R. v. Rocks

Ontario Court of Justice

Date: 2017-11-17

Between:

Her Majesty the Queen

— AND —

Terrence Rocks

Before: Justice A.A. Ghosh

Heard on: November 10th and 17th, 2017

Reasons for Judgment released on: November 17th, 2017

Counsel:

• M. Demczur, counsel for the Crown
• D. Cunningham, counsel for the defendant Terrence Rocks

Ghosh J.:

Introduction and Overview

[1] Terrence Rocks pleaded guilty before me to "robbery", contrary to s. 344 of the Criminal Code. He admitted to accosting an 81-year-old woman at an automated banking machine and using force to rob her of some $500. This is my ruling as to his sentence.

Summary of the Evidence

[2] On July 31st, 2017, Mary Rivas attended an automated bank machine on Yonge Street in Richmond Hill to withdraw some funds. Mr. Rocks was standing nearby and grabbed her in an effort to forcibly deprive her of the money she had just withdrawn. She resisted. As she did so, Mr. Rocks pushed her to the ground and made away with approximately $500. Her eyeglasses were damaged during the ordeal, also valued at approximately $500.

[3] The robbery was captured on video and Mr. Rocks was arrested on August 2nd, 2017. Ms. Rivas' head was uncovered during the incident, revealing a head of white hair.

Victim Impact Evidence

[4] Mary Rivas is an elderly woman. She is now afraid to leave her home. She is reluctant to attend the bank and other activities she once found routine. Ms. Rivas continues to experience pain in her ribs and back and as a result she can no longer swim and bake as she once did. She has headaches. She articulated her sensitivity to Mr. Rocks' struggles with addiction and thoughtfully implored him to get some help.

[5] The robbery exacerbated an existing knee injury. She no longer walks the same. As evidenced by her extemporaneous remarks when she was invited to convey her victim impact statement, Ms. Rivas is a proud, independent and formidable individual. She stated that she does not wish to accept how being robbed has made her more fearful, but she admitted that she is.

Circumstances of the Offender

[6] Mr. Rocks is a 36-year-old licenced plumber who struggles with addiction, notably to crack cocaine and fentanyl. He has a somewhat dated criminal record for non-violent property offences. I have reviewed letters submitted by Mr. Rocks' mother and a family friend.

[7] Both letters reflect that there is a more compassionate, thoughtful and industrious side to the offender. The letters focus on his difficulties with mental health and addiction and how these struggles have led to his engagement with the criminal justice system.

[8] Mr. Rocks submitted a letter addressed "To the Judge, the Crown Attorney and anyone it concerns". In it he recounted his difficulties with addiction and expressed his desire to get help. He viewed himself as an otherwise hardworking, moral person who had fallen on hard times. There was no mention in the offender's letter of the victim or how his conduct may have impacted her.

[9] The Crown noted this apparent omission during responding submissions. Mr. Rocks was then invited to speak. He apologized to the victim and expressed that he was sorry that he hurt her. He was in the throes of addiction and desperately needed money for his next fix.

Presentence Custody

[10] Mr. Rocks was arrested on August 2nd and has been in custody for a total of 108 days. He has found his time in presentence custody to be difficult. He was assaulted at the detention centre and held in the infirmary for four days. He was subjected to lockdowns for at least 39 full days and 11 half days.

[11] I have considered s. 719(3.1) of the Criminal Code and the framework for the provision of enhanced credit outlined by the Supreme Court in R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575. Mr. Rocks will receive the commonly enhanced credit of 1.5 days for each day spent in presentence custody for a total of 162 days (or approximately 5 months and 12 days).

Applicable Principles of Sentencing

[12] The principles of sentencing are codified in s. 718 of the Criminal Code. It is apparent that deterrence, both specific and general, and denunciation are the primary sentencing objectives that must be addressed in the disposition. The rehabilitation of Mr. Rocks must be considered as well.

[13] Section 718.1 directs that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. I must also apply the principle of parity codified in s. 718.2(b).

Discussion of Aggravating and Mitigating Factors

[14] The offence of robbery does not provide for a minimum sentence and carries a maximum sentence of life imprisonment. Despite appellate jurisprudence from other provinces discussing "starting point" sentencing ranges for street level robberies, our Court of Appeal has essentially resisted setting out a range of sentence for this offence. This recognizes that the offence can be carried out in a variety of ways, warranting a nuanced, fact-specific approach to the determination of sentence. The presence of weapons, threats, serious violence, injuries, sophistication and planning have all informed the length of sentence for robbery.

[15] Mr. Rocks committed a street level robbery at an ABM. He did not use a weapon and in taking the money from the victim he pushed her to the ground. While I am not attempting to distil a range of sentence, I am aware of dispositions for analogous cases of 30 days of custody to lengthier terms of imprisonment in the reformatory. In exceptional cases some courts have imposed non-custodial dispositions, although I query whether or not such sentences would have withstood appellate scrutiny.

[16] The following aggravating factors have been established beyond a reasonable doubt:

A. Vulnerable victim – The robbery involved some degree of force used against an elderly, physically vulnerable victim. Ms. Rivas is 81 years old.

B. Criminal record – On June 26th, 2008 Mr. Rocks was sentenced for "Fraud Under $5000" and "Fail to attend" and received a sentence of suspended sentence and probation (noting 3 days presentence custody). On March 31st, 2011 he was sentenced for "Theft Under $5000" and "breach of probation" and received a second sentence of suspended sentence and probation.

[17] I consider the following mitigating and contextual factors:

A. Guilty plea – the plea of guilt is an accepted expression of remorse. It permitted the elderly victim to voluntarily participate in the proceedings and, to the extent that procedure allows, to do so on her own terms.

B. Addiction – The presence of addiction does not mitigate sentence or excuse criminal conduct. However, it can provide context through which to assess one's moral responsibility for an offence.

[18] The submissions of the Crown and defence counsel are not far apart in terms of length of sentence. The Crown seeks a custodial term in the range of 6-8 months, less credit for presentence custody. The defence seeks a sentence of "time served", given the credit for accumulated presentence custody of 5 months and 12 days, some two weeks less than the bottom of the range submitted by the Crown.

[19] Mr. Rocks insisted that this was a crime of desperation and opportunism and not of predation. He stated he would have robbed anyone in that moment. It just happened to be Ms. Rivas. I do not find this attempt to frame his responsibility particularly persuasive. It was readily apparent at all material times that his intended target was an elderly woman – an easy "mark", until she tried to resist and stand up to him. Even then he could have walked away. Instead, he pushed her to the ground, took her money and fled.

[20] I accept that addiction informed his offending. However, the need to deter and denounce Mr. Rocks and others from preying on the more senior members of our community is high and reflects the primary consideration on sentence. Consequently I am persuaded by the submission of the Crown that the appropriate sentence is in the range of 6-8 months. Recognizing that rehabilitation and restraint must also be considered, being particularly mindful of the challenges the offender has faced regarding addiction and his presentence detention, I have determined that a sentence in the lower end of that range will satisfy the objectives of sentencing.

Sentence

[21] Mr. Rocks please stand. I am sentencing you to an effective term of 6 months, less credit for presentence custody. I note 108 actual days, crediting you for 162 days (or 5 months and 12 days), leaving the additional term to be served of 18 days.

[22] Following the custodial term you will be placed on probation for 36 months, with conditions focusing on rehabilitation and community safety (as set out in Appendix "A"). Robbery is a primary designated offence, requiring the imposition of a DNA order. A weapons prohibition pursuant to s. 109 is mandated as well (as set out in Appendix "B"). You will have 6 months to pay the $200 victim fine surcharge.

[23] My thanks to both counsel and to Ms. Rivas for her participation in the proceedings.

Released: November 17th, 2017

Signed: "Justice A.A. Ghosh"

Appendix "A" – R. v. Terrence Rocks

Probation Conditions:

A. Keep the peace and be of good behaviour

B. Appear before the court when required to do so

C. Notify the court or probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation

D. Report in person to a probation officer within 2 working days of your release from custody and after that, at all times and places as directed

E. Live at a place approved by your probation officer and not change that address without the prior consent of your probation officer

F. You are not to contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means, with Mary Rivas

G. You are not to be within 100 m of the place where you know Mary Rivas to live, work, go to school, frequent or any place you know her to be

H. You are not to possess any weapons as defined in the CC, which would include a firearm, imitation firearm, cross-bow, prohibited weapon or device, ammunition or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person

I. You must attend and actively participate in all assessments, counselling or rehabilitative programs as directed and complete them to the satisfaction of your probation officer for substance abuse, life skills or as directed

J. You shall sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed

K. Make restitution of $1000 to be paid in full within 6 months of this order and in installments of not less than $100/month. If you are unable to make any restitution payment for any reason, you must tell the probation officer in advance. All restitution payments are to be made by cash or a certified cheque or money order payable to the Minister of Finance through any criminal court office for payment to the victim.

Appendix "B" – R. v. Terrence Rocks

Section 109 Weapons Prohibition:

You are prohibited from possessing any firearm, cross-bow, restricted weapon, ammunition, or explosive substance for a period of 10 years and you are prohibited from possessing any prohibited or restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.