Court File and Parties

Ontario Court of Justice

Date: 2019-05-15

Court File No.: Halton 18-2254 & 18-4650

Between:

Her Majesty the Queen

— AND —

Wayne William Valeriote

Before: Justice David A. Harris

Heard on: March 21, 2019 and April 9, 2019

Reasons for Judgment released on: May 15, 2019

Counsel

Michael Godhino and Monica Mackenzie — counsel for the Crown

Susan Pennypacker — counsel for the defendant Wayne Valeriote

Reasons for Judgment

D.A. HARRIS J.:

Introduction

[1] Wayne William Valeriote pled guilty to two counts of robbery and one count of assault causing bodily harm.

[2] Robbery is an indictable offence. Crown counsel elected to proceed by indictment with respect to the assault causing bodily harm offence.

[3] Mr. Valeriote is before me today to be sentenced.

[4] Crown counsel suggested that I should sentence him to imprisonment for 7½ years.

[5] Counsel for Mr. Valeriote suggested that I impose a sentence of imprisonment for 6 years.

[6] Both counsel agreed that I should make the following ancillary orders:

1. a DNA order;
2. a weapons prohibition pursuant to section 109 of the Criminal Code.

[7] I find that a sentence of imprisonment for 6½ years is the appropriate sentence here.

[8] My reasons for this are set out under the following subject headings:

1. The fundamental purpose and principles of sentencing;
2. The offences;
3. The impact on the victims;
4. The background of Mr. Valeriote;
5. Analysis;
6. Enhanced credit for pre-sentence custody.

Fundamental Purpose and Principles of Sentencing

[9] The fundamental purpose of sentencing as expressed in section 718 of the Criminal Code is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation; deterring the offender and other persons from committing offences; separating offenders from society, where necessary; assisting in rehabilitating offenders; providing reparation for harm done to victims or to the community; and promoting a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[10] The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender.[1]

[11] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence.[2]

[12] Doherty J.A. of the Ontario Court of Appeal stated in R. v. Hamilton that:

The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence.[3]

[13] He went on to state that:

The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime.[4]

[14] He then quoted Rosenberg J.A. who had previously described the proportionality requirement in R. v. Priest:

The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.[5]

[15] Proportionality is the fundamental principle of sentencing, but it is not the only principle to be considered.

[16] The offences had a significant impact on the victims, considering their ages and other personal circumstances, including health and financial situation. Section 718.2(a)(iii.1) of the Criminal Code provides that this is an aggravating circumstance, and that the sentence should reflect that.

[17] Section 718.2(c) provides that where consecutive sentences are imposed the combined sentence should not be unduly long or harsh.

[18] The totality principle requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. I must review the aggregate sentence and consider whether the aggregate sentence is "just and appropriate". A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of a sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender "a crushing sentence" not in keeping with his record and prospects.[6]

[19] In doing this, I should first fix appropriate individual sentences to arrive at a total sentence and then adjust the total sentence to ensure that it does not exceed what is just and appropriate.[7]

[20] With respect to consecutive sentences, section 718.3(4)(b)(i) provides that:

The court that sentences an accused shall consider directing … (b) that the terms of imprisonment that it imposes at the same time for more than one offence be served consecutively including when (i) the offences do not arise out of the same event or series of events.

[21] There is a broad discretion to impose consecutive sentences if separate legal interests are implicated in the various offences.[8]

[22] I must specifically consider section 718.2(d) which provides that "an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances".

[23] I must also consider the impact of section 718.2(e) which provides that "... all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders."

[24] The Supreme Court of Canada discussed the application of this section in Gladue v. The Queen and said that section 718.2(e) applies to all offenders, and that imprisonment should be the penal sanction of last resort. Prison is to be used only where no other sanction or combination of sanctions is appropriate to the offence and the offender.[9]

[25] In R. v. Priest, supra the Ontario Court of Appeal made it clear that much of this is simply a codification of the existing law, especially with respect to youthful first offenders. That case made it clear however that this principle is of less importance in cases involving very serious offences and offences involving violence.[10] The offences before me are both very serious and involve violence.

[26] The Supreme Court also noted in Gladue that section 718 requires a sentencing judge to consider more than the long-standing principles of denunciation, deterrence and rehabilitation. A sentencing judge must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender.[11]

[27] The maximum sentence for robbery is imprisonment for life.

[28] The maximum sentence for assault causing bodily harm is imprisonment for 10 years when Crown counsel proceeds by indictment.

[29] Before I can apply the above principles however I must examine the offences here, the impact that they had on the victims and the background of Mr. Valeriote.

The Offences

[30] Both robberies occurred on June 22, 2018. Both involved pharmacies.

[31] Mr. Valeriote entered the first one wearing a hoody pulled up over his head, plus a bandana and gloves. He was holding what appeared to be a gun. It was not a real firearm but it looked like one. A number of customers were present. Mr. Valeriote told them to hand over their cell phones and they did so. The pharmacist gave him between $100 and $120 in cash. Mr. Valeriote took narcotics from the shelves and left.

[32] The second robbery was very similar. This time however he held the gun to the head of one employee and struck another on the head with the handle of the gun. There was a struggle and they both fell to the ground. Mr. Valeriote announced, "I have a gun. I'm going to kill you." A customer intervened and Mr. Valeriote was held for police who arrested him.

[33] He was held for a bail hearing. On August 10th, 2018, he was released on a Recognizance of Bail with a number of conditions including "Do not possess or consume any unlawful drugs or substances".

[34] On December 23rd, 2018 he was at home with his mother in Oakville. During the night, he consumed cocaine and fentanyl. This led to a psychotic incident during which Mr. Valeriote became convinced that the home had been broken into and that there were intruders within the property. When his mother did not listen to his instructions to her in regard to this, he grabbed her by the hair and dragged her around their home. This caused her head to strike multiple items leading to a head injury that would later require medical assistance. She was diagnosed with a concussion.

[35] At one point he had gone to the kitchen and removed three steak knives from a drawer and armed himself as he went through the home.

[36] Members of the Halton police responded to the home and encountered Mr. Valeriote out front. He was armed with the knives and in an erratic and psychotic state.

[37] He dropped the knives, was arrested and again held for a bail hearing. He has been in custody since then.

The Impact on the Victims

[38] I received Victim Impact Statements with respect to each of the offences.

[39] One robbery victim wrote:

I never realized the gun was fake at the time. I was literally scared to death, but wanted to live thinking of my family. It was one of the most terrible things in my life. I thought this area is safe, but there is nothing 100% safe place anywhere. I think it should not happen again.

[40] Another wrote, "I was terrified of the gun which I believed to be real".

[41] Mr. Valeriote's mother wrote:

I visited Wayne today at Maplehurst and talked to my son who is clean and sober. On Dec. 23/18 it was an addict in a psychotic state who grabbed me. His actions when under the influence shows me he had hit rock bottom. I will continue to support him on his journey to live a sober life and send informative lessons to help him rehabilitate his life. Knowing that someone loves you and will support you is imperative to assist someone to turn their life around. I make a point to visit him frequently, write to him and he calls me on the phone. I want him to know he is not alone in his battle for recovery. I told him this is a turning point in his life. His father, brother and friends hate Wayne the addict but love the Wayne we know he can be. We have discussed extensively about how to use this time in incarceration to gain skills for employment and I believe cognitive behaviour therapy will be a tool to adjust his way of thinking and his ability to adapt to become a member of the community. Prison is social isolation, boredom and a violent place to spend your time. Our love is unconditional for Wayne and we want the real Wayne back in our family. I know this will happen.

Background of Mr. Valeriote

[42] I have been given a psychiatric report prepared by Dr. Y. Naidoo which provided me with the following information.

[43] Mr. Valeriote is now 32 years old.

[44] He was born in Kitchener, Ontario. His parents described a very happy baby who met all of his developmental milestones.

[45] The family frequently travelled internationally during the first three years of his life. Mr. Valeriote's parents divorced when he was seven years of age. Following the divorce he was primarily raised by his mother though he would see his father frequently.

[46] Mr. Valeriote has one brother, who is an aeronautical engineer.

[47] Finances had previously been a source of stress between Mr. Valeriote and his father. Their relationship at present is stable.

[48] Mr. Valeriote attended high school in Oakville. He was a mediocre student until his senior year when he put forth more effort and gained admission to the University of Toronto. He says that he graduated with a double major in English and Philosophy, while his parents reported that he was actually three courses short from meeting graduation requirements.

[49] Mr. Valeriote has worked a variety of jobs since he was 14 years of age. He mostly worked for temp agencies performing general labour duties. He also worked as a projectionist and in a warehouse.

[50] He has never been married and he has no dependents.

[51] In January 2018, he started dating a woman to whom he later became engaged. She moved into Mr. Valeriote's mother's house in February 2018. She subsequently passed away from a drug overdose on August 23rd, 2018. Mr. Valeriote met with a grief counsellor during the fall of 2018 to help him through the loss.

[52] According to Mr. Valeriote, he has experienced depression and anxiety since he was a teenager. He reported having seen a psychiatrist for about ten sessions several years ago, but he cannot recall her name. He stated that he has been taking antianxiety and antidepressant medications, as well as Suboxone to help him cope with his heroin addiction.

[53] Mr. Valeriote was brought to the Emergency Department at Oakville Trafalgar Memorial Hospital on December 23, 2018, the day of the assault on his mother. It appeared that Mr. Valeriote was experiencing cocaine intoxication, which manifested in the form of persecutory delusions and visual hallucinations. It was concluded that there was no imminent risk of violence or self-harm at that time, although there was an "ongoing risk of repeated substance abuse and the likelihood of unpredictable behavior with the likelihood of risk to himself and others." He was released from the hospital into police custody.

[54] Mr. Valeriote has referred to himself as a "junkie", and reported a history of using marijuana, LSD, mushrooms and ecstasy when he was younger. At certain points in his life he would drink up to 12 beers or 26 ounces of alcohol daily. His substance abuse escalated after he suffered a spiral metacarpal fracture when he was play-fighting with a friend during the last year of his undergraduate studies. To cope with his injuries, he was prescribed percocet and he became addicted to opioids. He moved on to cocaine, fentanyl, and heroin, which he continued to use until his arrest in December 2018.

[55] Mr. Valeriote reported that he had been on Methadone treatment for about 12 months five years ago, but is now on Suboxone, which he prefers. He has never attended a residential or hospital-based program to address his substance use, but he says that he knows he needs help and he is willing to engage in any help he can receive.

[56] Mr. Valeriote and his mother co-own a house in Oakville that they have been residing in for the past 12 years. In November 2017, he was released after spending four years in the Beaver Creek Federal Penitentiary. After being charged for the robberies, he was released on a Recognizance of Bail in June 2018 with his mother acting as surety. He was using cocaine, heroin, and fentanyl while on bail.

[57] According to his mother, Mr. Valeriote spent the majority of his time in his room, sleeping during the day, and using drugs at night. He was heavily financially dependent on his mother since he had no employment or other source of income. He was receiving weekly grief counselling during the fall of 2018 following the loss of his fiancée to an overdose on August 23, 2018.

[58] The psychiatric report concluded that:

In my opinion, while at the time of the index offences Mr. Valeriote was able to appreciate the nature and quality of his actions, he was unable to rationally consider the wrongfulness of his actions. However, due to the fact that he suffered from a self-induced, transitory drug-related psychotic disorder during the index offences, it is my opinion that Mr. Valeriote is not eligible for exemption from criminal responsibility on account of a mental disorder pursuant to Section 16(1) of the Criminal Code.

[59] Mr. Valeriote had a prior conviction for robbery on June 26, 2014. He was sentenced to imprisonment for 1,244 days over and above 216 days pre-sentence custody.

Analysis

[60] Doherty J.A. aptly described my task here when he began the judgment in R. v. Hamilton, supra by stating:

The imposition of a fit sentence can be as difficult a task as any faced by a trial judge.[12]

[61] Sentencing is not an exact science. The determination of the sentence that is just and appropriate in a given case is "a highly individualized exercise that goes beyond a purely mathematical calculation."[13]

[62] General deterrence and denunciation are clearly the most important principles of sentence in this case, but I must not lose sight of the other principles.

[63] I must craft a sentence that is proportionate to the gravity of the offences committed and the degree of responsibility of Mr. Valeriote and yet, at the same time, one that is responsive to his unique circumstances.

[64] I must consider both the aggravating factors and the mitigating factors when determining the appropriate sentence here.

[65] The aggravating factors can be found in the offences.

[66] He robbed two pharmacies.

[67] Any robbery, in and of itself is serious.

[68] These robberies involved the use of an imitation firearm which terrified the victims. This was exacerbated in the one robbery where Mr. Valeriote stated "I have a gun. I'm going to kill you." In addition, Mr. Valeriote actually struck that victim on his head.

[69] On both occasions, he had his face masked.

[70] I also note that pharmacies are being targeted more and more often by addicts seeking drugs. Despite this, many do not appear to have sophisticated security measures in place. As a result, pharmacy employees may appropriately be described as vulnerable persons who are entitled to protection by the courts.

[71] Mr. Valeriote had a previous record for robbery. He was sentenced to the equivalent of imprisonment for four years. That trip to the penitentiary did not motivate him to change his ways. Instead, he committed the robberies before me within seven months of his release.

[72] When he was released on bail with respect to those charges, the plan was that he would live with his mother who would assist him in seeking out treatment. He did go for addictions counselling but then he fell back into using the drugs that induced the psychotic episode that led him to assault his mother, causing her serious injuries.

[73] I am concerned that unless Mr. Valeriote stops using illegal drugs, he will continue to commit further serious offences in the future.

[74] There are also a number of mitigating factors in this case.

[75] Mr. Valeriote is a relatively young man.

[76] He pled guilty. I take this to be an acceptance of responsibility as well as an expression of remorse. Most importantly, it made it unnecessary for the victims to testify. They were spared the ordeal of revisiting their victimization in a public courtroom.

[77] He has repeatedly expressed remorse for what he has done.

[78] He has the support of his family which improves his prospects of rehabilitation. I remain cautious in this regard however in light of his past failures.

[79] After considering all of the above, I am satisfied that the appropriate sentence with respect to the robberies is imprisonment for six years.

[80] Both robberies were committed on the same day and in relatively close physical proximity to each other. I am satisfied that the sentences for the robberies should be served concurrently.

[81] The appropriate sentence with respect to the assault causing bodily harm to his mother is imprisonment for six months.

[82] The assault did not arise out of the same event or series of events as the robberies. It occurred months later and involved different people in a different place.

[83] Separate legal interests are implicated in the various offences here.

[84] I am satisfied that the sentence for the assault charge should be consecutive to that for the robberies.

[85] I am also satisfied that the aggregate