ONTARIO

SUPERIOR COURT OF JUSTICE

DATE: 20120104

BETWEEN:

HER MAJESTY THE QUEEN – and – CHADWRAY BARRETT

Luke Schwalm, for the Crown

Iryna Revutsky, for Chadwray Barrett

HEARD: December 20, 2011

REASONS FOR SENTENCE

MacDonnell, J

[ 1 ] On May 16, 2011, Chadwray Barrett and his co-accused Andre Royes appeared before this court for trial on a number of charges stemming from a series of robberies that occurred in Toronto in the summer of 2009. The charges against Mr. Barrett arose from two carjackings and a milk store robbery. The charges against Mr. Royes arose from the same three incidents as well as several other carjackings.

[ 2 ] In the course of the pre-trial applications, Mr. Royes appeared before Justice McMahon and pleaded guilty to offences arising out of two of the carjackings. The trial of Mr. Barrett alone continued before me, without a jury. On June 17, 2011, I found Mr. Barrett guilty of robbery, being masked with intent to commit robbery, using an imitation firearm while committing robbery and forcible confinement in relation to each of the two carjackings with which he was charged. I found him not guilty of the offences relating to the milk store robbery. He is before the court today for sentencing.

A. The Circumstances of the Offences

(i) The First Carjacking

[ 3 ] The first carjacking involved the abduction and robbery of a Swiss Chalet delivery driver, Bahram Mizrakhan-Rizlighy.

[ 4 ] At about 10:00 p.m. on August 9, 2009, Mr. Mizrakhan-Rizlighy was confronted by two masked males wearing black hoodies as he was walking back to his car after making a delivery. One of the men was armed with a silver handgun, which he put against Mr. Mizrakhan-Rizlighy’s stomach. The men demanded Mr. Mizrakhan-Rizlighy’s car keys and ordered him into the back seat. One man sat beside him while the other got into the driver’s seat and drove off.

[ 5 ] The men drove to a parking lot where they demanded Mr. Mizrakhan-Rizlighy’s cell phone and ordered him into the trunk. Mr. Mizrakhan-Rizlighy initially refused, but he was forced to comply at gunpoint. The men drove around for a period of time. One of them asked him how much money he had. He responded that he had one hundred dollars. The men stopped, opened the trunk and demanded his wallet. Mr. Mizrakhan-Rizlighy gave it to them, forgetting that he had put his money in his pocket. When the men looked inside the wallet and found no money, they threatened to kill him. Mr. Mizrakhan-Rizlighy remembered that his money was in his pocket and he handed it over.

[ 6 ] The men continued driving. After about ten minutes they stopped and demanded that Mr. Mizrakhan-Rizlighy give them the personal identification number for his bank card. At first, he gave them the wrong number, but when they threatened to kill him he provided the correct one. The men then drove to a convenience store on Vaughn Road, where they used Mr. Mizrakhan-Rizlighy’s bank card to make withdrawals from his bank account through an automatic teller machine.

[ 7 ] After Mr. Mizrakhan-Rizlighy had been in the trunk for about 90 minutes, the men told him that they were going to leave but that he was to remain where he was for 10 minutes or they would kill him. After about five minutes, Mr. Mizrakhan-Rizlighy opened the trunk, made his way to 13 Division police station and reported what had happened.

(iii) The Second Carjacking

[ 8 ] The second carjacking occurred a month after the first. At about 1:00 a.m. on September 8, 2009, Muse Guled returned home alone to his west-end apartment building and parked in the underground garage. As he was walking away from his car, he was accosted at gunpoint by a masked man wearing a hoodie who directed him to return to the car. A second masked man then appeared and Mr. Guled was ordered to kneel beside his car with his hands on top of his head. One of the men told him “This is no joke”, kicked him in the side and demanded his cell phone and money. Mr. Guled handed over his cell phone and his wallet. The men opened the trunk of the car and ordered Mr. Guled to get in. Mr. Guled, who is a large man, protested that he was too big, but the men forced him to comply. They then closed the trunk, got into the car, and drove away.

[ 9 ] As the car drove away, Mr. Guled was yelling at his abductors, telling them that there was no room in the trunk and that he could not breathe. They told him to shut up, and that this was his last day. They said “You fucking dog, die or not, you stay there”. They demanded that he tell them the personal identification number for his bank card. Mr. Guled gave them the number. Between 1:16 a.m. and 1:28 a.m. six withdrawals were made from Mr. Guled’s bank account from a Toronto Dominion automatic teller machine. The men then continued to drive around with Mr. Guled in the trunk. Eventually they stopped, got out and told him to remain where he was. They said that they would kill him if he moved or yelled. He waited for about 10 or 15 minutes and then opened the trunk and ran from the scene. He collapsed some distance away, in the middle of Vaughn Road, where he was found by a taxi driver. The police attended and Mr. Guled led them to where his car had been, but by that point it was gone.

[ 10 ] For the reasons I delivered on June 17, 2011, I am satisfied beyond a reasonable doubt that the two men who committed those two carjackings were Mr. Barrett and Mr. Royes. I infer that the weapon that was used in the offences was the replica handgun that was found in a bedroom closet of Apartment 303 at 1025 Scarlett Road.

B. The Circumstances of the Offender

[ 11 ] Mr. Barrett was born on July 10, 1991. He was 18 years of age at the time of the offences, and he is now 20 years old. He has no prior criminal record. I have the benefit of both a Psychiatric Assessment prepared by Dr. Julian Gojer at the request of Mr. Barrett’s counsel and a Pre-sentence Report.

[ 12 ] Mr. Barrett was born in Jamaica, where he was raised by his mother and her family. His biological father was not part of his life as he was growing up, but his step-father became involved in his upbringing from an early age. In his interview with the author of the Pre-sentence Report, Mr. Barrett described a happy childhood. His mother and stepfather later emigrated to Canada, settling in Toronto, and when Mr. Barrett was 16 they sponsored him to join them here. He enrolled in high school and was involved in sports. He played football for Central Tech and became the school wrestling champion. However, he struggled academically. The Pre-sentence report states:

According to Toronto District School Board Records when the subject was changing schools to Yorkdale Adult Secondary the guidance counselor wrote a letter dated March 9, 2011 stating that the subject was a lovely person. The comments from teachers over the years is consistent with this that the subject was very likeable but lacked the required focus, didn’t complete sufficient homework assignments, was absent and late far too often to succeed.

[ 13 ] Mr. Barrett continues to enjoy the support of his family. His mother regularly attended court throughout the trial, as did his biological father. It is obvious that both parents are concerned about him. Mr. Barrett’s mother attributed some of his problems in school to the fact that he had had trouble waking up in the morning because he had part-time jobs. He advised Dr. Gojer that he wants to complete his education and become a mechanic or learn a skilled trade.

[ 14 ] When the author of the Pre-sentence Report asked him about the carjackings, Mr. Barrett stated: “I want to let the court and the victims know that I am sorry for what happened and wish I could go back in time and take everything back.” He advised Dr. Gojer that the offences occurred at a time when he had left home, because of arguments with his step-father, and was living with Royes. He stated that he had turned to crime because he was struggling to survive on the street. The police told the author of the Pre-sentence Report that they suspected that Mr. Barrett was associated with a street gang. Mr. Barrett denied that suggestion, and no evidence has been presented to substantiate it.

[ 15 ] About a year before the carjackings, Mr. Barrett was himself the victim of a violent offence when he was shot in the hip in the course of an altercation on a city bus. He reported that he has had recurring nightmares about what happened and that it has left him fearful of being on buses. His mother reported that he became moody after the incident. Mr. Barrett told Dr. Gojer about his nightmares. Dr. Gojer concluded:

Mr. Barrett presented as a quiet and soft spoken young man. He did not have any speech or thought disturbance. His mood was anxious and slightly depressed. There were no delusions or bizarre ideas. He was regretful and remorseful for what he had done and the shame he has put his family through. There were no cognitive disturbances. He was of average intelligence.

The history obtained is indicative of Mr. Barrett suffering from a Post Traumatic Stress Disorder. His history is not indicative of any major mental illness like schizophrenia or bipolar mood disorder. There is no indication that he has suffered from any personality disorder or psychopathic tendencies. His offending came to his family as a shock and they see it as uncharacteristic of him.

Mr. Barrett is in need of counseling and medication to treat his post traumatic stress disorder. He could benefit from counseling to look at his actions that led to his offending and develop a prosocial plan for himself after his release. If he receives a sentence that is less than 2 years he could be treated at the St. Lawrence Valley Correctional and Treatment Centre. If given more than two years, there are appropriate programs in the penitentiary for him.

[ 16 ] Mr. Barrett prepared a letter to the court which was filed in the sentencing proceedings. In the letter, he expressed remorse for his involvement in the robberies and he apologized for his behaviour. He stated that since he has been in custody he has had time to reflect on the poor decisions he has made, and he stated that “I have found my true self and learned how to correct my behaviour.” He stated that “I am not bitter or angry at the justice system, but I am disappointed in myself.” He indicated that he wished to regain everyone’s trust and to prove that he can have a new beginning.

C. Mr. Barrett’s Statement to the Court

[ 17 ] At the conclusion of the sentencing hearing Mr. Barrett addressed the court pursuant to s. 726 of the Criminal Code . He apologized again to the victims of the robberies. He stated that he was truly sorry, and that he wished he could go back in time.

D. Pre-sentence custody

[ 18 ] Following his arrest on September 9, 2009, Mr. Barrett remained in custody until July 11, 2010, when he was granted bail. The parties agree that Mr. Barrett should receive 20 months credit for that initial ten month period. He was on bail until July 3, 2011, when his bail order was cancelled for an alleged breach of its terms, and he has been in custody since that time. The parties agree that he should receive ‘one for one’ credit for the latter six month period.

E. The Sentence imposed on Andre Royes

[ 19 ] Mr. Barrett was charged jointly with Andre Royes with respect to the carjackings of both Mr. Mizrakhan-Rizlighy and Mr. Guled. In the course of the pre-trial applications, Royes appeared before Justice McMahon and entered pleas of guilty to counts of robbery, using an imitation firearm while committing robbery and forcible confinement in relation to the carjacking of Mr. Guled. He also pleaded guilty to similar offences arising out of another carjacking, in which Mr. Barrett was not involved, that occurred in the underground parking garage of an apartment building on August 15, 2009. In the course of this second carjacking, a tenant of the building was robbed of his bank card at gunpoint and forced into the trunk of his car. Royes and a confederate then drove to a bank machine, where they withdrew money from the victim’s account.

[ 20 ] On the sentencing hearing before Justice McMahon, the parties agreed that he should take into account the facts of two additional carjackings committed by Royes, although he did not plead guilty to them. In both of those incidents, the victims were abducted and confined to the trunks of their cars.

[ 21 ] At the time of the offences, Royes was 21 years of age and a student in Grade 11. He had a prior criminal record consisting of convictions for assault and sexual assault, although he had not yet been sentenced for those offences when he committed the carjackings. The parties jointly recommended a term of imprisonment of 7 years, less credit of 3 years and 6 months for pre-sentence custody. Justice McMahon adopted the joint recommendation.

F. The Positions of the Parties

[ 22 ] On behalf of the Crown, Mr. Schwalm submitted that Mr. Barrett should receive a global sentence of 10 years imprisonment, less credit for pre-trial custody.

[ 23 ] On behalf of the defence, Ms. Revutsky submitted that the appropriate sentence is five years imprisonment, less credit for pre-trial custody.

G. The Applicable Principles

[ 24 ] Section 718 of the Criminal Code provides, in part, that 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 have one or more of [six] objectives.” Those objectives include the denunciation of unlawful conduct, deterrence of the offender and others who might be similarly tempted, separation of the offender from society where necessary, rehabilitation, and the promotion of a sense of responsibility in the offender. Whatever sanction is imposed “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” [1] Further, a court that imposes a sentence “shall also take into consideration” the principle, among others, that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.” [2]

[ 25 ] Which of the objectives set forth in s. 718 should be given the greatest weight in any particular sentencing scenario will be a case-specific determination. In the case at bar, there is no dispute that the serious circumstances of the carjackings committed by Mr. Barrett require that denunciation and general deterrence be prime considerations. But they are not the only considerations. At the time of the offences, Mr. Barrett was 18 years of age, he had no prior record, and there was nothing to indicate that he was irretrievably embarked on a life of crime. Generally speaking, sentences imposed on young first offenders will stress individual deterrence and rehabilitation rather than general deterrence, but serious crimes involving a significant risk to public safety may justify an exception to the general rule: R. v. Thurairajah , 2008 ONCA 9 . Even for such crimes, however the youthfulness of an offender remains a relevant consideration. In R. v. Borde (2003), 2003 4187 (ON CA) , 172 C.C.C. (3d) 225 (Ont. C.A.), Justice Rosenberg stated, at paragraph 36:

The length of a first penitentiary sentence for a youthful offender should rarely be determined solely by the objectives of denunciation and general deterrence. Where, as here, the offender has not previously been to penitentiary or served a long adult sentence, the courts ought to proceed on the basis that the shortest possible sentence will achieve the relevant objectives.

[ 26 ] The principle that "a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances" requires a consideration not only of sentences imposed in unrelated but analogous cases but also of the sentence imposed on any other person involved in the same offences for which the offender is to be sentenced. Andre Royes pleaded guilty to several offences arising from the robbery of Mr. Guled as well another carjacking in which Mr. Barrett was not involved. In accordance with s. 718.2(b) of the Code , the sentence imposed on Andre Royes is a relevant consideration in determining an appropriate sentence for Mr. Barrett. Of course, the principle of parity does not require that everyone involved in an offence, regardless of their individual roles, backgrounds and circumstances, should receive the same punishment. As the Court of Appeal observed in R. v. Issa (1992), 57 O.A.C. 253, at page 255, “the rule against unreasonable disparity in sentencing 'does not require equal sentences, but only understandable sentences, when examined together’ .”

H. Sentencing Precedents

[ 27 ] In deference to the principle of parity, both the Crown and the defence take the sentence imposed on Andre Royes as a starting point for a determination of the sentence to be imposed on Mr. Barrett. Neither the Crown nor the defence argues that Royes’ sentence was either too harsh or too lenient. Each submits, however, that Mr. Barrett and Mr. Royes are in different situations. The Crown submits that the differences should lead to a greater sentence for Mr. Barrett; the defence submits they should lead to a lesser sentence.

[ 28 ] Royes and Barrett were both found guilty of offences arising out of two carjackings, including one that they committed jointly. The circumstances of the additional carjacking of which each was found guilty were similar. The role that each played in the offences was indistinguishable. However, for sentencing purposes there is an important difference between their situations, namely that it was agreed that in sentencing Royes Justice McMahon should take into account the facts underlying two additional carjackings, pursuant to the principle set forth by the Ontario Court of Appeal in R. v. Garcia and Silva , 1969 450 (ON CA) , [1970] 3 C.C.C. 124.

[ 29 ] On the hearing before me, Mr. Schwalm submitted that the two additional carjackings were not before Justice McMahon as matters for which Royes was to be punished but only to shed light on his character. With respect, I disagree .

[ 30 ] The principle set forth in Garcia and Silva was a well-established part of the common law of sentencing prior to the Court of Appeal’s affirmation of it in that case. In R. v. Batchelor (1952), 36 Cr. App. R. 64 , Goddard L.J. described the principle as follows:

It is simply a convention under which, if a court is informed that there are outstanding charges against a prisoner who is before it for a particular offence, the court can, if the prisoner admits the offences and asks that they be taken into account, take them into account, which means that the court can give longer sentences than it would if it were dealing with him on the charge mentioned in the indictment . [3]

[emphasis added]

[ 31 ] In D.P.P. v. Anderson , [1978] 2 All E.R. 512 (H.L.) , Lord Diplock observed that "this practice involves the convicted offender who has been convicted of one offence in being punished for other offences for which he has never been formally arraigned, tried or convicted and to which he has never formally pleaded guilty." [4]

[ 32 ] The rule was expressed in much the same terms by the Ontario Court of Appeal in Garcia and Silva . At page 126, Chief Justice Gale stated:

We agree that frequently it is a sensible and proper thing for a Judge to take into consideration other convictions and on occasions and under proper safeguards other charges laid against a convicted person. If other charges are taken into consideration, it seems to us those safeguards should at least include the conditions that they are charges with respect to which the accused will plead guilty or will otherwise be proved guilty and that the Crown commits itself not to proceed with those other charges in the event that they are taken into consideration on sentencing on the conviction before the court. On this subject I have examined the views of the English Court of Criminal Appeal in R. v. Nelson (1966), 51 Cr. App. R. 98 .

[ 33 ] What was stated explicitly in Batchelor and Anderson was clearly implied in Garcia and Silva , namely that the purpose of the convention is not merely to provide background information. Rather, the purpose is to enable courts to impose sentences that reflect offenders’ culpability not only for the offences of which they have been found guilty but also for offences of which they have not been found guilty but which they admit committing. It was because of this that the English Court of Appeal, in R. v. Nelson , which was cited by the Ontario Court of Appeal in the passage set out above, stressed the importance of obtaining an unequivocal admission of guilt in relation to the additional offences. Winn L.J. stated:

It is essential, in the opinion of this court, that in any case the court should satisfy itself by explicit inquiry whether the accused before the court does admit his guilt of those offences before they can be properly taken into account. [5]

[ 34 ] The principle or convention described by the Court of Appeal in Garcia and Silva is now reflected in s. 725(1) (b.1) of the Criminal Code .

[ 35 ] The invitation of the parties to have Justice McMahon consider the facts of two additional carjackings pursuant to the principle in Garcia and Silva , therefore, was an invitation to determine the appropriate sentence for all four of the carjackings committed by Royes, not just the two to which he had formally pleaded guilty.

[ 36 ] While the differences between the personal circumstances of Mr. Barrett and those of Royes should not be overstated, there are some that are relevant. When he committed the first carjacking in the case at bar, Mr. Barrett had just turned 18 years of age. Justice McMahon proceeded on the basis that Royes was 21 years of age at the time of the offences. Barrett had no prior youth or adult criminal record, and he was not on any form of judicial release. Royes had been found guilty of assault and sexual assault prior to the commission of the carjackings, and he was on bail awaiting sentence when he committed them.

[ 37 ] Unlike Royes, of course, Mr. Barrett did not plead guilty. Generally speaking, a guilty plea is a significant mitigating circumstance on sentencing, and Justice McMahon placed considerable weight on it. In his view, Royes’ plea justified a sentence significantly below what he would have received after a trial. It must be said, however, that Royes pleaded guilty very late in the day. He waited until after a preliminary inquiry had been held, after he had been committed for trial, after trial time had been set aside and after about two weeks had been consumed with pre-trial motions. The savings to the administration of justice resulting from his plea, in reality, were negligible.

[ 38 ] If all other circumstances were the same, one could reasonably expect that the fact that Royes pleaded guilty while Barrett did not would be reflected in a lesser sentence for Royes. But all other circumstances are not the same, and when the differences are factored into the calculus – the differences in age, prior record and number of carjackings – it cannot reasonably be argued that Mr. Barrett should not only receive a longer term of imprisonment than Royes, he should receive one that is three years longer. To do that would be to impose a premium on the exercise of the right to a trial that could undermine the presumption of innocence and the obligation on the Crown to prove guilt.

[ 39 ] Both the Crown and the defence have referred to a number of sentencing authorities in support of their respective positions as to the range of sentence in this case. The Crown analogizes carjackings to home invasions, and relies on the range of sentence for the latter as pointing to the range for the former. While there are parallels between carjackings and home invasions, an intrusion into a home to commit an offence, particularly when violence or threats of violence are employed, is a uniquely aggravating circumstance that is absent from a carjacking. On the other hand, the abduction of the victims at gunpoint and their confinement in the trunks of their cars for hours as the offenders drove about the city depleting their bank accounts marks the offences in the case at bar as an aggravated form of robbery. There is a nightmarish quality to what happened to the victims in this case. The abhorrence of the community for such conduct can only be properly reflected by substantial terms of imprisonment.

[ 40 ] Based on the authorities to which the parties have referred, I am satisfied that the sentence imposed on Royes was fit. For the reasons I have stated, I am of the view that the sentence imposed on Mr. Barrett should be somewhat less. The fact that he had just turned 18, that he did not have a prior record of any kind, and that he has exhibited what I accept as genuine remorse through his admissions of culpability to the author of the Pre-sentence Report, to Dr. Gojer, and to this court are important considerations in this respect.

I. Disposition

[ 41 ] But for pre-sentence custody, the appropriate global sentence for Mr. Barrett would have been six years (72 months) imprisonment. The parties agree that he should receive a credit of 26 months for pre-sentence custody, which will result in a sentence today of 46 months. That sentence will be imposed on each of the eight counts. All the sentences are to be served concurrently with one another.

MacDonnell, J.

Released: January 4, 2012

R. v. BARRETT, 2012 ONSC 82

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – CHADWRAY BARRETT REASONS FOR JUDGMENT MacDonnell, J.

Released: January 4, 2012

[1] Section 718.1
[2] Section 718.2(b)
[3] at pp. 67-68
[4] at p.515
[5] (1966), 51 Cr. App. R. 98 , at p.101