CITATION: R. v. Panchan, 2013 ONSC 5567

COURT FILE NO.: 12-40000660-0000

DATE: 20130903

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

COURTNEY PANCHAN and DELANO LOPES

Kathy Nedelkopoulos, for the Crown

Setu Purohit, for Panchan

Tyler MacDonald, for Lopes

HEARD: August 23, 2013

m.a. code j.

REASONS FOR SENTENCE

A. INTRODUCTION

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A. INTRODUCTION

The two accused persons, Courtney Panchan and Delano Lopes (hereinafter, Panchan and Lopes), were tried by a judge and jury, beginning on June 10, 2013. The next day, June 11, 2013, I dismissed a s. 11(b) Charter of Rights Motion that had been argued at the start of the trial. Jury selection was completed and the Crown began calling its case on June 13, 2013.

2Panchan and Lopes were jointly charged in a two count Indictment with the robbery and aggravated assault of one Jason Louis (hereinafter, Louis). All parties agreed that a third person was involved in the incident and he played a significant role in what was undoubtedly a serious beating and robbery of Louis. That third person has never been identified or charged.

3On June 25, 2013, the jury returned verdicts of guilty on both counts against Mr. Lopes and guilty of robbery against Ms. Panchan. The jury found Ms. Panchan not guilty on the count of aggravated assault.

4The sentencing hearing was adjourned for two months, until August 23, 2013. After hearing submissions, I reserved judgment for ten days. These are my Reasons for Sentence.

B. FACTS RELATING TO THE TWO OFFENCES

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B. FACTS RELATING TO THE TWO OFFENCES

As this was a jury trial, there are no findings of fact relating to the offences. I must make these findings of fact by interpreting the jury’s verdict and by making additional findings not inconsistent with the jury’s verdict, pursuant to s. 724(2) of the Criminal Code.

6The findings of fact are relatively straight forward in relation to Ms. Panchan. The only basis for liability left with the jury, in Ms. Panchan’s case, was that she was a s. 21(1)(b) “aider” of the robbery. The acts committed by Ms. Panchan, which allegedly aided the two co-principals (Mr. Lopes and the unknown male third party) were not seriously in dispute. Ms. Panchan admittedly called Mr. Louis on her cell phone and asked him to come to meet her in the parking lot where the robbery was carried out. She also admittedly engaged Mr. Louis, once he arrived, in helping her to search for a ring while the two co-principals approached the parking lot from behind an adjacent building. In other words, Ms. Panchan facilitated the robbery by luring the victim to the scene and by distracting him, once he arrived. The two co-principals then proceeded to beat Mr. Louis and steal his car and his cell phone. Ms. Panchan did not participate in the acts of violence or the acts of stealing.

7The key issue, in Ms. Panchan’s case, was whether she knew that there would be a robbery and intended her admitted acts to assist in facilitating that robbery. The jury obviously rejected her evidence, denying any such knowledge and intention. The jury must have been satisfied that she intended to assist her boyfriend, Mr. Lopes, in carrying out the robbery.

8The only definitions of robbery that were left to the jury, pursuant to s. 343(b) and s. 343(c), involved Mr. Lopes acting as a co-principal in the robbery. The s. 343(b) “personal violence” and the s. 343(c) “assault” alleged against Mr. Lopes was punching Mr. Louis in the face. The jury must have been satisfied that Ms. Panchan knew that her boyfriend, Mr. Lopes, intended to rob Louis and that some force or violence such as the punches to the face would be used. However, the jury was obviously not satisfied that Ms. Panchan knew or ought to have known that further violence, in the nature of “wounding”, would also be utilized by one of the co-principals. That is because the jury acquitted Ms. Panchan on Count Two of aggravated assault by “wounding”. Party liability, pursuant to both s. 21(1) (b) and s. 21(2) of the Criminal Code, was left to the jury but both theories of liability were rejected in Ms. Panchan’s case.

9Accordingly, Ms. Panchan’s culpability in this incident is less than Mr. Lopes’ for three distinct reasons. First, she is a party to a serious crime involving some use of force or violence, namely the robbery. However, she is not a principal in the acts of force or violence. Second, those acts (punches to the face by Mr. Lopes) did not cause any injuries. Third, and most importantly, Ms. Panchan is not a party to the serious acts of violence captured in Count Two, namely, blows to Mr. Louis’ head with a metal baton.

10These findings of fact, relating to the offence, have the effect of reducing Ms. Panchan’s responsibility or culpability in the incident to a level below Mr. Lopes.

11The findings of fact relating to Mr. Lopes are somewhat more difficult because he was convicted on both counts. On Count One, the findings of fact are relatively straightforward. Given the way that the jury was instructed on this count, they must have been satisfied that Mr. Lopes was a principal in the robbery. The only theory of liability left to the jury, pursuant to s. 343(b) and s. 343(c), was that Mr. Lopes approached Mr. Louis in the parking lot and punched him in the face and that he either stole Mr. Louis’ car and cell phone or intended to steal from Mr. Louis. The jury must have rejected Mr. Lopes’ testimony, denying these acts and denying any intent to steal. I am satisfied beyond reasonable doubt that Mr. Lopes was a principal in the theft of the victim’s car and cell phone. It was Mr. Lopes who had the motive to rob Mr. Louis due to some historical grievance; it was Mr. Lopes who initiated the robbery by approaching Mr. Louis and punching him in the face; it was Mr. Lopes who was previously associated with both the scene of the robbery and with the scene where the stolen car was eventually left; and it was Mr. Lopes whose fingerprints were found in the interior of the stolen car.

12The findings of fact relating to Mr. Lopes’ role in the Count Two offence of aggravated assault are somewhat more difficult to make. That is because the jury was left with two theories of party liability. The unknown third participant was the principal in the Count Two offence as it was only this man who swung the metal baton and directly caused the serious injuries to Mr. Louis’ head. The jury was instructed that Mr. Lopes could be a s. 21(1)(b) party to the aggravated assault, if he punched Mr. Louis in the face, knowing that the man with the baton would join in the assault and strike Mr. Louis. Alternatively, Mr. Lopes could be a s. 21(2) party if he intended to rob Mr. Louis and knew or ought to have known that the other man would use the baton to strike Mr. Louis as a probable consequence of the robbery.

13It cannot be determined which of these two theories was adopted by the jury or whether some jurors adopted one theory while other jurors adopted the other theory.

14I am satisfied, pursuant to s. 724(2)b, that Mr. Lopes must have known that his co-principal in the robbery was armed with the metal baton. I am also satisfied that the joint attack on Mr. Louis proceeded simultaneously, with Mr. Lopes initiating it with punches and the other man immediately joining in with the baton. The logical reason for bringing a second accomplice to the robbery, given that Mr. Lopes is not a big man, was to gain the advantage of this second man’s additional use of force. Mr. Lopes never did or said anything to disassociate himself from the second man’s use of force with the baton and they were acting together. In all the circumstances, I am satisfied that Mr. Lopes was a s. 21(1)(b) “aider” in the aggravated assault as he assisted in the joint attack on the victim.

15In the result, Mr. Lopes was convicted as a party to a serious crime of violence, on Count Two. However, he was not the principal who struck the actual blows with the baton that caused the injuries to Mr. Louis. Those injuries were serious, causing four long cuts to Mr. Louis’ head. There was extensive bleeding from the cuts, it took fourteen or more stitches to close the wounds at the hospital, and there is some scarring to Mr. Louis’ scalp that is still visible.

C. FACTS RELATING TO THE TWO OFFENDERS

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C. FACTS RELATING TO THE TWO OFFENDERS

Both accused are young first offenders. Furthermore, they have both filed impressive materials on the sentencing hearing suggesting that they have excellent rehabilitative prospects.

17Ms. Panchan is now twenty-three years old. At the time of the offence in early August 2010, just over three years ago, she would have been twenty years old. She lives at home with her mother and her two siblings. She has never been involved in any criminal misconduct, either prior to the present offence or in the three subsequent years while she has been on bail.

18She has a good academic record, graduating from high school in Ajax in 2007 as an Ontario Scholar. She attended McMaster University for two years, from 2007-9, studying towards a B.A. in psychology. In 2009, she transferred to Athabasca University in Alberta where she continued her four year B.A. program by way of internet and correspondence courses, while also working full-time at a job in Toronto. Her job in Toronto is as the office manager for a film production company known as “Caribbean Tales Worldwide Distribution”. She needs to complete three more courses at Athabasca University and she will then receive her B.A. degree. She is presently enrolled in these three courses, as her final semester runs from July 1 to October 31, 2013. In the four years that Ms. Panchan has been enrolled at Athabasca University she has taken three courses during each of nine separate semesters, while working full time at her job. She has generally received good marks, although she also failed five courses at various points in this four year period.

19The letters filed on her behalf speak highly of her character. Her employer describes Ms. Panchan as hard-working and honest. Although she is only twenty-three, she has a lot of responsibility for managing the small company and she has signing authority on its bank account.

20Ms. Panchan’s mother is a hard-working successful woman who brought up her three children in a stable, loving, pro-social, and law-abiding environment. She does not make excuses for her daughter but notes that the offence took place in 2010, a few months after Ms. Panchan moved out of her family home in Ajax for the first time and began living in Toronto with Mr. Lopes. Once she was charged with the present offences, Ms. Panchan returned home to live with her mother, who was her surety. Ms. Panchan’s two sisters, one older and one younger, both live at home with her in Ajax. They both express the view that she has learned from this one mistake in her life and that she “understands the extent of her wrongdoing”. All of the letters of support are written by responsible people, who either know Ms. Panchan’s family or who know her work. They all express the view that the present offence is completely out of character and will not be repeated.

21Mr. Lopes’ antecedents are not as strong as Ms. Panchan’s. Nevertheless, he appears to have made good use of his three years on bail and his prospects, at the present time, appear to be just as positive as Ms. Panchan’s.

22Mr. Lopes was twenty-three years old at the time of the present offences. He is now twenty-six years old and lives with his mother and step-father in Pickering, together with four younger siblings. He has a full-time job, working in a warehouse. Perhaps most importantly, he has formed a two year long relationship with a very responsible young woman named Mariam Boni. They are both working and saving their money and they plan to marry. Mr. Lopes has a five year old daughter from a prior relationship. Now that he has a full-time job, Mr. Lopes is able to pay $400 per month in financial support for his daughter and he is increasingly taking on a parental role, together with his new partner.

23The above developments in Mr. Lopes’ life are all relatively recent. He was raised in a hard-working, law-abiding family but he dropped out of high school in grade eleven. In subsequent years he had no real employment. His greatest aptitude and interests were in computer software, graphic design, and music. All of these skills were essentially self-taught. While Mr. Lopes had real ability in these areas, it never led to employment or school. He was living an aimless life style at the time of the present offences and was associating with people like the unidentified male third party. His current job is the first full-time job he has ever held. He has now held this present position for over a year, he has passed his probationary period, and he has earned a raise. His female partner, Ms. Boni, has clearly had a positive influence on him and she describes him as a changed man who is now “mature and responsible” and who has changed his associates. He has continued his passion for music and computers by doing community work with “The Remix Project”, a program that seeks to engage urban youth through music and culture.

D. THE POSITIONS OF THE PARTIES

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D. THE POSITIONS OF THE PARTIES

The Crown submits that four to five years imprisonment is the appropriate sentence for Mr. Lopes, but, in the event that a reformatory sentence is imposed, the Crown submits that it should be followed by a period of probation. In Ms. Panchan’s case, the Crown submits that the appropriate range of sentence is between twenty months and three years imprisonment, including a period of probation if the lower end of the range is imposed. DNA Orders and s. 109 firearms prohibition Orders for ten years are also sought by the Crown.

25Mr. Purohit, on behalf of Ms. Panchan, submits that a fine of $2,000 to $3,000, followed by two to three years probation, is the appropriate sentence. He suggests terms of probation that are both punitive and restorative, including a period of “house arrest” with an exception for work, followed by a period of curfew, and including 150 to 200 hours of community service (or C.S.O.).

26Mr. MacDonald, on behalf of Mr. Lopes, concedes that a custodial sentence is required but submits that it should be in the reformatory range. He also submits that after giving Mr. Lopes credit for the three years he has spent on bail, on reasonably strict terms which included fifteen and one-half months of “house arrest, a sentence in the range of six months imprisonment would be appropriate. After further credit for sixty-four days spent in pre-trial custody, before Mr. Lopes was granted bail, which Mr. MacDonald submits should be credited as three months on a 1.5:1 basis, the remaining sentence to be served would be in the three month range. That sentence could be served intermittently, on weekends, allowing Mr. Lopes to keep his job and continue on the rehabilitative path that he is presently on.

27It can be seen that the positions of the parties are far apart.

E. ANALYSIS AND CONCLUSION

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E. ANALYSIS AND CONCLUSION

The principles of sentencing are set out in ss. 718, 718.1, and 718.2 of the Criminal Code and I am bound by those principles. The most fundamental principle is “proportionality”, found in s. 718.1, namely, the sentence must reflect the gravity of the offence and the degree of responsibility of the offender. The principle of parity found in s. 718.2(b) is also critically important, that is, a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

29The mitigating circumstances in the present case are the following:

• First, both accused have no prior criminal records;

• Second, both accused were relatively young at the time of the present offences, (age twenty and twenty-three respectively) and the offences appear to have arisen in isolated or unusual circumstances that were not reflective of any ongoing criminal life-style;

• Third, and perhaps most importantly, both accused have strong support from family and friends, both are employed full-time, and both have made good use of their time on bail by committing themselves to leading responsible and law-abiding lives. In short, I am satisfied that they both have good prospects of rehabilitation and that there is little or no risk of re-offending;

• Fourth, the three year delay in bringing this case to trial, while not in breach of the Charter, has some mitigating effect as it has caused ongoing uncertainty in the accuseds’ lives and because I am now sentencing two very different individuals from the ones who committed these offences in August, 2010. In addition, Mr. Lopes’ relatively strict terms of bail entitle him to some further credit. This latter consideration does not apply to Ms. Panchan as her terms of bail were not onerous. See: R. v. Downes (2006), 2006 CanLII 3957 (ON CA), 205 C.C.C. (3d) 488 (Ont. C.A.), concerning credit for restrictive terms of bail, and R. v. T.M.B., 2013 ONSC 4019 at para. 74, where the leading authorities on the mitigating effect of delay are cited.

30On the other hand, the aggravating factors in the present case are the following:

• First, the offences involved some degree of planning and premeditation, in that Mr. Louis was lured to the parking lot late at night as a result of some historical grievance that Mr. Lopes was still nursing. In addition, an accomplice was recruited so that it became a two on one attack;

• Second, the offences involved relatively serious violence. The injuries inflicted on Mr. Louis were not as serious as those seen in many of the cases, as they were not permanently disfiguring and they did not cause any long-term or ongoing disability. Nevertheless, the blows struck to his head by the unknown male accomplice, using a metal baton, were dangerous and caused significant injuries. This factor obviously has much less impact, if any, in Ms. Panchan’s case. At most, she was a party to a robbery where she knew force of some kind would be used, such as the punches struck by Mr. Lopes which left no injuries. Mr. Lopes was a party to the serious violence administered by the unknown accomplice, although he was not the principal in that violence.

31It is not an aggravating factor, but I note that there is none of the mitigation seen in many of the cases where guilty pleas are entered. Conversely, the aggravating features seen in many robberies are also not present here, such as a home invasion or the use of a real or imitation firearm or the life-threatening use of a knife or the victimization of vulnerable workers in commercial premises where money is kept.

32The principles of sentencing pull in opposite directions in this case. On the one hand, both accused are young first offenders with good rehabilitative prospects who pose little or no risk of re-offending. Rehabilitation and specific deterrence are generally the primary sentencing values in such cases and either a period of probation or a short sharp custodial sentence followed by probation are the appropriate kinds of sentences. On the other hand, robbery and aggravated assault are serious crimes and the aggravated assault in this case involved considerable violence. Denunciation and general deterrence are generally the primary sentencing values in such cases and more significant custodial sentences are required, even for first offenders. See: R. v. Stein (1974), 1974 CanLII 1615 (ON CA), 15 C.C.C. (2d) 376 (Ont. C.A.); R. v. Vandale and Maciejewski (1974), 1974 CanLII 1610 (ON CA), 21 C.C.C. (2d) 250 (Ont. C.A.); R. v. Priest (1996), 1996 CanLII 1381 (ON CA), 110 C.C.C. (3d) 289 (Ont. C.A.).

33The offence of robbery is serious but a short sharp sentence of two to three months in jail, followed by probation, can be appropriate in the case of a young first offender with good rehabilitative prospects, where no real violence is involved. However, “different considerations apply in serious crimes of violence, particularly where careful planning is evident”. In these latter kinds of robberies, sentences of fifteen months to two years less a day are appropriate even in the case of well-situated first offenders. See: R. v. Demeter and Whitmore (1976), 1976 CanLII 1413 (ON CA), 32 C.C.C. (2d) 379 (Ont. C.A.); R, v, Gonidis, McCullough and Stevenson (1980), 1980 CanLII 2879 (ON CA), 57 C.C.C. (2d) 90 (Ont. C.A.).

34The offence of aggravated assault is, by definition, a serious crime of violence requiring emphasis on denunciation and general deterrence. Nevertheless, a wide range of sentences have been imposed, including mid-range reformatory sentences of nine to ten months in less serious cases or in those cases where strong mitigating circumstances exist. Indeed, sentences of ninety days imprisonment have been imposed in some cases of aggravated assault that are not all that dissimilar to the present case. See: R. v. Smart, [2013] O.J. No. 509 (S.C.J.); R. v. Crooks and Bubnic, [2004] O.J. No. 4050 (S.C.J.); R, v, Tourville, 2011 ONSC 1677, [2011] O.J. No. 1245 (S.C.J.); R. v. Vang and Chanthaboury (1999), 1999 CanLII 2310 (ON CA), 132 C.C.C. (3d) 32 (Ont. C.A.); R. v. Vargas (1997), 1997 CanLII 1553 (ON CA), 102 O.A.C. 363 (C.A.); R. v. Creighton and Travassos, [1997] O.J. No. 2220 (C.A.).

35I am satisfied that the penitentiary length sentences sought by the Crown are unwarranted in this case. Such a sentence would fail to reflect the significant mitigating circumstances, already set out above. On the other hand, the sentence of a fine and probation sought by counsel for Ms. Panchan is also inappropriate as it fails to reflect the gravity of the offence.

36Given that the robbery to which Ms. Panchan was a party involved no more violence than punches to the face that caused no injuries, and given her strong rehabilitative prospects and her status as a young first offender, a sentence of ninety days imprisonment would have been appropriate. Given the mitigating effect of the three year delay in this case, I would reduce her sentence to forty-five days imprisonment. That sentence will be served intermittently on weekends, so that she can keep her job and complete the last three courses of her university degree. She will be on probation while serving the intermittent sentence and for two years after she has completed the sentence. I will set out the terms of probation below.

37In Mr. Lopes’ case, a longer sentence is required, given his more significant role in the robbery and given his conviction on Count Two as a party to aggravated assault. A sentence of twelve months imprisonment, or one year, would have been appropriate in his case. I would reduce the sentence to six months, given the mitigating effect of the three year delay and given the credit he should receive for living under strict terms of bail, including fifteen and one-half months of “house arrest”. The sentence is concurrent on both counts. Like Ms. Panchan, Mr. Lopes will be on probation for two years after completing the custodial sentence on the terms set out below.

38The Crown submits that Mr. Lopes should only receive credit on a 1:1 basis for the sixty-four days he has already spent in pre-trial custody, prior to being released on a bail review. I do not agree. He is a first offender with good rehabilitative prospects and he is, therefore, an obvious candidate for earned remission. In addition, documentary evidence on the sentencing hearing shows that he was in a triple-bunked cell for thirty-four days and in lock-down for eight and one-half days. In all these circumstances, the authorities are clear that he is entitled to credit on a 1.5:1 basis. See: R. v. Summers, 2013 ONCA 147; R. v. Curry, 2013 ONCA 420. I would credit Mr. Lopes with three months of his sentence, already served, which is just under 1.5:1 credit.

39In the result, the portion of Mr. Lopes’ sentence, that is still remaining to be served, is three months or ninety days. That sentence will be served intermittently so that Mr. Lopes can maintain his employment and can continue to support his five year old daughter. She particularly needs him at this time, given circumstances that have recently arisen in relation to the child’s mother. Mr. Lopes, like Ms. Panchan, will be on probation while serving the intermittent sentence.

40The two ancillary Orders sought by the Crown are both granted. There will be a DNA Order and a s. 109 firearms prohibition Order for ten years in the case of both Ms. Panchan and Mr. Lopes.

41The terms of probation are as follows:

(1) First, while serving the intermittent custodial sentences, the two accused will keep the peace and be of good behaviour and will surrender to the appropriate jail in a condition where they are neither under the influence of alcohol or non-prescription drugs;

(2) Second, upon completion of the intermittent custodial sentences, the two accused will be bound by the statutory conditions for a two year period and by the following additional conditions:

(i) report to a probation officer as required;

(ii) no communication or contact, direct or indirect, with Jason Louis, including by any internet means or social media;

(iii) not to be within two hundred metres of any place where they know Jason Louis to be present;

(iv) to perform 150 hours of community service;

(v) maintain employment or schooling and provide proof of same to the probation officer.

42I wish to thank counsel for their helpful submissions which assisted me in a difficult sentencing decision.

M.A. Code J.