ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 3-442/10
DATE: 20130320
BETWEEN:
HER MAJESTY THE QUEEN
– and –
AUNDRE ROSE
Defendant
Eadit Rokach, for the Crown
Ariel Herscovitch, for the Defendant
HEARD: March 11, 2013
SPIES J.
REASONS FOR SENTENCE
Overview
[1] On December 4, 2012, following a trial before me, I convicted Mr. Rose as a party to one count of robbery while armed with a handgun contrary to section 344 of the Criminal Code. I found that he had aided and abetted three accomplices in the robbery of Laxson Moyo and that he knew one of his accomplices would be and was armed with a firearm. He is now before me for sentencing.
The Facts
(a) Circumstances of the Offence
[2] The details of the offence are set out in my Reasons for Judgment; R. v. Rose, 2012 ONSC 6751. Just after midnight on February 18, 2009, Mr. Moyo was robbed of his car keys when he returned to his apartment. He was in the company of Charlene Webster who was part of the robbery plan and was approached in the parking lot by three men who took his car keys, beat him and intended to rob him. They left the scene without taking anything. I had a reasonable doubt about whether or not Mr. Rose was one of those men but I found he was one of the people who began to plan this robbery a week or so earlier when he and his girlfriend, Ms. Webster, and two friends; Mr. James and Mr. Nwogu, discussed a plan to rob men using Ms. Webster as bait.
[3] Mr. Rose was an integral part of the general planning discussion for the robbery. Ms. Webster testified how she did not want to do this and that Mr. Rose directed her to engage with Mr. Moyo, lead him to believe that she was interested in him and go on a date with him. She testified that she only did this because Mr. Rose told her to. I found that, save for the fact Mr. Rose may not have made it in time to participate in this robbery, the robbery otherwise occurred as planned in that Mr. Moyo became exposed to the robbery after going out with Ms. Webster on a date. There was no evidence that part of the plan was that the men would have their faces masked. However, Mr. Nwogu testified that they planned to bring guns. He testified that there were two; one in the hands of Mr. James and the other in the hands of a third person he knew only as K.G.
(b) Impact on Mr. Moyo
[4] Mr. Moyo testified that as he started walking towards his building, one of the robbers put a gun to his stomach, took his car keys and pushed him towards his car. A second and third robber approached them and two of the robbers tried to push him into the backseat of his car. He started screaming and fighting them. Two of the robbers were beating Mr. Moyo on his head and trying to shove him into the car. One robber used a gun and hit him twice on the back of his head. Mr. Moyo said that he was getting so many blows as he was facing the car that he could not tell if the other robber was also hitting him. Mr. Moyo fell to the ground when he was being pushed into the car and both men kicked his stomach and back to get him up. At trial Mr. Moyo testified that he suffered bruises from the attack that were not serious and he was in pain for a couple of days.
[5] Mr. Moyo provided a written victim impact statement for sentencing. In terms of emotional loss he states that the robbery has made him change the way he looks at his surroundings and the people around him. He has distrust in new people and has had sleepless nights and dreams about a gun being pointed to his head. He is fearful of answering his door and does not want to be a victim again. The robbery has had a financial impact as well as he felt that he had to move his family to a new place where he installed a security system. In addition, he has lost income from coming to court.
(c) Circumstances of Mr. Rose
[6] A Pre-Sentence Report was neither requested nor ordered. Mr. Rose is 27 years old. He has a criminal record. He was convicted in 2005 of armed robbery and the use of an imitation firearm during the commission of an offence. He received 364 days with a credit of 24 days pre-sentence custody and probation for three years on the armed robbery charge with a one year consecutive sentence on the use of the imitation firearm. He was paroled on those charges on January 6, 2006. There was then a period where Mr. Rose had no convictions until October 2012 when he was convicted by Justice Harvison Young of this court, of robbery with an imitation firearm and sentenced to six and one half years in prison. This robbery was a home invasion in Thorncliffe Park (the “Thorncliffe robbery”) and took place on February 24, 2009; six days after the Moyo robbery. As I will come to, the fact the Moyo robbery took place before the Thorncliffe robbery is a factor on this sentencing.
[7] Mr. Rose has virtually all of his high school credits save one Grade 12 credit. He would like to take this credit when he is in the penitentiary. Mr. Rose also spent one year in a college business administration program. I understand that he was earning a living by coaching basketball for several years and, as I will come to, he also mentored youth as a volunteer.
[8] Mr. Rose is not a citizen of Canada and I am advised that he will be deported to Jamaica after he serves his sentence. He hopes to complete his college degree there. Mr. Rose has a six year old daughter and he has been with the mother of his child (not Ms. Webster) for eight and a half years. He saw a lot of his daughter before he was convicted by Harvison Young J. as he was on house arrest while on bail.
[9] Mr. Rose advised me that he would like to apologize to Mr. Moyo and admitted that there was no excuse for his conduct which he characterized as “youthful mentality at the time”. That, in my view, is an extreme understatement. Mr. Rose said he is “extremely remorseful”. He talked about the impact this event has had on his young daughter because since he has been incarcerated he is not there physically for her every day.
[10] Fifteen letters of support were filed on behalf of Mr. Rose which all speak in glowing terms of his abilities and personality. These letters describe a man who seems incapable of committing the crimes Mr. Rose has been convicted of. It appears that certainly at the time of the Moyo and Thorncliffe robberies, Mr. Rose was living a double life. As stated by one of the authors of letters filed in support of Mr. Rose, he does not fit the profile commonly encountered in the circumstances of his case.
[11] I summary of the letters is as follows:
a) A letter from a criminal defence lawyer who knows Mr. Rose and his immediate family as a result of mutual acquaintances in the music industry states that Mr. Rose comes from a background of “strong moral values within a very healthy family environment”. His letter describes Mr. Rose’s involvement as a volunteer in the production of a music video involving young people.
b) A number of letters describe Mr. Rose’s involvement as a volunteer with a project with inner city youth of Chicago. The objective of this project was to take kids from disadvantaged communities that had dreams of one day becoming a singer, rapper or producer and let their words be heard. When Mr. Rose was under house arrest he began working on the project with the youth coming to his home. He mentored them and in the opinion of the President of the organization, some of these youth would have returned to Chicago and back into a life of crime but for his guidance. She believes Mr. Rose has the desire to be productive in the community and to help find ways so that other young people will not make mistakes in their lives that could cost them their future. This project had the backing of the head of the Crime Commission of Chicago as well as the Mayor of Chicago and letters from both the Mayor and the Deputy Director of the Commission speaking highly of this project were also filed.
c) A letter from the Club President of the Advantage Basketball Club speaks to Mr. Rose’s skill at coaching basketball and the fact that Mr. Rose has volunteered his time to help at free basketball camps which help inner city youth primarily from low income families in the Scarborough area. Mr. Rose was also involved in the Big Brother program where he served as a mentor. In his opinion Mr. Rose has a gift for working with youth.
d) Stevie Stephens, Mr. Rose’s older brother, provided a letter. He had been his surety. He is a musician, recording artist and songwriter. In his opinion Mr. Rose is a very talented artist and songwriter and he states that Mr. Rose has been involved in various projects that he has been part of including inspirational music for youth to help them seek a better path in life.
e) A letter from one of Mr. Rose’s cousins that grew up with him in the same household, states that Mr. Rose has made a conscious effort to eliminate all things negative that had an impact on his life and is using them as a lesson to bring positive influence in his life. She states that Mr. Rose has taken up music as a form of relief mechanism to write about his experiences. In her opinion he is very talented at writing and formatting songs with positive messages.
f) A good friend and colleague of Mr. Rose who produces digital media states that Mr. Rose has recently collaborated on a few music videos which have aired on MuchMusic television and are being well received on YouTube. He states that Mr. Rose has also hosted a number of community events in support of local musicians.
g) A good friend of Mr. Rose’s mother describes Mr. Rose as a kind-hearted, spirited young man who is a delight to be around. She states that he shows devotion to his family and in particular his mother.
h) Another friend of Mr. Rose says he is one of the most upbeat positive men that she has ever met and speaks of the music he is writing. She knows his large family provides a very close loving support system and states the family has high standards and morals and is very respectable.
i) A new friend of Mr. Rose’s describes him as a good person who is kind and generous and has a strong sense of responsibility.
(Decision continues exactly as in the original judgment.)
SPIES J.
Released: March 20, 2013
COURT FILE NO.: 3-442/10
DATE: 20130320
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
AUNDRE ROSE
Defendant
REASONS FOR SENTENCE
SPIES J.
Released: March 20, 2013