WARNING

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

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.5(1) or (2) of the Criminal Code. These subsections and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.5(1) or (2), read as follows:

486.5 ORDER RESTRICTING PUBLICATION — VICTIMS AND WITNESSES

(1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(2) JUSTICE SYSTEM PARTICIPANTS — On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is in the interest of the proper administration of justice.

(2.1) OFFENCES – The offences for the purposes of subsection (2) are

(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;

(b) a terrorism offence;

(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or

(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).

(3) LIMITATION – An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

486.6 OFFENCE

(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: June 7, 2019

Court File No.: Halton 17-3665

Between:

Her Majesty the Queen

— AND —

Abdelghafour Houem

Before: Justice D.A. Harris

Heard on: February 1, 2019 and May 15, 2019

Reasons for Judgment released on: June 7, 2019

Counsel:

• Emily Roda, counsel for the Crown
• Peter Willis, counsel for the accused Abdelghafour Houem

Judgment

D.A. HARRIS J.:

INTRODUCTION

[1] Abdelghafour Houem pled guilty to robbery.

[2] This is an indictable offence.

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

[4] Crown counsel suggested that I should sentence him to imprisonment for 18 months.

[5] Counsel for Mr. Houem suggested that I give him credit for time spent subject to bail conditions, and impose a sentence of imprisonment for six months.

[6] Both counsel agreed that this should be followed by probation for three years.

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

1. a DNA order;
2. a weapons prohibition order pursuant to section 109 of the Criminal Code;
3. an order prohibiting contact with his co-accused during the custodial portion of his sentence.

[8] I find that a sentence of imprisonment for 10 months, followed by probation for two years is the appropriate sentence here.

[9] 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 victim;
4. The background of Mr. Houem; and
5. Analysis
6. Credit for time spent subject to bail conditions.

FUNDAMENTAL PURPOSE AND PRINCIPLES OF SENTENCING

[10] 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.

[11] 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.

[12] 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.

[13] 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.

[14] 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.

[15] 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.

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

[17] 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".

[18] 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."

[19] 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.

[20] 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.

[21] The primary objectives in sentencing a first offender are individual deterrence and rehabilitation. Except for very serious offences and offences involving violence, these objectives are not only paramount but best achieved by either a suspended sentence and probation or a very short term of imprisonment followed by a term of probation.

[22] Before imposing a custodial sentence upon a first offender the sentencing Court should explore the other dispositions which are available and only impose a custodial sentence where the circumstances are such, or the offence is of such gravity that no other sentence is appropriate.

[23] I do note here that the offences before me are very serious ones.

[24] The Supreme Court also noted in Gladue that section 718 now requires a sentencing judge to consider more than the long-standing principles of denunciation, deterrence and rehabilitation. Now 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. As a general matter restorative justice involves some form of restitution and reintegration into the community.

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

[26] Bank employees are a vulnerable segment of society.

[27] Both counsel referred me to particular sentencing cases. None of these are identical to this case however, and while their statements of principles may be helpful, they were of little use in determining the appropriate period of imprisonment here.

[28] Before I can apply the above principles however I must examine the offence here, the impact that it had on the victims, and the background of Mr. Houem.

THE OFFENCE

[29] Although he pled guilty to one robbery only, Mr. Houem admitted to committing two, and I was provided with the facts for both robberies.

[30] On November 21, 2017, at approximately 9:50 am, Mr. Houem drove Kadir Aidarus and K.O. (a young person under the Y.C.J.A.) to a Royal Bank of Canada in Burlington for the purpose of committing a bank robbery. He was driving a motor vehicle which was registered to his mother. Aidarus and K.O. exited the vehicle wearing black clothing, with hoods over their heads, and their faces concealed by bandanas. They were last observed by Mr. Houem headed towards the bank. A few minutes later, they exited the bank and ran to the vehicle. Mr. Houem then drove away from the scene.

[31] At approximately 10:40 a.m., Mr. Houem drove them to a TD Canada Trust in Oakville for the purpose of committing a second bank robbery. The other two again exited the vehicle wearing black clothing, with hoods over their heads, and had their faces concealed by bandanas. They were observed by Mr. Houem headed towards the bank.

[32] A few minutes later, they exited the bank and entered the vehicle. Mr. Houem then drove away from the scene.

[33] Inside the vehicle Mr. Houem observed one of the males carrying a sum of money and heard one of the males acknowledge that they had taken the money from the bank. Mr. Houem was not aware of the quantum of money which was later determined to be $1,370.

[34] Mr. Houem then drove to a plaza in Mississauga. Police tracked them there by means of a GPS device attached to some of the money. They observed the three young men discarding clothing and property in a dumpster beside the motor vehicle. Police searched the dumpster and found an imitation firearm wrapped inside a pair of gloves which were worn during the robbery. The clothing worn by Aidarus and K.O. in the robberies was also located in the dumpster. Recorded bills were located in K.O.'s coat pocket, along with the GPS tracking device.

[35] The three were arrested and provided rights to counsel. Mr. Houem gave a videotaped statement to police admitting that he was the driver of the motor vehicle at the time of the robberies.

IMPACT ON THE VICTIMS

[36] The victims chose not to submit a Victim Impact Statement.

BACKGROUND OF MR. HOUEM

[37] I have been provided with a Pre-Sentence Report and several letters. One was an apology letter from Mr. Houem to me. Another was an apology to his victims. His parents wrote another letter. Finally there were letters from his employer and from Sheridan College. All of this provided me with the following information.

[38] Mr. Houem is now 21 years old.

[39] He was born in Morocco. He immigrated to Canada in 2010 along with his parents and younger sister, landing in Montreal, and later moving to the Mississauga, Ontario in 2015.

[40] The family moved to Canada for "employment opportunities" and a "better lifestyle". While in Canada, both his parents have held gainful employment.

[41] Mr. Houem is a Canadian citizen.

[42] His childhood and current relationship with his family were and are "healthy and loving".

[43] He has a close relationship with his younger sister aged 13, reportedly fulfilling the "big brother" role.

[44] He is single and has no dependents.

[45] He received his high school diploma twice, once in Montreal, in French and upon moving to Mississauga he had to complete an English equivalency test at a secondary school located in the Meadowvale area of Mississauga in order to qualify for college. He has been attending college since January, 2018 studying a computer science course (3 years in duration).

[46] His first job was working at an "old people's home" as a kitchen aid for a year and a half. He later secured employment at a fast food establishment for one year. He has been working at a retail outlet in Mississauga for over two years, working part time hours on the weekends.

[47] He started smoking marijuana during his late adolescent years, smoking "twice a month". He last consumed an alcoholic beverage over a "year and a half ago".

[48] He presented himself in a cooperative and respectful manner for the preparation of the Pre-sentence Report.

[49] He was remorseful. He declared "if I could go back in time I would change everything" and that his actions were "something outside of my persona, this was not something I would think I would ever be involved in". He is committed to making better life choices to help avoid conflict with the law and would have no problems attending counselling to help facilitate this way of thinking.

[50] He does not participate in organized activities or religious institutions. The majority of his time is occupied via school work and attempts to attend the gym as much as possible to de-stress with schooling.

[51] His parents are very supportive and stated that the robberies were a complete surprise to them and that they never suspected their son could be involved in anything like this.

ANALYSIS

[52] 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.

[53] 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."

[54] 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.

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

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

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

[58] Mr. Houem robbed two banks.

[59] His role was that of "getaway driver" and he did not know that the others had an imitation gun, but he was still both a knowing and important participant in both robberies.

[60] His awareness of what was going on had to be much greater when the second robbery occurred. After all, he had seen his cohorts in crime run into the first bank with their heads hooded and their faces covered, before running out again with money that they did not have before.

[61] There is no evidence before me of actual violence or even explicit threats of violence by those two. However, the facts are such that I am satisfied that there was an implicit threat present here.

[62] Even without a Victim Impact Statement, common sense tells me that events like this will have a tremendous emotional impact on the victims receiving such threats.

[63] There are also a number of mitigating factors here.

[64] Mr. Houem is a very young man.

[65] Mr. Houem 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.

[66] Mr. Houem has consistently expressed his remorse, starting with his initial confession to the police.

[67] He had no prior criminal record.

[68] He has been bound by bail conditions since his release and has not offended further.

[69] He is attempting to better himself by both going to college and working part-time in order to finance that.

[70] He has the support of his family.

[71] I have repeatedly reminded myself that I must consider "all available sanctions other than imprisonment that are reasonable in the circumstances" and that Mr. Houem "should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances".

[72] I also adopt the comments of Wilkie J. in R. v. Stoutley, that:

Jail is always the last resort, and where it is imposed as here, principally, to satisfy the need for general deterrence and denunciation, its impact, in my view, comes in large measure from the fact of meaningful incarceration, rather than the precise length.

[73] Even, taking these mitigating factors into consideration, I find that a sentence of imprisonment for 10 months is the minimum necessary to denounce this behaviour and to deter any like-minded individuals from committing the same offence.

CREDIT FOR TIME SPENT SUBJECT TO BAIL CONDITIONS

[74] Counsel for Mr. Houem argued that I should give him credit for time spent subject to bail conditions. He referred me to four cases in support of this. I found however that all of these cases were either distinguishable from the present case or were inconsistent with the principles set out in R. v. Downes where the Ontario Court of Appeal stated that:

In summary, credit for pre-trial bail conditions should be approached in the following manner:

• Time spent on stringent pre-sentence bail conditions, especially house arrest, is a relevant mitigating factor.

• As such, the trial judge must consider the time spent on bail under house arrest in determining the length of sentence.

• The failure of the trial judge to explain why time spent on bail under house arrest has not been taken into account is an error in principle.

• The amount of credit to be given for time spent on bail under house arrest is within the discretion of the trial judge and there is no formula that the judge is required to apply.

• The amount of credit will depend upon a number of factors including, the length of time spent on bail under house arrest; the stringency of the conditions; the impact on the offender's liberty; the ability of the offender to carry on normal relationships, employment and activity.

• Where the offender asks the trial judge to take pre-sentence bail conditions into account, the offender should supply the judge with information as to the impact of the conditions. If there is a dispute as to the impact of the conditions, the onus is on the offender to establish those facts on a balance of probabilities in accordance with s. 724(3) of the Criminal Code.

[75] Mr. Houem has been on bail subject to a Recognizance for 562 days.

The terms of that Recognizance required that he:

1. Reside with your surety at ….. and abide by all household rules

2. Remain in your residence daily between the hours of 09:00 p.m. and 06:00 a.m. EXCEPT

   • for purposes of travelling directly from employment
   • unless you are in the presence of at least one of your sureties

3. Do not contact or communicate in any way either directly or indirectly, by any physical, electronic or other means, with the following: H.Z.; C.G.; Kadir Aidarus; K.O. EXCEPT in the presence of or through legal counsel

4. Do not attend any place where you know any of the person(s) named above to live, work, go to school, or any place you know the person(s) to be EXCEPT for required court appearances.

5. Do not attend at TD Canada Trust located at 2325 Trafalgar Road, Oakville, ON; Royal Bank of Canada located at 2025 William O'Connell Boulevard, Burlington, ON

6. Do not possess any weapon(s) as defined by the Criminal Code of Canada

7. Do not possess or consume any unlawful drugs or substances (refer to the Controlled Drugs and Substances Act) except with a valid prescription in your name

8. Do not attend at any banks within the province of Ontario.

[76] These do not qualify as stringent bail conditions. The curfew, in particular, should not have been terribly onerous for someone whose time is occupied by "school work and attempts to attend the gym".

[77] Further, I was not supplied with any information as to the impact of the conditions on Mr. Houem and I am not prepared to speculate about any such impact.

[78] In light of these circumstances, I am not reducing the custodial portion of Mr. Houem's sentence as a result of the time spent subject to the bail conditions. I am satisfied though that I should reduce the duration of his probation order by one year.

[79] He did spend 3 days pre-sentence custody. In light of R. v. Summers, he is entitled to enhanced credit under section 719(3.1) of the Criminal Code to reflect the lost eligibility for remission or parole.

SENTENCE

[80] For all of the above reasons, I sentence Mr. Houem to time served, being 3 days pre-sentence custody credited as 4 days, plus imprisonment for 296 days, followed by probation for two years.

[81] The terms of the probation will require that Mr. Houem:

(1) keep the peace and be of good behaviour;

(2) appear before the court when required to do so by the court;

(3) notify the court or the 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;

(4) report in person to a probation officer within two working days of being released from custody and after that, at all times and places as directed by the probation officer or any person authorized by the probation officer to assist in his supervision;

(5) cooperate with his probation officer. He must sign any releases necessary to permit the probation officer to monitor his compliance and he must provide proof of compliance with any condition of this order to his probation officer on request;

(6) not contact or communicate in any way, either directly or indirectly, by any physical, electronic, or other means, with Kadir Aidarus or K.O. except in the presence of or through legal counsel or as required in court;

(7) not attend at the TD Canada Trust located at 2325 Trafalgar Road, Oakville, Ontario or the Royal Bank of Canada located at 2025 William O'Connell Boulevard, Burlington, Ontario;

(8) attend and actively participate in all assessment, counselling, or rehabilitative programs as directed by the probation officer, and complete them to the satisfaction of the probation officer;

(9) make reasonable efforts to seek and maintain suitable work or attend school or an educational or training program approved of by your probation officer.

[82] I also make the following ancillary orders.

[83] Robbery is a primary designated offence and I make an order pursuant to section 487.051 of the Criminal Code, authorizing the taking from Mr. Houem of any number of samples of one or more bodily substances, including blood, that are reasonably required for the purpose of forensic DNA analysis.

[84] Pursuant to section 109 of the Criminal Code, for the next 10 years Mr. Houem is prohibited from owning, possessing, or carrying any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance.

[85] Finally, I make an order pursuant to section 743.21 of the Criminal Code prohibiting any contact or communication by him with Kadir Aidarus or K.O. during the custodial portion of his sentence except in the presence of or through legal counsel or as required in court.

Released: June 7, 2019

Signed: Justice D.A. Harris