ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 10-R1954
DATE: 20131017
BETWEEN:
HER MAJESTY THE QUEEN
– and –
BRANDON DAWSON-JARVIS
Donna Eastwood, for the Crown
Michael A. Crystal, counsel for Brandon Dawson-Jarvis
sentencing decision
Justice L. ratushny
[1] Mr. Dawson-Jarvis has pled guilty to four offences: robbery of a bank on February 6, 2009; an attempted extortion of the same bank branch more than six months later, on August 20, 2009; money laundering with respect to the stolen bank monies over an approximate seven month period between February 6 and August 31, 2009; defrauding the same bank branch of the sum of $6300.00 more than eight months after the initial robbery and two months after the attempted extortion, on October 21, 2009.
THE FACTS
[2] The accused’s repeated crimes against the bank were made possible by his having been an employee at the bank branch during the commission of each of the offences. He planned each of the offences, conspired with two others to assist him with the robbery and the extortion and with another for the fraud, pretended he was also a victim along with the other bank employees during the robbery and the attempted extortion and continued as an employee until he was arrested.
The Robbery and the Money Laundering
[3] The accused planned the robbery so that it took place in the evening near closing time when there were no customers in the bank and only two other employees were present. He was working that evening and was in charge of the secure area of the bank where all the money was kept. He had recruited his then girlfriend, the co-accused Clea Minns, to assist him. She and her friend, Ms. Khadijah Sade Descotes, entered the bank with their faces concealed and only their eyes showing. They handed the accused, the only employee behind a wicket at the time, a note that had been written by the accused. It instructed the accused to round up everyone else at the back of the branch and have them lie down on the floor and then to empty the safe and the vault and give them all the money and cheques. The note began with the words, “Do as I say and no one will get hurt” and ended with “If I go and check and everything is not open including the money machine I will hurt someone”. Ms. Descotes produced a kitchen knife as she ordered the two female employees to make their way to the back washroom area, which they did. Ms. Minns was also in possession of a knife although the two female employees did not see her knife.
[4] In the washroom, the two female employees were made to lie on the floor and Ms. Minns and Ms. Descotes tied up their wrists and ankles with duct tape and placed bandanas over the employees’ heads.
[5] The accused planned the robbery, however, he did not plan for the two co-accused to bring knives and duct tape or forcibly confine the two employees. Ms. Minns and Ms. Descotes initiated those measures on their own.
[6] Ms. Minns and Ms. Descotes subsequently exited the bank with a satchel full of money given to them by the accused, totaling just over $126,000.00. Ms. Minn returned to her residence in Montreal, Quebec. The accused continued to work at the bank.
[7] The three co-accused divided the stolen monies in approximately equal amounts and over the next almost seven months they took part in a pattern of bank deposits and transfers in an attempt to conceal the money. These transfers involved thousands of dollars. Ms. Minns’ and Ms. Descotes’ share of the stolen money was approximately $35,000.00 each. The accused’s share was possibly more. None of it has been recovered.
The Attempted Extortion
[8] Near the end of the subsequent seven months period after the robbery, Ms. Minns phoned the same bank branch. The accused had planned this crime. He was working that day and was in charge of the secure area where the money was kept. Text messages were exchanged between him and Ms. Minns before her phone call to the bank. The assistant manager of the branch answered the phone and Ms. Minns said to her, “This is a bomb threat. I need you to take all the money and bring it behind the beer store. I can see everything you are doing. You have 5 minutes”. The accused urged the other bank employees to comply with the phone threat. The other employees thought it better to phone 911, which they did. No money was stolen on that date.
The Fraud Over
[9] More than eight months after the robbery, the accused was working at the same bank branch. He had conspired with another individual, Mr. Massop, to use Mr. Massop’s bankcard and to take an amount of money out of his account that was not in the account. The bank was left with a shortage of $6300.00. Mr. Massop was charged and paid $2500 by way of restitution.
THE VICTIMS
[10] Three of the bank employees victimized by the accused’s robbery and attempted extortion submitted victim impact statements. They spoke of their feelings of fear, anger, sadness, betrayal and the huge negative impact the crimes have had on them.
[11] The assistant manager who received the phone threat described the emotional turmoil she has suffered in blaming herself for hiring the accused. Of course she should not blame herself at all. At the sentencing hearing, the accused’s mother spoke of all her hard work to raise the accused and his sister on her own. She has been an exceedingly good role model for them. She has managed to give her children positive opportunities and choices and, as defence counsel has said, she lifted them out of the negative community experiences of their youth into mainstream society that respects the rule of law. Yet she testified she has no idea what possessed her son to throw away all his hard work and all her hard work by committing these crimes. She observed, correctly, that he had disappointed a lot of people, he had betrayed the trust others had in him that is so priceless in life and she could not excuse his actions. Along with the bank employee victims, the accused, of course, has also victimized his family.
THE ACCUSED
[12] Mr. Dawson-Jarvis is relatively young. He was a 22 year-old university student at the time of his crimes and he is now 26 years of age. His father has been described as a career petty criminal who has had a drug habit, who often spent the family finances on drugs, who has been in and out of jail during his lifetime and who has been physically and verbally abusive to the accused, his sister and his mother. In complete contrast to his mother, his father has obviously served as a negative role model in his life.
[13] The accused’s early years were spent in Montreal. Through hard work, mental toughness and resilience, the accused’s mother ensured her children were provided with the very best in life that she could manage. It was often a struggle, she said, to feed her family and keep them safe. She described their neighbourhood as one riddled with poverty, crime and violence and her continual efforts to insulate her children from its negativity. She managed to send the accused to a private school and then on to university. She made sure as much as she could that his peer group included polite and respectful friends and that he was occupied with productive activities. The accused responded by excelling in school, in school sports, in part-time work and at university. At the time of his crimes when he was working part-time at the bank, he was enrolled at the University of Ottawa. In 2011 he graduated with an Honours Bachelor of Social Sciences.
[14] The accused is described as intelligent, likeable, sociable, hardworking and without any substance abuse issues. On October 4, 2010, after the present offences, he was convicted of assault against a former girlfriend and given a conditional discharge. He completed his probationary period without incident and as a result has no prior criminal record. He has, however, through that conviction and the present offences, demonstrated an ability to exercise exceedingly bad judgment.
[15] I accept that the accused is sincerely remorseful for his crimes and has accepted, with insight into the effect of his actions on his victims, full responsibility for them. He is grateful for his mother’s continued support in the face of his betrayal of her trust. He understands that no amount of remorse for his crimes can restore the friendship and trust from his co-workers at the bank. He knows he threw that away when he chose to terrorize them. He has apologized to them and to his mother and he has expressed heartfelt gratitude for all they did for him.
ANALYSIS
[16] Defence counsel has, accurately I believe, characterized the accused’s decisions in connection with his crimes as being “too clever by half” in attempting to be “a painless and quick extraction of money from the bank in the evening near closing time”. The accused has said he was feeling stressed over his finances. He was, of course, naïve in thinking he could control the unfolding of his robbery plans and even more seriously, he was oblivious to the victims’ vulnerability and terror and was apparently emboldened by his success from the robbery to try to rob them again and to continue to engage in his money laundering activities.
[17] Defence counsel asks for a sentence matching that imposed on Ms. Minns although for different offences, namely, a 2 year penitentiary term followed by 3 years probation and emphasizes the need for the consideration of parity in sentencing and for a sentence that is not too crushing on a young man with so much potential. The other co-accused, Ms. Descotes, was given a sentence of 1 year incarceration.
[18] The Crown requests a sentence in the range of 4 to 5 years incarceration, so as to adequately reflect the seriousness of the crimes and the accused’s pivotal role in them. The Crown has referred me to a number of cases pointing to an incarceration range in similar but of course not identical circumstances of 1 to 4 ½ years. I cite those that are more directly comparable: R. v. Mohamed, [2012] O.J. No. 2438, 2012 ONSC 3072, a sentence of 18 months incarceration for one offence of bank robbery; R. v. Brochu, [2000] O.J. 3635 (SCJ), a sentence equivalent to 3 years for one count of a grocery store robbery involving the presence of a knife; R. v. Swanek, [2001] O.J. 6033 (SCJ), a sentence of 3 years incarceration for two counts of the armed robbery of a store by the accused who was not the ring-leader; R. v. Safaei, [2005] O.J. 4105 (SCJ), a sentence equivalent to 5 ½ years incarceration for different facts and an accused who committed twelve robberies and had drug addictions and depression.
[19] The circumstances serving to mitigate sentence are: the accused’s pleas of guilt, although not early pleas as a preliminary inquiry was held and trial dates were set; his relative youth; his opportunities for rehabilitation; his lack of a prior criminal record; his sincere remorse and his agreement that all of the money in his bank account in the amount of $49,614.05 plus interest, a large part of which is no doubt simply the bank’s money and that was frozen by the bank at the time of his arrest, be returned to the bank.
[20] The circumstances serving to aggravate sentence are: the serious nature of the crimes against vulnerable bank employees; the resort to the use of extra violence in the form of knives, duct tape and forcible confinement and even though the accused did not initiate these measures he was a full participant in their unfolding on the day of the robbery; his threat of violence in the note he composed for the robbery; the planning and pre-meditation involved in the robbery and during the next eight months of the laundering of its proceeds; his attempt to re-victimize the bank employees with the bomb threat and its threat of violence even after he had witnessed their fear and experiences during the robbery and its aftermath; the additional fraud committed eight months after the robbery and while he was still a bank employee; the overall serious and continued breach of trust as an employee of the bank during all of the offences over an eight month period; his complete disregard for the bank employees’ mental and physical well-being; his financial motive involving a substantial sum of money; his recruiting of others to participate with him in his criminal actions.
[21] I agree with the Crown that flowing from all of these circumstances, the accused has a high degree of moral blameworthiness for his actions, and particularly so in the context of having been handed the ability to make positive choices in life rather than the criminal choices he planned and executed over a period of more than eight months.
[22] The operative sentencing objectives in light of all of the circumstances of the crimes and of the accused are denunciation, deterrence both general and specific, acknowledgment of the harm done to the victims, and rehabilitation.
[23] There is no question but that these serious crimes require a penitentiary sentence so as to adequately reflect the objectives of denunciation, deterrence and acknowledgment of harm. In the process of trying to adequately reflect those punitive objectives through a penitentiary term, I agree the accused’s good prospects of rehabilitation are also to be taken into account, in all of his circumstances.
[24] Mr. Dawson-Jarvis, please stand at this time. I have determined on a balancing of all of the circumstances as referred to before that an appropriate reflection of the sentencing objectives is a total term of imprisonment of 3 ½ years in addition to your presentence custody of 10 days. I do not subtract those 10 days from your term of incarceration, given the explanation for them offered by the Crown that they were with respect to breach of undertaking offences that the Crown subsequently withdrew in favour of the open sentencing hearing that took place.
[25] I do not sentence you to the same period of incarceration as for Ms. Minns, as there are material and aggravating circumstances that distinguish your culpability from hers and that serve to increase the seriousness of your crimes when compared to her crimes. You were the employee of the bank; she was not. You committed a serious breach of trust; those were not her circumstances. You were the leader of the group; she was not. You planned your crimes and recruited the others; she did not. You committed an additional crime of fraud against the bank in October of 2009; she did not.
[26] I allocate your 3 ½ year sentence over the four offences as follows: 3 ½ years incarceration for the robbery; 3 years incarceration concurrent for the attempted extortion; 3 years incarceration concurrent for the money laundering; 3 years incarceration concurrent for the fraud.
[27] I also impose a DNA Order, requiring you to submit to the taking of a bodily sample for DNA analysis and data bank storage. There is, in addition, an Order made under s. 109 of the Criminal Code, prohibiting you from possessing any firearm or ammunition or any other item referred to in that section for a period of 10 years commencing upon your release from incarceration.
[28] Finally, there is a Disposition Order, in the form and in the total amount of $53,540.84 as submitted by the Crown, representing the balance of funds in your bank account that has been frozen from use since the time of your arrest and that is now to be given to the bank. I make no further restitution orders in respect of the offences, given the term of incarceration imposed today.
Ratushny J.
Released: October 17, 2013
COURT FILE NO.: 10-R1954
DATE: 20131017
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
BRANDON DAWSON-JARVIS
sentencing decision
Ratushny J.
Released: October 17, 2013