ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-11-2205

DATE: 20120917

Delivered Orally and Released: September 18, 2012

BETWEEN:

Her Majesty the Queen
– and –
Cristobal Caceres and Justin Deelarbi
Accused

Roger Dietrich, for the Crown

Robert M. DiPietro and S. White, for the Accused Cristobal Caceres
Jason Bogle and C. Claxton, for the Accused Justin Deelarbi

HEARD: September 23, 2011, December 16, 2011, February 24, May 2, 15, June 25, 28, and July 25, 2012

REASONS FOR SENTENCE

Pomerance J.:

[ 1 ] Cristobal Caceres and Justin Deelarbi each pleaded guilty to offences arising out of an armed bank robbery that took place in Windsor on December 31, 2009. Prior to sentencing, charges relating to four armed bank robberies in Toronto were transferred to Windsor to be dealt with at the same time. The Crown and defence have jointly submitted that a total sentence of 10 years imprisonment, minus credit for pre-sentence custody, should be imposed in connection with both the Windsor and Toronto offences.

[ 2 ] During the hearing, I expressed concern over whether a sentence of 10 years would adequately reflect the gravity of the offences. The matter was put over so that counsel could present further material in support of the joint submission. Counsel also presented evidence and submissions on the question of how much credit the offenders should receive for pre-sentence custody. On behalf of the offenders it was submitted that pre-sentence custody should be credited on a 1.5 to 1 basis, given the absence of earned remission in pre sentence detention, and the conditions in the detention centres that housed the offenders.

[ 3 ] With these issues identified, I will provide my reasons for sentence.

The History of the Proceedings

[ 4 ] The joint submission of counsel should be understood against the history of the proceedings in this case.

[ 5 ] Several judicial pre-trial conferences took place before the offenders pleaded guilty to the bank robbery in Windsor. Early on, there was some discussion about whether certain Toronto charges might be transferred to Windsor for disposition pursuant to s.479 of the Criminal Code of Canada, R.S.C. 1985, c. C-46 (“Criminal Code”). At that time, the offenders did not consent to the transfer of charges and it was determined that it would not take place. Rather, the offenders would plead guilty to offences arising out of the Windsor robbery and be sentenced on that basis.

[ 6 ] It was agreed by counsel that the offenders would each plead guilty to one count of robbery with a firearm and one count of committing an indictable offence while masked. Crown and defence would advance a joint submission for a sentence of 10 years incarceration. The defence would submit that pre-sentence custody should be credited on a 1.5 to 1 basis, while the Crown would maintain a 1 to 1 ratio should govern.

[ 7 ] In accordance with this resolution, on September 23, 2011, Mr. Caceres and Mr. Deelarbi each pleaded guilty to one count of robbery with a firearm and one count of committing an indictable offence while masked. Pre-sentence reports were ordered. The matter was put over to December 16, 2011 for an evidentiary hearing so that counsel could present evidence about the conditions of the offenders’ pre-sentence custody. Thereafter, various adjournments ensued. On December 16, 2011, the matter was adjourned to assignment court to schedule a new date for the sentencing hearing. On that date, the hearing was scheduled to take place on February 24, 2012. On February 24, 2012, the hearing was adjourned on consent to May 2, 2012. On consent, the matter was adjourned once again to May 15, 2012.

[ 8 ] On May 15, 2012, the parties advised the court that the witnesses sought from the Windsor Jail were not available to testify and that a further adjournment was required. It was on this date that counsel revisited the issue of the Toronto charges. The court was advised that the offenders had consented to the transfer of the Toronto charges to Windsor. It was intended that the offenders would plead guilty to the Toronto charges before the Windsor court and be sentenced for all of the offences together. As of May 15, 2012, the documents for the transfer had not yet been received by the Crown in Windsor. The matter was adjourned to June 25, 2012.

[ 9 ] On June 25, 2012, the Crown advised that he had still not received the documents that were required to deal with the Toronto charges. The material was said to be on the way. The matter was adjourned to June 28, 2012.

[ 10 ] On June 28, 2012, the court heard evidence about the conditions of the offenders’ pre-sentence custody. In addition, with the consent of the offenders, the Toronto charges were formally placed before the court pursuant to s.479 of the Criminal Code. Each offender pleaded guilty to 12 charges from the Toronto indictment. The facts of the Toronto robberies were read into the record.

[ 11 ] The Crown advised that it was willing to join the defence in a submission for a global sentence of 10 years to cover the Windsor robbery and the four additional robberies from Toronto. The Crown advised the court:

I’m willing to join my friends’ – joint position. Your Honour will have to decide whether that’s sufficient or not. The original position from the Toronto Crown was 12 years but I’m content – it was no less than 10 years, no more than 12 years, but at this point, as a Windsor Crown, I’m willing to join my friends at 10 years.

[ 12 ] I expressed concern over the adequacy of the sentence, stating:

I only heard the facts of the Toronto offences this morning in open court. I did not know anything of those offences in terms of their gravity before the facts were read in this morning. …I just want to express some discomfort with a sentence of 10 years in the circumstances given the gravity of those facts involving actual violence to the tellers, pistol whipping causing injury, and other very aggravating factors of the four Toronto crimes.

So I just want to let counsel know that, as always, I accord great deference to positions put forward by experienced counsel. I only would interfere with the joint submission if the sentence was disproportionately lenient or accepting it would bring the administration of justice into disrepute. I will need some assistance from counsel to persuade me that that’s not the case here.

[ 13 ] It was agreed that the matter would go over to allow the Crown to obtain victim impact statements for the Toronto offences, and to allow all counsel to put forward additional material to assist the court in better understanding the joint position for 10 years.

[ 14 ] On July 25, 2012, victim impact statements from Toronto were introduced. In addition, I heard further submissions from counsel in support of a 10 year sentence. Having heard those submissions, I reserved my sentencing decision until today’s date.

(Complete text continues exactly as in the source with paragraphs [15] through [98], unchanged.)

Original signed “ Pomerance J. ”

Renee M. Pomerance
Madam Justice

Delivered Orally and Released: September 18, 2012

ONTARIO SUPERIOR COURT OF JUSTICE
Her Majesty the Queen – and – Cristobal Caceres and Justin Deelarbi Accused

REASONS FOR SENTENCE
Pomerance J.

Delivered Orally and Released: September 18, 2012