Overview

[1.] Cory Crockatt and Justin Battle are brothers. Together, they were charged with break and enter and theft relative to numerous robberies of cell phones and other items from convenience and telecom stores. Each of them pleaded guilty to five counts. Cory Crockatt has an extensive criminal record. Justin Battle also has a criminal record, though not as lengthy as that of his older brother. The issue on this sentencing is the fit sentence for these two repeat offenders.

The Offences

[2.] The offenders have pleaded guilty to five counts on the indictment and the parties have agreed on the facts relative to the break-ins encompassed in those counts, 4, 7, 8, 11 and 13. Certain facts were also agreed to relative to count 14 although no plea was entered on that count.

[3.] Count 4 alleged that on December 6, 2011, the two accused used a car they knew was stolen to ram through the front entrance of a convenience store located at 52 Ravenscroft Rd. in Ajax. Once inside the store, they took various items, including cigarettes valued at approximately $2,000.00. They exited the store the same way they entered and left the scene. The damage to the store resulted in it being closed for repairs for two days. The costs of repair were $11,500.

[4.] Almost 3 weeks later, on December 27, 2011, count 7 alleged that the two accused gained entry to a Rogers Communications store located at 611 Kingston Rd. in Pickering, in the middle of the night. Their method of gaining entry was to ram another vehicle that they knew was stolen through the front entrance of the store. Once they were inside, Crockatt and Battle stole approximately 38 cell phones estimated to be worth between $10,000 and $15,000. They exited the store through the hole that they had created at the front of the store and drove off in the stolen vehicle. The cost of repairing the stolen vehicle that they used was $4,500.

[5.] On January 14, 2012, count 8 charges Crockatt and Battle with having attended at that same Rogers Communications store located at 611 Kingston Rd. in Pickering. Once again they drove another car that they knew to be stolen into the just repaired front entrance. They entered the store through the hole that the car created, just as they did on the first occasion. Once inside, once again they took cell phone equipment valued at approximately $10,000 and $15,000 and placed the items in bins that they carried out as they exited the store through the hole the car created and then drove off. The costs of the repairs to the entrance of that store were $12,800.

[6.] As a result of a number of break-in investigations in the Greater Toronto area, the two accused became suspects sometime in mid-January of 2012. They were placed under surveillance by the Durham Regional Police Surveillance Team in consultation with the Toronto Police Service.

[7.] Counts 11 and 13 arose on January 26, 2012, when the police surveillance team followed these two accused as they drove in a Chrysler Dynasty vehicle which they knew to be stolen to a Rogers Communications store on Ebenezer Road in Brampton. At about 1:30 in the morning, the surveillance officers heard them trying to break the glass door of the Rogers store and attempting to pull open the metal security gate that was in front of the glass. However they were unsuccessful.

[8.] Undaunted, they tied something to the rear of the Dynasty vehicle and attach the other end of the tie to the entrance way. The Dynasty vehicle then accelerated away in an attempt to remove the metal security gate from the entrance to the store. Evidently that also did not work. Still intent on continuing with their work, the two accused proceeded to ram that vehicle into the entrance to the Rogers store but then the alarm sounded and they drove away. The police surveillance teams watched all of this transpire. The cost of repairing the front of the Rogers store on Ebenezer Road was approximately $2,600.

[9.] A short time later early that same morning, Crockatt and Battle drove the Dynasty motor vehicle to Hood Road in Markham. At about 3:20 in the morning, the accused rammed the Dynasty vehicle into the east wall of a Rogers store, got out of the car, walked through the hole in the wall that they had created, and entered the store carrying large empty bins. They exited the store quickly, returned to the Dynasty vehicle and drove off towards downtown Toronto. They took $400 from that store.

[10.] Finally, these two offenders were then followed to McNichol Avenue in Toronto where they went to a beauty salon and gained entry by prying open a door. Once inside, they removed the cash tray containing $200, returned to the Dynasty vehicle, and drove off. Later that morning, at approximately 5:30 AM, members of Toronto Police Service with the assistance of the K-9 team located the accused and placed them under arrest. The bins that Crockatt and Battle had been using throughout the night have never been located.

[11.] On the sentencing hearing, footage was played from the video cameras at one Rogers store (Count 8 - Exhibit 6) and at one convenience store (Count 4 - Exhibit 5). That footage showed how Crockatt and Battle would ram the car through the wall or front entrance of the store that they were interested in robbing, quickly run into the store wearing hoodies to conceal their identities carrying bins to load up with loot to take with them, and then would quickly disappear back through the holes that they had created. The footage was quite dramatic as it showed a front wall of a business consisting of glass bricks in metal being blown open by the force of Crockatt and Battle smashing a vehicle into that wall in order to gain illegal entry.

Circumstances of the Offenders

[12.] Cory Crockatt turns 32 years of age today, October 30 – not a great way to spend ones 32^nd birthday. He has an extensive prior criminal record consisting of some 39 convictions that stretch from 1994 to 2011. Eleven of those convictions were as a youth. His last conviction was on March 15, 2011. It was for possession of property obtained by crime over $5,000, for armed robbery and for breaking and entering. He was sentenced at that time to five years and four and a half months imprisonment in total less credit for 52 months and 15 days of presentence custody.

[13.] That record suggests that while denunciation and deterrence will remain sentencing considerations of paramount importance here, he has not responded to the efforts made in prior sentences to specifically deter him, or at least has not to date. On this basis, the Crown regards him as a societal risk and takes the position that the primary sentencing objective here is to separate Cory Crockatt from society.

[14.] He and his brother both had a volatile upbringing particularly from his mother who was physically abusive and struggled with her own drug and alcohol abuse issues. She herself was a severe drug addict and a multiple repeat offender who went into custody in jails and penitentiaries on numerous occasions between 1989 and 1992. His father was also an addict. Both he and his brother, Justin Battle, have been in and out of care from the CAS and foster care throughout the years. He and his brother were not always placed in the same care homes. Mr. Crockatt re-established his relationship with his mother about a year ago, and she told him at that time that he and his brother had aboriginal ancestry, through their grandmother. However, research and inquiry into that topic by the authorities has caused those authorities to be unsure about the specific nature of their claimed aboriginal ancestry, and even if it had been able to be confirmed, the authorities found themselves unable to address how being an aboriginal person may have affected the life circumstances of these two offenders. For those reasons no Gladue Report was prepared.

[15.] Mr. Crockatt stopped attending school while in grade 8. There were numerous suspensions and expulsions from school reported in his records. The majority of his education was received at Brookside, during periods when he was in custody. He began drinking at a very early age and commenced drug use, and his drug of choice became crack cocaine.

[16.] Unlike his younger brother, Cory Crockatt now professes his belief that he is ready to participate in a treatment program for his substance abuse problem, either while in custody or in the community. However, his last period of community supervision was in 2005 and the probation report indicates that he did not respond well at that time to meeting his obligations by way of community supervision, and that offers of counseling were declined.

[17.] It is important, however, that he has made significant efforts to change his path while in the Toronto East Detention Center since he commenced to be held in pre-trial custody on January 27, 2012 on these charges, as testified to by Rev. Judith Russo, the chaplain at that facility. He was baptized as a Christian while in the detention center. He worked in the laundry while there, but started to move in the direction of change oriented counseling and developed an interest in how to change his life. Rev. Russo says that Mr. Crockatt is one of only five offenders who have been baptized by her during her 10 years as a chaplain at that facility. While these may be indicators of a desire on Mr. Crockatt’s part to change, Rev. Russo also acknowledged that he had not previously taken advantage of counseling, and that it can take time for such changes in direction to take hold in the life of an offender and redirect their conduct.

[18.] Justin Battle is 29 years old and the second youngest of five sons. He is well known to the police. He is young but not youthful. He has a history of similar offences. It is not a good record. He was placed in 5 to 7 foster homes over the short span of three years. His frequent incarcerations and homelessness were negative aspects of his life. He graduated from high school in Deep River, Ontario, but his record notes suspensions for truancy, and the presence of a speech impediment was part of the cause that he preferred to skip school rather than attend. He claims to have been diagnosed at seven years of age with attention deficit disorder but his father denied that there was ever any such diagnosis or testing conducted.

[19.] His illicit drug use commenced at 14 years of age and is now significant and problematic, but he has never sought out substance counseling or rehabilitation. He rationalized his conduct relative to these offences indicating to the author of the PSR that he needed to commit the offences in order to obtain the money that he needed to support his drug habit. He is frankly very negative about probation. He appeared, at least at that time, to demonstrate a reluctance to comply with terms under which his conduct would continue to be monitored by the state.

[20.] As the author of the presentence report notes, based on his attitude towards probation and his correctional services records, there may be little benefit that can be provided to him by a term of probation given his prior noncompliance and disinclination to comply. This may prove to be a significant challenge for him to meet at the risk of being re-incarcerated if he does not. Whether he has the stuff and the determination to meet such a challenge in the interests of redirecting his life towards lawful pursuits and leaving his troubled past behind him remains to be seen.

Positions of Crown and Defence:

[21.] The Crown seeks a sentence for Cory Crockatt of between seven to eight years of imprisonment, less credit for presentence custody, plus a DNA order on the basis that these are secondary designated offences. This is based on a floor of two years per offence that the Crown claims was established on his last sentencing, multipled by five for the five pleas, and reduced by one year based on a cursory nod to the principle of totality.

[22.] In the case of Justin Battle, the Crown seeks a sentence of four to five years of imprisonment, less credit for presentence custody, together with a DNA order. In the Crown’s position, given the lengthy prior criminal records of both of these offenders, albeit that Justin Battle’s record is not as lengthy as Cory Crockatt’s, the principles of proportionality, denunciation and deterrence, and the specific deterrence required relative to each offender calls for sentences of those duration given the presence of aggravating factors.

[23.] Further, it is the Crown’s position that sentences of that duration are required given the total loss that was caused to the victims of the robberies, not only in losses of property totaling approximately $50,000, but also in extensive damage to their premises themselves. More importantly, in the Crown submission, there is a pattern to the manner in which these offenders committed their crimes that shows utter disregard for property in a series of offences that cover the entire greater Toronto area from Peel to Durham.

[24.] In Justin Battle’s case, it is the Crown’s position that both general and specific deterrence and denunciation are required for that offender. He is younger than his brother. He must be deterred from seemingly trying to continually emulate his older brother’s criminal exploits.

[25.] However, while I will acknowledge that there is some merit generally to the submissions of the Crown on the need for significant sentences for both offenders, counsel for Cory Crockatt says that the range of sentence sought by the Crown is too high. In her view, in reliance on R. v. McNelis, the appropriate sentence is a penitentiary term in the range of 3 ½ to 4 years.

[26.] Ms. Stuffco also notes that in R. v. Carvalho, the Court of Appeal observed and acknowledged in the circumstances that were present there, that a global sentence of five years imprisonment was not unfit, but was “stiff”, as they described it. That case concerned a repeat offender with 45 prior convictions, of which 14 were for breaking and entering, and where the offender was on parole at the time of the offences. The court reached that conclusion, given the egregious circumstances that it considered to be present there, even though the offender’s longest prior conviction was two years.

[27.] Further, Crockatt’s counsel claims that the sentences for the specific offences to which he pleaded guilty here ought to be served concurrently since they are close in time and were committed in similar fashion, and thus, she says, ought to be treated as one delict or transaction. In her submission, they were all committed as part of the same criminal enterprise. She seeks credit of one and a half to one based on R. v. Summers for pre-sentence custody based on the minimal access to programming that is available at the Toronto East Detention Center and the problem of earned remission, acknowledged by the Court of Appeal in its reasons in Summers. She relies on R. v. McNelis as authority for the proposition that each of the break and enter offences here ought to receive a sentence of 9 to 12 months resulting in an aggregate sentence of about 3 ¾ to five years based on the five offences.

[28.] Counsel for Justin Battle says a three year sentence is appropriate in his case. He submits that the totality principle ought to prevent the aggregate sentence from exceeding three years. He claims the offences were not planned or organized, were driven by a drug habit, and no one was around to be injured. As such a fit sentence in his submission would be an aggregate of three years for Mr. Battle less enhanced credit of one and a half to one based on Summers given the restrictions at the Toronto East Detention Center for access to fresh air in the exercise yard, the number of full day lockdowns and an absence of misconduct penalties against Mr. Battle while in custody.

Mitigating and Aggravating Factors

[29.] The aggravating factors that are present on this sentencing include that each of the break and enters was planned and the value of goods stolen was significant. The offenders hid their identity but as well, even though the break and enters occurred in the early hours of the morning, as the video recordings from two of the incidents plainly showed, the modus operandi of these two offenders was brazen and violent. They committed significant damage to the properties that they assailed. Moreover, while the offences took place in the early hours of the morning, there was no specific evidence that they made any inquiry or looked into any of the stores that were their targets to determine if there might have been cleaning staff present. Thus, based on these factors the Crown claims that they were careless about the presence of persons who might have been seriously injured as a result of their conduct.

[30.] In the case of Cory Crockatt, it is aggravating that while he was not on probation at the time these offences were committed, he had recently been released from a term of incarceration for armed robbery, and yet he returned to committing the same crimes he did before. His lengthy criminal record is aggravating. It is also aggravating that this is the third time that he has been apprehended conducting this very particular type of break-in. In August 2005, he was sentenced to two years imprisonment, but in fairness, that was an armed robbery, which is more egregious.

[31.] However the defence argues, and I accept, that Mr. Crockatt’s discovery of religion and confrontation of his addiction while in custody and other steps taken to improve himself is a significant mitigating factor and demonstrates a desire to reform himself. She argues that Mr. Crockatt has explained to her that he does not want to come back before the court, and while he said that in 2004 on another occasion when he was being sentenced by Justice Feldman, she claims this time is different because now he has broken his habit of criminality. While his lengthy criminal record is clearly an aggravating factor, she insists he is not past being helped and rehabilitated and that his responses while in the Toronto East Detention Center in custody at this time, and his discovery of religion as attested to by Chaplin Russo, show that this is a change point for him. I do not doubt the sincerity of that submission, and it has had an impact on this sentence, but it must also be looked at through the prism of his extensive prior criminal record.

[32.] It is also aggravating relative to Justin Battle that he was on probation at the time these offences took place and that he had a related criminal record consisting of nine prior convictions, two as a young offender. While the presentence reports demonstrate a typical upbringing, there appears to be a minimization of his responsibility for the offences and no real appreciation of the damage that has been caused. He appears to not want to comply with probationary terms. Nonetheless, if he is not to be awarded ever increasing terms of penitentiary incarceration in future, he may need to learn to subject himself and his impulses to control and discipline, and to acknowledge, as his brother appears to have done, that he cannot continue down the same road. On the positive side of the ledger, I note that Mr. Battle did complete 5 sessions in the the CIAC Substance Use Programme, which may show some recognition on his part of the need to address his substance abuse problem, and also the Joyce Meyers Battlefield of the Mind Course, both while detained in pre-trial custody at Toronto East Detention Centre.

Principles of Sentencing:

[33.] Before proceeding to the sentence that I consider to be appropriate to impose in this case on these two multiple repeat offenders, it is helpful to first briefly consider the objectives, governing principles and factors that determine the range of sentence that is appropriate in any particular circumstance. Against the governing principles which apply to sentencing, and a range of sentence which would otherwise be appropriate, having regard to the circumstances, the presence of aggravating factors and the presence of mitigating factors, and the credit to be given for pretrial custody must also be taken into account, as noted above.

[34.] The fundamental purposes of sentencing are set out in s. 718 of the Criminal Code. That section also lists several of its objectives. It reads as follows:

The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, 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 the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[35.] Moreover, it is a fundamental principle of sentencing as expressed in s. 718.1 of the Code that any sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender who committed it. There is also the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances: see Criminal Code, s. 718.2(b). It is this last principle which causes the Crown and defence counsel to put before the court a number of decisions in other cases which they claim, from their competing perspectives, are most closely allied to the circumstances of this case, and therefore ought to govern in terms of guiding me towards an appropriate sentence for these offenders.

[36.] The Crown claims that the principle of proportionality, that is that the sentence must reflect the gravity of the offence and the degree of responsibility of the offender, is what requires a sentence of seven to eight years for Crockatt and four to five years for Battle, both before pre-sentence custody credit. However, the defence counsel claim that much of that same caselaw necessarily requires that both receive sentences of a lesser duration when their circumstances are compared, for example, to those that were present in Carvalho and in McCue and McNelis.

Reasons:

[37.] Dealing first with the question of whether sentences for offences such as these ought to be imposed consecutively or concurrently, it seems plain to me that these cannot all be considered to be a single set of illegal transactions such that concurrent sentences would generally be appropriate. Instead, I find that I cannot accept the submission that these five offences ought to all be considered to have arisen out of the same transaction. Five break and enter transactions took place involving both offenders spanning a seven week period of time from December 6, 2011 to January 26, 2012 and the activity that gave rise to those robberies all took place on separate days, except for the last two, that occurred within an hour of each other.

[38.] They cannot all be regarded as arising out of the same delict or the same transaction. Plainly they were not, and in my view, the Court of Appeals decision in McCue essentially mandates that in such circumstances, consecutive sentences will be warranted to the extent that they involve separate incidents or transactions. Alternatively, however, McCue also recognizes that consecutive sentences will not be necessary where the global sentence imposed on the offender properly and accurately reflects the principles of sentencing and the totality of the offender’s responsibility.

[39.] Nonetheless, in McNelis at paragraph 2, the Court of Appeal chose not to interfere with a trial judge's decision to exercise his discretion to impose consecutive rather than concurrent sentences on the basis of his conclusion that they constituted different offences against different complainants at different times. Notwithstanding that position, and my overall position as previously noted, in my view there is merit to the position of defence counsel relative to both offenders on the issue of consecutive as opposed to concurrent sentences, but only with respect to the last two offences.

[40.] Both of those offences occurred early in the morning of the same day, separated by only a couple hours of time. I realize they were geographically diverse, with one offence having taken place in Markham and the other in Brampton. Nonetheless, in my view they ought to be regarded as both arising out of the same day's activities and as part of the same break and enter expedition that these two offenders undertook on January 26, 2012. They occurred close in time, were committed in a similar fashion, and are effectively part of the same criminal enterprise that morning. As such, while the sentences for the first four offences pleaded to will be consecutive, the sentence for the last offence will be served concurrent to the other sentence for the other January 26 break and enter plea.

[41.] Turning then to the Crown’s submissions, the starting point according to the Crown for Cory Crockatt ought to be two years for each offence. That would result in a starting sentence of 8 years given that five offences were committed, but where two are to be concurrent sentences. Then the Crown allows that two years ought to be taken off of that on the basis of the totality principle, all before presentence custody credit. The basis for a two-year per charge threshold is the Crown’s position that this is the third time that Crockatt has been convicted of committing this type of break-in, going back two years to August 2005. On this basis, it is suggested he is not getting the message from the prior sentences that have been imposed, which necessarily requires that the base level be increased, and that he simply be separated from society. The Crown essentially says he is undeterrable. While the similarity to those prior offences is evident, I do not agree that necessarily requires a new jump in duration of sentence when all of the relevant circumstances are taken into account.

[42.] In the case of Battle, the Crown argues that each of the five offences ought to command one year of incarceration for each to be served consecutively. Applying the principles applicable to Crockatt, that would give rise to a total sentence of four years, one for each of the four offences with the fifth being served concurrently. But then the Crown claims that sentence ought to be increased because Mr. Battle offended while he was on probation and the presence of that additional breach is an aggravating factor which ought to cause his sentence to increase by 6 to 12 months.

[43.] Let me simply say that I find the original requests for sentences of five to six years for Battle, and significantly more, up to eight years in the case of Crockatt, to be excessive. While the appropriate sentence will always be a specific response to the specific circumstances before the court, sentences of that length in these circumstances would not be reasonable. To my eye they are not consistent with some of the other applicable decisions.

[44.] These two offenders have pleaded to these offences. They were charged with a multiplicity of offences well beyond the number to which they are admitting guilt, and in doing so, must be seen to not only be accepting responsibility for their conduct, but to have also saved the state the cost of what would otherwise have been a complex and time consuming trial that was scheduled for two to three weeks. They get the benefit of having reached that decision. Nonetheless there are aggravating circumstances that apply to each of them, as I have noted.

[45.] In the case of Cory Crockatt, Ms. Stuffco argued that I should regard his record as consisting of a number of "batches" of convictions starting when he was 13. However the fact is that Mr. Crockatt has been before the court for sentencing on 11 prior occasions. As an adult, commencing in 1999, he has 26 convictions, and 39 in total including youth offences. This is his fifth break and enter offence since 2004, but as serious as that is, it is not correct in my view that two years was established there as the floor sentence per offence, as the Crown argues. The reason is that the two-year sentence was imposed in the context of an armed robbery, a substantially more serious offence, which is not the case here, and indeed, it appears that the two year component was given on the possession of proceeds charge. Regardless, I do not regard it as necessarily being the starting point.

[46.] In R. v. Carvalho, as noted above, the trial judge sentenced the offender to five years imprisonment on the charges of break and enter and committing the indictable offence of theft and three years imprisonment, concurrently I would note, on a charge of attempted breaking and entering, thus resulting in a global sentence of five years. While the Court of Appeal found that to clearly be a “stiff” sentence, they acknowledged it was within the discretion of the trial judge and not unfit.

[47.] In that case, however, unlike this case, it is important to note the while that offender and Cory Crockatt were both 32 at the time of sentencing, Carvalho had a significantly more serious criminal record that included 45 convictions, 14 of which were for breaking and entering, and he was on parole at the time that the offences were charged. That is a record that is substantially more egregious then Mr. Crockatt's record in this case. The number of break and enter offences for which Mr. Carvalho had been convicted was almost double the number of break and enter offences for which Mr. Crockatt has been convicted.

[48.] I do not suggest that causes Mr. Crockatt’s crimes to be any less serious than they are, but simply emphasize that difference relative to my obligation to ensure that sentences are proportionate for similar offenders, and not the same where the gravamen of the offences is different, looked at in all of the circumstances.

[49.] Looking at Mr. Crockatt’s circumstances through the prism or perspective of the Carvalho decision, consequently, one can see plainly that the range of sentence sought by the Crown for Mr. Crockatt appears to be higher than it ought to be. I do not criticize the Crown for that, who made his submissions overall having regard to his perception of the sentencing principles that ought to apply and the community’s proper concern with the continuing destructive conduct of these two offenders. In my view, however, an appropriate sentence for each of the five break and enter offences to which he has pleaded guilty, having regard to his longer and more egregious criminal record, albeit not so long as that which was present in Carvalho, is 15 months for each offence.

[50.] As such, I find that Mr. Crockatt should receive a sentence of five years, that is, 60 months imprisonment, consisting of four consecutive 15-month sentences plus one 15 month sentence to be served concurrent to the other four. Put differently, this is the same as a sentence of five years before PTC credit, which is certainly a serious sentence by any estimation. I would then reduce that sentence by five months to 55 months. I do so for two reasons. The first is to reflect the totality principle and the second, of considerably greater importance in this case, is to recognize his plea for help for his addiction while in custody. I do extend hope for Mr. Crockatt to be able to follow through on his professed desire to obtain treatment for his drug addiction in the course of serving his sentence and in the course of doing so, to at long last try to bring his life lived on the wrong side of the law to an end by cleaning up his drug addiction.

[51.] In the case of Justin Battle, defence counsel said that he and the Crown were not far off as a matter of principle. In his submission, an appropriate sentence for Justin Battle was three years, given his shorter criminal record, and as necessarily reduced to give an appropriate reflection to the principle of totality that must be applicable here. Defence counsel says that whether a global sentence is imposed of five years, reduced for totality to three, or whether five-one-year sentences are imposed, with one of them concurrent to the others, reduced to three, makes no difference. For Mr. Battle, he says that a fit sentence is three years. In my view that is not entirely correct.

[52.] In making the submission, one that arguably applies to both Mr. Battle and Mr. Crockatt, however, it is argued that there is a different quality of mens rea in an offence against persons then there is in an offence of the kind that is present here, where his offences are against property. The Crown says that cleaning staff at the various retail outlets broken into by these offenders could have been injured, had they been there at that hour of the morning. While that may be true, the evidence of their manner of operation seemed to suggest to the contrary that the offenders, to the extent their crimes were planned, chose specifically to perpetrate them in the early hours of the morning, some might regard it as the middle of the night, when they could be reasonably certain that there would be no persons who would be there to interfere with their actions. I say this even though, as Mr. Fried notes, there was no specific evidence of them having actually checked for the presence of other persons at those early morning hours. As such, the higher sentences that would be called for if these crimes had been perpetrated during store open hours, or just before or after closing, are not called for here.

[53.] I have reached the conclusion that an appropriate sentence for each of the break and enter offences to which Justin Battle has pleaded guilty is 11 months of imprisonment, but I would also increase that total sentence by six months to reflect that in committing these offences when he did, he breached the probation order he was on at the time of the commission of these offences and his arrest. That amounts to a total sentence of 50 months, that is, 4 years and two months before credit.

[54.] A separate consecutive sentence for offences against the administration of justice, such as on breach of prohibition orders, breaches of recognizance, or breaches of probation orders, is well recognized in the case law: see R. v. Ferigon, R. v. Dwayne Jones and R. v. Reid released earlier this year. In this case, I consider that factor to be aggravating. As such, and as I have indicated, the 44 month sentence for Mr. Battle for the break and enter offences (four 11 month sentences consecutive, plus one sentence of 11 months to be served concurrently) will be increased to 50 months to take account of that very important aggravating factor, and also, frankly, the absence of any meaningful recognition by this offender, unlike his brother, of the need to change his path, or expression of remorse.

Pre-sentence custody credit

[55.] Evidence was obtained from the Ministry of Community Safety and Correctional Services relative to the circumstances that obtained at the Toronto E. Detention Ctr. During the period from January 27, 2012 to August 28, 2013 relative to the incarceration of Justin Battle. This document evidences the overcrowded conditions at that facility which frequently required the offender to be housed with three inmates to a cell, which resulted in him being offered access to the exercise yard only 312 times, or about 56% of the time that he was in custody there, and the number of times during that earlier period of pretrial and presentence custody during which lockdowns took place.

[56.] That document also evidences that since they were apprehended and commencing January 27, 2012 through to August 28, 2013, the date of the document, Mr. Battle had served 580 nights pre-trial or presentence custody. Since then, a further 63 days have passed. As a result, the total amount of presentence custody served by both Mr. Battle and Mr. Crockatt is 643 days.

[57.] In my view, based upon the evidence that was presented to the court from the Toronto East Detention Centre, which in my view would be equally applicable to Mr. Crockatt as well as Mr. Battle, and having regard to the decision in R. v. Summers, both offenders should receive the maximum credit permitted under our law of one and a half to one for the time spent in presentence custody. That totals 31-1/2 months of credit for each of them.

Ancillary Orders:

[58.] The Crown seeks DNA orders against both offenders, on the basis that these are secondary designated offences. Those requests were not opposed, and if there are not already DNA samples from both offenders in the national bank, there ought to be. DNA orders will issue for both offenders.

Final Decision:

[59.] Cory Crockatt, will you please stand up. On the basis of the sentencing principles I have outlined, and for the reasons stated, and after taking account and giving you credit for 31 and a 1/2 months of pre-sentence custody, I sentence you to serve a remaining sentence of 23 and a ½ months in an Ontario correctional facility and to three years of probation thereafter.

[60.] Justin Battle will you please stand up. On the basis of the sentencing principles I have outlined and for the reasons stated, and after taking account and giving you credit for 31 and a 1/2 months of pre-sentence custody, I sentence you to serve a remaining sentence of 18 and a 1/2 months in an Ontario correctional facility and to three years of probation thereafter.

[61.] The terms of probation will be as counsel and I have discussed, and as I have advised and as reflected in the probation order. Before bringing this hearing to an end, I wish to make some comments to each of these offenders, starting first with Cory Crockatt.

[62.] In a three-page letter written to me by Mr. Crockatt, he admitted that he had made a lot of wrong choices and that he wanted to stop going back to jail. I found that detailed letter to be genuine and honest. He acknowledges that his days of denying his drug addiction and that he needs considerable help are over. He asks the court to help him to obtain treatment and not to simply throw his life away by sending him for a long term of imprisonment into the general prison population. He muses in his letter about whether the criminal justice system actually focuses on the lives of individual persons and whether they can be helped, or whether individuals are instead merely judged by the length of their prior criminal records. He says that he does not think the latter is true, and that he wants to believe that the court system can still help offenders who ask for and are in need, or are trying to seek help to stop committing offences and to stop using drugs. He expresses the belief, in very strong terms, that if he is given the chance to attend the OCI institutional treatment program he would put 100% effort into the program in order to try and turn his life around and end his drug addiction.

[63.] There was part of me that read that letter sceptically, with one eye on the sentence that was given to this offender by the Hon. Mr. Justice Feldman of the Ontario Court on March 22, 2004 at Scarborough. At that time, when asked if he had any thing to say before he was sentenced, Cory Crockatt stated that he had just made a lot of bad choices and wanted to stop going back to jail. Justice Feldman said that his record belied his words. He continued:

It saddens me profoundly to say to you, I wish I had more confidence that you won't be back in jail, I really do. A young person like yourself, looking at - I think you have actually reached the point where your sentences for similar offences are going to jump. This is your last time for a relatively light sentence, and it is relatively light, given your record. You do, you have made bad choices, and you do have to make better choices, and the question is whether you have the moral, ethical and internal capacity to do things differently.

[64.] So here we are 9 1/2 years later. In the time that has passed since then, plainly Mr. Crockatt has continued to reoffend. Indeed there were 14 offences for which he was sentenced on six different occasions before coming to this sentencing today. So perhaps I am a foolish man for listening to any of what Mr. Crockatt says in his letter to me. Perhaps like in so many other instances, nothing will come of his request and self-proclaimed determination to turn his life around, and most importantly, he will not turn his back either on his drug addiction, or on the life of crime he has led in order to obtain the financial resources to feed that addiction.

[65.] Nonetheless, he does acknowledge his addiction, and he expresses remorse for all the wrong he has done for his entire life and for these crimes that he is committed. He claims to seek to improve his self-esteem and his behavior. I certainly hope that he is telling the truth to me in that correspondence because I can assure him this will be the last time that he is given the benefit of the doubt of the kind that he has been given on this sentencing today.

[66.] I do recommend in these reasons for sentence that Mr. Crockatt be permitted to apply and be accepted to serve his sentence at the Ontario Correctional Institution in Brampton which focuses in particular upon high risk repeat offenders, who have serious drug problems of the kind that he does. However, I must emphasize to you, Mr. Crockatt, that I have no control over whether you he will be admitted to the OCI facility or not. However, I have spoken to and your situation has been brought to the attention of the authorities. They have heard my request, but you will have to complete an application form when you return to the Toronto East Detention Centre before you are transferred to start serving your sentence. I cannot say whether you will be permitted to obtain the treatment you seek, but if you are genuine in your desire, and have the courage to face the task of leaving your drug addiction behind him, I hope you will have that opportunity.

[67.] I have also stipulated that a copy of his letter to me, a copy of the excerpt from Justice Feldman's decision in March 2004, his presentence report, and these reasons for sentence are to accompany Mr. Crockatt's file and accompany any application considered by Ontario correctional facilities to permit him to have the benefit of serving his sentence in the environment of that treatment facility. I stipulate that in the hope that they will be of assistance to the correctional authorities in determining whether he is a suitable candidate for that program.

[68.] Equally, however, given the decision I have reached in his case, it is important to me to know, Mr. Crockatt, that if you choose in future to reoffend again as you have so often in the past, that these materials, all of them, will be brought to the attention of any future sentencing judge to be taken into account at that time if any further pleas for leniency or treatment should be made, to permit that judge to know what you did with this important opportunity that was given to you today.

[69.] There is an old adage, “trick me once shame on you, trick me twice shame on me.” That adage comes to mind at this time, because I sincerely hope on this second occasion when leniency in the prospect of treatment is being held out to you, Mr. Crockatt, that you will not turn from it and resume your life of crime.

[70.] For Mr. Battle, you simply need to know that continuing down the same path that you have been traveling will inevitably result in sentences of increasing severity if you do not also address your drug addiction issues and turn your back on the life of crime that you have led. In that respect, assuming that your older brother Cory is telling the truth and has the courage and intestinal fortitude to follow through with what he has told me he wishes to do to clean up his life, this may be one of the few instances when I would say to you, Mr. Battle, that I hope you will follow your older brother's example.

[71.] However, whether you do or not, either of you, I was originally of the view that you would each have to be on your own road alone. I was concerned that I could not run the risk that either of you would negatively influence the other. As such, I would have specifically requested and recommended to the correctional authorities that each of you should serve the remainder of your sentences in separate correctional facilities. However, I will say that now that I have heard today from both offenders, who spoke in court to me as they were being sentenced, and Mr. Battle in particular who now also appears to recognize the critical need to overcome his addiction, and thus also appears willing to turn away from his past, I am less certain that separation is required. As such, I will simply now say that whether these brothers should be assigned to the same or different correctional facilities, should properly be determined by corrections officials in the ordinary course of evaluating these offenders as they commence to serve the balances of their sentences, but without any further recommendation from me.

[72.] These are my reasons.

___________________________

Michael G. Quigley J.

Released: October 30, 2013

COURT FILE NO.: 12-30000689-000

DATE: 20131030

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

-and-

CORY RONALD CROCKATT and JUSTIN BATTLE

Defendants

AMENDED REASONS FOR SENTENCE

MICHAEL G. QUIGLEY J.

Released: October 30, 2013

Her Majesty the Queen v. Cory Ronald Crockatt and Justin Battle, 2013 ONSC 6797

Case Summary

Overview

The Offences

Circumstances of the Offenders

Positions of Crown and Defence:

Mitigating and Aggravating Factors

Principles of Sentencing:

Reasons:

Pre-sentence custody credit

Ancillary Orders:

Final Decision:

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 3

Legal Tests 1

Legislation 2