pre-trial custody; I accept the joint submission that you should be credited at a rate of 1.5 to 1 for every day you have served; as of today you have served 687 days; enhanced credit for such time therefore is the equivalent of 1031 days
• while incarcerated, you have made good use of your time working towards completion of your GED as well as taking a number of rehabilitative courses including anger management and substance abuse

Principles of Sentencing

[9] These are extremely serious offences. The offence of robbery with a prohibited firearm has a statutory mandatory minimum sentence of five years.

[10] The offence of being masked is an aggravating factor which calls out for an additional sentence.

[11] The offence of conspiracy to possess cocaine for the purpose of trafficking is a separate and unrelated offence to the other offences and calls for a separate and consecutive sentence.

[12] The paramount principles of sentencing for crimes of extreme violence by a youthful first offender are specific deterrence and denunciation. General deterrence is not an irrelevant consideration in such cases but plays a lesser role.

[13] Rehabilitation is a very important sentencing principle for first offenders and particularly so when one displays potential for rehabilitation. Mr. Williams has been a positive influence in the past in his community. Despite a difficult and very challenging upbringing, the details of which are set out in the pre-sentence report, you appear to have great potential. The letters of support from Mr. Nasrullah Amin, Mr. Alok Premjee of the Toronto District School Board and David Chin of the University of Toronto regarding your contributions to the Kiwanis Boys and Girls Club of Regent Park are amongst the most powerful letters of support that I have ever read. They speak highly of you, but mostly important, of your rehabilitative potential, including your continuing contribution even from your jail cell, as set out in the letter from Mr. Chin and Mr. Premjee. You have used your time while in custody productively, successfully completing a number of courses as well as credits towards your high school diploma.

Conditions of Pre-Trial Custody

[14] As previously stated, Mr. Williams has been in custody for 687 days. He spent the first 9 months at the Toronto East Detention Centre and the remaining time at the Toronto South Detention Centre. While at the East Detention Centre he was triple bunked about 100 times. While at the South Detention Centre he was in lockdown for more than 125 days, although the institutional records do not specify if those were partial or complete lockdowns.

[15] Defence counsel submits the triple bunking and frequent lockdowns amount to extremely harsh conditions which should be reflected in additional pre-trial credit.

[16] Lockdowns are an inherent part of institutional life. They are necessary to conduct both routine mandated searches of the institution for weapons to ensure the safety of inmates and staff, as well as unscheduled searches when intelligence within the complex raises the possibility of the presence of a weapon. Lockdowns are also understandable when maintenance repairs have to be made or when staff are reassigned to deal with an unexpected urgent situation, such as a medical emergency of an inmate, making the number of staff available too few to safety deal with inmates in open ranges. What is not or should not be part of institutional life is repeated lockdowns due to staffing levels. At the Toronto South Detention Centre Mr. Williams was confined to his cell on repeated days on several occasions. Although the details of the lockdown records are not as complete as I would have liked, it is apparent he was in lockdown for substantial periods during his incarceration at the Toronto South Detention Centre.

[17] It should be understood when an inmate is subject to total lockdown, they are confined with another inmate to their cell – a 15 foot by 7 ½ foot by 9 foot (in height) concrete box. Confinement for 24 hours a day is not the only result of a total lockdown. Visits by family, friends and even their counsel are halted. Telephone access is cut off. Contact with the outside world is lost. Exercise, fresh air / yard privileges are suspended and showers are not allowed. All rehabilitative programs are cancelled and even when the lockdowns are lifted, the effects continue. The rehabilitative value of programs, even when available, is diminished as a result of the constant interruption of programming.

[18] The Supreme Court of Canada in R. v. Summers 2014 SCC 26, confirmed that enhanced credit was to be capped at a rate of 1.5:1. The Court reaffirmed trial courts should continue to grant credit for the two conventional justifications – for the loss of credit of time towards parole eligibility and early release and compensation for the harsher conditions experienced in detention centre as compared to correctional facilities. The Supreme Court acknowledged however adherence to the statutory maximum could lead to a disparity. At paragraph 72 the Court notes,

"this means that two offenders, one of who lost the opportunity for early release and parole and a second who, in addition to losing those opportunities, was also subject to extremely harsh conditions will likely both have credit assigned at a rate of 1.5 to 1. The unavoidable consequence of capping pre-sentence credit at this rate, is that it is insufficient to compensate for the harshness of presentence detention in all cases."

The Court went on and acknowledged however that,

"individuals who have suffered particularly harsh treatment, such as assaults in detention, can often look to other remedies, including (my emphasis) under 24(1) of the Charter."

[19] Hill, J. in R. v. Tulloch, [2014] O.J. 4939 (Ont.S.C.) held the Supreme Court's use of the word "including", was an indication that the Court was not restricting relief to a Charter remedy.

[20] Other remedies exist to give effect to mitigation of sentence for particularly harsh remand conditions. This is entirely consistent with the Supreme Court of Canada's approach in R. v. Nasogaluak [2010] S.C.R., page 207 at paras. 2-5 and 53-55 accepting the availability to courts to mitigate sentence in light of state misconduct.

[21] In Tulloch, Hill, J. was dealing with a person not unlike Mr. Williams, a youthful first offender who, in addition to being locked down for a substantial period of time while in pre-trial custody, was also subject to triple bunking.

[22] I consider being lockdown for over 125 days and being triple bunked in a cell over 100 times to be "particularly harsh treatment." Such conditions should be compensated for in mitigation of sentence.

Other Sentencing Principles

[23] In sentencing Mr. Williams for multiple offences, I am cognizant of adherence to the totality principle, such that the global sentence itself is fit and appropriate, and not likely to crush rehabilitative prospects. This is particularly important when dealing with a youthful first offender and one such as Mr. Williams who has shown himself in the past and present to be capable of rehabilitation.

[24] It may also be necessary to abandon consecutive sentencing principles to achieve the fit and appropriate sentence.

Conclusions

[25] Mr. Williams if you would please stand.

[26] In considerations of the paramount principles of specific deterrence, denunciation as well of the important principle of rehabilitation, and in light of the aggravating and mitigating factors, I find the appropriate sentence is as follows:

[27] On the predicate offence of robbery with a firearm, the sentence is one of 794 days on top of time served of 687 days credited at a rate of 1.5:1, the equivalent credit of 1031 days. This is the equivalent of a five year sentence.

[28] On the charge of wear disguise, the sentence will be 6 months. Normally this would be consecutive but in light of the principle of totality, the sentence will be served concurrently.

[29] On the charge of possession of a firearm without a licence, the sentence will be 3 months concurrent.

[30] On the charge of possess of a firearm in a motor vehicle, the sentence will be three months concurrent.

[31] Regarding the charge of conspiracy to possess cocaine for the purpose of trafficking. There is no indication that you are an addict. You were engaged in a commercial drug enterprise for profit. The appropriate range of sentence for a commercial dealer of cocaine or crack cocaine is one of 6 months to two years; see R. v. Woolcock [2002] O.J. 4927 (Ont.C.A.).

[32] I believe the appropriate sentence in this case would normally be a sentence of 1 year consecutive to any other sentence. There is consideration however for the extremely harsh remand conditions and in regard to the principle of totality, there is the issue whether it is appropriate for this sentence to be served in its entirety, consecutively. In addressing both principles in fashioning a total fit and appropriate sentence, on the conspiracy charge, the sentence will be 240 days consecutive.

[33] The total remnant sentence therefore to be served is one of 1034 days, or approximately 2 years and 8 months.

[34] Robbery with a firearm is a primary designated offence, and the conspiracy to possess cocaine for the purpose of trafficking is a secondary designated offence. In light of the first, I will also order the taking of DNA on both charges.

[35] The will be a section 109 Order, a weapons prohibition order, for life.

[36] There will be a forfeiture order for the firearm under s. 491.

[37] The Victim Fine Surcharge will apply and in light of the amounts and the period of incarceration, there will be 4 years to pay.

[38] Mr. Williams – you have significant challenges and suffered great tragedies in your young life, which have hardened you and molded who you are. But I am convinced you have great potential to speak to young people and allow your experiences to have a positive influence in their lives. I think you would get great personal satisfaction from such work. You have a great community support group out there to help you do just that, including furthering your education perhaps to the university level. You have potential to be, and to do, good. Don't let these offences define you. Good luck sir.

Released: February 11, 2016

Signed: Justice Robertson