Court File and Parties

Date: October 31, 2018

Court File No.: 17-1445-01; 17-1520-04; 17-1592; 17-1593-02; 18-0060-04; 18-0104-02; 18-0113-02; 17-0013

Ontario Court of Justice

Between:

Her Majesty the Queen

-and-

Joshua Atkinson

Before: Justice Michael G. March

Heard on: July 5, 2018 and October 23, 2018

Reasons for Judgment released on: October 31, 2018

Counsel:

• Jeffery Richardson, Counsel for the Crown
• Peter Beach, Counsel for the Accused

Reasons for Judgment

March, M.G., J.:

Introduction

[1] On July 5, 2018, Joshua Atkinson ("Atkinson") entered pleas of guilty before me to the following offences:

a) November 3, 2017 – Utter threat to cause death – s. 264.1(1)(a);

b) November 26, 2017 – Robbery with the use of a firearm – s. 344(1)(a.1);

c) November 26, 2017 – Disguise with intent – s. 351(2);

d) November 26, 2017 – Theft of a motor vehicle – s. 333.1(1)(a);

e) November 28, 2017 – Utter threat to cause death – s. 264.1(1)(a);

f) December 6, 2017 – Dangerous operation of a motor vehicle – s. 249(1)(a); and

g) December 13, 2017 – Possession of property obtained by crime (motor vehicle) – s. 354(1)(a).

Facts

November 3, 2017

[2] On the above date, Atkinson, along with four other men, paid a visit to Brandon Lamoureux. They were not happy with Mr. Lamoureux. In their view, he had mistreated one Samantha, a friend of theirs. Mr. Lamoureux stole from her, they thought. They told Mr. Lamoureux, "You are fucking with the Rock Machine."

[3] They pulled Mr. Lamoureux outside the residence where he was living. Although Mr. Lamoureux was unable to clearly discern who did what to him, he was repeatedly punched and kicked. One of the men picked him up by the shoulders when they stopped the beating. Mr. Lamoureux then felt a hard metal object pressed against his head. "Don't move or I'll put one in ya," the man said to Mr. Lamoureux. Mr. Lamoureux was told he had to pay a $500 debt with a $250 tax. A parting slap to the head was delivered to Mr. Lamoureux before they left.

November 26, 2017

[4] The Ontario Provincial Police of the Upper Ottawa Valley ("UOV OPP") at 11:35 p.m. on the above date received a call to attend at 11536 Round Lake Road in Laurentian Valley Township. This is the location of Hamilton's Convenience and Gas Bar ("Hamilton's"). One Krista Foster ("Foster"), the common law partner of Atkinson, was a former employee of Hamilton's. She had knowledge of its operations and banking routines.

[5] Earlier in the evening of November 26, 2017, Foster drove Atkinson and another man, Adam Commanda ("Commanda") to Hamilton's. Atkinson and Commanda wore masks. They had pellet guns, which looked very much like actual hand guns. When tested, they met the definition of "firearm" under the Code.

[6] Atkinson and Commanda broke open the door to the adjoining residence of the business premises, where Bernie and Carol Hamilton lived. They demanded at gun point that the Hamiltons open their safe. The Hamiltons complied. Atkinson and Commanda bound Ms. Hamilton's hands with zip ties, and Mr. Hamilton's with rope. Once confined, Atkinson and Commanda stole a vehicle belonging to the Hamiltons, and departed in possession of approximately $5000.00 in cash.

[7] Atkinson and Commanda then abandoned the Hamiltons' vehicle and fled through a wooded area. The gloves and mask worn by Atkinson and discarded by him were found by police. Atkinson's DNA was discovered on both items.

[8] Shortly after the robbery, a plough operator witnessed two males wearing masks get out of a silver Mustang known to be commonly operated by Foster.

November 28, 2017

[9] On the above date, Det. Cst. Trader of the UOV OPP was monitoring the activity of certain individuals on Facebook. One post made on an account attributed to "Sadie Rocz" asked other users to "…share the fuck out of this, please." The message Sadie Rocz wished to have broadcast over social media was aimed at one Brandon Emerson, also known as Brandon Lamoureux. Warnings followed. Brandon Emerson's friends, family and associates were told to "…plan his fucking funeral." Sadie Rocz suggested Mr. Emerson/Lamoureux should "…hide," because he has "…ruined my [Atkinson's] life." Sadie Rocz further proclaimed, "Welcome to my range, Bambi." The following day, "Danger," a known alias of Atkinson, posted on Facebook, "I'm turning myself in to the UOV OPP."

[10] "Sadie" and "Rocz" are the names of two dogs owned by Atkinson. Atkinson did not dispute being the author of the Facebook posts in which Mr. Emerson/Lamoureux was threatened.

December 6, 2017

[11] On the above date, police attended a single motor vehicle collision near the intersection of Boundary Rd. and Crandall St. in Pembroke. A green Ford Mustang was observed racing down a city street. It crashed into a pole. Onlookers described the driver of the vehicle, who fled, as short, heavy set and with his entire face covered in tattoos. Atkinson fits this description.

[12] Police traced the vehicle back to its registered owner, a Mr. Perkins. When interviewed, Mr. Perkins explained he sold the vehicle to Atkinson a week before the accident. Mr. Perkins recalled that Atkinson had presented identification upon acquiring the vehicle.

December 12, 2017

[13] On the above date at 7:17 a.m., police attended Smitty's Home Hardware in Pembroke. The employees reported the theft of one of their delivery vans. The vehicle was taken between the hours of 9:00 p.m. on December 11, 2017 and 7:00 a.m. on December 12, 2017. The thief crashed the gate of the compound, where the vans were kept. Pieces of the vehicle's headlight and one of its licence plates were left on scene. Inside the van were cabinets valued at $12,750.00 and two heaters. Fortunately, this property was recovered by police.

[14] For unrelated purposes, police attended the residence of Foster, Atkinson's common law partner. While there, the officers noticed a cube van. It had recently been spray painted grey. Its headlight was damaged. Officers could make out the Home Hardware lettering underneath the paint.

[15] Police quickly applied for a search warrant to seize the van and other evidence of the commission of the theft. When the warrant was executed, Atkinson was located inside Foster's residence. Police discovered as well the cabinets, the heaters and empty spray paint cans on scene. In a freezer in Foster's kitchen, police found 85 grams of marijuana.

Crown's Position

[16] The Crown seeks a global period of incarceration for the above offences of 10 years. Credit should be given, of course, for Atkinson's period of pre-sentence custody. Under s. 743.21 of the Code, the Crown asks for a prohibition on communication between Atkinson and the Hamiltons. The Crown submits that Atkinson be required to provide a sample of his DNA to the authorities. Lastly, the Crown seeks a lifetime weapons ban under s. 109 of the Code.

Defence Position

[17] The defence proposes that a sentence in the range of 5 to 6 years would be appropriate. The defence submits that Atkinson ought to be given credit at a multiplier of 1.5 for his ten and a half months of pre-sentence custody. The defence does not take issue with the ancillary orders sought by the Crown.

Atkinson's Criminal Record

[18] Atkinson's history of criminal offending stretches back to 1991. He was 17 at the time. He is now 44. Over the course of 27 years, he has amassed 45 convictions. The 7 offences for which I must now pass sentence upon him brings him to 52.

[19] When I examine Atkinson's criminal record closely, I see it is not without at least one significant gap. Almost 4 years elapsed between 1996 and 2000, when he was in his early twenties. Over that period, Atkinson had no convictions. Sadly, since 2000 however, his criminality has continued with unremitting regularity.

[20] Atkinson has served two previous stints in the penitentiary. What awaits him will be his third.

[21] I am near certain the gravity of his record may well be an impediment to his release on parole. In determining his global period of incarceration, I will take this factor into account.

Public Protection, Denunciation and Deterrence

[22] The Crown urges upon me the priority to be given to the above principles of sentencing in arriving at the appropriate disposition for Atkinson. In R. v. Wright, [2006] O.J. No. 4870, Sharpe J.A., for a unanimous three member panel of the Court of Appeal for Ontario, wrote at paragraph 24:

"…in cases of this nature [home invasion], the objectives of protection of the public, general deterrence and denunciation should be given priority, although, of course the prospects of the offender's rehabilitation and the other factors pertaining to sentencing must also be considered. Certainly, a stiff penitentiary sentence is generally called for."

[23] Sharpe J.A. makes clear the necessity for a significant penitentiary term at an earlier point in his decision in Wright at paragraphs 13 and 14:

Home Invasion

[13] Home invasion is a serious, and increasingly prevalent, crime in our society. For a discussion of its essential nature and the variety of circumstances "home invasion" can embrace, see R. v. S. (J.), 81 O.R. (3d) 511, [2006] O.J. No. 2654, 210 C.C.C. (3d) 296 (C.A.). The crime committed by Mr. Wright constitutes a home invasion because it was characterized by the invaders' forced entry into the victims' home for purposes of committing a theft or robbery, knowing that (or being reckless as to whether) the home was being occupied, and by the accompanying use or threatened use of violence with guns, together with the confinement of the occupants of the home.

[14] As this court also noted in S. (J.), supra, at para. 34, home invasion offences are particularly troubling "because they represent a violation of the sanctity of the home and of the sense of security people feel when in their homes -- highly cherished values in our society -- and because they are frequently perpetrated against vulnerable individuals". They must therefore be dealt with sternly by the courts. This concern was eloquently captured by Trafford J. in R. v. Soares, [1996] O.J. No. 5488 (S.C.J.), at para. 286:

The sanctity of one's home is of fundamental importance in a free and democratic society. It is constitutionally recognized in our country. Everyone must not only be, but feel, secure in their residence. A society that tolerates significant criminal intrusions into the privacy of one's home is a society that forces it citizens to resort to self-help to protect themselves against such wrongs. Absent effective responses from the judiciary, the alternative is for citizens to arm themselves in anticipation of a need to defend themselves against such criminal enterprises. A society like that is not ours today, has not been ours in the past, and will not be ours in the future. The obligation of the Court is to give proper recognition to the sanctity of the home, to protect all citizens against such intrusions, and to thereby preserve the public's confidence in the administration of justice.

[24] Ultimately, Sharpe J.A. concluded that 'home invasion' offences attract widespread sentencing ranges. His research uncovered a spectrum of 4 to 13 years. What is important for sentencing judges to bear in mind is the 'nuanced approach' each such case requires. One must look to the overall circumstances of the cases including:

a) the nature and severity of the criminal acts perpetrated, and

b) the situation of the particular offender.

[25] The yardsticks of the range can move upon a considered assessment of a) and b) above. In essence, sentencing ranges are, at their core, guidelines.

Rehabilitation

Early History

[26] After entering his pleas of guilty on July 5, 2018, I ordered the preparation of a Forensic Psychiatric Assessment of Atkinson under s. 21 of the Mental Health Act, R.S.O. 1990 c. M7. The assessment was made Exhibit 4 at the sentencing.

[27] In speaking with the author of the assessment, Dr. Strike, Atkinson self-reported that he did not have any contact with his father from age 12. This is not surprising. The author of his Pre-Sentence Report (Ex. 5 on the sentencing) indicates that when Atkinson was about 12, his father passed away. Atkinson was on his own by 16. A year later, in 1991, his criminal career began.

[28] He has not had much stability in the way of employment over the years. The longest he has held down a job is between six and twelve months. To his credit, Atkinson admitted to the author of his Pre-Sentence Report that, for the most part, he has supported himself off proceeds of crime, mainly drug dealing. Fortunately, he is now eligible for a disability pension.

Involvement in Criminal Organizations

[29] A sense of belonging proved elusive for Mr. Atkinson. He was involved with several gangs and criminal organizations over the years. He was a member of the Outlaws in the early 2000's. Until two years ago, he was a member of the Rock Machine. He told Dr. Strike on August 24, 2018 that he is no longer a part of any gang.

Alcohol

[30] Atkinson began drinking at 13. He identified alcohol as a problem by age 18. It was a recognizable, contributing factor for him from the commencement of his criminal offending. Notwithstanding, Atkinson continues to drink.

Drugs

[31] Atkinson began using 'speed' (stimulants) in 2008. He has continued their use to present. He has tried to varying degrees cannabis, crystal meth, cocaine and percocet, but he claims he does not like opioids.

Current Health

[32] Atkinson's medical records from the Ottawa Carleton Detention Centre reveal that he has Hepatitis C. He received a thyroidectomy as well to treat thyroid cancer. He has been prescribed opioids for pain management for injuries he has suffered as a result of his criminal lifestyle including gunshot wounds.

[33] Atkinson has experienced multiple persecutory delusions of a visual and auditory nature. These episodes manifest themselves even when he has not been using drugs and alcohol to excess.

[34] On occasion, he has flashbacks to incidents of sexual abuse he endured as a boy. His difficulties with concentration, sleep and irritability date back to early childhood.

[35] During service of one of his federal sentences, Atkinson was diagnosed with schizophrenia. Dr. Kunjukrishnan, a fellow forensic psychiatrist and colleague of Dr. Strike's, confirmed the diagnosis in 2014 while Atkinson was on parole. Since 2011, he takes quetiapine, an antipsychotic. At high dosages, the drug appears to be effective for Atkinson. However, through late December 2017 to late February 2018, while incarcerated, Atkinson struggled with recurring visual and auditory delusions. His current regime of prescribed medication, quetiapine (400 mgs x 3 daily for schizophrenia), levothyroxine (0.5 mgs daily for thyroid hormone replacement) and zapiclone (a sleep aid at an unknown dosage), has assisted Atkinson in achieving some mental clarity and stability.

[36] Ultimately, Dr. Strike diagnosed Atkinson in her September 20, 2018 report with the following conditions:

a) schizophrenia (in full remission),

b) post-traumatic stress disorder ("PTSD"),

c) social anxiety disorder,

d) substance abuse disorder, and

e) antisocial personality disorder.

[37] The doctor made a number of recommendations for Atkinson, which I endorse. They include:

a) continued treatment for his schizophrenia including an injectable, long acting, anti-psychotic drug,

b) a trial of prazosin to assist with nightmares resulting from PTSD,

c) attendance at psychosocial treatment, including individual and group therapy,

d) abstention from all non-prescribed drugs,

e) treatment for addiction while incarcerated and aftercare upon release, and

f) vocational training to assist with breaking the life cycle of crime.

Proportionality

[38] The sentence I impose upon Atkinson must, of course, be proportionate to the gravity of the offences he committed and the degree of his responsibility. Punishment must always fit the crime…and the criminal.

Restraint

[39] Incarceration must always be the penal sanction of last resort. Unfortunately for Atkinson, it is perhaps the only sanction to which Courts can resort in future, should he reoffend yet again, given his criminal history. Whether his acts are organically induced, drug induced, are the consequence of desensitized behaviour, or the result of some other, as yet, unidentified cause, Atkinson has proven he can act in a volatile, violent manner at the drop of a pin. No doubt he has come by his nickname "Danger" honestly. It is my sincere hope though that this period of incarceration, which I am about to impose, will be Atkinson's last.

[40] I do not doubt that Atkinson is tiring of his criminal lifestyle. I believe his relationship with Foster is something to which he desperately clings for good reason. She is the one support he has, and very much will need, if he is to make a final break from the criminality which has permeated virtually his entire adulthood. She herself has enjoyed six years of sobriety in the past. Atkinson can learn from Foster. Old habits die hard, but habits can be broken. Love conquers all. Time will tell.

The Fit Sentence

[41] Having considered the sentencing principles set out in ss 718 to 718.3 of the Code, I shall impose a 'stiff' sentence upon Atkinson. It must reflect the harm he has caused. It must promote a sense of responsibility in him. He must be made to reflect upon and acknowledge the terror he caused the Hamiltons and Mr. Lamoureux. I must treat as aggravating under s. 348.1 of the Code the fact that Atkinson knew the premises in question were occupied by the Hamiltons, and he used threats of violence to acquire the cash he stole. He must come to appreciate the ongoing distress the Hamiltons suffer in the wake of his violence, even if the violence was not of the most gratuitous variety.¹ Of course, nothing I do in sentencing Atkinson will erase the pain he has caused to his victims.

[42] I have no choice but to separate Atkinson from society. He must use his time in prison wisely. He must give himself a chance with vocational training to readjust his attitude and address his addiction. He must strive to achieve clear, pro-social thinking, if he is to ever become a productive member of society.

[43] I do not find that Atkinson is without remorse. I heard his expression of regret from the prisoner's dock. It did not strike me as lacking in sincerity. Yet, I am obligated to treat denunciation and deterrence as the predominant sentencing objectives.²

[44] At the same time, I do not wish to crush all hope for Atkinson. He will be released back into our community eventually. I want him to avail himself of every resource institutionally offered to assist in his rehabilitation. I venture Atkinson is not an incurably dangerous man. His goal must be wellness. He must accept his schizophrenia, and the need for a lifetime of ongoing prescribed, drug treatment for that condition. He must avoid all future use of illicit substances and alcohol. He must somehow attain right thinking, mental clarity. He must accept that he will never be a social drinker.

[45] I shall accordingly impose the following:

a) November 3, 2017 – Utter threat (s. 264.1(1)(a)) – 2 months,

b) November 26, 2017 – Robbery with the use of a firearm (s. 344(1)(a.1)) – 7.5 years or 90 months consecutive less 16 months for pre-sentence custody (i.e. 10 ½ months @ 1.5),

c) November 26, 2017 – Disguise with intent (s. 351(2)) – 12 months concurrent,

d) November 26, 2017 – Theft of motor vehicle (s. 333.1) – 6 months concurrent,

e) November 28, 2017 – Utter threat (s. 264.1(1)(a)) – 3 months consecutive,

f) December 6, 2017 – Dangerous operation of a motor vehicle (s. 249(1)(a)) – 4 months consecutive, 1 year driving prohibition,³

g) December 13, 2017 – Possession of property obtained by crime (s. 354(1)(a)) – 6 months consecutive (less credit of 5 months).

[46] Taking into account the totality principle, I shall reduce the cumulative custodial component from 89 months to 84 months. This five month reduction shall apply to the possession of property obtained by crime offence from December 12, 2017 (i.e. see paragraph 45(g) above). Effectively, going forward from today's date, Atkinson shall be subject to a period of imprisonment of 7 years or 84 months.

Non-Communication Order

[47] Under s. 743.21 of the Code, Atkinson shall be prohibited from contacting directly or indirectly Carol Hamilton, Bernie Hamilton and Brandon Lamoureux.

DNA

[48] I shall require Atkinson to submit a sample of his DNA under s. 487.04 of the Code.

Weapons Prohibition

[49] Atkinson shall be prohibited from possessing any weapon as that term is defined in the Code for life.

Victim Surcharges

[50] Given Atkinson's limited financial means, I shall deem him to be in default of payment of the victim surcharges to which he is subject. Any jail time he must serve as a result, I shall allow him to serve concurrently to the custodial sentence I have already imposed.

Conclusion

[51] Atkinson is the classic case of a repeat offender, who never had a chance from day one. His childhood was marred by rejection, instability, and deprivation. His struggle to gain acceptance led him down many a wrong path. He told the author of his Pre-Sentence Report that he has been shot three times, and stabbed on six occasions as a result of gang activity. His circumstances offer some contextual explanation for his criminality, but do not excuse it. Since adulthood, Atkinson has made bad choices time and again. For those poor decisions and the misery it has visited upon others, he must be held responsible.

[52] Atkinson has his work cut out for him. Truly, I hope that today, for his sake, is the beginning of the end of too long a life of crime.

Dated: October 31, 2018

_________________________________

The Honourable Mr. Justice M. March

Footnotes

¹ The Crown referred me to R. v. Renwick, [2014] ONCA 787 to point out that a 12 year sentence was imposed by the sentencing judge and upheld by the Court of Appeal for Ontario in a 'home invasion' case. However, Mr. Renwick, 21, used extreme violence in perpetrating his crimes. Atkinson and Commanda only bound the hands of the Hamiltons when armed with pellet guns, whereas Mr. Renwick used his loaded weapon to terrorize and beat the members of a family with young children. He dragged and struck the homeowner's 8 year old son. He held a loaded gun to the head of the 10 year old daughter. He beat and dragged the fleeing father back to his home. That is not our case.

² See R. v. Uniat, [2015] ONCA 197 at para. 7.

³ Crown and defence counsel did not address me with respect to a driving prohibition upon conviction for the offence of dangerous driving. I have accordingly imposed the period of one year to equate to what Atkinson will receive as a minimum period of driving suspension by operation of provincial legislation.