Court File and Parties

Ontario Court of Justice Date: February 6, 2023 Court File No.: Toronto (West) 21-55000905

BETWEEN:

HIS MAJESTY THE KING

— AND —

Neelkanth Shah

Before: Justice Maylor

Heard: Submissions heard on December 15, 2022 Oral Reasons for Sentence delivered on January 20, 2023 Written Reasons released on February 6, 2023

Counsel: Laurie Gonet, for the Crown Adam Weisberg and Samiyyah Ganga, for the accused

Maylor J.:

Introduction

[1] During the early months of 2021, Mr. Shah, age 18, decided to become a bank robber. With each successive robbery he became more emboldened. As all crime sprees must come to an end so did this one. It ended badly. In his final robbery he enlisted an accomplice. Knives were brandished. An officer was accidentally injured. A bank teller was traumatized. Now Mr. Shah faces a jail sentence as a young adult first offender.

The bank robberies

[2] The facts which Mr. Shah did not dispute are as follows:

[3] On January 25, 2021, he attended the Scotiabank located at Bloor Street in Toronto. He was wearing a black mask, black hat, black jacket, black pants, and gloves.

[4] Mr. Shah walked up to a bank teller and placed a note on the counter while keeping his right hand in his pocket. The note read: "I have a gun in my pocket. I am not afraid to shoot to kill". No firearm was observed. Mr. Shah told the teller not to say or do anything to draw attention. He received $7581.75 and made good his escape.

[5] On March 3, 2021, Mr. Shah attended the Royal Bank of Canada on Bloor Street in Toronto. He was wearing a mask and clothing similar to that worn in the first robbery.

[6] Once again, he approached the teller with a hold up note. It read, "I have a gun, no calls, no beeps, give me money, no money you die." He had his hand in his pocket. No firearm was observed. The teller provided $500, and Mr. Shah exited the bank.

[7] On March 26, 2021, the defendant attended the TD Bank located on Lakeshore Boulevard, in Toronto. Again Mr. Shah was wearing a black mask, dark clothing, and gloves. This time he was accompanied by an accomplice who was similarly attired. They were armed with large kitchen knives.

[8] They approached the teller and passed her a threatening note. It indicated that they wanted money, they had a gun and would cause harm to anyone who did not comply.

[9] While the accomplice was watching from near the front entrance, Mr. Shah went around the counter armed with his knife demanding money from the tellers. He took loose coins and cash. At that point two plain clothes police officers, from the Toronto Police Service, entered the bank. One gave chase to the accomplice who was eventually captured, and the other officer D.C. Mathew Saras, tackled and apprehended Mr. Shah.

[10] On the trial of the issue concerning whether the defendant purposely stabbed the police officer, this court found that the two-centimetre-deep wound to the left side of Officer Saras’ chest was accidental. The injury occurred when the officer tackled the defendant. Three staples were required to close the wound.

Victim Impact Statement

[11] A victim impact statement was provided to the court on behalf of Ms. Elena Golovinskaia, the teller who dealt with Mr. Shah and his accomplice on March 26, 2021. The incident left her with stress, depression, sleeplessness, and flashbacks. After seeking psychological treatment, she was unable to return to work and lost that regular income.

Circumstances of the defendant

[12] A wealth of material was filed on behalf of the defendant. This included a psychological report, a certificate for completing an anger management course, high school report card, apology letters to the police and bank tellers, as well as 18 letters of support from family, friends, and associates.

[13] The background information provided in the material reveals that Mr. Shah was born in Mumbai India to birth parents who abandoned him. As a 1-year-old child he was adopted. When he was three years old his parents divorced. They had an acrimonious relationship. Over the years Mr. Shah spent time living with each of them. His father remarried when he was 9 years old. His adoptive parents have been in court throughout these proceedings.

[14] Despite being academically capable, Mr. Shah experienced difficulties in high school for a variety of reasons including: a perception of racism on the part of teachers, being relegated to a troublemaker’s study group, jealousy towards his peers with more disposable income, marijuana use, and conflict with his parents. He dropped out of school and worked in a retail job he disliked.

[15] While feeling a sense of hopelessness and disappointment, he was envious of his peers moving forward with their lives. Mr. Shah explained that after reading about bank robberies he rationalized that he could rob banks, gain financial wealth, and move forward in his life.

[16] In the nearly 2 years since his arrest and release on bail Mr. Shah has taken positive steps towards rehabilitation. He attended therapy sessions to gain better insight into his flawed thinking that led to serious criminal behaviour. He completed an anger management course. A psychological evaluation report showed that he has expressed significant disappointment in himself and regret for the emotional harm he caused the bank employees. He also regrets the unintended physical harm to the police officer.

[17] Due to the strict terms of his house arrest release order, he was unable to leave his home unless in the continuous presence of one of his parents who were his sureties. He had to wear a GPS ankle bracelet for his movements to be monitored. His parents accompanied him to several pro-social rehabilitative activities. He trained in martial arts at his local gym to exercise and focus on self-discipline. He volunteered at the same gym. He started a small lawn care business. And importantly he studied and obtained his high school diploma.

Position of the Parties

[18] The Crown seeks a range of sentence between three to four years’ incarceration for the three bank robberies committed over a three-month time span. The Crown argues that any credit for the defendant’s strict bail should be at a minimum, so that the actual time to serve in jail would be at least three years.

[19] The defence argues for a 31-month sentence when considering the defendant’s age as well as the aggravating and mitigating factors. With credit for presentence custody and the house arrest bail, the defence submits that the actual sentence should be two years.

Legal Analysis

[20] In imposing the sentence on Mr. Shah, I must take into account the following objectives as provided in s.718 of the Criminal Code:

The fundamental purpose of sentencing is to protect society, and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate the offender from society, when necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[21] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[22] Acknowledging that there is a wide range of sentences for armed robberies, the Crown and defence presented several cases in support of their respective positions. All of the cases emphasize that the courts treat bank robberies as serious matters that require lengthy incarceration. Bank employees are particularly vulnerable. Given its seriousness, bank robberies call for denunciation and deterrence as paramount considerations, although regard must be had for the importance of rehabilitation for a young adult first offender. Even when a custodial sentence is appropriate it is a well-established principle of restraint for young adult first offenders that imprisonment in the penitentiary should be as short as possible and tailored to the individual circumstances of the offender: R v Priest, [1996] O.J. No. 3369 (C.A.) and R v Borde (2003), 63 O.R. (3d) 417 (C.A.)

[23] Sentencing remains a highly individualized process and each case turns on its facts and the unique circumstances of the offender. The decision of R v Christopher [2020] O.J. No. 3206 (OCJ) provides a fulsome and comprehensive review of sentencing issues and principles, as well as comparable precedents for bank robberies committed by young adult first offenders. In the Christopher case the remorseful young adult, with good rehabilitation prospects, pled guilty to his participation in robbing six banks and attempting to rob a seventh. He was sentenced to 50 months imprisonment.

[24] As sentencing is driven by the distinguishable facts, it is worth noting R v Lloyd 2020 ONCJ 463. In Lloyd Justice De Filippis was dealing with an 18-year-old with no criminal record who plead guilty to a take-over style bank robbery with an imitation firearm brandished at customers and bank employees, followed by a dangerous police chase. Justice De Filippis considered that he was dealing with a young adult first offender who was sincerely remorseful with good rehabilitation prospects. He accepted the defence position of 28 months less the available credit.

[25] Additionally, I must consider the principle of parity which is provided in s.718.2 (b) of the Criminal Code. A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. It applies as between co-accused offenders charged with the same crime. To that end I must consider to some extent that the accomplice who was also armed with a knife, when involved in only the third robbery, received an 18-month conditional sentence with house arrest as a young adult first offender. However, I also must bear in mind that parity between co-accused offenders cannot be relied upon to impose an unfit sentence such as one that is too low.

The Sentence

[26] The aggravating factors are as follows:

(1) The defendant brandished a knife in the third robbery which contributed to Ms. Golovinskaia’s emotional trauma and the accidental wounding of Officer Saris. (2) He obtained $8,081.75 in the first 2 robberies.

[27] The mitigating factors include:

(1) His sincere expression of remorse for his criminal actions. In personally addressing the court, he apologized to the bank tellers, the police and spoke of being a disappointment to his parents. He described his “stupid actions” as exhibiting laziness, selfishness, dishonesty, and an unhealthy desire for money. He accepts full responsibility for his actions. He is ready for his punishment although fearful of prison. (2) His heartfelt letters of apology to Ms. Golovinskaia and Officer Saris are part of the materials filed with the court. (3) He has made significant rehabilitative gains since the offences and has immersed himself in pro-social endeavours. (4) A psychological report from Dr. Chayim Newman points to his remorse, rehabilitative gains and positive potential. (5) The 18 letters of reference filed with the court from family, friends and associates, show the positive social network surrounding him now and when he is released from prison.

[28] In considering the necessary principles of sentencing as well as the aggravating and mitigating factors, I accept the defence position of 31-months in the penitentiary as being a fit sentence less credit for pre-sentence custody and the strict house arrest bail.

[29] Although there is no issue that time in jail while awaiting sentence should be subtracted from the overall sentence, both the Crown and defence dispute the quantum of credit for strict house arrest bail pursuant to R v Downes (2006), O.J. No 555 (CA). In the Downes case Justice Rosenberg held that the "time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance." The Crown argues that the defendant could have sought a bail variation to ameliorate his difficult circumstances. The defence position is that given the defendant was initially facing a charge of attempt murder of a police officer, which was downgraded to aggravated assault before trial, the relative success of a bail variation was unlikely. The defence position is not unreasonable. Both the Crown and the defence had good reason to have a trial on the issue of aggravated assault for which the defendant was acquitted. Significant injury to a police officer during the course of his lawful duty cannot be taken lightly and is not usually negotiated away as part of a plea bargain.

[30] Mr. Shah has made significant progress towards rehabilitation while on bail. He sought out counseling, secured occasional work, volunteered his time and has proven that he has potential to be a contributing member of society. He made the best of a difficult situation, but that does not mean that his house arrest did not take a toll on him emotionally and psychologically. Less than two years of being under strict house arrest may have benefited him in terms of getting his life back on the right path, but at such a young age, it must have been undoubtedly challenging for him. The psychological report speaks to his intense experience with social alienation and feelings of loneliness, which must have been exacerbated by the terms of his strict release order.

[31] Between April 9, 2021, and January 20, 2023, Mr. Shah has been on a strict GPS monitored house arrest for 652 days or 21 months and 12 days, which is a mitigating factor for which he should be credited 6 months and 9 days or 189 days. He should also get credit for 21 days pre-sentence enhanced custody which was 14 days actual jail. In total he is getting credit for 7 months. In the result his remaining sentence will be 2 years in the penitentiary.

[32] In addition to the period of incarceration Mr. Shah will be subject to a free-standing restitution order for the money he obtained through robbery, pursuant to s.738 and s.739.2 of the Criminal Code. Mr. Shah is ordered to pay a total of $8,081.75 within 4 years of his release date from custody at a rate not less than $2020 annually. This will be apportioned as follows:

(1) $7581.75 to the Scotiabank located at 2930 Bloor Street West, Toronto; and (2) $500.00 to the Royal Bank of Canada located at 2946 Bloor Street West, Toronto

[33] Ancillary orders are that pursuant to s.109 of the Code there will be a firearms and weapons prohibition for life. A DNA order will be issued as robbery is a primary designated offence. Also, the victim fine surcharge of $200 for each indictable offence for a total of $600 will apply.

Justice D. Maylor