ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11050
DATE: 2012/04/27

B E T W E E N:

HER MAJESTY THE QUEEN

L. Tuttle, for the Crown

• and -

KELLY SCOTT BOORMAN

J. Battin, for the Defendant

REASONS FOR SENTENCE

A.J. GOODMAN J.

1On April 13, 2012 I found the defendant Kelly Scott Boorman guilty on the charge of Robbery, contrary to section 344 (b) of the Criminal Code .

2The Crown seeks a jail sentence in the lower penitentiary range. After deducting the usual credit for pre-trial custody, the Crown seeks a period of incarceration of 18 months plus probation. Defence counsel submits that the appropriate sentence in this case is one of time served of 220 days plus 8 days jail and probation. This sentence would permit Mr. Boorman to enter into a treatment or rehabilitation program at the Quintan Warner House, whereas a bed is available for Mr. Boorman on April 30, 2012. There is no issue with respect to the terms of probation or the ancillary orders requested by the Crown.

Circumstances of the offense

3The circumstances of the offence are outlined in my reasons for judgment.

Circumstances of the offender

4A pre-sentence report was not prepared in this case.

5By way of background, Mr. Boorman is 22 years of age and has a younger brother. He has strong familial connections to his mother and father. He is the father of a one-year old child who resides with the mother. He has been employed in the past in the roofing business.

6Mr. Boorman has been drug free for the past seven months and has gained some insight into his opiate addiction. He now has the desire to address his drug abuse problem and is desirous of doing so with the assistance of Mr. Jim Henderson of Streetscape.

7Mr. Henderson testified at the sentencing hearing. He has known Mr. Boorman for a considerable period of time. Mr. Henderson has a wealth of experience in assisting those who wish to address addiction and other life challenges. Mr. Henderson described the various services and programs available for those who wish to deal with addictions. Mr. Henderson believes that Mr. Boorman has gained some insight into his conduct and now wants to change his lifestyle. He believes that Mr. Boorman is sincere in his stated intentions to address his addiction problems. Mr. Henderson also agreed that he would be in a position to assist Mr. Boorman with a placement should Mr. Boorman be subjected to a lengthier period of incarceration than that requested by defence counsel.

8Mr Boorman has a prior and related criminal record. He expressed his apology to the Court for what happened and is desirous of changing his ways.

Victim Impact Statement

Mrs. Margaret Karrer prepared a victim impact statement on behalf of her husband, the complainant, Rene Karrer. Her husband is unable to provide any direct information due to his health. As mentioned in my reasons for judgment, Mrs. Karrer was at the scene of this incident and was an eye-witness to the robbery. Both Mr and Mrs. Karrer are senior citizens in the London community.

Mrs. Karrer advises that since the robbery, her husband has become quite fearful and basically is now essentially housebound. Mr. Karrer does not seem to be able to get over the incident and he does not feel safe on the street.

Mrs. Karrer writes that the robbery took more from her husband than money, rather it affected Mr. Karrer’s peace of mind, pride and sense of security. This has resulted in sleepless nights and a sense of general unease for all of the family members. It is obvious to me that this incident has greatly affected the Karrer’s and their sense of safety and well-being.

Positions of the parties

9As mentioned, the Crown takes the position that the appropriate sentence is 18 months in a provincial reformatory. The Crown submits that this court ought to consider the nature of the circumstances of this incident, the fact that Mr. Boorman was the instigator or at the very minimum, he was the individual who physically intimidated and later assaulted the complainant, combined with his related and lengthy criminal record. The crown submits that the co-accused, Mr. Bernier plead guilty to the offence at a very earlier opportunity, hence has demonstrated remorse and acceptance of responsibility as well as having a less extensive and serious criminal record.

10Defence counsel argues that the court ought to consider the availability of a bed at Quintan Warner House and Mr. Boorman’s recently acquired insight into his addiction problems and his willingness to undergo counselling and treatment. Since a bed is available in the next few days, the sentence proposed would allow Mr. Boorman to attend this treatment centre and would go a long way to assist in Mr. Boorman’s rehabilitation and reintegration back into society.

Caselaw

11I have reviewed those authorities provide by counsel.

12The Crown provided several authorities to the court in support of her position. In R. v. Hebert, 2007 ONCA 580 , [2007] O.J. No. 3203 the Court of Appeal upheld the sentence imposed by the trial judge. The accused was convicted of robbery with a knifre following a guilty plea. The accused approached 70-year old man from behind and held a 10-12 inch knife to his throat and demanded money. The appellant had a lengthy criminal record, including prior convictions for assault. He was sentenced to 4 years in jail in addition to 12 months pre-sentence custody, (2:1 basis) in effect a 6 year jail sentence.

13In R. v. Mann 2010 ONCA 342 , [2010] O.J. No. 1924 the Court of Appeal reviewed a case for robbery with a firearm. I find this case distinguishable on the facts.

14In R v. Ogden, [2004] N.S.J. No. 249 , the Nova Scotia Court of Appeal upheld the trial judge’s imposition of 5 years for robbery. In that case, the accused plead guilty to various charges, she had a prior related criminal record and the fact that the accused targeted one of the vulnerable classes of society, senior citizens. I note that in this case, the appellant had threatened the use of a firearm in her interaction with the victim.

15The defence did not provide any authorities.

Analysis

16The court is guided by the principles of sentencing as set out in sections 718 and 718.2 of the Criminal Code .

17As directed by section 718 of the Criminal 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 just sanctions that reflect enumerated objectives. Those objectives relevant to this case are denunciation of the unlawful conduct, deterrence of other potential offenders, and rehabilitation of Mr. Boorman. It is also important to impose a sentence that promotes a sense of responsibility in offenders and an acknowledgement of the harm done to victims and to the community. The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The circumstances of the offence and of the offender must be analyzed to identify the aggravating and the mitigating factors. This is not a case where there is a statutorily imposed minimum sentence.

18Section 718.2 addresses the principles of totality, parity and the principle of restraint among other factors. Section 718.2 also addresses specific aggravating and mitigating factors that shall be taken into consideration based on certain enumerated principles.

19I have not neglected to consider all of the other principles listed in section 718 and 718.2 of the Code including rehabilitation and other relevant factors in deciding what sentence to impose.

20In this case, the aggravating factors include: a physical attack and robbery on vulnerable senior citizens, Mr. Boorman’s particular involvement in the attack, which I have found him to be the principal and the individual who committed the assault on Mr. Karrer.

21Mr. Boorman’s prior criminal record is another aggravating factor. He was convicted of various property related offences from 2005 continually to June 2011, unabated including to up to the time just prior to the offence at bar. There has not been a gap in his record. I also note that he has convictions for violence including robbery x2 convictions in February 2009 which he received, 1 day jail concurrent with pre-trial custody of approximately 217 days.

22There are a few mitigating factors. Mr. Boorman is a youthful offender. He also suffers from an opiate addiction which has not been addressed to date. However, there appears to be a glimmer of hope that Mr. Boorman has gained some recent insight into his addiction with the able assistance of Mr. Henderson.

23I have heard from Mr. Henderson and accept his testimony without reservation. Mr. Boorman ought to be grateful that there are individuals like Mr. Henderson in the community who provide services, counselling and referrals to individuals like him who suffer from various addictions and life challenges.

24In this case, the parity principle must be addressed. In addressing Mr. Boorman’s accomplice, I have considered Mr. Bernier’s criminal record. Mr. Bernier’s record involves numerous offences as a youth and several adult convictions. In my opinion, Mr. Bernier’s record is much less significant in breadth and scope than Mr. Boorman’s record. For example, prior to this offence I did not find any crimes for violence on Mr. Bernier’s record (with the possible and debateable exception of a weapons possession charge in 2010). I note that Mr. Bernier entered an early plea to this charge and received a sentence of 12 months based on a joint submission. Mr. Bernier appeared to have accepted responsibility for his actions and his early suggest some remorse for his behaviour. While a plea of guilty is a mitigating factor, a plea of not guilty is not an aggravating factor.

25The nature of this offence and circumstances of the incident demand denunciation and deterrence. It appears that Mr. Boorman has escalated his behaviour, based, in part on his unfortunate opiate addiction. His criminal record continues unabated, with only a brief respite while incarcerated. He continued to commit theft related offences despite his convictions for robbery in 2009. I find that he has not learned from his prior involvement in the criminal justice system. His recent insight and desire to address his addiction is commendable but his actions in dealing with his additions have not been borne out by his previous conduct and with various probation orders.

26In my view, the aforementioned factors set Mr. Boorman apart from Mr. Bernier to some degree. It is an indication that specific deterrence is required at a high level, and it raises even further the concern for protection of the public in the overall mix of factors that must go into determining a fit sentence for Mr. Boorman.

27In addition, Mr. Boorman's record is such that he faces an elevated sentence. Mr. Bernier’s criminal record is not as serious as Mr. Boorman’s coupled with the circumstances of the offence and of the offender.

28On a principled basis, these factors justify some differentiation between the sentences to be imposed on each of the accused. However, I have cautioned myself that I should be restrained in such differentiation having regard to the predominant principle of sentencing, that a sentence should be proportionate to the gravity of the offence and the degree of responsibility of the offender. I must not lose sight of the fact that the roles played by the accused were not essentially the same; however they were equally involved in the same serious offence.

29I have considered the principle of parity in s. 718.2 (b) and the relevant jurisprudence in my decision. Clearly, disparity of sentence is just one of the principles that I must consider and is an important but not the overriding consideration. In my view, there are significant factors which militate against imposing a similar sentence in this case.

30With respect, I cannot accept the defendant’s position on sentence. I find that if I were to accede to defence counsel’s submission, the proffered sentence would be significantly less than the sentence imposed on Mr. Bernier. I also find that the sentence argued by defence would be disproportionate to the offence and the circumstances of Mr. Boorman. While I am cognizant that counsel has fashioned his submissions based on the availability of a bed for Mr. Boorman on April 30 th , I am convinced that in due course, Mr. Henderson will be in a position to find a bed for Mr. Boorman upon Mr. Boorman’s release from jail.

31In conclusion, this is a very serious offence involving an attack on an elderly couple on an evening stroll in the downtown core of the city of London.

32Citizens of London and elsewhere are entitled to walk the streets of their city unhindered and free from being accosted by anyone including those who may solicit money. A courteous or benevolent request to assist an individual with a donation seems to be engrained into the fabric of our society. Indeed, one may have sympathy for the plight of those who, for a variety of reasons may not be as fortunate as others in society and offer some financial assistance. It is one matter when an individual’s behaviour is premised on a courteous and non-confrontational solicitation for financial assistance. However, it is an entirely different matter when such solicitation is accompanied by a physical or psychological constraint placed on the liberty of citizens to conduct their business and travel unencumbered on the streets of London or worse, as in this case - a robbery with violence. The latter cannot be condoned.

33I have considered the relevant authorities including the guidance provided by the cases submitted. I take into account the circumstances of the offence and of the defendant, while recognizing and applying the applicable sentencing principles.

Disposition

34I impose a section 109 weapons prohibition order for life. You are to provide a sample of your DNA pursuant to section 487.051 of the Criminal Code .

35Following the jail sentence that I will be imposing momentarily, you will be placed on probation for 2 years. The terms of the probation shall include, the statutory terms as provided in section 732.1 of the Code along with, the following terms. Report to a probation officer within two working days of your release and thereafter as required by the probation officer in the manner directed by the probation officer; Reside where directed by probation; Abstain from possession of weapons, No contact directly or indirectly with Rene or Margaret Karrer, and not to attend within 200 metres of any place of residence, employment, recreation or anyplace where the Karrer’s may be known to you to be; Not to contact associate or communicate with Jamie Bernier and Candace Barrette. Abstain from the consumption of drugs except in accordance with a valid medical prescription. You shall actively attend and participate in any rehabilitation programs as directed by probation including but not limited to the Quintin Warner House program or any other program that may be suggested by probation in consultation with Mr. Henderson.

36I conclude that a fit and appropriate sentence in this case is a total custodial term of 2 years. I will grant you credit for your pre-trial custody, which I am advised is 220 days or the approximate equivalent of 7 1/2 months. Therefore, on the one count before me, the sentence imposed shall be a term of imprisonment of 16 1/2 months in a reformatory.

37The court recommends that Mr. Boorman be permitted to serve his sentence at the Ontario Correctional Institute. The mandatory victim fine surcharge is waived pursuant to s. 737(5) of the Code .