Court File and Parties

Ontario Court of Justice

Date: 2020-03-03

Court File No.: Halton 18-3632

Between:

Her Majesty the Queen

— And —

James Kohne Phixaykoune

Before: Justice D.A. Harris

Heard on: October 10, 2018 and November 13, 2019

Reasons for Judgment released on: March 3, 2020

Counsel:

• David King, for the Crown
• Mahvash Mirza, for the accused

Reasons for Judgment

D.A. HARRIS J.:

Introduction

[1] James Kohne Phixaykoune pled guilty to:

(1) Robbery using a firearm, contrary to section 344(1)(a) of the Criminal Code, and

(2) Discharging a firearm at a motor vehicle, being reckless as to the life or safety of another person, contrary to section 244.2(1)(b) of the Criminal Code.

[2] Both offences occurred on July 11, 2017 in the City of Burlington.

[3] These are indictable offences.

[4] He is before me today to be sentenced.

[5] Crown counsel suggested that I should sentence him globally to imprisonment for eight years less credit for pre-sentence custody.

[6] Counsel for Mr. Phixaykoune suggested that I impose a sentence of imprisonment for time served, being 735 days credited as three years and seven days, plus imprisonment for a further two years less one day, followed by probation for three years.

[7] 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 for life; and

(3) an order pursuant to section 743.21 of the Criminal Code prohibiting communication with his victims during the custodial portion of his sentence.

[8] I find that a sentence of imprisonment for eight years, less credit for pre-sentence custody 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 victims;
4. The background of Mr. Phixaykoune;
5. Pre-sentence custody;
6. St. Lawrence Valley Correctional and Treatment Centre; and
7. Analysis

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] 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.

[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.

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

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

[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.

[25] 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.

[26] These principles are of less importance however in cases like this. In R. v. Priest, supra, Rosenberg J.A. was careful to exclude "very serious offences and offences involving violence" from the principle that sentences for youthful first offenders should emphasize individual deterrence and rehabilitation.

[27] Even accepting that Mr. Phixaykoune is entitled to the shortest sentence possible consistent with the relevant sentencing principles, that sentence must still be proportionate to the gravity of his offences and it must be grounded in the facts, in the individual circumstances of his case including his actions and their effect on his victim.

[28] So, while I take rehabilitation into account, I recognize that denunciation and deterrence are the paramount sentencing goals here.

[29] The maximum sentence for robbery with a firearm is imprisonment for life. The maximum sentence for the discharging firearm offence is imprisonment for 14 years. The mandatory minimum sentence for each offence is imprisonment for five years.

[30] The mandatory minimums reflect Parliament's recognition of the increased seriousness of offences involving firearms. However, that has also been recognized by the courts.

[31] Armstrong J.A. wrote in R. v. Danvers that:

There is no question that our courts have to address the principles of denunciation and deterrence for gun related crimes in the strongest possible terms. The possession and use of illegal handguns in the Greater Toronto Area is a cause for major concern in the community and must be addressed.

[32] Crown counsel provided me with two endorsements of the Ontario Court of Appeal stating that the range of sentence for serious gun related offences is imprisonment for between seven and eleven years. He conceded however that this range should be treated as a guideline and not an absolute requirement.

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

The Offences

[34] On July 10, 2017, Mr. Phixaykoune responded to an online ad for sexual services. He met Ms. TD at the Motel 6 on the North Service Road in Burlington where they had sex for pay. Mr. Phixaykoune left her but returned later and took her to dinner in Niagara Falls. They returned to her room where he asked to stay the night, but she told him to leave. On his way out of the motel, he spoke to the clerk, RS and told him "Call the cops for the bitch in the room". He then left.

[35] He returned at 3:10 am, angry and upset. He told RS that the girl had stolen money from him. He wanted the room opened but RS said, 'no". Mr. Phixaykoune then told RS that, "We can do this the easy way or the hard way" and pulled out a silver handgun.

[36] RS then created a key, went to room 306 with Mr. Phixaykoune and opened the door. The room was empty as TD and her friends were sleeping in a different room. Room 306 was used solely for sex with clients.

[37] Mr. Phixaykoune told RS not to call the cops or he would come back for RS. He left in a motor vehicle. RS called the police. He had a video recording of Mr. Phixaykoune but did not know his identity.

[38] Later in the day, TD was checking out. JH was there to drive her home.

[39] Mr. Phixaykoune arrived and attempted to enter the motel. Motel staff held the doors closed. Mr. Phixaykoune told them to "get the fuck out of the way". He got by them and chased TD through the motel. He told her "I'm going to shoot you. I'm going to put a hole in you".

[40] She ran out of the motel and got into JH's motor vehicle and they began to drive off. Mr. Phixaykoune entered his motor vehicle and drove after them. He pointed a handgun at their motor vehicle and shot the car in the hood.

[41] JH and TD fled in their motor vehicle. Mr. Phixaykoune chased them in his. Their vehicle hit a curb damaging a wheel, but they got away from him and went to a garage where they called police.

[42] An employee at the motel provided the police with Mr. Phixaykoune's licence plate information. They then tracked him down. A search of his vehicle turned up the following:

1. An operating firearm with 8 live rounds in it;
2. A spent shell casing;
3. 3.6 grams of cocaine;
4. Two loose buds of marihuana weighing 4.5 grams;
5. 67 grams of marihuana resin in three containers.

[43] The firearm was found to be functional. The serial numbers had been filed off.

[44] Mr. Phixaykoune was subject to a probation order for three years from August 2014. He was not to possess any weapons. He was also subject to a weapons prohibition for 10 years.

[45] Nobody was injured.

[46] Mr. Phixaykoune was arrested and has been in custody ever since then.

Impact on the Victims

[47] I was not provided with a Victim Impact Statement from anyone.

Background of Mr. Phixaykoune

[48] I was provided with a new Pre-sentence Report plus a previous one, a psychiatric report prepared by Dr. Pearce, Mr. Phixaykoune's criminal record, certificates of completion of anger management courses at Maplehurst Correctional Complex, a Lock-Down Summary from Maplehurst and some information orally from his counsel.

[49] Unfortunately, these sources of information are sometimes contradictory. I will say more about this throughout this section of my Reasons for Sentence.

[50] Mr. Phixaykoune is currently 30 years old. He is the elder of two children.

[51] His parents have been married for over 30 years. He was raised in a loving and supportive family environment where his needs and wants were always met although he did not generally participate in extra-curricular activities geared toward pro-social development.

[52] Discipline in the home consisted of extra chores, including but not limited to having to tend to the needs of his grandmother who struggled with significant medical issues prior to her passing. Mr. Phixaykoune indicated no residual grief issues since her passing although his younger brother advised that he was negatively impacted by the loss of his grandmother, but tends to bottle his emotions and put on a "brave face".

[53] In school, there were mild behavioural issues resulting in multiple suspensions for fighting. He was streamed into basic classes due to reading deficits. Further his motivation towards his scholastic career was negatively impacted by his reading issues.

[54] He was diagnosed with Attention Deficit Hyperactive Disorder. According to the Pre-sentence Report, he was never treated pharmaceutically. His parents looked upon him as merely lazy and unfocused, and encouraged him to buckle down and work harder. According to Dr. Pearce, he was prescribed Ritalin which he took for four years. He stopped taking it as he "did not like taking pills." He did not experience any difficulties after discontinuing this medication.

[55] He was subject to bullying due to language translation issues. The primary language in the home was Lao. Unable to speak English initially, Mr. Phixaykoune was easily offended if he believed he was being made fun of. According to Dr. Pearce he denied that this had any adverse effect upon him.

[56] According to the Pre-sentence Report, all of this increasingly hampered his scholastic efforts, although he excelled in physical activities like volleyball and basketball.

[57] Despite obtaining his Ontario Secondary School Graduation Diploma, he has significant reading and comprehension deficits. Reporting limited access to educational program options, he says he now practices reading using magazines while in custody.

[58] Mr. Phixaykoune first worked in a grocery store in Hamilton at the age of 18. This was a part-time position that he worked at for two years. He described himself as a "good" employee. He denied experiencing any difficulties at his place of employment. When asked, he admitted that he was tardy at times. He eventually quit as he did not like dealing with his manager.

[59] At the age of 21, Mr. Phixaykoune obtained employment alongside his mother at Maple Leaf Foods. He worked on a full-time basis in the summer months for two years. He described the position as "good." He did not experience any work-related difficulties. He attended for work promptly and as required. He quit as the work was "too hard for me." That is, he found it physically arduous.

[60] Mr. Phixaykoune had otherwise only worked selling drugs. He began selling cocaine as of the age of 15. He sold "everything" from cocaine to ecstasy to methamphetamine. He reported that he was a street-level dealer who sold up to $700 of substances per day. He was on call 24 hours per day, 7 days per week.

[61] He reported that he left his parent's home at the age of 24.

[62] He has been supported by welfare since 2013. He applied for ODSP funding in 2016.

[63] This application is based on chronic pain associated with an automobile accident that fractured his spine in 2013. He stated that following the accident he was left incapacitated. Presently he describes difficulty sitting still for long periods of time, stiffness and general discomfort daily.

[64] Regarding future employment Mr. Phixaykoune "explained he felt his chronic pain and limited ability to read will likely negatively impact his options".

[65] Mr. Phixaykoune has been involved in three serious relationships and cohabited with two partners. He has been involved with 12 to 20 sexual partners, all female. Half of his sexual partners were prostitutes. He has attended at adult massage parlours on occasion as well.

[66] He became involved in his first serious relationship at age 11. They dated from grade 6 until grade 12. When asked, he admitted that they fought physically. When asked why his partnership ended, he stated, "We just broke up." He didn't maintain contact with her after the relationship dissolved.

[67] He started dating S when he was 21. They lived together for a year or two. Eventually, he ended the relationship albeit he was unsure why. He stated, "We were going out for so long and I did not like her anymore."

[68] Mr. Phixaykoune's third serious relationship was with T. He was 25 years of age when they started dating. She was two years older. They met at a hair salon after his mother introduced them. She worked as a hairdresser. They dated for two years before cohabiting. The relationship was described as "good." They remained together at the time of the interview and she continued to support him. They had a daughter who was born in January 2015. This was not a planned pregnancy. He reported that T was a "great" mother. When asked about his abilities as a father, he replied, "I am good, except I am in jail." His daughter remains in T's care. The child was born with autism. She required speech therapy to assist her. She has visited him in custody. T typically visits him in custody twice per month. He hopes to return to that relationship.

[69] T provides financial support to both the upkeep of their child and Mr. Phixaykoune as needed. She describes him as a good father. She advised that following two motor vehicle accidents she noticed a drastic change in his behaviour and moods, citing a developing addiction to pain relief medication. She expressed concern that he has been away from the home too long explaining their daughter has recently been diagnosed with severe autism and she is struggling to cope. Regular contact with the subject has continued during his incarceration, and she has noticed a significant positive change to his attitude and behaviour since being properly treated for his addiction.

[70] Mr. Phixaykoune has been inconsistent in his descriptions of his substance use or abuse.

[71] His 2018 Pre-sentence Report states:

No substance issues are reported as this time. The subject is currently participating in the methadone program, and is in the process of being weaned off after 1.5 years. Previous substance use was confirmed by the subject by way of opiates and marijuana for pain management.

No alcohol issues are indicated.

The subject is not interested in any additional assistance with regard to substance consumption reporting no cravings, and no concern for relapse should he be released into the community.

[72] His 2019 Pre-sentence Report states:

The subject has been inconsistent in his accounts regarding personal substance consumption and addiction. At initial contact in June 2018, the subject claimed he utilized opioids and marijuana for pain management only, denying any need for rehabilitative programming.

Choosing not to discuss the current matter(s) before Court as they were unresolved at first contact, the subject denied the use of cocaine and alcohol, and later minimized consumption claiming the over-medicated way he was treated for pain management issues caused him to "lose his mind".

The subject stated his participation in the methadone program continues; however, he reported he is actively reducing his daily dose with the assistance of institutional medical staff. Intending to wean himself off of the methadone program completely, the subject stated he continues to work with psychological services within the institution and has been prescribed mood stabilizing medication which has reduced emotional outbursts significantly.

Reporting he has been attending Alcoholics Anonymous while in custody, the subject is resistant to any additional rehabilitative programming.

[73] Dr. Pearce writes:

When asked, Mr. Phixaykoune opined that he had not abused alcohol or drugs. He first consumed alcohol at the age of 14. He drank 24 beers every three days. He managed to stop drinking when he wanted to. He felt that his use was not problematic. In the summer of 2017, he was consuming up to 12 beers every three days. He denied social complications flowing from use of alcohol albeit he experienced amnesia secondary to over-consumption. He did not experience withdrawal symptoms. He had, however, repeatedly driven while under the influence of alcohol though was not caught doing so. He admitted that when he was consuming, he was not available to some of his customers and thus was not able to sell drugs when intoxicated.

Mr. Phixaykoune first smoked marijuana at the age of 11 or 12. He denied regular use of this substance. He typically smoked about twice per week. He denied experiencing social, occupational or legal complications flowing from the use of marijuana.

Mr. Phixaykoune admitted to using cocaine recreationally on several occasions. He claimed he did not particularly enjoy the substance thus never used daily. He felt he did not experience any difficulties as a result of cocaine use. He had never tried crack cocaine.

Mr. Phixaykoune used ecstasy at times albeit usually less than once per month. He had tried crystal methamphetamine on two occasions though this substance did not cause him any hardship.

With respect to opioid use, Mr. Phixaykoune was first prescribed opioids by his family physician given his back pain. He was prescribed one Percocet tablet per day although he subsequently purchased opioids illegally. He did not sell these to his customers. At most, he took 25 Percocet tablets per day. He had snorted heroin on two occasions. He never injected opioids or any other drug intravenously. He began methadone maintenance therapy (MMT) in 2014. The highest dose he was prescribed was 75 mg per day. He denied selling or diverting his methadone. He was granted carries for up to five days at a time. In terms of other opioids, he had experimented with, he had made use of Tylenol #3. He did not use morphine or fentanyl.

Mr. Phixaykoune had not participated in substance abuse treatment programming, albeit he reported that he wanted to. He had not frequented a detoxification facility. He had not attended Alcoholics Anonymous (AA) or Narcotics Anonymous (NA) meetings.

[74] Mr. Phixaykoune has also been inconsistent in his acceptance of responsibility for, and his expression of remorse, for his offences.

[75] In the 2019 Pre-sentence Report he stated he had not had the gun with any intent to discharge it, claiming possession was for personal safety due to alleged pre-existing 'street beefs'.

[76] Dr. Pearce wrote: "When asked about regrets, he replied, "Shooting my gun off at this person. But I did not try to kill them, just scare them."

[77] Dr. Pearce also wrote:

He described his own personality as "nice and kind." He reported that his friends would say he is "kind but crazy sometimes too. When I snap, I just snap." He admitted to having a temper and informed that that had always been the case. Triggers to anger included "things that piss me off." When asked if he wanted to change any aspect of his character, he informed that he struggled to read. He was "never good at it." He added that he also talks to himself quite a bit, out loud; this started in grade 6. He had trouble resisting same. He tended to voice his thoughts out loud. No one had ever expressed concern in that regard. When asked about regrets, he replied, "Shooting my gun off at this person. But I did not try to kill them, just scare them." He otherwise articulated no regrets. His future plans included raising his daughter and "getting over my back problems." When asked how he planned to accomplish same, he informed that he'd make more frequent visits to his physician. He did not articulate any other future plans. His supports included his parents, brother, his cousin and his girlfriend, T.

[78] Dr. Pearce provided the following summary of Mr. Phixaykoune's psychiatric history:

Mr. Phixaykoune had not been involved with mental health professionals, save and except for while incarcerated. He informed that he was diagnosed with bipolar disorder, albeit claimed he was not prescribed medication for that condition. He also said that the jail psychiatrist had informed him that he suffers from "psychoaffective disorder." He had not been admitted to a psychiatric unit of a hospital.

Mr. Phixaykoune had attempted suicide on three occasions, the first being at his age of 13. At that juncture he overdosed on ecstasy with the intent of ending his life. He vomited but was not taken to hospital. At the age of 25, he had an argument with his girlfriend and then impulsively cut his wrists. He did not want to die at that time but he was "so upset." He could not recall details of his third suicide attempt albeit he reiterated that he had never been hospitalized for mental health reasons. Mr. Phixaykoune admitted to self-harming on several occasions, "to feel pain." This began in his mid-adolescence and occurred "every blue moon." He typically used scissors to cut himself. He had not developed scars as a result of self-harming. He did not discuss same with others.

When asked whether he believed he suffered from a mental illness, Mr. Phixaykoune replied in the affirmative. He spoke about an incident that occurred at the age of 11, at which age he suddenly placed the family car into neutral; it rolled down a hill and crashed. He also spoke about cutting a computer wire at age 13, causing the computer to blow up. He stated, "Something in my head told me to do it. I should have ignored it. It was too strong." After being involved in destructive acts, he "gets euphoria or some shit like that." When asked what condition he may suffer from, he replied "Bipolar, ADD." He could not articulate any symptoms of the former condition.

When asked whether he required treatment, Mr. Phixaykoune replied in affirmative. He stated, "I keep on hearing voices in my head. I talk to myself. Since I was a kid. It gets me into trouble, like when I cut the computer wire." He spoke about once hearing voices that "told me to kick a soccer ball and hit my mom, so I did." That occurred sometime between the age of 8 and 11. The voice he heard in his head was his own; he stated, "It is more like I'm discussing things with myself constantly." He agreed that these were likely just thoughts running through his mind albeit at times, he found them distressing. They occurred throughout the day and stopped when he fell asleep. The thoughts were not racing. When asked if they were occurring at the time at the interview, he replied in the affirmative. He had trouble stopping his thoughts.

[79] The 2019 Pre-sentence Report states that:

Mental health issues have now been confirmed. Actively working with institutional psychological services, the subject has been diagnosed with Bipolar Disorder and is currently receiving mood stabilizing medication(s) that appear to have had a positive impact. Family members stated the subject maintains eye contact, is more engaged, and is utilizing appropriate language filters in his responses. Noting in the past when the subject had difficulty comprehending information the subject would exhibit anger and frustration but is now actively listening and asking questions to clarify information provided.

[80] I note however that these self-reported suggestions that Mr. Phixaykoune has been diagnosed with bipolar disorder is contradicted by Dr. Pearce's own diagnosis which begins "it does not appear that he suffers from a major mental illness, such as schizophrenia or bipolar disorder".

[81] According to Dr. Pearce, he does suffer from a serious polysubstance use disorder. He also meets criteria for a mixed personality disorder with borderline, antisocial and narcissistic traits.

[82] Dr. Pearce wrote further:

At the time of the alleged offences, he was experiencing significant stressors. His methadone dose had been reduced some days before after he vomited and improperly used carries provided to him. He was ingesting non-prescribed opioids too as well as other substances, such as cocaine. He was frustrated that his complaints about back pain weren't being taken seriously by medical practitioners. Given his personality structure, he developed what he felt was a close bond with his victim as he learned that she also had a "hard life." She listened to him and shared some personal details with him, which he mistook that for affection. It is possible or even likely that withdrawal symptoms contributed to some extent to his irritability and behaviour at the time of the offences but the main factor leading to the allegations was his personality disorder.

[83] Dr. Pearce made the following recommendations:

Mr. Phixaykoune should participate in intensive substance abuse treatment programming. He should avoid all substances of abuse and submit samples of his urine routinely to ensure he's abstinent. He shouldn't associate with those with a criminal record and he should be obliged to disclose his finances to anyone monitoring him in the community, to help prevent re-offence. His relationship should be monitored to ensure that his partner and child (if he reunites with T) aren't exposed to domestic violence. He may benefit from family violence programming too.

In terms of his mental health, he may wish to taper and eventually discontinue prescribed psychotropic medication. If he chooses to do so, he should be monitored by a psychiatrist periodically to ensure his mood remains stable. He should be followed by a single-family physician and obtain the services of a multidisciplinary pain clinic, to assist him with his complaints of chronic pain. He may wish to continue with MMT and that would likely be beneficial.

Alternatively, Suboxone could be prescribed. He shouldn't be prescribed substances with an abuse potential. If his emotions continue to be erratic and he has trouble coping, dialectical behaviour therapy (DBT) may be of assistance.

This therapy, which is delivered in both individual and group sessions, will help him identify his emotions and develop coping skills.

Mr. Phixaykoune shouldn't have access to any weapons. Given his history, he'll require assertive and close monitoring. He should partake in programs to target antisocial values and attitudes along with anger management therapy. He shouldn't associate with prostitutes.

Finally, this gentleman should further his education and/or return to gainful employment. That would help in stabilizing his sense of self.

Overall, the prognosis is guarded.

[84] Mr. Phixaykoune has a criminal record consisting of the following:

Jan. 27, 2011 Hamilton, ON

• (1) Fail to Comply with Recog.
• (2) Possession of a Schedule II Substance
• (3) Fail to Comply with Undertaking

Suspended Sentence & Probation 1 year on each charge conc. (27 days PSC)

Jul. 17, 2012 Hamilton, ON

• Fail to Comply Probation

Suspended Sentence & 9 mos. Probation

Aug. 22, 2014 Hamilton, ON

• (1) Assault with a Weapon
• (2) Utter Threats

62 days & 3 years' Probation (298 days PSC) & Weapons Prohibition s. 109

Nov. 19, 2018 Hamilton, ON

• (1) Utter Threats
• (2) Utter Threats
• (3) Fail to Comply Probation

1 day on each chg. conc. (80 days PSC credited as 120 days)

Dec. 18, 2018 Hamilton, ON

• (1) Break, Enter & Commit
• (2) Possession of property
• (3) Fail to comply probation

5 mos. PSC

[85] Mr. Phixaykoune reported the following to Dr. Pearce regarding some of these earlier offences:

With respect to what Mr. Phixaykoune claimed to be his first criminal conviction, he reported that a mechanic had "ripped [him] off ' and overcharged him by $300. Thus he broke into his shop and stole the mechanic's laptop and a car "turbo." He later reported that this charge remained before the court.

With respect to what he said was an assault cause bodily harm conviction, Mr. Phixaykoune reported that he was insulted by the victim while at a convenience store a couple years ago. The victim reportedly said to him, "Asian people have small egg rolls." While he "should have ignored it," he went out to his vehicle and retrieved a baseball bat. He hit the victim over the head with the bat. The victim suffered a cut to his head. He was arrested at the scene. He received an eight-month custodial sentence. When asked why he kept a bat in his vehicle, he replied, "For protection."

Mr. Phixaykoune admitted he had been previously subjected to court-imposed conditions, reportedly after he was caught smoking marijuana in a vehicle. He was charged criminally for that and was to keep the peace and be of good behavior. However, he ended up assaulting the victim at the convenience store thus believed he had been charged with failing to comply with conditions of an undertaking.

[86] I note that the last two entries on his record occurred after he was taken into custody for the offences before me. Accordingly, I am not treating them as prior convictions.

[87] With respect to Mr. Phixaykoune attempting to rehabilitate himself while in custody, the 2019 Pre-sentence Report states that:

he has been confirmed to have completed the 5-session anger management program while in custody. The Ministry developed program is intended to give individuals general information about anger management and rehabilitative options.

[88] Two certificates were made exhibits certifying completion of Intensive Anger Management Training. These certificates were dated October 3, 2019 and October 24, 2019.

[89] As I indicated earlier, I have received inconsistent information regarding his participation in substance abuse programs while in custody and his attitude towards further treatment or counselling in the future.

[90] The 2018 Pre-sentence Report states:

The subject is not interested in any additional assistance with regard to substance consumption reporting no cravings, and no concern for relapse should he be released into the community.

[91] The 2019 Pre-sentence Report states:

Reporting he has been attending Alcoholics Anonymous while in custody, the subject is resistant to any additional rehabilitative programming.

[92] Dr Pearce wrote:

Mr. Phixaykoune had not participated in substance abuse treatment programming, albeit he reported that he wanted to. He had not frequented a detoxification facility. He had not attended Alcoholics Anonymous (AA) or Narcotics Anonymous (NA) meetings.

[93] The submissions of counsel for Mr. Phixaykoune rely heavily on the time he has spent in pre-sentence custody and on his prospects of rehabilitation should he be incarcerated in the St. Lawrence Valley Correctional & Treatment Centre. Accordingly, I will now address both of these subjects.

Pre-Sentence Custody

[94] Mr. Phixaykoune has been in custody at Maplehurst since July 11, 2017. That totals 967 days. 232 days have been "used" elsewhere. He therefore has 735 days of pre-sentence custody with respect to the charges before me.

[95] I am satisfied that, in light of R. v. Summers, he is entitled to enhanced credit under section 719(3.1) of the Criminal Code at a rate of 1.5 to 1 to reflect the lost eligibility for remission or parole.

[96] The Supreme Court of Canada held that:

The loss of early release, taken alone, will generally be a sufficient basis to award credit at the rate of 1.5 to 1, even if the conditions of detention are not particularly harsh, and parole is unlikely. Of course, a lower rate may be appropriate when detention was a result of the offender's bad conduct, or the offender is likely to obtain neither early release nor parole.

[97] Crown counsel argued that I should not give this enhanced credit on the basis that Mr. Phixaykoune had chosen to remain in pre-sentence custody as long as he did simply in order to accumulate sufficient "dead time" that I could then sentence him to time served plus two years less one day, thereby allowing him to serve his sentence in the St. Lawrence Valley Correctional & Treatment Centre, a provincial reformatory.

[98] Counsel cited the decision of the Ontario Court of Appeal in R. v. McCue as ruling that it was inappropriate to adjourn the proceedings for that purpose.

[99] I note also the very recent decision of the Court of Appeal in R. v. Codina which held that:

Delay caused by an accused person is a proper basis to deny enhanced credit for the time spent in pre-sentence custody or on stringent bail terms. It constitutes "wrongful conduct" (para. 48) or "bad conduct" (para. 71) which was identified, in R. v. Summers, … as a basis for limiting enhanced credit for pre-sentence custody.

[100] I am not prepared to find Mr. Phixaykoune guilty of bad conduct or wrongful conduct for requesting adjournments that I granted.

[101] Further, I have no evidentiary basis to conclude that Mr. Phixaykoune "is likely to obtain neither early release nor parole".

[102] So, I am satisfied that I should credit the 735 days at the rate of 1.5 to 1 which works out to three years and seven days.

[103] Counsel for Mr. Phixaykoune did not vigorously request further credit to reflect the amount of time that he spent subject to lockdowns that occurred during his detention. She did however provide me with a summary from Maplehurst addressing this.

[104] I do note that the Supreme Court of Canada left this option of further enhanced credit open, with the statement quoted above at paragraph 96 as well as further stating that "individuals who have suffered particularly harsh treatment, such as assaults in detention, can often look to other remedies, including under s. 24(1) of the Charter".

[105] Since then, the Ontario Court of Appeal has recognized that "lockdown" conditions can constitute harsh presentence incarceration conditions warranting further mitigation of a sentence.

[106] In R. v. Duncan, the Court of Appeal stated that:

in the appropriate circumstances, particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit referred to in s. 719(3.1). In considering whether any enhanced credit should be given, the court will consider both the conditions of the presentence incarceration and the impact of those conditions on the accused. In this case, there was evidence that the appellant served a considerable part of his presentence incarceration in "lockdown" conditions due to staffing issues in the correctional institution. There was, however, no evidence of any adverse effect on the appellant flowing from the locked down conditions. Indeed, some of the material filed on sentencing indicates that the appellant made positive rehabilitative steps during his presentence incarceration.

[107] The Court of Appeal took a similar position in R. v. Kizir, where the Court stated:

There is no one formula or approach to determining credit for harsh conditions. The sentencing judge was clear that he was using a "broad brush" approach. The sentencing judge was entitled to adopt the methodology he did. Applying that methodology, he considered the additional 90 days of credit (above what a 1.5:1 calculation would permit) to appropriately reflect the harsh conditions presented by the lockdowns. We would defer to that conclusion.

[108] With respect to the need for evidence supporting this, I note the comments of the Supreme Court of Canada in R. v. Summers, supra that:

As well, when evaluating the qualitative rationale for granting enhanced credit, the onus is on the offender, but it will generally not be necessary to lead extensive evidence. Judges have dealt with claims for enhanced credit for many years. The conditions and overcrowding in remand centres are generally well known and often subject to agreement between the parties; there is no reason this helpful practice should not continue. There is no need for a new and elaborate process -- the [Truth In Sentencing Act] introduced a cap on the amount of enhanced credit that may be awarded, but did not alter the process for determining the amount of credit to apply.

[109] The conditions in Maplehurst are indeed well known to this court. It is very telling that the document that Maplehurst routinely provides to courts is called a " Lock-Down Summary " which is then subtitled "(Enhanced Sentencing – Pre-Trial Custody)".

[110] However, the Lock-Down Summary provided to me in this case shows that Mr. Phixaykoune was on full lock-down on only 21 occurrences and on partial lock-down on 42 occurrences. His counsel seemed to concede that this was not sufficient to warrant further enhanced credit. I am certainly satisfied that it is not sufficient to warrant further enhanced credit.

[111] Further, Mr. Phixaykoune knew full well what the situation was in Maplehurst when he chose to remain there in order to accumulate further pre-sentence custody. I am satisfied that it would not be appropriate for him to then complain that conditions in Maplehurst were worse than those in the penitentiary and that he should be given enhanced credit to compensate for that.

[112] Accordingly, I am not prepared to allow any further enhanced credit beyond the standard 1.5:1.

St. Lawrence Valley Correctional & Treatment Centre

[113] I was provided with information materials from the St. Lawrence Valley Correctional & Treatment Centre. These materials informed me of the following.

[114] The Secure Treatment Unit (STU) of the St. Lawrence Valley Correctional & Treatment Centre, is located in Brockville, Ontario, and opened in October 2003.

[115] It is specifically designed to provide comprehensive specialized multi-disciplinary assessment, treatment and post-treatment planning services to provincial sentenced adult male offenders who may suffer from a major mental illness. MCSCS operates the unit in accordance with the Ministry of Correctional Services Act, and has contracted with the Royal Ottawa Health Care Group (ROHCG) to provide expert clinical services for a select group of "special needs offenders". The STU has been designated by the Minister of Health and Long-Term Care as a "Schedule 1" psychiatric facility under the Mental Health Act.

[116] It accepts sentenced male inmates requiring mental health treatment from across the province. In order to be considered for admission to St. Lawrence Valley, inmates must meet the following criteria:

• Confirmed diagnosis of or symptoms strongly suggestive of a major/serious mental illness (SMI) such as a psychotic disorder, major mood disorder including major depression and bi-polar disorder or severe anxiety disorder including PTSD, obsessive compulsive disorder, social phobia, generalized anxiety disorder, or agoraphobia.

• Impairment in basic living skills, instrumental living skills or social functioning as the result of the mental illness.

• Inmates with personality disorders, intellectual disabilities and substance abuse will be considered only if they also have a major mental illness.

[117] Specialized programs are offered in core criminogenic areas of sexual offending, substance abuse, and anger management in both regular programs and programs adapted for inmates with lower intellectual functioning. Domestic Violence programming is also offered. In addition, specialized programs in non-core areas are offered on the topics of: Preparation for Treatment, Relaxation, Understanding Your Illness, Medication & Symptom Management, and Self Esteem and are adapted as required by the needs of group members. Institution work is offered as part of a vocational program that may lead to a food handler certificate or other recognition. The above programs are offered by staff of the Royal Ottawa Health Care Group. In addition, education programs both high school and basic literacy and NILO programs are offered.

[118] Inmates completing their sentence at St. Lawrence Valley are assisted with discharge planning and returned to their originating institution for release. Upon being pre-approved, they may receive permission for a family member to pick them up.

Analysis

[119] 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.

[120] 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."

[121] General deterrence and denunciation are clearly the most important principles of sentence in this case, warranting a long sentence of imprisonment. However, I must not lose sight of the other principles.

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

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

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

[125] There are two distinct offences which occurred nine hours apart.

[126] Both involved the use of a firearm.

[127] It would be illegal for anyone to possess such a firearm unless they also possessed certain licences and permits. Mr. Phixaykoune did not possess any such licences or permits. On the contrary, he was subject to an order specifically prohibiting him from possessing any firearms. He was also subject to a probation order that provided that he was not to possess weapons, including firearms.

[128] The serial number had been filed off his firearm.

[129] Mr. Phixaykoune brought that firearm to a public place. I am satisfied that he brought it for the purpose of intimidating other people.

[130] There is no evidence that he felt threatened by anyone at the motel. In any event, had any threat been present, he simply had to stay away in order to avoid such threat.

[131] He did use the firearm to intimidate RS when committing the robbery.

[132] He also used it to further intimidate RS when he threatened retribution if RS called the police.

[133] With respect to the second offence he threatened to shoot TD, "to put a hole in her". Then he actually fired the gun at the fleeing car and hit it with a bullet. There can be no clearer statement of intimidation than that. Further, he put the two people in the car at risk of significant injury or even death.

[134] Neither offence can be described as spontaneous.

[135] He had left the motel albeit in an unhappy state. He decided to return later, and he decided to take his gun with him as he re-entered the motel.

[136] After the robbery, he again drove away. He decided to return nearly nine hours later. Again, he decided to take his gun with him. He then decided to fire the gun at a vehicle that was attempting to flee.

[137] He had a great deal of time to reflect on each of his actions ahead of time but still proceeded as he did.

[138] None of the victims filed a Victim Impact Statement. Despite this, I have no hesitation in concluding that these were terrifying and traumatic events for all of them.

[139] Mr. Phixaykoune's criminal record is another aggravating factor. This includes convictions for assault with a weapon, threatening and breaches of court orders. He had been sentenced to imprisonment for the equivalent of a year.

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

[141] Mr. Phixaykoune is a relatively young man.

[142] 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.

[143] Mr. Phixaykoune expressed remorse for what he has done when he addressed the court. On the other hand, he also used that opportunity to blame what he did on "the drugs". I would accept that "the drugs" have contributed greatly to Mr. Phixaykoune's situation but they are not his only problem. His inability to control his temper when he feels disrespected by someone has also been a recurrent theme with him. He has been at best inconsistent in accepting full responsibility for what he did, and he has shown very little, if any, insight into the seriousness of his actions or empathy for his victims.

[144] The mitigating factors present in this case are eclipsed by the aggravating aspects of the offences to such a degree that I am satisfied that each offence, standing alone would warrant a sentence of imprisonment for six years.

[145] I am also satisfied that consecutive sentences are appropriate. The offences do not arise out of the same event or even the same series of events. Mr. Phixaykoune left the scene of the robbery and returned nine hours later. RS was the victim of the robbery. TD and JH were Mr. Phixaykoune's targets in the latter offence. I am satisfied that separate legal interests are implicated in the two offences.

[146] This however must be tempered by the principle of totality. I am satisfied that in this case I should also consider the other sentences imposed on Mr. Phixaykoune while he was in custody on the charges before me. Even doing that I am satisfied that the appropriate global sentence is imprisonment for eight years, as suggested by Crown counsel.

[147] The final issue is to determine what effect, if any, the possibility of Mr. Phixaykoune serving his sentence at St. Lawrence Valley should have on my final decision.

[148] I referred earlier to the fact that counsel for Mr. Phixaykoune had asked me to adjourn these proceedings on a number of occasions so as to allow Mr. Phixaykoune to spend sufficient time in pre-sentence custody so that I would be able to legally impose a sentence of imprisonment for less than two years.

[149] Crown counsel opposed this process throughout. Early on, he brought the Ontario Court of Appeal decision in R. v. McCue, supra, to my attention and the attention of counsel for Mr. Phixaykoune.

[150] I chose to interpret the reasons in that decision as not prohibiting such adjournments outright and in the circumstances of this case, allowed the adjournments.

[151] I did however take note of the passage where the Court of Appeal wrote:

…even if an adjournment to allow an accused to accumulate sufficient "dead time" so that he or she can be sent to the reformatory rather than the penitentiary might be appropriate in some circumstances, there was no evidence justifying an adjournment for that purpose in this case. If an accused asserts that the nature of the facility in which he or she may be imprisoned is sufficiently important to fixing the appropriate sentence to merit a considerable delay in sentencing, the onus is on the accused to put the necessary information before the trial judge identifying the benefits to the accused flowing from incarceration in a particular institution or in the reformatory system. The material must allow the trial judge to make an informed decision as to the potential placement of an accused within the reformatory or penitentiary systems, the programs available at the various institutions to which the accused may be sent, and the merits of the contention that the principles of sentencing would be better served by placing the accused in one system as opposed to the other.

[152] I also ensured that counsel for Mr. Phixaykoune took note of this, that it would be necessary for her to provide me with evidence of the following if I was to accede to her position on sentence. I would need evidence that:

(1) St. Lawrence Valley Correctional and Treatment Centre could provide Mr. Phixaykoune with the necessary treatment and counselling to possibly rehabilitate him; and

(2) It could do so better than any place in the penitentiary system; and

(3) Mr. Phixaykoune would be eligible to go there; and

(4) Mr. Phixaykoune was motivated to take advantage of this.

[153] I am not satisfied that I have been provided with the required evidence.

[154] It would appear that St. Lawrence Valley Correctional & Treatment Centre probably could provide Mr. Phixaykoune with the necessary treatment and counselling to possibly rehabilitate him. On the other hand, it might possibly not be able to do so. I would have thought that it would have been a simple thing for counsel to obtain more definite information regarding this from Dr. Pearce. He is a highly qualified forensic psychiatrist who has worked with the criminal justice system in Ontario for a good many years.

[155] I would have also thought that he would have been able to provide insight as to whether Mr. Phixaykoune would be a good candidate for that program.

[156] He certainly should have been able to comment on what programs might be available in the federal penitentiary system. His Curriculum Vitae shows that he was a forensic psychiatric consultant with Correctional Services of Canada from 2008 to 2015.

[157] Unfortunately, Dr. Pearce did not address any of these questions directly.

[158] He did state that "it does not appear that he suffers from a major mental illness". This is one of the prerequisites for admission into St. Lawrence Valley. It would appear then that Mr. Phixaykoune is not a good candidate for admission into this program.

[159] Dr. Pearce also recommended that Mr. Phixaykoune be closely monitored following his release from custody. I accept Crown counsel's submission that this can be better achieved through the parole system than probation.

[160] Dr. Pearce recommended that Mr. Phixaykoune should submit samples of his urine routinely to ensure he is abstinent from substances of abuse. This too can be required of a parolee but cannot be enforced by a probation officer.

[161] The same comments apply with respect to ongoing monitoring by a psychiatrist and by one family physician.

[162] I have no evidence before me that St. Lawrence Valley offers anything that is not available somewhere in the penitentiary system.

[163] Finally, the evidence with respect to Mr. Phixaykoune's motivation is ambivalent at best. Depending on which report I rely on, he is either attending AA while in custody or he is not. The same can be said about whether he intends to follow through with more counselling or not.

[164] I note that he has been in custody since July 2017. Despite this, he did not avail himself of available anger management courses until October 2019, just before he would be appearing before me for submissions on sentence. This does not reflect someone who is highly motivated to take advantage of programs made available to him.

[165] The other inconsistencies in what he says in the various reports also make it impossible to rely on his statements as being correct.

[166] In light of all this, Mr. Phixaykoune has failed to take advantage of the opportunity to satisfy me that the principles of sentencing would be better served by placing him in St. Lawrence Valley as opposed to the penitentiary. He has fallen far short of what needed to be shown.

[167] I am satisfied that a penitentiary term of imprisonment for eight years is the appropriate global sentence.

Sentence

[168] With respect to the robbery, I sentence Mr. Phixaykoune to time served of 735 days pre-sentence custody credited as three years and seven days, plus imprisonment for a further three years less seven days.

[169] With respect to the charge of discharge firearm, I sentence him to imprisonment for two years consecutive.

[170] I also make the following ancillary orders.

[171] These are primary compulsory offences and I make an order pursuant to section 487.051 of the Criminal Code, authorizing the taking from Mr. Phixaykoune of any number of samples of one or more bodily substances, including blood, that are reasonably required for the purpose of forensic DNA analysis.

[172] I make an order pursuant to section 109 of the Criminal Code prohibiting Mr. Phixaykoune from owning, possessing, or carrying any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance. This will be a lifetime prohibition.

[173] I make an order pursuant to section 743.21 of the Criminal Code prohibiting any contact or communication by him with RS, TD or JH during the custodial portion of the sentence.

[174] Finally, on consent, I have signed the forfeiture order provided to me.

Released: March 3, 2020

Signed: Justice D.A. Harris