ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR207/10
DATE: 2012-01-25

BETWEEN:

HER MAJESTY THE QUEEN – and – PEDRO SIMOES

John Dibski, counsel for the Crown
Stephanie Boydell, counsel for Mr. Simoes

HEARD: January 18, 2012

REASONS FOR SENTENCE

Hourigan J.

Circumstances of the Offences

[ 1 ] On June 17, 2011, after a three day trial, Pedro Simoes was found guilty of five counts of theft over, one count break, enter and commit, one count of possession of property obtained by crime under $5,000, one count of obstruction of justice and one count of possession of break-in instruments. Pursuant to the principles in R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729, counts two to seven in the indictment, being the five counts of theft over and one count of possession of property obtained by crime under $5,000, were conditionally stayed.

[ 2 ] The findings of guilt relate to the theft by Mr. Simoes of vehicles from Halton Honda on or about November 28, 2009.

The Circumstances of the Offender.

[ 3 ] A pre-sentence report was prepared in contemplation of sentencing which provides some insight and background regarding Mr. Simoes’ personal circumstances. However, I note that Mr. Simoes did not provide the author of the report with any collateral sources.

[ 4 ] Mr. Simoes is 32 years old and was born in Toronto. He is the youngest of three children. His mother and two brothers have left Canada to reside in Lisbon, Portugal.

[ 5 ] Mr. Simoes was raised by his parents until they separated when he was ten years old. He recalls a violent home environment and states that he endured physical abuse from both his parents. His father committed suicide when Mr. Simoes was 15 years of age.

[ 6 ] Mr. Simoes completed grade eight and obtained some grade nine credits. He has been diagnosed with Attention Deficit Disorder.

[ 7 ] Mr. Simoes has worked sporadically as a labourer doing construction and landscaping work.

[ 8 ] Mr. Simoes denies having any alcohol or drug issues. However, as noted in the pre-sentence report, the Ministry of Community, Safety and Correctional Services’ files indicate that he had admitted to excessive drinking on occasion and that excessive alcohol consumption has been a contributing factor in “several incidents”.

[ 9 ] Mr. Simoes has a history of convictions dating back to 1993 in youth court. His first conviction in adult court was on July 9, 1997, when he was convicted of possession under and sentenced to 45 days incarceration. Since that date he has been convicted on 18 occasions. The adult convictions include possession of property obtained by crime, theft over, possession of break-in tools, and dangerous operation of a motor vehicle causing bodily harm.

[ 10 ] According to the pre-sentence report, the Ministry of Community, Safety and Correctional Services’ records do not indicate successful completion of community supervision and Mr. Simoes advised the author of the report that he does not wish to have probation imposed as part of his sentence.

[ 11 ] The author of the pre-sentence report reached the following conclusion:

CPIC and Ministry records indicate that efforts to curb the reoffending that the subject appears to habitually be involved in, by imposing terms of incarceration appears to have failed. It is of a concern to this writer that the subject will return to his serious offending behaviour, posing serious danger to the society if he returns to the community. It appears that the subject may benefit from a highly structured setting due to his stated request that he not have a community disposition.

Position of the Crown

[ 12 ] Crown counsel submits that a global sentence in the range of 6 to 8 years is appropriate in the circumstances of this case.

[ 13 ] In support of his position, the Crown submits that Mr. Simoes has embraced a life of crime as evidenced by his record and that periods of probation have not been successful given his previous convictions for breach of probation orders.

[ 14 ] The Crown submits that the level of moral culpability for these offences is high given his related record and the level of planning involved in the break and enter. The Crown notes that this was a crime involving high value inventory and that there was no recovery. He categorizes the crime as an “enterprise crime”.

[ 15 ] Turning to the principles of sentencing, the Crown submits that the need for general and specific deterrence is high. Further, he submits that given Mr. Simoes’ past failures with community-based sentences and the danger he poses to society, that the need for separation from society is evident. The Crown submits that Mr. Simoes is not interested in rehabilitation or having a positive connection to society or even having any pro-social relationships, as evidenced by the lack of collateral sources found in the pre-sentence report. He notes as well that Mr. Simoes has no ability to pay restitution and submits that there is a need to promote a sense of responsibility in the circumstances of this case.

[ 16 ] The Crown concedes that the trial was abbreviated because the defence agreed to certain facts and that this is a mitigating factor.

[ 17 ] The Crown submits that Mr. Simoes’ sentence in June of 2005 for driving while disqualified, dangerous operation of a motor vehicle, obstruct peace officer, possession of property obtained by crime over $5,000 and failure to comply with a probation order was the equivalent of approximately 2 years and 3 months. Further, he submits that Mr. Simoes’ sentence in April of 2009 for dangerous operation of a motor vehicle causing bodily harm, driving while disqualified, possession of property obtained by crime under $5,000 and break enter and commit was the equivalent of approximately 3.9 years. The Crown argues that it is clear from the accused’s record that after the April 2009 charges he went out and began accumulating further charges related to serious crimes.

[ 18 ] The Crown has advised that on or about June 1, 2011 Mr. Simoes pleaded guilty in court in Orangeville to charges of break and enter and possession of stolen property over, possession of stolen property under and obstruct. He received a global sentence of 315 days pre-trial custody on a two for one basis, so that sentence shows as 630 days in jail.

[ 19 ] The Crown calculates that for the purposes of this sentencing Mr. Simoes has pre-trial custody of 419 days, which includes 32 days of two-for-one time. With respect to enhanced pre-trial credit, the Crown submits that Mr. Simoes would never have obtained bail given his criminal record and the fact that he has no family available to him to act as a surety. He also submitted that there is no evidence that Mr. Simoes would take advantage of programs available to him had he not been in a remand centre.

[ 20 ] The Crown also submitted that it is appropriate to reduce any sentence by the 315 days referred to above on the principle of totality. Thus it is the Crown’s position that the global sentence be reduced by 734 days.

Position of the Defence

[ 21 ] Defence counsel submits that the appropriate sentence is three years of incarceration less a total of 928 days which equates to an additional 167 days of custody. The 928 figure includes 380 days pre-trial custody at the rate 1.5 for 1, 16 days pre-trial custody at a rate of 2 for 1 rate and the 315 day reduction on the principle of totality.

[ 22 ] In support of her submission for enhanced pre-trial credit, counsel notes that Mr. Simoes has spent long periods of time in pre-trial custody over the last number of years. She relies on the Ontario Court of Appeal decision in R. v. Monje, 2011 ONCA 1 for the proposition that pre-trial custody is the most punitive form of custody. She also relies on R. v. Johnson, 2011 ONCJ 77 wherein Justice Melvyn Green noted that remand centres do not have the same level of educational counselling, treatment, training and educational programs as prisons. Counsel submits that Mr. Simoes should be given credit for 1½ days for each day in pre-trial custody, excluding the 315 days deducted pursuant to the totality principle.

[ 23 ] Counsel also points to Mr. Simoes’ background, including his violent home life as a child and his father’s suicide when he was 15 years old, as a relevant factor for consideration. She notes that he has no family support in the country.

[ 24 ] She submits that Mr. Simoes is in a cycle of offences but there has been no increase in terms of the level of violence in the offences. It is her position that when Mr. Simoes’ record is reviewed, it is clear that he is being charged with similar offences over and over again and that it is in the public interest to see him rehabilitated.

[ 25 ] The defence relies on the case of R. v. Alves , [2008] O.J. No. 2597 (ON S.C.) wherein Justice Newbould sentenced an offender who had a record of 65 convictions beginning at age 16 to 3½ years less pre-trial custody for a break and enter and theft at a residential property. Counsel notes that courts have traditionally imposed longer sentences in circumstances where a break and enter has occurred at a residence rather than at a commercial establishment as is the case here.

[ 26 ] The Ontario Court of Appeal decision in R. v. Desjardins , [2007] O.J. No. 1775 (Ont. C.A.) is also relied upon. In that case, the Court reduced a sentence for break and enter from 4 years to 3 years.

[ 27 ] The defence cites the decision of the Alberta Court of Appeal in R. v. Dieter , [2007] ABCA No. 152. In that case, the appellant had 22 convictions, 19 which were for property-related offences, and 7 of those involved break and enters. The sentencing judge imposed a sentence of 4 years consecutive. The Court of Appeal found that 4 years was an unfit sentence having regard to the nature of the offence, the accused’s early guilty plea and the totality principle. They substituted a sentence of 3 years consecutive.

[ 28 ] Counsel submits that while step-up sentences may be appropriate, the sentence cannot be disproportionate to the seriousness of the offence.

Analysis

[ 29 ] The general principles of sentencing were summarized by Justice Trafford in R. v. Palantzas , [2009] O.J. No. 3682 , as follows:

Under s. 718 of the Code , the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing a just sanction. Any such sanction must, looking at the case as a whole, be the result of a fair and balanced consideration of the need to:

• denounce the unlawful conduct;

• deter the offender, and others, from committing such an offence;

• separate the offender from society, where necessary;

• assist in the rehabilitation of the offender;

• provide reparation for harm done to "victims", or the community; and

• provide a sense of responsibility in the offender, while acknowledging the harm done to the "victims" and the community.

Section 718.1 of the Code requires the sentence to be proportionate to the offence and the degree of the offender's responsibility. An offender is not to be deprived of his liberty if less restrictive sanctions may be appropriate in the circumstances of the case. All available sanctions other than imprisonment that are reasonable in the circumstances must be considered for all offenders.

It is to be emphasized that these principles of sentencing do not include a principle of revenge. Offenders are not incarcerated for the purpose of establishing an equivalence between the loss of the victim, or victims, and the sanction imposed by the Court. Rather, the Court is required to recognize the inherent worth and dignity of the offender and, having balanced the principles provided by the Code , determine a fit sentence in the circumstances of the case. This is the Canadian tradition, a tradition that enjoys a long and respected history in Canada and other free and democratic societies like it throughout the world.

[ 30 ] I accept that the cooperation by the defence in abbreviating the trial is a mitigating factor which I should take into account.

[ 31 ] Defence counsel provided a case law brief but recognized in her submissions to me that none of the cases submitted was on all fours with this case. The Crown did not provide any cases.

[ 32 ] I believe that defence counsel’s reliance on Desjardin is misplaced. In that case, the Court of Appeal noted that the sentencing judge indicated that he was prepared to sentence the appellant to “a little more time on top” of pre-trial custody. However, the sentencing judge went on to impose a four year sentence on the ground that the appellant had recruited his 14 year old daughter and her boyfriend in the crime. The Court of Appeal held that that factor alone could not properly lead to a three year increase in sentence. In the case at bar, there is no single factor which I am relying upon in determining the appropriate sentence.

[ 33 ] In Dieter , one of the grounds relied on by the Alberta Court of Appeal was the nature of the crime. In that case, the appellant had thrown a rock through a window of a hair salon and stole approximately $2,500 in merchandise. In the present case, we are dealing with a much more sophisticated crime where Mr. Simoes engaged in a very well planned theft of several motor vehicles. Therefore, I find that the facts of the Dieter case are distinguishable from the circumstances of this case.

[ 34 ] In Alves the sentence for a repeat offender charged with break and enter and theft at a residential property was 3½ years, plus one year each for breach of a probation order and breach of recognizance. The latter two sentences were concurrent with each other but consecutive with the break and enter sentence. Therefore, the total sentence was 4½ years.

[ 35 ] The Alves case is distinguishable from the present case. In Alves , the offender’s longest previous sentence was 14 months in custody. In the present case, the longest sentence was effectively almost 4 years in length and it seemingly had no impact on Mr. Simoes’ continuing criminal behaviour.

[ 36 ] Considering Mr. Simoes’ criminal record, I am very concerned by the fact that even with increasing sentences, he does not appear to be able to avoid a life of habitual crime.

[ 37 ] I am also troubled by the very negative pre-sentence report which makes clear that Mr. Simoes has no interest in being the subject of community supervision.

[ 38 ] In the circumstances, I conclude that the most appropriate sentence is one which removes Mr. Simoes from society. I believe that a penitentiary sentence is required as a specific deterrent to Mr. Simoes to prevent him from committing further offences.

[ 39 ] Both counsel made reference to the “jump principle” which was considered by Justice Spies in R v. Smickle [2008] O.J. No. 2231 :

[63] I must also consider an issue concerning what is referred to as the “jump principle”. That principle suggests that there should not be too great an increase in subsequent sentences imposed on an offender over a previous sentence imposed on the same offender. In this case, Mr. Smickle’s last sentence was his longest; an effective sentence of ten months after two for one credit for five months time served.

[64] Mr. Band argued that the jump principle is particularly applicable in this case given Mr. Smickle’s young age, the nature of his prior convictions and the type of sentences he has previously received. He argued that Ms. Stanton cannot rely on the 2007 conviction as an aggravating factor as Mr. Smickle was sentenced while he was incarcerated on the convictions before me. In other words, he had no opportunity to learn from that sentence. He took the position that I should, therefore, consider his longest sentence to be a sentence of 45 days, which was imposed for the 2004 drug convictions, not ten months.

[65] Ms. Stanton argued that the jump principle was not applicable because of the severity and nature of the offences, the high need for deterrence to be addressed, the fact that protection of the public is paramount, and that the possibility of rehabilitation was not present.

[66] In J.G. , Mr. Justice Nordheimer decided that the jump principle did not apply where the longest previous sentence was 22 months, because the convictions before him were more serious than the earlier conduct, there was no likelihood of rehabilitation and a sentence of even double the longest previous sentence would fail to achieve the sentencing objectives of deterrence and denunciation

[ 40 ] I accept the Crown’s position that if Mr. Simoes received the then standard credit of 2 for 1 for pre-trial custody credit in the April 2009 sentence it was effectively almost 4 years in length. I do not believe that a substantial penitentiary sentence would violate the “jump principle”. Even if the April 2009 sentence was less than 4 years, in my view the jump principle is not applicable because of the need for deterrence in this case.

[ 41 ] The sentence proposed by defence counsel does not adequately reflect the serious nature of the enterprise crime which was committed and the fact that Mr. Simoes has been seemingly unable to refrain from engaging in criminal behaviour.

[ 42 ] Notwithstanding the foregoing, I believe that the range proposed by the Crown of 6 to 8 years is too high. I note that it is unsupported by any case law and I decline to accept it as appropriate in the circumstances.

[ 43 ] Considering all the circumstances of the case, I find that a fit sentence with respect to count 1 – Break Enter and Commit – is 5 years incarceration and I sentence Mr. Simoes accordingly.

[ 44 ] I turn now to the submission of the defence that Mr. Simoes should be granted enhanced credit for pre-trial custody of 1.5 days per day served of pre-trial custody. The Truth in Sentencing Act fundamentally altered the consideration of pre-trial custody for sentencing purposes. It did away with 2 for 1 pre-trial custody credit and made 1 for 1 credit the norm. At the same time, it preserved the right of sentencing judges to award enhanced credit of 1.5 for 1 where the circumstances warrant (see R. v. Abubeker, 2011 ONCJ 337 at paragraph 14 and R. v. Morris, 2011 ONSC 5206 at paragraph 33).

[ 45 ] In my view, it is not sufficient for the defence, as they have done in this case, to point to the lack of facilities in remand centres or to argue that pre-trial custody is effectively “dead time” because time spent in pre-sentencing custody does not count in calculating eligibility for parole . These were the very justifications for the 2 for 1 practice which was eliminated by the Truth in Sentencing Act . Parliament must be presumed to have been cognizant of these arguments and issues when it enacted legislation to make 1 for 1 pre-trial custody credit the norm (see Morris at paragraph 33 and R. v. Stephenson, 2011 ONCJ 484 at paragraphs 31 to 32).

[ 46 ] In order for a court to find that the circumstances warrant enhanced pre-trial credit there must be something specific to the circumstances of the particular accused which would justify departing from the ordinary rule. There is nothing in circumstances of this case which leads me to conclude that 1.5 for 1 credit is appropriate. There is no evidence before me that Mr. Simoes’ experience in pre-trial custody is any different than other person in pre-trial custody.

[ 47 ] I also agree with the submission of the Crown that there is no suggestion that Mr. Simoes would have been able to obtain bail had he sought to do so, and further that there is no evidence before me that Mr. Simoes has any interest in taking advantage of any rehabilitation opportunities.

[ 48 ] I decline to order enhanced credit of 1.5 for 1 and find that the appropriate credit is 1 for 1. Mr. Simoes will be given 2 for 1 credit for the 16 days referred to above.

[ 49 ] I reduce the 5 year sentence of incarceration by 419 days for pre-trial custody and by 315 days in keeping with the totality principle. The total reduction is 734 days. The net result is a sentence of 1,091 days of further custody on count 1 in a federal penitentiary.

[ 50 ] On the remaining counts I find that the following are fit sentences and I sentence Mr. Simoes as follows:

Count 8 – Obstruct Peace Officer – 18 months incarceration; and

Count 9 – Possession of Break-In Instruments – 18 months incarceration.

[ 51 ] The sentences on counts 8 and 9 are concurrent with each other and with the sentence on count 1.

[ 52 ] The Crown sought a DNA order and that request was not opposed by Mr. Simoes. An order will go pursuant to section 487.051 of the Criminal Code that Mr. Simoes provide a DNA sample for the DNA databank.

[ 53 ] The defence did also not oppose a non communication order pursuant to section 743.21 of the Criminal Code that Mr. Simoes not communicate with Andrew Cabral. That order will go .

HOURIGAN J.

Released: January 25, 2012

COURT FILE NO.: CR207/10
DATE: 2012-01-18

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – PEDRO SIMOES REASONS FOR SENTENCE HOURIGAN J.

Released: January 25, 2012