COURT FILE NO.: CR-13-294-00
DATE: 20140225
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
A. Bernstein, for the Crown
- and -
REVINGTON BAILEY
C.K. Assie, for the Defendant
Defendant
HEARD: January 27, 2014
REASONS FOR SENTENCE
André J.
[1] I convicted Mr. Bailey on December 16, 2013 of three counts of robbery and three counts of the use of an imitation firearm during a robbery.
[2] The Crown seeks to prove that the firearm used in the commission of the offences was a restricted firearm as defined by the Criminal Code. The Crown seeks a global sentence of nine years imprisonment if I find that Mr. Bailey used a real firearm in the commission of the offences and a sentence of seven years imprisonment if I find that the weapon used by Mr. Bailey was an imitation handgun.
[3] Defence counsel suggests a three year global jail sentence if I find that the weapon used in the commission of the offences was an imitation handgun and five to six years if I find that Mr. Bailey used a real handgun in the commission of the offences.
[4] I must therefore decide the following issues:
Has the Crown proven beyond a reasonable doubt that Mr. Bailey used a real handgun in the commission of the robberies?
What is the appropriate sentence in this case, based on the circumstances of the offences and the personal circumstances of Mr. Bailey?
FACTS
[5] During the evening of July 19, 2012, Mr. Bailey robbed three persons at three bus stops in Brampton and Mississauga within the space of one hour. In the first, he showed the male victim a handgun tucked in his waistband. In the second, he discharged the gun into the grass. The female victim testified that the sound of the discharge was not very loud and that she believed that the gun was a fake. The third victim testified that Mr. Bailey aimed the gun at him and pulled the trigger but it did not go off. This victim also believed that the gun was a fake.
[6] The police recovered no spent shells or bullets at the scene of the second robbery, despite an extensive search. Neither did the Crown tender any expert evidence to prove that the gun used by Mr. Bailey was indeed a real handgun.
ISSUE NO 1:
Has the Crown proven beyond a reasonable doubt that Mr. Bailey used a real handgun in the commission of the offences?
[7] In my view, the Crown has failed to do so for the following reasons:
In order to find that the handgun in issue was a firearm, the evidence, taken cumulatively, must be capable of reasonably supporting such a conclusion. R. v. Carlson, [2002] O.J. No. 1884 (Ont. C.A.), at para. 16; R. v. Charbonneau, 2004 9527 (ON CA), [2004] O.J. No. 1503 (Ont. C.A.), at. para. 3; R. v. Abdullah, [2005] O.J. No. 6070 (S.C.J.), para 29.
Evidence that the object looked like a handgun and was used as a firearm while accompanied by threats to shoot the victim, may well be sufficient for a finding that the object was a firearm. See Charbonneau, supra and Abdullah, supra.
[8] However, I must also consider evidence that does not support such a conclusion. In this case, the evidence includes the following:
The belief of two of the victims that the object in Mr. Bailey’s possession was a fake handgun.
The muted sound made by the object when discharged by Mr. Bailey during the second robbery.
The absence of any forensic evidence found at the scene of the second robbery, despite an extensive search.
[9] In my view, the above evidence raises a reasonable doubt that the object in Mr. Bailey’s possession during the commission of the three robberies was a real handgun.
[10] Accordingly, I find that Mr. Bailey was in possession of an imitation firearm when he committed the three robberies in question.
ISSUE NO 2:
What is the appropriate sentence in this case, based on the circumstances of the offences and Mr. Bailey’s personal circumstances?
[11] S. 718 of the Code provides that:
- 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;
c) to separate offenders from society, where necessary;
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.
[12] A sentence must be proportionate to the gravity of the offence and the offender’s degree of responsibility. See s.718.1 of the Criminal Code.
[13] In determining an appropriate sentence in this case, I must assess, pursuant to s. 718.2, the following considerations:
a. The aggravating and mitigating factors;
b. Evidence that the offences had a significant impact on the victims, considering their age and other personal circumstances, including their health and financial situation.
c. A sentence shall be similar to sentences imposed on similar offenders for similar offences in similar circumstances.
d. Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh.
e. Section 718.2(d) provides that an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate.
[14] The aggravating factors in this case are:
The offences were committed against vulnerable victims who were waiting to take public transportation either to their workplace or to their home.
All three victims were highly traumatized by their ordeal.
Mr. Bailey discharged the imitation firearm in one incident.
Mr. Bailey pointed the imitation firearm at another victim and threatened to shoot him. He pressed the trigger and the victim heard a “click” sound.
Mr. Bailey stole a cellphone from all three victims, one of which was never recovered.
The incidents required some planning and the involvement of another person who drove the getaway vehicle.
Mr. Bailey struck the back of the head of the third victim with his firearm.
[15] The mitigating factors in this case are:
Mr. Bailey was 24 years old at the time of the incidents.
Mr. Bailey has no criminal record.
Mr. Bailey, who is a permanent resident of Canada, will be deported to Jamaica upon completion of his sentence.
None of the victims suffered any serious physical injury.
[16] The robberies had a significant impact on the victims. Mr. Sinaga indicated in his victim impact statement that he is now scared to walk around at night. Ms. Dhingra indicated that following the incident, she would not even go outside for several days and that she did not sleep alone for quite some time. Finally, Mr. Singh noted that he no longer goes out at night alone and that he is now afraid of waiting at bus stops.
[17] The other sentencing consideration that is pertinent in this case is that of parity of sentence. Both the Crown and defence rely on a number of cases to support their respective positions on the appropriate sentence. The Crown relies on the following cases:
[18] In R. v. Wallace, 2005 14443 (ON SC), [2005] O.J. No. 1759 (S.C.J.), the court sentenced a 21 year old offender who had been convicted of 27 offences, including 8 counts of robbery and six counts of using an imitation firearm, to three years imprisonment for the robbery convictions and six consecutive one year sentences for using an imitation firearm during the commission of the robberies. The offender had two previous convictions and was on probation at the time of the robberies.
[19] In R. v. Safaei, [2005] O.J. No. 4105 (S.C.J.), the court sentenced a 23 year old cocaine addict who pled guilty to several counts of robbery and three counts of using an imitation firearm to three years concurrent imprisonment on each charge of robbery and one year consecutive imprisonment for use of an imitation firearm, for a total of four years imprisonment on top of 18 months of pretrial custody.
[20] In R. v. Swanek (2006), 40365 (ONT.C.A.), a 19 year old offender who, armed with an imitation firearm and a knife, robbed two store clerks working late at night, received an 18 month jail sentence after receiving 18 months credit for 9 months served in pretrial custody. The Court of Appeal upheld the sentence, given the seriousness of the offences.
[21] In R. v. Arafa (2009), A.J. No. 1354 (Alta. C.A.), the court sentenced an oxycontin addict who, while armed with an imitation firearm, robbed a pharmacy twice in seven days, to a global sentence of seven years imprisonment less 40 days credit for pretrial custody, after he pleaded guilty to the charges. On appeal, the Alberta Court of Appeal reduced the sentence to five years imprisonment.
[22] In R. v. Nembhard, 2010 ONCA 420, [2010] O.J. No. 2420 (Ont. C.A.), the Ontario Court of Appeal reduced the appellant’s nine year jail sentence for robbery of one bank and attempted robbery of another while using an imitation firearm and disguise, to seven years imprisonment which included a total of three years imprisonment for the two counts of use of an imitation firearm.
[23] In R. v. S.A., 2011 ONSC 4165, [2011] O.J. No. 3046 (S.C.J.), the 24 year old accused was convicted after a trial, of four bank robberies and use of an imitation firearm. The court sentenced him to seven and one half years in jail, comprised of four concurrent 48 month jail terms for robbery; two consecutive twelve month terms for use of imitation firearm; and an eighteen month consecutive term for another count of use of an imitation firearm.
[24] Defence counsel suggests that the cases relied upon by the Crown are distinguishable on their facts and that the appropriate sentence should be one of three years imprisonment less pretrial custody.
[25] He relies on R. v. Noor, [2009] O.J. No. 4796 (Ont. C.A.), where the Court of Appeal upheld an 18 month jail sentence imposed on a 19 year old offender who was convicted of robbery and use of a firearm while committing robbery, and R. v. Bennett, 2007 ONCA 478, [2007] O.J. No. 2610 (Ont. C.A.), where the Ontario Court of Appeal reduced the three year jail sentence of a 19 year old first offender who had been convicted by a jury of robbery, wearing a disguise and use of an imitation firearm, to two years less a day.
[26] These two latter cases, however, are factually different from the case at bar. In Noor, the offender remained in the getaway vehicle while his cohorts robbed a gas station. He did not know the robbery plan. While one of the participants held a pellet gun to the face of the attendant, there was no discharge of the gun. Neither was there any gratuitous violence. The case involved one incident.
[27] Similarly, Bennett involved one incident where the accused robbed a video store with an imitation firearm. There was no violence or discharge of the firearm.
[28] In this case, Mr. Bailey robbed three vulnerable individuals. He discharged his imitation firearm in the second robbery and pulled the trigger in the third. The incidents had a significant impact on each victim. Mr. Bailey was found guilty following a trial. While this is not an aggravating factor, he cannot rely on remorse to mitigate what would otherwise be an appropriate sentence. R. v. Pavich, 2000 16971 (ON CA), [2000] O.J. No. 4209 (Ont. C.A.).
[29] The paramount principles of sentencing in this case are general deterrence and denunciation. The sentence, which must be a term of imprisonment, must be sufficiently long that it serves as a deterrent to similar conduct.
[30] On the other hand, the combined sentence should not be unduly harsh that it has a crushing effect on Mr. Bailey. He is a youthful first offender and therefore, his future rehabilitation is a consideration that must be reflected in the overall sentence.
DEPORTATION
[31] Should the sentence be three years imprisonment, given that Mr. Bailey will be deported from Canada following the completion of his sentence?
[32] In R. v. Pham (2013), SCC, 15 (SCC), the Supreme Court of Canada held that a sentencing judge may consider all the consequences of a sentence, including deportation, while maintaining fidelity to the principle of proportionality in the determination of the sentence.
[33] In R. v. Critton, [2002] O.J. No. 2594 (S.C.J.), Hill J. held at para. 86 that an “accused’s deportation is a factor which can, in some circumstances, serve to mitigate the severity of the sanction imposed by the court.”
[34] In R. v. Hamilton and Mason, [2004] 5549 (Ont. C.A.), Doherty J.A. cited Hill J.’s reasoning, with approval, at paragraphs 156 and 157.
[35] However, in R. v. Rich (2014) B.C.C.A. 24 (), the B.C.C.A. cautioned, at para. 21, that concerns over the deportation of an offender cannot transform an unfit disposition into an appropriate sentence.
[36] While the certainty of deportation upon completion of a sentence should properly be considered a mitigating factor, it should not reduce a sentence to such an extent where it can no longer be considered a proportionate sentence, having regard to the gravity of the offence and the degree of responsibility of the offender.
[37] In my view, a three year global sentence of imprisonment would not be a proportionate sentence in this case. The three convictions for use of an imitation firearm carry three consecutive one year mandatory minimum sentences. A global three year sentence would therefore mean that Mr. Bailey would not receive a custodial disposition for the robbery convictions. Such a sentence, in my view, would not be a proportionate sentence in this case, given the gravity of the offence and the moral blameworthiness of Mr. Bailey.
[38] Having regard to the principles of general deterrence and denunciation, the impact on the victims, Mr. Bailey’s rehabilitation; the principles of parity; and the fact that he faces deportation upon completion of his sentence, the appropriate sentence in this case is a term of imprisonment of five years, less credit for pretrial custody.
[39] The sentence is broken down as follows:
The sentence for each robbery in counts one, three and five shall be two years imprisonment to be served concurrently.
The sentence for the counts of use an imitation firearm; counts two, four and six, shall each be one year imprisonment, to be served consecutively to the robbery sentences. The total sentence is therefore five years, less pretrial custody.
Mr. Bailey has served one year, seven months of pretrial custody. He will receive 28 months credit for his pretrial custody.
Accordingly, I sentence Mr. Bailey to an additional period of two years and eight months in custody.
ANCILLARY ORDERS
There will be an order under s.109(3) for life.
There will be an order, under s. 487.051 of the Code, authorizing the taking of samples of bodily fluids for forensic DNA analysis.
The victim fine surcharge is waived, given that the offences predate the recent change in the applicable legislation.
___________________________
André J.
Released: February 25, 2014
COURT FILE NO.: CR-13-294-00
DATE: 20140225
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
- and –
Revington Bailey
Respondent
REASONS FOR SENTENCE
André J.
Released: February 25, 2014