DATE: April 25, 2024 ONTARIO COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

— AND —

ANDREW BURKE

Before: Justice Derek Ishak

Heard on: October 5, 2023, February 14, April 4 and April 25, 2024

Reasons for Judgment released on: April 25, 2024

Counsel: B Guertin.............................................................................................. counsel for the Crown T Davidson........................................................... counsel for the accused Andrew Burke

ISHAK J.:

I. Overview of the case

[1] On October 5, 2023, Mr. Burke plead guilty to four robberies. Three were of banks which occurred on April 22, 25, and May 16, 2022, with the other being of a restaurant on April 26, 2022.

[2] As to the bank robberies, they can be summarized as follows: Mr. Burke, while disguised, would approach a bank teller, provide a threatening note demanding money, and then flee with whatever sums were handed over. The notes would always indicate or imply that Mr. Burke was armed with a gun.

[3] From these financial institutions, Mr. Burke made good his escape with, chronologically, the following sums of money: $200.00, $890.00, and $1,000.00, for a total of $2,090.00.

[4] As to the robbery of the restaurant, Mr. Burke entered the establishment and approached the front counter. He demanded money from the employee behind the counter stating, “give me your money, I have a gun”. A customer in the restaurant confronted Mr. Burke, questioning whether he really had a gun, and took a picture of him. Mr. Burke left the restaurant without obtaining any money.

[5] Mr. Burke was then located nearby by police. He was wearing the same clothing he had worn in the restaurant. He was arrested and held for a show cause hearing. He was released on May 2, 2022, and placed on a residential surety bail.

[6] Mr. Burke was arrested for the other robberies on May 18, 2022, and has remained in custody since that time.

II. Sentencing Principles

[7] The Criminal Code instructs that the goal of any criminal sentence is to protect society, contribute to respect for the law and help maintain a just, peaceful, and safe society.

[8] The fundamental principle of sentencing is to impose a sanction that is proportionate to the gravity of the offence committed and the degree of responsibility of the person who committed the offence. Ultimately, the sentence I impose must be tailored to Mr. Burke’s circumstances and the circumstances of the offences he committed.

[9] As with all sentencing cases, I am guided by the purpose and principles of sentencing set out in the Criminal Code which list the factors a sentencing judge must consider before imposition of the punishment on an offender found guilty of a crime. Deterrence and denunciation must be balanced against Mr. Burke’s prospects of rehabilitation.

[10] In determining the appropriate sentence, I must consider any relevant aggravating or mitigating circumstances.

III. Position of the Parties

[11] The Crown submits that a 15-year jail sentence is the fit and appropriate sentence for Mr. Burke. His criminal record and proclivity for committing robberies places the protection of the public at the forefront in this sentencing, which, the Crown argues, can only be achieved by his lengthy separation from society.

[12] Counsel for Mr. Burke argues a 5–6-year jail sentence, given his addiction issues, plea of guilt and criminal antecedents is what I should impose.

IV. Analysis

A. Personal Circumstances of the Offender

[13] Mr. Burke is currently 60 years old and was 58 when these offences were committed. He was born and raised in Jamaica until the age of seven. He is the youngest of five siblings; two brothers and a sister are deceased, while another sister remains in Florida. Both his parents have been deceased for many years. Mr. Burke has a 36- or 37-year-old daughter residing in British Columbia whom he has not spoken to in a couple of years.

[14] Mr. Burke grew up in a stable and loving home, free from physical or substance abuse. It was while in high school, from which he graduated in 1981 in Mississauga, that Mr. Burke, then 16 years old, was first introduced to drugs and alcohol. Shortly thereafter began his life of criminality which has continued to this day nearly unabated.

[15] His addiction began with beer and marijuana, and then escalated to hard liquor, hash, LSD and cocaine. Mr. Burke associates his criminality, beginning in 1982, with his addiction issues.

[16] After high school, Mr. Burke attended a local community college to study Architectural and Mechanical Engineering, with the goal of working with his uncle in Florida after graduation. However, he did not complete the program, and began working for a printing/publishing company when not in custody.

[17] Afterwards, Mr. Burke worked nights at his brother’s cleaning business and doing odd factory jobs. Since 2004, he has worked in the waste management industry, both through agencies and directly with several different companies. Most recently, between October 2021 and April 2022, he worked as a general labourer with United Staffing Services.

[18] As to Mr. Burke’s mental health, Dr. Scott Woodside, in 2007, believed Mr. Burke was likely diagnosable with an Antisocial Personality Disorder, but lacked enough information to conclusively make this diagnosis.

[19] In April 2018, Dr. Julian Gojer prepared a psychiatric report and diagnosed Mr. Burke as having a Personality Disorder with Antisocial Traits, Cocaine Dependence and a history of Polysubstance Abuse.

[20] When asked, Mr. Burke advised the author of the pre-sentence report (“PSR”), that he believed he has been previously diagnosed with Substance Use Disorder, a Personality Disorder, anxiety and depression.

B. Aggravating and Mitigating Factors

[21] There are several aggravating and mitigating factors for me to consider in this case. Firstly, as to the aggravating factors:

(1) Mr. Burke committed four robberies in the span of a month;

(2) In each of the robberies, Mr. Burke wore a disguise and alluded to being in possession of a firearm that he was prepared to use if necessary;

(3) On May 2, 2022, after having been charged with the restaurant robbery, and having already committed two of the bank robberies, Mr. Burke was released on a residential surety bail, which included a curfew and GPS monitoring.

Despite his release order, the surety and the GPS monitor attached to his ankle, Mr. Burke committed a further robbery on May 16, 2022 – a mere 2 weeks after his release on bail;

(4) Furthermore, though no victim impact statements were submitted, there can be no doubt as to the psychological harm visited upon the victims of Mr. Burke’s robberies given the threat of gun-related violence.

Although no gun was brandished or shown, “note passing” robberies remain serious crimes capable of instilling fear and traumatizing their victims (see R. v. Dennis at para. 13, and R. v. MacCormack, 2009 ONCA 72 at para. 88).

(5) And finally, the truly most aggravating factor in this case, is Mr. Burke’s criminal record:

(a) It spans just over 40 years;

(b) Includes a total of 58 convictions, 17 of which are robberies beginning with his first robbery conviction in 1984, and his last being in 2018;

(c) Mr. Burke has three convictions (2001, 2008 and 2013) for using an imitation firearm – all while committing robberies;

(d) He has been sentenced, globally, to nearly 29 years of jail for his 17 robberies, three use of imitation firearms and two being disguised with intent;

(e) Mr. Burke has been sent to the penitentiary on eight separate occasions;

(f) In 2010, Mr. Burke violated his statutory release while serving his sentence for robbery and was recommitted;

(g) As per the PSR, he was on a statutory release in November 2020, but his parole was suspended in March 2021 for violating his conditions;

(h) In 2018, Mr. Burke plead guilty to four bank robberies, while admitting the facts to eight bank robberies, and was sentenced to 3 years and 7 months jail in addition to 344 days of pre-sentence custody (“PSC”); and

(i) Mr. Burke finished serving his sentence on February 6, 2022. He then committed the first of the robberies before me on April 22, 2022 – 60 days after he finished serving his last penitentiary sentence.

[22] There are also some mitigating factors in this case:

(1) Mr. Burke plead guilty to each of these robberies. This is a taking of responsibility which obviates the need to have a trial which would require the victims to testify in each of these individual matters.

However, I note, for each of these offences, the Crown appeared to have a strong case, including DNA evidence connecting Mr. Burke to one of the robberies, his apprehension near the scene while wearing the same clothing observed during one of the robberies, and video surveillance capturing Mr. Burke’s actions after a robbery, including video stills of Mr. Burke’s unobstructed face while he was wearing a GPS monitor;

(2) As per the PSR, Mr. Burke also expressed his remorse, indicating he feels “shameful” and “very sorry”. He also expressed his remorse here today – apologizing to the victims of his crimes.

However, I note, in 2018, when before Justice Pringle for eight bank robberies, he also expressed his remorse and regret (see R. v. Burke, 2018 ONCJ 467, para. 39).

(3) While in PSC, Mr. Burke completed several Life Skills and Educational Session program booklets at the Toronto East Detention Centre (“TEDC”). He is currently a member of Alcoholics Anonymous and Cocaine Anonymous.

Once again, I note, the same was done in 2018 prior to his sentencing before Justice Pringle. As Her Honour stated at para 38:

While awaiting sentencing, Mr. Burke took counseling and arranged a support network for relapse prevention. It may very well be the case that he did this to better his situation in sentencing. That said, he did well in that counseling. He showed insight, he showed initiative, and he was an active participant during sessions, no matter why he engaged in it.

(4) Mr. Burke also appears to have the support of his family members based on their letters of support – despite their not having seen him in years (Ms. Jacobs-Burke has not seen her brother in nearly 40 years).

(5) Mr. Burke was also gainfully employed prior to committing his most recent string of robberies, but I have no indication this position remains available to him upon his release.

(6) There were also a number of lockdowns during Mr. Burke’s time at the TEDC (from Sept 9, 2022, through to January 26, 2024): 6 all-day lockdowns, and 95 days of partial lockdowns. In total, Mr. Burke spent 426 hours locked down, which is the equivalent of 17 ¾ days. I also note, that during this period Mr. Burke was in protective custody – though I have no indication as to the reason for which he was placed in protective custody.

As per the Court of Appeal, this is a mitigating factor for me to consider when crafting the appropriate sentence (see R. v. Marshall, 2021 ONCA 344).

(7) An affidavit was also provided by Mr. Burke regarding his treatment and situation while at the Toronto South Detention Centre (“TSDC”) and the TEDC. Triple bunking, unclean cells and medical treatment being denied. Little detail was provided as to the duration of these issues, or when they occurred. I note, none of these claims were supported by any extrinsic evidence, nor by any records obtained from either of these institutions.

Despite the plea having been entered on October 5, 2023, with sentencing submissions being made on February 15, 2024, the lockdown records were not ordered until January 2024, and only provided to me earlier this week. Mr. Burke’s affidavit was filed this morning.

However, it is still a mitigating factor I will consider, though it will be given less weight, given the factual record I have before me (see R. v. Duncan, 2016 ONCA 754).

[23] Finally, as of today’s date, Mr. Burke spent 716 days in PSC, which at a rate of 1.5:1, would be the equivalent of 1,074 days of PSC.

C. Sentence

[24] Mr. Burke is a 60-year-old recidivist, with a lengthy criminal record, replete with robberies. He comes before me having plead guilty to a further four robberies, three of banks and one of a restaurant. In each robbery, Mr. Burke threatened to harm his victims if they did not comply with his demands and indicated he was armed with a firearm.

[25] In 2008, Mr. Burke successfully resisted a Long-Term Offender (“LTO”) application. He was then characterized by the court, as motivated for treatment.

[26] The report prepared by Dr. Woodside in 2007 in support of the LTO application, indicated that, from a clinical perspective, Mr. Burke was a “moderate to high risk for violent recidivism.”

[27] Dr. Woodside further noted that without extensive treatment and extremely tight supervision, he was almost certain Mr. Burke would reoffend within the next ten years and expected the re-offending would constitute further robberies.

[28] History has proven Dr. Woodside right. Since 2008, Mr. Burke has been convicted of a further nine robberies, inclusive of the four robberies before me, as well as for the use of an imitation firearm.

[29] In 2018, Dr. Gojer found Mr. Burke was remorseful for his offending and was motivated to make changes and had been participating in substance use programing since being in custody. He noted Mr. Burke was also keen to engage in further counselling while serving his sentence.

[30] In his PSR, dated February 14, 2024, Mr. Burke had once again “demonstrated a commitment to identifying and following up with potential resources to support him in his quest for a more stable lifestyle in the community.”

[31] However, despite these prior expressions of remorse, motivation to make changes and willingness to avail himself of community supports to assist him in curbing his addiction and subsequent criminality, it only took two months from the completion of his last penitentiary sentence for Mr. Burke to commit the first of his four robberies.

[32] In 2018, Justice Pringle stated “I am not convinced Mr. Burke is entirely beyond rehabilitation. I see a faint light still at the end of that tunnel.” Unfortunately, I no longer see this as being the case.

[33] At this juncture, I find Mr. Burke’s entreaties of willingness to change, of little value and can be given little weight. Mr. Burke has been given numerous opportunities to demonstrate that he can be a productive member of society, and has been unable to do so, despite the support of his family and gainful employment. Notwithstanding his apparent insight into his offending, it has failed to curtail Mr. Burke’s continuing criminality (see R. v. Holder, 2023 ONCA 688 at para. 27).

[34] Truly, nothing has changed since 2018, save and except he now has four more convictions on his already lengthy criminal record.

[35] As noted by Justice Pringle, “Mr. Burke has been on probation, he has been to the reformatory, he has been to OCI, he has received conditions to obtain in-house treatment, and he has been to the penitentiary.” Her Honour found that reformatory sentences were not deterring Mr. Burke, and it would appear, neither have his prior penitentiary sentences.

[36] Specific deterrence, denunciation, and the protection of the public, I find to be the primary sentencing principles I must consider and apply in the case bar. I find the jump principle, given Mr. Burke’s history and criminal antecedents, has little application when it comes to the crafting of his sentence (see R. v. Simeunovich, 2023 ONCA 562, at paras. 18, 23 and 25).

[37] As noted by the Court of Appeal in R. v. Green, 2021 ONCA 932, at para. 12:

[…] the jump principle "has little application where the severity of the offender's crimes shows a dramatic increase in violence and seriousness". The same is true when dealing with multiple convictions for an offender with a lengthy criminal record, or where previous sanctions have been ineffective in deterring the offender. (emphasis added)

[38] Similar to Mr. Simeunovich, Mr. Burke’s behaviour has not been curbed by his many previous sentences for robbery, and he has now been convicted of a total of 22 robberies. Despite his convictions for robbery in 2018, it took Mr. Burke only 60 days from the completion of that sentence to commit a robbery. The last of his four robberies, was committed while he was on a surety release which included a curfew and GPS monitoring.

[39] In my view, Mr. Burke’s current offences demonstrate his incorrigibility, continued threat to public safety, and a lack of regard for his victims, despite his claim to the contrary.

[40] There are cases where the criminal history and incorrigibility of an offender may justify a maximum sentence to not only deter the offender but to protect the public (see R. v. Dennis, supra, and R. v. Stairs, 73 O.A.C. 79). The maximum penalty for robbery is life imprisonment – which underscores the seriousness of this offence.

[41] Like Mr. Dennis, who had been sentenced to approximately thirty years in jail over the last forty years of his life, Mr. Burke is a career criminal who I find is likely to re-offend if he is physically and mentally capable of doing so (see R. v. Dennis, supra, at para. 9). As such, the protection of the public is paramount and can only be achieved with his separation from society.

[42] Therefore, guided by the sentencing principles set out in the Criminal Code, and having regard to the aggravating and mitigating factors in this case, including the conditions of Mr. Burke’s PSC, as well as Mr. Burke’s limited prospects of rehabilitation, I find the appropriate sentence to be one of 10 years jail, less the PSC he has already served.

[43] The formula used to convert days to months is the total number of days divided by 30.417 (see R. v. Shaikh, 2019 ONCA 895). Meaning, Mr. Burke has served the enhanced equivalent of 35 1/3 months in jail, leaving Mr. Burke 84 2/3 months left to serve – or 7 years and 2/3 of a month.

Released: April 25, 2024

Signed: Justice Derek Ishak