Court Information

Court: Ontario Court of Justice

Date: January 11, 2017

Court File No.: Central East Region

Before: Justice F. Javed

Heard: December 9, 2016

Reasons for Sentence Released: January 11, 2017

Parties

Her Majesty the Queen

— AND —

Deshaun Young

Counsel

H. Cook — Counsel for the Crown

C. Rudnicki — Counsel for the Defendant D. Young

Reasons for Sentence

A. Introduction

[1] The defendant, Deshaun Young entered guilty pleas to the offences of robbery with an imitation firearm, contrary to s. 344(1)(b) of the Criminal Code as well as use imitation firearm in commission of an indictable offence, contrary to s. 85(2) of the Criminal Code. The guilty pleas were entered while he was in custody and prior to the commencement of his preliminary hearing. He is to be sentenced for these offences.

B. The Factual Background

[2] Mr. Young was originally charged with a co-defendant, Ms. Moyle. The police investigation revealed another defendant (Ms. Douglas) who was also charged, albeit, much later on. The other two defendants have also pled guilty. Ms. Moyle has been sentenced by me while Ms. Douglas awaits sentencing.

[3] The offences involve the robbery of an individual (David Whyte) who advertised a ring for sale on a Kijiji classified website. Ms. Douglas arranged a meeting with the victim. The parties took a cab from Hamilton to Pickering where they met with the victim in a store. Ms. Moyer asked the victim if they could complete the deal elsewhere. She took the Ziploc bag containing the ring and tried to leave in a cab. The victim followed her and tried to get it back resulting in a brief tug of war over the bag. At this point, Mr. Young brandished an imitation firearm and said something to him holding the imitation firearm in his left hand. It's unclear how long the imitation firearm was brandished although it's agreed, it was not a long time. Further, Mr. Young was not disguised.

[4] The defendants were arrested after they took a cab to a hospital as Ms. Moyer was having chest pains. The cab fare had accumulated to $300.00 and had not been paid. The cab driver (Mehboob Shaikh) asked to be paid for his fares and the defendants refused. He called the police. Both defendants were investigated for a possible fare-fraud and ultimately arrested for the robbery in Pickering. The police discovered the imitation firearm upon arrest.

[5] Nobody suffered any injuries. The ring was not recovered.

C. The Position of the Parties

[6] Ms. Cook submits that a penitentiary sentence of 36 months minus pre-sentence custody is appropriate. This would amount to a further period of imprisonment of 2 years less a day. This should be followed by a maximum period of probation of 3 years. She submits that restitution should be apportioned with $166.00 payable to Mr. Whyte and $103.00 payable to Mr. Shaikh.

[7] Mr. Rudnicki submits that a global reformatory sentence in the range of 18 months to 2 years less a day minus his pre-trial custody is appropriate. He does not take issue with a maximum period of probation for 3 years. He submits that the offence falls at the lower end of seriousness and rehabilitation is prominent. He does not take issue with the DNA order or a 10 year weapons prohibition. Further, no issue is taken with the restitution orders sought or Mr. Young's ability to pay the modest amounts.

D. The Sentencing Principles

[8] Part XXIII of the Criminal Code describes the fundamental purpose of sentencing in Canadian criminal law and identifies the operative principles of sentencing. Section 718 dictates that the "fundamental purpose" of sentencing is to contribute to "respect for the law and the maintenance of a just, peaceful and safe society" by imposing "just sanctions".

[9] Doherty J.A. made the following observation in R. v. Nur, 2013 ONCA 677 at para. 73: the overall aim of Part XXIII is to impose a sentence that is tailored to both the offence and the offender. The "fundamental principle" of sentencing reflected in s. 718.1 is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender."

[10] I have also taken into account a number of principles outlined in s. 718.2 of the Criminal Code, one of which Mr. Rudnicki submits is particularly apt in this case, being parity. Ms. Moyle also pled guilty, albeit, not to the exact same offences as Mr. Young. She was sentenced to 9 months imprisonment. She was a first offender with a drug addiction.

[11] The principle of parity of sentences is set out in s. 718.2(b) of the Code:

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[12] Parity must not work to dictate the sentence, but rather should inform the result by placing it in its proper context. As noted by Epstein J.A. in R. v. Rawn, 2012 ONCA 487 at para 18: "the parity principle serves to preserve fairness by avoiding disparate sentences where similar facts relating to the offence and the offender would suggest like sentences. See: Clayton Ruby, Sentencing, 7th ed. (Markham: LexisNexis Canada Inc., 2008), at para. 2.21".

[13] At paragraph 30, she commented as follows:

30 In R. v. Issa (T.) (1992), 57 O.A.C. 253, this court expressed the role of the parity principle as follows, at para. 9:

So long as sentencing remains an individual process there may be sentences meted out to offenders for participation in the same offence which are justifiably disparate. [We] think that Clayton Ruby's statement in Sentencing is correct, that the rule against unreasonable disparity in sentencing "does not require equal sentences, but only understandable sentences when examined together." [Citations omitted.]

[14] Ms. Cook is asking the court to impose a penitentiary sentence, which engages some other considerations. In considering the imposition of a penitentiary sentence for a youthful offender, the length of such a sentence "should rarely be determined solely by the objectives of denunciation and general deterrence": R. v. Borde (2003) at para. 36. Further where youthful offenders receive their first penitentiary sentence, that sentence should be as short as possible given the gravity of the offence: R. v. Cotterell, [2004] O.J. No. 3801 (C.A.) at para. 2.

E. The Sentencing Parameters

[15] The maximum sentence for robbery is life pursuant to s.344(1)(b) of the Criminal Code. Section 85(2)(a) of the Criminal Code provides that using an imitation firearm while committing an indictable offence carries a mandatory minimum penalty of one year imprisonment and a maximum of 14 years. Pursuant to s.85(4) of the Criminal Code, a sentence must be consecutive to any other punishment that is imposed.

F. The Victim(s)

[16] Mr. Whyte filed a victim impact statement (exhibit 3). He notes that the offence left him feeling violated and worried for his safety. He is constantly looking over his shoulder. He lost the ring, which resulted in an insurance claim. He paid the deductible of $500. It's unclear if the ring had other sentimental value.

[17] Mr. Shaikh operated the cab and was not paid for his fare, which was $330.

G. The Offender

[18] Mr. Young is 23 years old. He has a criminal record, which is captured in exhibit 2. In 2013, he was convicted for the offence of conspiracy to commit an indictable offence and sentenced to a period in imprisonment for 15 months. No details were provided about the background of that offence, including the predicate offence.

[19] He has a mother who is employed as a personal support worker and two sisters. One works two jobs to help support the family.

[20] Mr. Young has a grade 11 education. As noted by Mr. Rudnicki in his written materials, he is one semester short of completing high school. He was diagnosed with ADHD and struggled in school. He befriended individuals with criminal lifestyles, which led him to getting in trouble with the law. His conviction for conspiracy appears to support this submission.

[21] After an ultimatum from his mother, in the spring of 2016, he completed an application to be enrolled at the Scarborough Centre for Alternative Studies (SCAS). He was arrested for these offences before he could enrol. Upon release, he hopes once again to enrol at SCAS and move in with his mother.

[22] He has a drug problem for which he is anxious to get some help by way of treatment. There is no evidence to suggest that his drug addiction played a role in the commission of this offence.

[23] Mr. Young is fortunate to have a supportive family. They were present for his sentencing hearing. His mother filed a letter of support (exhibit 5). As a single mother, she has struggled to raise him to live a pro-social lifestyle. She notes that he is talented in poetry and music and wants to pursue his own business in the clothing industry. She is prepared to assist him in this regard. His sister also filed a letter of support (exhibit 6). She notes that Mr. Young is "a compassionate person who needs positive vibes and a healthy environment to grow and strive in". This bodes well for his rehabilitation potential, which I will discuss below.

H. The Pre-Sentence Custody

[24] Mr. Young has been in custody since April 10, 2016. As of the date of releasing this judgment, he would have spent 276 days in custody. The parties agree that I should apply the principles in R. v. Summers, 2014 SCC 26 in affording enhanced credit at a rate of 1.5 days for each day spent in custody. This would amount to 414 days or approximately 13.8 months of pre-sentence custody.

I. The Aggravating Circumstances

[25] There are some aggravating factors in this case. First, the circumstances of the offence are sufficiently serious in that Mr. Young brandished an imitation firearm, which was not known to the victim. After some discussion with the court about this issue, Mr. Rudnicki agrees that there is no evidence of the victim's state of mind but accepts that there's no evidence either way that the victim didn't think it was an imitation. I can reasonably infer that the victim was afraid, as evidenced by his victim impact statement. The seriousness of the offence is tempered somewhat by some neutral factors which I will address below. Mr. Whyte advertised his services on a Kijiji classified website which invariably means that individuals will have to meet in person to complete a sale. The public should not have to fear that in doing so, they might be robbed. Second, Mr. Young has a criminal record for an offence in which he received a 15 month jail sentence. He is not a first offender and the conviction, apparently, did not deter him from re-offending.

J. The Mitigating Circumstances

[26] There are also some mitigating factors. First, Mr. Young pled guilty which is a genuine expression of remorse. He did so prior to the commencement of his preliminary hearing, which has spared witnesses from testifying and the administration of justice from trying the case on its merits, possibly twice. The law is clear that the amount of credit afforded to a guilty plea varies with the circumstances: R. v. Faulds. Second, Mr. Young is still relatively young at 23 years of age and has strong familial support in the community as evidenced by the character letters.

K. The Neutral Circumstances

[27] There are some factors, which are neutral in their characterization. First, Mr. Young was not disguised which reveals, to some extent, the lack of sophistication of the offence and to some degree, its spontaneity. Second, it is also clear that he didn't brandish the imitation firearm for a long time and instead, was using it to intimidate the victim who was struggling with Ms. Moyer. It would have been different had he pointed it at the victim or used additional violence, which of course may have attracted a separate offence(s). In my view, these neutral circumstances diminish the seriousness of the offence without diluting the overall assessment of the aggravating factors.

L. The Principles Applied

[28] Sentencing is inherently an individualized process and no two cases will be the same. Counsel provided me with jurisprudence in support their positions. While helpful, the cases are of limited value only because of the unique factors of this case. Here, Mr. Young brandished the imitation firearm only when Ms. Moyle got into a tug of war over the ring with the victim. Many of the cases speak to the premeditation involved in committing an armed robbery, where an imitation firearm and some additional level of violence was used. This case is somewhat different in that there is no evidence that the group planned the robbery with the expectation that using the imitation firearm would assist in furthering this objective. The imitation firearm was used only when the struggle ensued and only for a brief period of time. There is also no evidence that it was pointed at the victim or accompanied with any menacing words. That said, I have not lost sight of the fact that Mr. Young saw fit to keep an imitation firearm on his person. Accordingly, I find that the seriousness of this offence is somewhat diminished, despite the presence of the aggravating factors.

[29] In my view, the decision of Madam Justice Spies in R. v. McLachlin, 2014 ONSC 307 is helpful in situating the circumstances of this case on the continuum of seriousness and determining the appropriate range of sentence. In that case, the offender was among a group of individuals who robbed a man and woman seated in their car. It does not appear that the robbery was planned. Instead, a jury convicted the offender of being part of a group where an imitation firearm was used and pointed at the parties who drove away. It's unclear if the jury accepted that Mr. McLachlin was the party who pointed the imitation firearm.

[30] Justice Spies sentenced the offender to 36 months. After deducting his pre-trial custody of 15 months, the effective sentence was 21 months. She was privy to many of the cases that were provided to me. She cited the analysis of Justice Code in R. v. Panchan, 2013 ONSC 5567, which was a robbery case but not one that involved an imitation firearm. However, she found his analysis on an appropriate range for the robbery offence persuasive. At paragraph 34 she wrote:

34 Justice Code observed (at para. 32) that the principles of sentencing pulled in opposite directions. On the one hand, both accused were young first offenders with good rehabilitative prospects who posed little or no risk of re-offending. As such, rehabilitation and specific deterrence would generally be the primary sentencing values. On the other hand, robbery and aggravated assault of that nature are serious offences where denunciation and general deterrence are generally the primary sentencing values and requiring more significant custody, even for first offenders. He outlined the range of sentences for an offence of this nature (at para. 33) as follows:

The offence of robbery is serious but a short sharp sentence of two to three months in jail, followed by probation, can be appropriate in the case of a young first offender with good rehabilitative prospects, where no real violence is involved. However, "different considerations apply in serious crimes of violence, particularly where careful planning is evident". In these latter kinds of robberies, sentences of fifteen months to two years less a day are appropriate even in the case of well-situated first offenders.

[31] I too find this analysis persuasive in this case as it assists in placing the circumstances of this case and Mr. Young in proper context. He is not a well-situated first offender. He has a criminal record, but importantly, is still young with some rehabilitation potential. The sentencing range of Justice Code also assists in placing the parity submission in context. Ms. Moyle received a sentence of 9 months imprisonment but was a well-situated first offender. She didn't brandish the imitation firearm and didn't plead guilty to the same offences as Mr. Young.

[32] It is within this context, that I have considered the cases provided to me by counsel. Not surprisingly, the sentences fashioned by courts are anywhere between 18 months imprisonment to 3 years in the penitentiary. I will review them below.

[33] In R. v. Burnett, 2007 ONCA 478, the offender was sentenced to 30 months jail after being found guilty after trial of similar offences in relation to a robbery of a video store. On appeal, the court found that the offender was young (19 years old), there was no gratuitous violence used and had positive prospects of rehabilitation. The sentence was reduced to 2 years less a day.

[34] In R. v. Noor, 2009 ONCA 795 the court held that an 18 month jail sentence was reasonable for an offender who was found guilty after trial of being part of a group who robbed a convenience store with a pellet gun. One of the men held the imitation firearm to the face of a pregnant 21 year old attendance while the other took the money. There is little detail about the personal circumstances of the offender or the other factors in the case.

[35] In R. v. Gobin (K.G.) 2012 ONSC 3523 Justice Hill sentenced an offender who was found guilty with two others in committing a robbery while masked. The group followed a young woman who was driving home. As she exited, each offender accosted her with a replica firearm, with one pointing it at her stealing her purse and keys. In sentencing the offender to a 21 month sentence for the robbery and 15 months consecutive for the use imitation firearm offence, he noted at para 23: "the offender was party to an armed robbery in which he consented to the use of an imitation firearm by his accomplice – the innocent victim was terrorized with no way of knowing that the very real looking firearm was a replica." He went on to note that general deterrence and denunciation are paramount sentencing principles in such cases.

[36] In R. v. Bailey, 2014 ONSC 1166, a sentence of 3 years was imposed for an offender who was convicted of three counts of robbery. In that case, the offender pointed the imitation firearm at the victim and threatened to shoot him making the circumstances more serious than those here.

[37] Finally, in R. v. Clarke, 2014 ONCA 296, the Court of Appeal affirmed a sentence of 2 years less a day, which was a joint submission for a youthful offender who robbed a store with an imitation firearm. The offender was disguised and threatened to shoot the victim. Notably, the offender had mental health issues, which I can reasonably surmise went into the consideration of the joint submission. No such mental health issues are present in this case.

[38] Mr. Rudnicki also asked me to consider more serious cases in which reformatory sentences were imposed. For example, in R. v. Abdulhakim, 2014 ONSC 495, Justice Thorburn sentenced an offender, after trial, to 2 years less a day. In that case, the offender was among a group of three men who were disguised. One individual used an imitation firearm and robbed a restaurant. The victim was kicked and sustained bruising. At para. 34, she noted that the sentence was "on the low end" but she was moved by the offender's good prospects for rehabilitation and steps he took while on bail.

[39] Here, Mr. Young is not a first offender but is youthful, at 23 years old. After serving a 15 month jail sentence for an offence in 2013, it is unclear what rehabilitative steps he took apart from enrolling in school, recently. In 2013, he was placed on probation for 2 years, which would have expired in the summer of 2015. Mr. Rudnicki did not request a pre-sentence report, which may have shed some light on his involvement with probation services. I do not fault Mr. Rudnicki for this as he was able to marshall other helpful material. My point is simply that I am not fully persuaded that Mr. Young's rehabilitation potential is good but rather remains modest. His family should be commended for continuing to support him. The court hopes they will continue to do so after his release from custody.

[40] I have also considered other cases such as R. v. Bogle, 2011 ONSC 4215 and R. v. Rose, 2011 ONSC 1678. On the basis of all these cases, I do agree with the defence position that while serious, the overall circumstances of this case fall at the lower end of the range for cases involving robberies with imitation firearms. Mr. Young briefly brandished the imitation firearm when Ms. Moyle got into a struggle with the victim over the ring. He was not disguised and no gratuitous violence was used. However, in my view, the range of 9-12 months imprisonment suggested by Mr. Rudnicki for the robbery offence alone, would not give effect to the principles of denunciation and deterrence, which are important principles in this case. It would also be out of step with the range suggested by Code J., which I adopt as correct.

[41] Instead, I find that an appropriate sentence in light of the diminished seriousness of this case (relative to other armed robbery cases), Mr. Young's youth, early guilty plea and consistent with the jurisprudence, is one of 18 months imprisonment for the robbery offence. This gives effect to the parity principle and reduced pre-meditation in the circumstances of brandishing the imitation firearm as well as the other aggravating and mitigating factors. Indeed, this is at the lower end of the range given his weighty guilty plea. Mr. Whyte and Mr. Shaikh did not have to testify at all, which likely would have been difficult. This distinguishes the case from McLachlin, supra, which did not involve a guilty plea and was more serious, where a 36 month sentence was imposed. This will be followed by a 12 month jail sentence for the offence of using the imitation firearm in the robbery, which of course must be consecutive to the robbery offence. A sentence of 12 months is also at the low end to give effect to the particular circumstances of this case.

M. Conclusion

[42] For the foregoing reasons, the total sentence is 30 months imprisonment. I am prepared to give enhanced credit for time spent in custody, being 13.8 months imprisonment. This leaves a remnant of 16.2 months imprisonment. The pre-trial custody will be deducted from the robbery offence leaving a total of 126 days. This will be followed by 12 months imprisonment consecutive to the 126 days.

[43] This will be followed by a 3 year probationary period with terms prohibiting contact with the victims and remaining 100 meters away from them. There will also be a term addressing counselling as recommended.

[44] On consent, there will be free standing restitution orders in favour of Mr. Shaikh for $103.00 and $166.00 to Mr. Whyte.

N. Ancillary Orders

[45] On consent, there will be a DNA order as the robbery offence is a primary compulsory one. The remaining offence is a secondary designated offence but the parties agree that it should apply to this as well. I'm satisfied given Mr. Young's criminal record, the nature of the offence and the low impact on his privacy interests, it should be ordered.

[46] There will also be a weapons prohibition under s.109 for 10 years.

[47] I am grateful to counsel for their helpful material on sentence.

Released: January 11, 2017

Signed: "Justice F. Javed"