Court File No. 11-03779

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

• v –

LILIA MARIA URIBE

R E A S O N S F O R S E N T E N C E

BEFORE THE HONOURABLE JUSTICE C. BOSWELL

on OCTOBER 1, 2013

at NEWMARKET, Ontario

APPEARANCES

L. Mc CALLUM Counsel for the Crown

P. BACCHUS Counsel for the Lilia Maria Urbe

OCTOBER 1, 2013

R E A S O N S F O R S E N T E N C E

BOSWELL J. (Orally)

Introduction

[1] On July 4, 2013 I convicted Ms. Uribe of robbery and possession of stolen property with a value greater than $5,000. Sentencing submissions were received on September 6, 2013. The following are my reasons for the sentence I impose today.

The Circumstances of the Offence

[2] Cheong But and Lygech Ngo are a middle-aged couple who reside in Maple, Ontario. On weekends they operate a booth in the 400 Market, just south of Barrie, selling jewellery.

[3] On Sunday, May 23, 2010, Mr. But and Ms. Ngo closed up shop and departed the 400 Market at about 6:00 p.m. They were unaware, as they drove home, that they were being followed by a group of bandits intent on robbing them of their inventory of jewellery. This was no spur of the moment “smash and grab”. This was a well-planned and orchestrated robbery. The perpetrators were known to the police and had been under surveillance for some time, though unfortunately that was not the case on the day of the robbery. Tracking devices installed on one of the suspect’s vehicles offered evidence that there had been a practice run of the robbery on May 22nd. The real deal occurred the following day.

[4] Mr. But pulled the family car into the garage of their home on a quiet residential street at around 8:00 p.m. By the time Ms. Ngo stepped out of the car, four masked males were upon her and Mr. But. She was approached by a knife-wielding male. He was dressed in black and had a dark bandana covering most of his face. He pricked her in the hand with the knife and ordered her to get down on the floor of the garage. She complied, injuring her knees in the process. In the meantime, another similarly attired and disguised male pinned Mr. But in the car.

[5] Within a few minutes the assailants were gone, along with five black bags and a black knapsack full of jewellery, valued, in total, at about $250,000. They fled the scene in a Jeep Cherokee. The jewellery has never been recovered. The Cherokee was found the next day, abandoned on a nearby street.

[6] Following the heist, the jewellery was delivered to an apartment building located on Islington Avenue in Etobicoke. It was conveyed into the building by five individuals, none of whom resided at the building. Ms. Uribe did reside at the building, together with her common law spouse, Luis Enrique Soto-Cortes. Mr. Soto-Cortes was one of the masked males who committed the robbery. Ms. Uribe facilitated entry into the building by the five bag-toting individuals. The jewellery was not taken to Ms. Uribe’s unit, which was on the 8th floor, but to another location, which the police believe was an apartment on the 10th floor, though that has never been confirmed.

[7] Ms. Uribe was charged as an aider to the robbery. On May 21, 2010, she and Mr. Soto-Cortes rented a white Dodge Caliber from Avis Car Rentals. The Dodge Caliber was used as a scout and getaway car during the robbery. I found as a fact, in my reasons for judgment, that Ms. Uribe knew that the car was to be utilized in a robbery and that she rented the car with the intention of aiding in that purpose.

The Circumstances of the Offender

[8] Ms. Uribe is, at age 32, a somewhat youthful, first-time offender. A Pre-Sentence Report was prepared which offers some very basic information about her background. That information was supplemented by submissions from her counsel. Crown counsel did not object to the information provided by counsel and I suspect that none of it is controversial.

[9] Ms. Uribe was born in Colombia and spent the first 26 years of her life there. Her parents separated when she was quite young. She lived with her mother until her mother’s death when Ms. Uribe was 11 years old. She spent a year living with her grandmother, but at age 12 moved in with her boyfriend and his family. She became pregnant at age 15 and had a son, who is now 17 years old.

[10] Ms. Uribe experienced considerable tragedy in Colombia. In addition to the separation of her parents and the death of her mother, a number of her relatives have either disappeared or been killed by paramilitary groups operating in that country. Her brother was killed in 2001. Her boyfriend, the father of her son, was killed in 2004, as was her father. Shortly after the death of her father, she began the process of immigrating to Canada.

[11] Ms. Uribe came to Canada in 2007 as a refugee, but in October 2007 she was granted permanent resident status. She has survived on social assistance benefits since arriving in Canada. She has a grade five education and apparently very limited work experience. She has done some volunteer work through two different organizations, “Doorsteps”, which is described as a “community development organization”, and “The Stop Community Food Centre”, which provides meals to needy patrons. In addition, she attends an ESL program offered through the Toronto District School Board. She speaks little English at present and was assisted by a translator throughout the trial proceedings.

[12] There are family members in Canada who offer support to Ms. Uribe, that include her step-mother, grandmother, an aunt and a cousin.

[13] When Ms. Uribe first arrived in Canada she stayed in a shelter with her son. It was there that she met Mr. Soto-Cortes, also a Colombian expatriate, who would come by to visit and befriend other Spanish-speaking Colombians at the shelter. Ms. Uribe left the shelter and moved in with her cousin where she stayed for about a year. Mr. Soto-Cortes dated her cousin at first, then her. She eventually moved in with him.

[14] Ms. Uribe lives now with her son and other family members. Mr. Soto-Cortes is in prison.

The Impact on the Victims of the Offence

[15] The impact of a crime of this nature on Mr. But and Ms. Ngo is predictable and understandable. Each filed a victim impact statement. Ms. Ngo suffered for some time from physical injuries sustained in the robbery. But the damage to her and her family goes well beyond that. She valued their jewellery inventory at between $300,000 and $500,000. It was uninsured. The family business and their financial security have been lost. She and Mr. But have both suffered psychological harm. She still experiences frequent nightmares and sleepless nights. She feels fearful for her safety and the safety of her family. She no longer feels safe in her own home and will not spend any time outside in her yard. She is afraid to leave her home and when she does, she frequently checks her shoulder because she is afraid of being followed. Her social life has been destroyed.

[16] Mr. But expressed the guilt that he feels because he was unable to defend his wife and the defenselessness he felt trapped inside his car while his wife was attacked. He too has frequent nightmares and flashbacks of the robbery. He is left constantly feeling fearful and anxious for his own safety and that of his family. His life’s work, over 30 years in the making, was stolen from them in the course of a few terrifying minutes. His life has been ruined.

Legal Parameters

[17] Ms. Uribe was convicted of robbery and possession of property obtained by crime, with a value over $5,000. The Crown submitted that the conviction for possession should be stayed in accordance with the principles of R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729. There being no objection to the stay by defence counsel, I accept the Crown’s submissions and conditionally stay count 6. Ms. Uribe is to be sentenced only for her part in the robbery, which is count 4 on the Indictment.

[18] Pursuant to s. 344(1)(c) of the Criminal Code of Canada, a person convicted of robbery is liable to imprisonment for life.

Sentencing Principles

[19] Section 718 of the Criminal Code codifies the fundamental purposes of sentencing, long recognized by the common law. Those purposes include the denunciation of unlawful conduct, deterrence both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to the victims and the community, and promotion of a sense of responsibility in offenders and acknowledgment of the harm done.

[20] Section 718.1 provides the fundamental principle of sentencing: a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[21] Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It also requires that a sentence be similar to those imposed on similar offenders in similar circumstances, that the combined duration of consecutive sentences not be unduly long, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered.

[22] No one sentencing principle or purpose trumps the others. In each case, the weight to be put on the individual objectives varies depending on the facts and circumstances of the offence and of the offender. In this instance, there is no dispute that deterrence and denunciation are of particular importance. This was a planned and orchestrated robbery that ultimately occurred in the home of the victims. As the Court of Appeal noted in R. v. Wright, 2006 40975 (ON CA), [2006] O.J. No 4870, quoting the trial judge in part, “home invasion offences… ‘must be recognized by the courts as serious and denounced as totally unacceptable in a civilized society.’” They confirmed that priority must be given to the sentencing objectives of deterrence and denunciation. These are not the only considerations of course. The somewhat youthful age of Ms. Uribe and the fact that she is a first time offender heightens the importance of restorative justice principles as well.

[23] The fact that a number of other individuals were involved in the robbery and have been charged, convicted and sentenced brings into play the principle of parity and its counterpart, disparity. The various players engaged in the course of the robbery and its immediate aftermath were involved in varying degrees. There are disparate levels of culpability and those must be recognized when assessing Ms. Uribe’s particular role.

Positions of Crown and Defence Counsel

[24] The Crown seeks a custodial sentence of two years less a day, based on the gravity of the offence, its impact on the victims and in view of the established sentencing range for home invasion robberies.

[25] Defence counsel urges the court to consider a conditional sentence. If the court is not inclined to accept that submission, counsel asked that the court impose a jail term of less than six months, having regard to the mitigating circumstances present.

Discussion

[26] In the process of determining an appropriate sentence, I intend to first review the aggravating and mitigating circumstances of the offence and the offender. I will then review the sentences imposed on other parties to this offence. I will consider the defence request for a conditional sentence and determine whether the option of a conditional sentence is available in the circumstances. I will then briefly review the case law in terms of the established range for offences of this nature and ultimately reach a conclusion about the appropriate sentence to be imposed here.

[27] I begin with a review of aggravating and mitigating circumstances.

Aggravating and Mitigating Circumstances

[28] The aggravating circumstances of the offence include the following:

(i) The robbery, as I have mentioned, was well-planned, organized and orchestrated by a large group of individuals acting in concert;

(ii) There is a home invasion element. The robbery took place in the garage of the victims’ home. It has left them feeling unsafe in the one place in the world where it is most important that they feel safe and secure;

(iii) There was a weapon utilized and indeed Ms. Ngo was stabbed in the hand with a sharp object. She was forced to her knees in the garage and suffered physical injuries to her legs; and,

(iv) The sheer size of the loss and its devastating impact on the financial security and future of the victims.

[29] There are also a number of mitigating circumstances which include the following:

(i) Ms. Uribe has no prior criminal record. She is a young, single mother of a 17 year old son. She has extended family in Ontario and has their support;

(ii) She was an aider and not a principal to the offence. There has never been any suggestion that she actively participated in the commission of the robbery;

(iii) There is no evidence that Ms. Uribe knew how the robbery was to be executed, who the targets were, that a home invasion was to be a part of the plan, or that a weapon would be used;

(iv) There is no evidence that Ms. Uribe financially benefitted from the proceeds of the robbery;

(v) Ms. Uribe was arrested on June 17, 2010 and spent the next two months in custody, until being released on bail on August 11, 2010. She then spent almost three years on bail, pending trial, under fairly restrictive conditions, including a house arrest provision where she was to remain in the home of her surety unless in the presence of her surety;

(vi) Ms. Uribe’s status in Canada is as a permanent resident. Section 36(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”), provides that a permanent resident is inadmissible on grounds of serious criminality for having been convicted in Canada of an offence punishable by a maximum term of imprisonment of at least 10 years, or of an offence for which a term of imprisonment of more than six months has been imposed. Ms. Uribe is now in jeopardy of being interviewed by an immigration officer who may report to the Minister of Citizenship and Immigration regarding her inadmissibility. Should such a report be made, Ms. Uribe may very well become the subject of a removal order. She has a right to appeal a removal order pursuant to s. 64(1) unless a sentence of greater than six months is imposed, in which case she will have no right of appeal. The appeal provisions of the IRPA were amended as of June 18, 2013. Prior to that time, a right of appeal would only have been lost if the sentence imposed was greater than two years.

Parity

[30] There were a number of individuals charged and convicted in relation to the robbery of Ms. Ngo and Mr. But. As Justice Watt aptly noted in R. v. Jacko, 2010 ONCA 452,

“Degrees of responsibility vary. Some are principals. Others are aiders, abettors, counsellors or parties to a common unlawful purpose. And even within each mode of participation some bear greater responsibility than others. Although all are parties in law and equally guilty of the offence, greater punishment is the usual consequence of greater responsibility.”

[31] It is important to examine what sentences have been meted out to other participants and to examine their varying degrees of participation. The Crown helpfully provided the court with the dispositions with respect to a significant list of other participants, including:

(i) Mr. Antonio Gomez-Duarte entered a guilty plea to robbery and having his face masked, following the preliminary inquiry, and received a sentence of seven years imprisonment;

(ii) Mr. Luis Enrique Soto-Cortes and Mr. Aldo Alfonso Mancipe-Aguirre also entered guilty pleas to robbery and wearing a mask following the preliminary hearing and each was sentenced to six years imprisonment. Each has been ordered deported once their sentences are served;

(iii) Mr. Jose Morales entered a guilty plea to being an accessory after the fact, for his role in carrying the stolen property. He entered an early guilty plea and received a one year jail sentence, following a joint submission from Crown and defence counsel. He has been ordered deported;

(iv) Ms. Nidia Gomez also entered an early guilty plea to being an accessory after the fact. She was sentenced to one year in jail, but on a time-served basis. She has been deported;

(v) Mr. Hector Nova similarly was sentenced to one year in jail for being an accessory and he too has been deported;

(vi) Ms. Maria Diaz was convicted of possession of stolen goods and sentenced to something less than one year. She too has been deported;

[32] There are outstanding arrest warrants for several other participants, but the foregoing list provides an ample basis on which to consider the principle of parity.

[33] Mr. Gomez-Duarte, Mr. Soto-Cortes and Mr. Mancipe-Aguirre were all directly involved as principals in the actual commission of the robbery. They participated in its planning and execution and were present in the victims’ garage, masked and armed. Their sentences reflect their significant involvement and culpability.

[34] Most of the others who have been sentenced, Mr. Morales, Mr. Nova and Ms. Diaz, were all involved in transporting the stolen jewellery from an unknown initial location to an apartment on Islington Avenue in Toronto. Whether any of them participated in the planning and execution of the robbery is not known, but their pleas and sentences suggest they played a limited role in the offence.

[35] Ms. Nidia Gomez was not a transporter. It appears, however, from the evidence adduced at trial, that she was likely a lookout or driver during the course of the offence. I am not sure what essential facts she agreed to when her plea was entered.

The Conditional Sentence Option

[36] Defence counsel urged the Court to consider the imposition of a conditional sentence. Though the provision has since been amended, at the time of the index offence, the availability of conditional sentences was governed by s. 742.1 of the Criminal Code, which provided, at the relevant time, as follows:

“742.1 If a person is convicted of an offence, other than a serious personal injury offence as defined in section 752… the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the offender’s compliance with the conditions imposed under section 742.3.”

[37] Counsel debated whether the robbery in this instance was “a serious personal injury offence as defined in section 752.” Section 752 defines a “serious personal injury offence” as follows:

“(a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving,

(i) the use or attempted use of violence against another person, or

(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person,

and for which the offender may be sentenced to imprisonment for ten years or more,”

[38] The controlling decision in Ontario regarding the definition of a serious personal injury offence is R. v. Lebar, 2010 ONCA 220, [2010] O.J. No 1133, 260 O.A.C 169, 101 O.R. (3d) 263, 252 C.C.C. (3d) 411 (C.A.). There, Justice Epstein held that a contextual analysis of the phrase “serious personal injury offence” leads to the conclusion that Parliament intended a broad definition of the term “violence”. She said, specifically, at paras. 47-49,

“47 …I conclude that the object and scheme of the relevant provisions of the Code, as well as Parliament's intention in enacting them, was to reduce judicial sentencing discretion by eliminating the availability of conditional sentences for crimes of violence within a certain set of criteria. This is significant in the light of the trial judge's conclusion that the reduction of judicial discretion was an “undesired result”.

48 To be true to Parliament's intention, the concept of violence must be given a broad interpretation.

49 In my view, the meaning of "violence" in this definition must be informed by the entirety of the definition of a serious personal injury offence. A serious personal injury offence is defined, in part, either as an offence involving the use or attempted use of violence against another person, or "conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person." Taken together, and especially taking into account the far-reaching meaning of the word "safety", these two clauses point to the legislature's intention to cover a very expansive range of dangerous behaviour with the term "serious personal injury offence".”

[39] The index offence involved four masked men accosting a helpless middle-aged couple in their own garage. At least one of the men was armed. Ms. Ngo was stabbed in the hand and forced to the ground, injuring her legs. Mr. But was forcibly confined in his car, helpless to assist his wife. Their life’s work was taken from them. Both suffered and continue to suffer significant psychological harm and neither feels safe in their own home. There is no doubt in my mind, particularly in light of the direction from Lebar, that the index offence is just exactly the type of offence that Parliament sought to exclude from the conditional sentencing regime.

[40] Defence counsel argued that, even if the court concludes that the offence is a serious personal injury offence, the accused before the court did not participate in the violence, or, for that matter, the actual robbery at all. In other words, the court was urged to consider Ms. Uribe’s actual role in the offence.

[41] Section 742.1 does not distinguish between principals, aiders or abettors. It says that a person convicted of a serious personal injury offence is ineligible for a conditional sentence. This was a serious personal injury offence. Ms. Uribe was convicted of it. In my view, the conditional sentence option is not available.

The Range

[42] Crown counsel focussed her argument on the fact that this was a home invasion/robbery and provided the court with a number of decisions in an effort to establish an appropriate sentencing range.

[43] “Home invasion” is not a defined term in the Criminal Code. It is mentioned as an aggravating factor in s. 348.1 of the Code. Its essential nature was discussed by the Court of Appeal in R. v. J.S. (2006), 2006 22101 (ON CA), 210 C.C.C. (3d) 296, [2010] O.J. No. 2654. Blair J.A. described its main features as including breaking and entering a dwelling place for purposes of committing a theft or robbery, knowing that, or being reckless as to whether the home is being occupied, and using or threatening to use violence. The presence of weapons is often a factor, as is the confinement of the occupants of the home in some fashion. Such a definition is in keeping with the specific provisions of s. 348.1. He expressed caution however, noting that “the label ‘home invasion’ is elastic and can cover a broad range of offences. Judges have warned against generalizing across all home invasions when determining an appropriate sentence. One size does not fit all.”

[44] Justice Blair repeated this theme in R. v. Wright, which was a case arising out of Barrie, Ontario. Five suspects entered the home of a local business owner and corralled him and his family in their living room. They were armed with handguns and wore disguises. The objective was to rob the business premises of the home owner. They kept the family confined for 45 minutes, forced the business owner to hand over the keys to his business and to provide them with the combination to his safe. They fled when police arrived at the home. The accused, Mr. Wright, was one of the armed intruders. He was sentenced by the trial judge to eight years imprisonment, following a guilty plea, a sentence that was upheld by the Court of Appeal. The argument at appeal was that the trial judge had imposed a sentence above the usual range.

[45] Blair J.A. made a number of comments about sentencing ranges. He noted that they are “nothing more than guidelines and are certainly not conclusive of the appropriate sentence in any given case. Each case must be conducted as an individualized exercise.” (See para. 16). He went on to make the following observations about home invasion cases in particular,

“Indeed, it is the elastic nature of the home invasion offence, and the myriad of circumstances to which the label may apply, that make it difficult to define a range of sentence for such a crime. In my view, however, the trial judge was correct to observe that this court, and other appellate courts, have imposed sentences that exceed the five-to-eight-year range the appellant contends govern such cases…(See para. 18).”

“In my view, however, home invasion cases call for a particularly nuanced approach to sentencing. They require a careful examination of the circumstances of the particular case in question, of the nature and severity of the criminal acts perpetrated in the course of the home invasion, and of the situation of the individual offender. Whether a case falls within the existing guidelines or range, or indeed, whether it may be one of those exceptional cases that falls outside the range and results in a moving of the yardsticks, will depend upon the result of such an examination. I agree with the British Columbia Court of Appeal in R. v. A.J.C. (2004), 2004 BCCA 268, 186 C.C.C. (3d) 227) at para. 29], however, that in cases of this nature the objectives of protection of the public, general deterrence and denunciation should be given priority, although of course the prospects of the offender’s rehabilitation and the other factors pertaining to sentencing must also be considered. Certainly, a stiff penitentiary sentence is generally called for. (See para. 24)”

[46] Blair J.A. approved of a sentencing range in home invasion cases of four to five years at the low end and up to 11 to 13 years at the high end.

[47] The Crown placed great reliance on the sentencing decision of Baltman J. in R. v. J.B., 2011 ONSC 1150, [2011] O.J. No. 875, on the assertion that its facts were not dissimilar to the ones of the case at Bar.

[48] In J.B., the accused was convicted of robbery involving a home invasion. In October 2008, two masked men entered the apartment of two women, a mother and daughter, and demanded money and drugs. They were armed with guns. The women denied having either money or drugs and were beaten. The apartment was ransacked and the intruders fled with a laptop and a purse.

[49] The accused was ostensibly a long-time friend of one of the victims. The trial judge found that she orchestrated the robbery and let the two masked and armed men into the apartment building where the victims resided. She knew, or was wilfully blind, to the fact that the robbers were going to use force against the victims and/or that a robbery of this nature would inflict severe psychological harm. The trial judge determined that she was instrumental in the crime. She was, however, a first-time offender and the primary parent to a four year old. Nevertheless, given the vital role she played in the offence, she was sentenced to four years in prison.

[50] The Crown provided a number of other cases for comparative purposes, all of which serve to underscore the individualized nature of the sentencing process.

[51] Two of the four principals to the robbery in the case at Bar received sentences of six years following guilty pleas. One, Mr. Gomez-Duarte, arguably the worst offender, received seven years. These sentences are in keeping with the roles they played, the sentencing range discussed in R. v. Wright, and the seriousness of the offence.

[52] Ms. Uribe’s role was far less significant. She was not a principal, but a party to the offence. Her role consisted of assisting in the rental of a car. It is significantly less vital or integral a role than that played by the accused in J.B., a fact the Crown is not overlooking. In this instance she says that an appropriate sentence, by comparison, is two years less one day.

[53] It must be noted that in this case, unlike J.B., I have not concluded, nor can I conclude, that Ms. Uribe knew the details of the robbery to be committed. I have found that