WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: January 4, 2018

Court File No.: Toronto Region

Between:

Her Majesty the Queen

— and —

T.G., a young person

Before: Justice A.J. Hall

Heard on: December 21, 2017

Reasons for Judgment released on: January 4, 2018

Counsel:

• J. Gorda — counsel for the Crown
• R. Goldman — counsel for the accused T.G.

Judgment

A.J. Hall J.:

Facts

[1] On December 21, 2016 this young person entered pleas of guilty to charges of robbery and aggravated assault before me. He's to be sentenced today.

[2] On June 25, 2015 at approximately 11:25 p.m., this young person was part of a group of six young men including two adults that attended at the residence of the victims in east end of Toronto. The group were armed with two handguns and a crowbar.

[3] They approached the front door of the victims' home with their faces covered with bandannas. Entry to the home was gained by knocking on the door and eventually rushed the first victim to gain control of him.

[4] This victim was taken to the basement at gunpoint. The basement was ransacked. Six pairs of Nike running shoes, Xbox game console, cell phone and Canadian currency were collected by the group of intruders.

[5] The father of this victim awoke as a result of the commotion in the basement. Went to inquire. Discovered his son was being held at gunpoint. He yelled for his spouse to call the police. He was standing on the stairway to the basement. One of intruders pointed a gun at this victim. This intruder said, "Sir I'm going to shoot you."

[6] The intruder motioned to the victim to move out of the way. This victim was shot once in the abdomen, and once in the pelvis. This was not done by the young person before me.

[7] He fell to the ground. He sustained head injuries as a result. On their way out of the residence, one of the intruders, not the accused young person, struck the victim in the mouth area with a handgun.

[8] All of the intruders except one made good their escape in a waiting vehicle.

[9] The police were able to identify the accused parties through sources of information and analysis of telephone records.

[10] One of the accused was arrested, provided a statement to the police and identified three of the others involved in this home invasion. On February 29, 2016 this young person was arrested and charged. He was released on bail three days later and has been on bail since.

[11] The victim of the gunshot injuries was hospitalized for more than a month. He lost two teeth as a result of the fall to the ground on the night of the incident. He needed assistance of a walker to be mobile. He still suffers numbness to his left side, from his waist to his knee.

Position of the Parties

[12] Crown counsel submitted the appropriate sentence ought to be in the range of 15 to 18 months custody. More precisely he argued the appropriate sentence should be that of: six months close custody. Six months open custody. Six months community supervision.

[13] This to be followed by a period of probation for two years. Section 51(2) of the Youth Criminal Justice Act: order for 10 years. Plus a DNA order.

[14] Defence counsel: urged me to take into consideration that the young person has been on house arrest for a solid 18 months. He was not directly involved in the violence inflicted on the victims. He's a young person easily influenced and led by others.

[15] He was 15 years old at the time of the offence. And he is a first time offender. He entered the pleas of guilty. Therefore there was no need for witnesses to testify at a trial. Substantial judicial resources were saved as a result of the pleas of guilty.

[16] He has strong support in the community and has performed 240 hours of community service.

[17] Counsel recommended the following as the appropriate sentence. I should grant the young person six months credit for pretrial deprivation of liberty, because the house arrest term of his bail. Four months open custody, two months community supervision. This to be followed by a period of probation for two years.

[18] No challenge was made to the recommendations for the 51(2) order under the Y.C.J.A, or the DNA order.

Circumstances of the Young Person

[19] This young person was born on […], 2000. He was 15 years of age at the time of the offence, he is now 17 years of age. He is one of seven children born to his parents. His mother has been his primary caregiver. She has provided a caring and loving environment for him and his siblings. His father was abusive to his mother. He has had no meaningful contact with his father since he was 10 years of age.

[20] Recently, the family has moved into subsidized housing in the City of Toronto. His mother has admitted that since the separation from his father she became a friend to the young person rather than acting as a parent. She is now taking a firmer stand with him as a parent.

[21] This young person has exceptional basketball skills. He has been involved in a number of competitive basketball events. He was also an affiliate of a number of recognizable basketball clubs in the city.

[22] As he grew older, he started to associate with unsavory characters, some much older than he, that are known to be involved in the criminal justice system. He also developed the regular practice of smoking cannabis daily.

[23] The young person has a 17-year-old girlfriend that has been a positive influence on him in recent times.

[24] During elementary school this young person showed steady progress. He was a motivated and enthusiastic student. At the grade 8 level his interest and commitment to education diminished.

[25] One of his teachers noted:

"And despite having the intellectual ability for him to succeed, but he does not invest the effort necessary to succeed. {T.G} is a very intelligent student who was making poor choices relating to his education."

— Pre-Sentence Report page 4.

[26] The young person attended a number of collegiate institutions, but failed to take advantage of the scholastic opportunities. He would only attend the classes he liked and wandered the hallways during those he didn't. He is behind academically.

[27] The young person and his family have accessed the resources provided by the West Scarborough neighborhood community center for a number of years. He is described by one of the social workers as always respectful and pleasant within the programs. And that he works best within structured activities and where the boundaries and expectations are well-defined.

[28] Currently he is working part-time at No Frills supermarket located on Eglinton Avenue East in Scarborough since October of last year.

[29] I have received a number of letters from members of the community. The letters spoke glowingly of this young person. The common thread in these letters, is that this young person is intelligent, caring and considerate. The behavior he displayed at the time of the robbery is out of character.

[30] In a letter to the victims the young person wrote the following:

"to the victims, I am writing this letter today because I know I have change your life horribly. I also know that any apology was never replace the pain trauma and stress that I've caused you I'm very sorry for what I've done and I want you to understand that this would always be one of my greatest regrets that; there's also no justification for the damage I've caused your family. Truthfully sorry, T. G".

— Letter from the young person dated April 8, 2017, page 1

[31] In a letter to me the young person said in part:

"I have realized that there is absolutely no excuse for what I've done, and that it was wrong and one of the worst decisions I ever made in my life. I realized it was unsafe dangerous and harmful…I'm prepared to take full responsibility for my actions".

— Letter from the young person dated April 8, 2017, page 1.

Victim Impact Statement

[32] I received a victim impact statement written by the mother and wife of the victims. I shall summarize the salient points in a statement. She highlighted the traumatic effects the incident of the home invasion as had on her family.

[33] She described her family has been broken. They have lost their sense of security. And their "emotional state is fragile and scattered".

[34] She reported her husband is in constant pain, he sleeps only 2 to 3 hours a night and suffers from constant ringing in his ears. He has not regained the strength in his leg. Her husband is required to take prescribed pain, nerve, and anti-depressant medications.

[35] The nerve damage he suffered makes it impossible for him to work a full day. Soon he will have to stop working, and find other means of earnings.

[36] Her son is still suffering the effects of the traumatic experience of having a gun pointed to his head. He has found it difficult to talk about the experience.

[37] She noted as well:

"we never talk about that night, we do not have to, and it is always with us. It is the first thing you think of in the morning and the last thing at night time. When there's an unexpected knock at the door we all tense up and peek through the windows and around the corner to try and see who is there. My husband has aged 10 years in the last 20 months. We all know he will never be the same person again physically or emotionally, but we will work hard as a family to support and love him and our family unit."

— Victim Impact Statement, page 2.

The Purpose of Sentencing Under the Youth Criminal Justice Act

[38] The purpose of sentencing on the Y.C.J.A. is to hold a young person accountable for his or her offence by imposing just sanctions that have meaningful consequences to the young person and promote his rehabilitation and integration into society. The focus of the sentencing is to protect society through an attempt to rehabilitate and integrate the youth back into the community.

[39] The sentence must be the least restrictive sentence capable of achieving the purpose of sentencing and must be proportionate to the seriousness of the offence and the offender's degree of responsibility.

[40] I find useful the guidance from the Court of Appeal in R. v. A.O., 2007 ONCA 144, [2007] O.J. No 800. The court noted:

"In our view, for a sentence to hold the young offender accountable in the sense of being meaningful it must reflect as does a retributive sentence" the moral culpability of the offender, having regard to the intentional risk-taking, the consequential harm caused by defendant, and the normative character of the offender's conduct we see no other rational way for measuring accountability."

[41] From my review of the caselaw, I've concluded that the range for offences of similar nature is quite wide. None of the cases provided to me were squarely on point; this is not surprising given the wide range.

Aggravating Factors

[42] The offences occurred in the victims' home;

The sanctity of the home was violated;

The very nature of the offences, it was seriously violent;

The victims were physically and psychologically harmed;

The offences were committed by a group;

The offenders were armed with guns and a crow bar;

The offenders wore masks;

The offence was planned.

Mitigating Factors

[43] The young person entered pleas of guilty;

This young person did not directly inflict any violence on the victims;

No evidence this young person was armed;

The young person has no criminal record;

Strong support in the community;

Appropriate Disposition

[44] These are very serious offences. The sanctity of the victims' home was violated. The victims are still suffering the effects of the physical and psychological harm visited on them the night this young person and his companions invaded their home. This was evident from the victim impact statement filed by the Crown.

[45] I can only hope the passage of time will restore the victims' sense of personal security.

[46] I have had the benefit of a Pre-Sentence Report, and a Section 34 assessment, both have been helpful. These documents assisted me in understanding this young person's circumstances and background.

[47] He comes from difficult family circumstances. He has been raised primarily by his mother. His father has played no meaningful role in his life. He has witnessed domestic violence between his parents.

[48] He has been raised in an environment where there is little or no structure. His mother is trying her best to keep her family together, and this she is doing alone.

[49] This young person is behind with his education, because he failed to take advantage of the many opportunities he had to obtain a proper education. The reports clearly indicated he has the potential to do well if he applies himself.

[50] This young person is an intelligent youth and has insight into his conduct. He knows his behavior was criminal. This assertion is supported by the letters he wrote to the victims, and to myself.

[51] Since he was arrested and placed on bail, there has been no further criminal behavior nor any allegation of breach of his bail.

[52] Fortunately for this young person, he was not directly responsible for the violence inflicted on the victims, nor was there any evidence that he was armed; however he played not an insignificant role as he was one of those whom entered the residence as a party to the criminal enterprise.

[53] After very careful consideration of the circumstances of the offences, the circumstances of this young person, and the principles Y.C.J.A. with respect to holding young people accountable, promote rehabilitation, and reintegration. I have concluded that the appropriate sentence is that of 15 months custody.

[54] As a result of the restrictive bail condition (house arrest of 18 months) I shall credit you three months for that time.

[55] I shall credit you at a rate of 1.5 to 1 for pretrial custody of three days the equivalent of five days.

[56] Therefore the sentence is that of 11 months and 25 days. Three months and 25 days closed custody. Four months open custody. Four months community supervision.

[57] This is to be followed by a period of probation for 12 months.

Conclusion

[58] 15 months custody. Credit three months as a result of restrictive bail time (18 months house arrest). The three days pre-trial custody credit five days.

Three months and 25 days close custody;

Four months open custody;

Four months community supervision;

12 months period of probation.

Ancillary Orders

[59] I order that a sample of your DNA be taken. I impose a weapons prohibition pursuant to section 51 (2) of the Act for 10 years.

Terms of Probation

[60] Report to a probation officer at the commencement of the probationary term and as required;

Reside at a residence approved of by your probation officer;

Have no contact directly or indirectly with Mitchel Karimghassapour;

Have no contact directly or indirectly with Mohammed Karimghassapour;

Not to attend C[…] Crescent in the City of Toronto;

Participate in counselling and programming as required by your probation officer and sign releases so that your compliance may be monitored;

Attend school regularly, or vocational training or make reasonable effort to seek and maintain employment;

Do not associate with anyone known to you to have a youth or adult criminal record except for the purposes of education counseling or employment or with written permission from your probation officer.

Released: January 4, 2018

Signed: Justice Aston J. Hall