Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2024·04·29 NEWMARKET

BETWEEN: HIS MAJESTY THE KING — AND — ROYDIN GERARD DIAS

SENTENCING Heard and Delivered: April 29, 2024.

Counsel: Mr. Neil Singh ......................................................................................... counsel for the Crown Mr. G. David Butler .......................................................................... counsel for the defendant

Reasons for Sentence

KENKEL J.:

Introduction

[1] During the course of a trial, Mr. Dias changed his plea to guilty on three counts:

• Possession of a Weapon for a Dangerous Purpose (BB Gun) s 88,
• Unauthorized Possession of a Firearm (.45 calibre revolver) s 92(1) and
• Vehicle Occupancy knowing a Shotgun was present s 94(1).

[2] He then waived-in several charges relating to two robberies in Peel Region. He entered pleas to four further counts:

• Robbery with an Imitation Firearm s 344(1),
• Attempt Robbery with a Firearm s 344(1),
• Use Imitation Firearm s 85(2)(a),
• Disguise with Intent s 351(2).

[3] The Crown is asking for a global term of 5 years in the penitentiary. The defence seeks a sentence of 3 years.

Peel Count 12 Robbery – Another Attempt?

[4] Mr. Dias pleaded guilty to one count of attempted robbery in relation to a convenience store. The convenience store owner refused to co-operate, and Mr. Dias left without receiving any money. He pleaded guilty to a further count of robbery that occurred on the same day at a pharmacy. In the pharmacy robbery nothing was taken as the cash register was empty at the time. Prior to sentence Mr. Dias raised the issue of whether the pharmacy robbery should also have been charged or found to be an attempted robbery.

[5] Some offences under the Criminal Code have specific provisions related to attempts in that context. See for example: Theft s 322(2), Obstruct Justice s 139(3). Robbery contrary to s 344 does not contain any special provisions regarding attempts. The general provision in s 24(1) applies.

[6] Section 343 sets out four ways in which robbery may be committed. Three of them involve stealing with violence of threats of violence. The accused was not able to steal anything in the pharmacy robbery as there was no money in the till at the time.

[7] Section 343(c) provides that where a person assaults another with intent to steal, that person commits a robbery. There is no issue that the accused intended to steal monies from the pharmacy. The issue is whether the facts alleged by the Crown amount to an assault.

[8] I understand Mr. Dias’ concern. In everyday language assault implies striking another person which didn’t occur in this case. However, in the Criminal Code assault has a defined meaning. The s 265 definition of assault includes threatening by act or gesture to apply force to another person and accosting a person while carrying a weapon or imitation. The admitted facts in the pharmacy robbery include threats of violence with a firearm combined with a plain intent to steal. While an attempted theft does not meet the definition of “steal”, that intent to steal combined with the assault meets the s 343(c) definition of robbery – R v Allison, [1983] OJ No 64 (CA). Mr. Dias was properly found guilty of robbery on that count.

Aggravating Circumstances

[9] With respect to the Newmarket charges, the firearms related offences are aggravated by the unsafe conditions of storage, the illegal purpose of possession and the presence nearby of large amounts of ammunition.

[10] Neither Mississauga robbery was successful, however there are several circumstances that aggravate sentence. Beyond the facts that form part of the armed robbery charges, Mr. Dias drove into a police cruiser to escape and failed to stop for police. The circumstances of his flight as shown in part in the plaza video were so dangerous that police had to call off the pursuit.

[11] The impact of armed robberies on vulnerable small business owners in Mississauga is a significant aggravating feature. Those robberies also have an alarming effect on the community as even local stores become unsafe. In the convenience store robbery, the store video showed that a bystander was present when Mr. Dias took out his gun.

Mitigating Circumstances

[12] Mr. Dias entered a plea of guilty during his trial and then waived further charges to this court for resolution. I accept that his present statement of remorse is genuine. Rehabilitation remains an important goal.

[13] Mr. Dias has been in custody since his arrest on February 21, 2023. That’s 434 days. He’s entitled to the maximum statutory credit of 651 days (434 x 1.5) which is 21 months, 2 weeks and 2 days.

[14] I accept the defence submissions with respect to the difficult remand conditions at Maplehurst and Central East Correctional Centre. It’s difficult for those on serious charges who serve an extended time in those conditions. I find that to be a mitigating factor to be reflected in the calculation of sentence.

Sentence

[15] The maximum term of imprisonment for robbery is life. Where a person attempts to commit an indictable offence for which he is liable to life imprisonment, the attempt is an indictable offence carrying a maximum term of imprisonment of 14 years – s 463(a).

[16] The primary objectives of sentence in this case are general deterrence and denunciation. The sentence also needs to specifically deter Mr. Dias from engagement with firearms and violent offences, while at the same time providing room for rehabilitation.

[17] I acknowledge that the Crown submission of a 5-year sentence less pre-trial custody takes into account the mitigating effect of the guilty pleas and the fact that Mr. Dias has no criminal record. I find the 3-year global sentence proposed by the defence would not meet the sentencing objectives in this case nor would it be proportionate to the gravity of the offences and the degree of responsibility of Mr. Dias.

[18] I agree with the defence that some consideration of totality applies to the two robberies committed on the same night, albeit at different locations. Some further consideration of totality applies with respect to the global sentence for an offender facing a first custodial sentence. I also agree with the defence that the circumstances of pre-trial detention are relevant.

[19] I’m mindful that one robbery was resolved as an attempt with a lower maximum sentence (14 years) but in circumstances that otherwise amounted to an armed robbery. Nothing was taken in either robbery, but that was not due to a lack of intent or effort.

[20] Taking into account all of the circumstances discussed, I find that a global sentence of 4 ½ years would be the minimum fit sentence for all of the offences. While the Newmarket charges and the Mississauga charges involve different incidents on different dates, I find that to impose shorter consecutive sentences to achieve that global result would not properly reflect the gravity of either set of charges.

[21] Four and a half years is 54 months. Mr. Dias has served the equivalent of just over 21 ½ months. That leaves 32 ½ months left to serve. I’m prepared to reduce that to 32 months and I apportion that sentence as follows:

• Newmarket – Possession of a .45 calibre revolver s 92(1) – 32 months
• Newmarket – Vehicle occupancy shotgun s 94(1) – 32 months concurrent
• Newmarket – Possession of a BB gun s 88 – 90 days concurrent
• Mississauga – Robbery s 344(1)(a) – 32 months concurrent
• Mississauga – Attempt Robbery s 344(1)(a) – 32 months concurrent
• Mississauga – Disguise with intent s 351(2) – 90 days concurrent
• Mississauga – Use Imitation Firearm s 85(2) – 32 months concurrent

[22] The total remaining custodial sentence is 32 months.

[23] In addition I make the following orders:

• DNA – The robberies are primary designated offences.
• 109 – While these are his first firearms related offences, considering the danger posed to the community, the number of firearms and the amount of ammunition, I find it necessary to prohibit Mr. Dias from possessing any firearm, cross-bow, restricted weapon, ammunition and explosive substance for life. He is otherwise prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.
• FORFEITURE – s 491 – All firearms, imitation firearms, weapons and ammunition is forfeit to the Crown for destruction.

[24] The remaining charges on both Informations have been withdrawn by the Crown.

Delivered: 29 April, 2024. Justice Joseph F. Kenkel