DATE: 20140325
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
KEVIN WILLIAMS
Sean Hickey and Kim Motyl for the Crown
Paul Aubin for Kevin Williams
HEARD: March 14, 2014
Reasons for Sentence
MacDonnell, J.
[1] Just before 6:00 p.m. on Saturday, August 9, 2010, two masked men rushed through the rear door of Arax Jewellers, shot one of the store’s two employees, and forced the other at gunpoint to assist them in emptying the display cases of approximately $500,000 worth of jewellery. The men then fled to the parking lot where their accomplice, a young woman, was waiting to drive them away.
[2] Some 14 months later, after a lengthy police investigation, Kevin Williams, Mark Moore and Sarah Patsula were charged with the Arax robbery. The allegation of the Crown was that Mr. Williams and Mr. Moore were the two masked men who had burst into the store and that Ms. Patsula was the getaway driver.
[3] On September 28, 2012, shortly before the preliminary inquiry was to commence, Sarah Patsula pleaded guilty to robbery and to using an imitation firearm while committing robbery. Justice Otter accepted the joint submission for a global sentence for Ms Patsula of 2½ years imprisonment.
[4] On November 18, 2013, Mr. Williams and Mr. Moore appeared before this court and were arraigned on an indictment charging them jointly with eight counts in relation to the Arax robbery. Mr. Moore was further arraigned on an indictment charging him separately with four counts of possession of a firearm while prohibited. With the consent of the Crown, both accused re-elected to be tried without a jury, and both pleaded not guilty to all counts. On February 3, 2014, I found both accused guilty on all counts.
[5] A sentencing hearing in relation to Mr. Williams was held on March 14. At that time, the Crown conceded that pursuant to the rule against multiple convictions, judicial stays should be entered in relation to count 4 (pointing a firearm) and count 6 (discharging a firearm carelessly) in light of the convictions on count 3 (using a firearm to commit an aggravated assault) and count 5 (discharging a firearm with intent to endanger life). Counsel for Mr. Williams submitted that judicial stays should also be entered in relation to count 3 and count 8 (unauthorized possession of a loaded prohibited or restricted firearm). For reasons I will come to, I reject that submission.
[6] Accordingly, Mr. Williams is before the court today for sentencing on six of the eight counts with respect to which findings of guilt have been made, namely robbery, aggravated assault, using a firearm to commit an aggravated assault, discharging a firearm with intent to endanger life, being masked with intent to commit an offence, and unauthorized possession of a loaded prohibited firearm.
I. The Facts
A. The Circumstances of the Offences
[7] The Arax Jewellers store is located in the Sunnybrook Plaza, a strip mall on the northeast corner of the intersection of Bayview Avenue and Eglinton Avenue East. Arax is situated toward the east end of the mall. A customer parking area separates the shops in the mall from Eglinton Avenue. A service laneway runs along the north side of the shops and leads to a small parking area near the rear of Arax Jewellers. The only entrance to the laneway is from Bayview Avenue.
[8] At about 5:48 p.m. on the afternoon of August 9, 2010, a four-door Audi driven by Sarah Patsula pulled into a parking space on the north side of the front parking lot, near the front door of Arax Jewellers. Kevin Williams was in the front passenger seat and Mark Moore was in the rear. Ms Patsula exited from the vehicle and walked west along the front of the shops. When she reached Arax Jewellers she stopped briefly, determining who was inside. Shortly after that, she returned to her Audi and got back into the driver’s seat. Williams and Moore had remained in the car while she was out. Ms Patsula reversed out of her parking spot, drove west through the parking lot toward Bayview Avenue, turned north onto Bayview and then east into the laneway running along the north side of the shops, proceeding all the way to the parking spaces near the rear of Arax Jewellers.
[9] The only employees of Arax Jewellers who were working that afternoon were Art Darakjian and Shant Khatcherian. Just before 6:00 p.m. Mr. Darakjian and Mr. Khatcherian stepped outside the rear door of the shop into the area of the small parking lot to dispose of the trash and to have a cigarette. As they stood there, Ms Patsula backed her Audi into a parking space just to the west of them. As soon as Audi came to a stop, the rear passenger-side door opened and Mark Moore, wearing a balaclava that completely covered his head, began running toward Arax Jewellers holding a loaded handgun. Meanwhile, Kevin Williams had emerged from the front passenger-side door of the Audi. He too was masked, and he too was moving toward the rear of Arax. Sarah Patsula remained in the car.
[10] Mr. Darakjian, who was leaning against the door smoking a cigarette, did not notice what was happening until he looked up to see Moore pointing the handgun at him and yelling at him to get inside. Mr. Darakjian’s first reaction was to try to close the door. When Moore saw this, he immediately fired a shot at Mr. Darakjian. The bullet ricocheted off the door, passed through Mr. Darakjian’s left arm just below the elbow and lodged in his right thigh. Although he was wounded, Mr. Darakjian managed to make his way inside. Moore followed behind, dragging Mr. Khatcherian along at gunpoint and yelling at both men to get down to the floor and to stay down.
[11] Moore kept his gun trained on Mr. Darakjian and Mr. Khatcherian as Williams entered the large walk-in safe and began removing items. Williams then moved toward the display cases, closer to the front of the store, but the display cases were locked. Mr. Khatcherian pointed to where the keys were. Moore and Williams then changed positions. Moore handed the gun to Williams, who kept it pointed at the victims as Moore went toward the display cases. Moore then returned, took the gun from Williams and directed Mr. Khatcherian to unlock the display cases. Mr. Khatcherian did so and Williams and Moore proceeded to empty the contents into satchels. Both men then fled out the rear door, entered Sarah Patsula’s waiting Audi, and made a successful getaway.
[12] In the three minutes and sixteen seconds they had been inside the store, Mr. Moore and Mr. Williams had managed to scoop up over 200 pieces of jewellery worth approximately $500,000. At no point in the robbery did either of them exhibit the slightest interest in or concern about the condition of Mr. Darakjian.
B. The Impact of the Offences on the Victims
[13] The bullet that passed through Mr. Darakjian’s arm and lodged in his thigh was removed during surgery at Sunnybrook Hospital. Luckily, it had not struck any bones and from a physical standpoint Mr. Darakjian has made a full recovery. In his Victim Impact Statement, however, he described the lingering psychological impact that the incident has had on him. The psychological impact on Shant Khatcherian has been more significant. In his Victim Impact Statement he described “great feelings of hopelessness.” He stated:
I no longer have patience with my co-workers. I’m always on edge. I suffer from post-traumatic stress, anxiety, and it is still to this day very difficult to come to work without thinking about that day… I have lost all confidence in people and worry that anyone can be a possible threat to me and the store.
[14] Shant Khatcherian’s father Yeprem also prepared a brief Victim Impact Statement in which he stated: “My relationship with my son has never been the same since the robbery. Shant is under extreme stress and he is constantly on edge, worried and loses his temper often. He is not comfortable talking to customers and it causes me great pain to see him worried like that.”
C. The Circumstances of the Offender
(i) Mr. Williams’s background
[15] Mr. Williams was born on September 29, 1980. He was 29 years of age at the time of the Arax robbery and he is now 33 years old. He has a Grade 11 education. He has never had much family support. His mother, who lives in Toronto, is a crack cocaine addict and Mr. Williams has not seen her or spoken to her since he was 17 years old. Throughout his time in custody not a single family member has spoken to him or visited him.
[16] By the time of the Arax robbery, Mr. Williams had already accumulated a significant criminal record. He had a total of 20 prior convictions, nine as a youth and eleven as an adult. His youth record, which began when he was 15, included two convictions for assault, one for assaulting a peace officer, one for assault with intent to resist arrest and one for obstructing a peace officer. Five of his eleven adult convictions were for offences contrary to the Controlled Drugs and Substances Act, two were for offences of dishonesty and two were for failing to comply with court orders. One adult entry, however, was for possession of a prohibited weapon (a knife) and another was for assault with intent to resist arrest. In fairness, those last two entries were recorded, respectively, 11 and 9 years prior to the Arax robbery. There was a gap in the record between 2002 and 2008. His longest prior term of incarceration was 90 days intermittent, which was imposed for his last prior conviction - possession for the purpose of trafficking – on March 6, 2009.
[17] As the five convictions for offences under the Controlled Drugs and Substances Act might suggest, Mr. Williams has struggled with drug addiction. Notwithstanding that struggle, and notwithstanding the difficult circumstances of his upbringing, Mr. Williams had become a fairly successful rap musician and producer. He was earning income from those endeavors, although by itself it was not enough to keep him financially afloat. He also worked part-time for the City of Toronto as a peer mentor.
[18] Mr. Williams did not have a lavish lifestyle either before or after the Arax robbery. He continued to live in a sparsely furnished apartment in Lawrence Heights. He did not own a motor vehicle. There is no dispute between Mr. Williams and the Crown that Mr. Moore got the lion’s share of the fruits of the robbery.
(ii) Mr. Williams’s assistance to the police
[19] Mr. Williams’s co-accused Mark Moore is currently facing four counts of first-degree murder and a count of attempted murder arising from four separate shooting incidents in the latter half of 2010.
[20] Subsequent to his arrest for the Arax robbery, Mr. Williams was approached by Detective Idsinga of the Homicide Squad who was seeking assistance in the investigation of those shootings. It appears that Mr. Williams not only has material evidence to give in relation to the incidents, he is said to have been an eyewitness to one or more of them. Indeed, with respect to one – a double homicide that occurred on September 29, 2010 – Mr. Williams is said to be the only eyewitness available to the prosecution. Notwithstanding the notorious code of silence that exists in the community in which Mr. Williams was living, he agreed to assist Detective Idsinga. He testified as a Crown witness at Mark Moore’s preliminary inquiry in early 2013, which ended with Moore’s committal to stand trial for the four murders. Moore’s trial is expected to occur later this year.
[21] It comes as no surprise that Mr. Williams has paid a price for his service to the administration of justice. Once it became known that he assisted the police in the investigation of Mark Moore, he was labelled a ‘rat’ within the correctional system and he was subjected to verbal and at times physical abuse. He has spent almost all of the last 29 months in protective custody and he will no doubt have to spend the balance of the punishment imposed today in similar conditions. The danger that he faces was exemplified by an incident in this very courthouse in May, 2013. On that occasion, Mr. Williams and Mr. Moore were before the court to deal with pre-trial matters concerning their upcoming Arax robbery trial. A directive to keep them separate and apart in the cells was overlooked and they ended up in the same bullpen. It is alleged that Mr. Moore took that opportunity to attack Mr. Williams and to kick him into unconsciousness, resulting in his hospitalization.
[22] Further, once the word got out that Mr. Williams had co-operated with the police, he found himself ostracized by his friends. After a bail hearing in relation to the Arax charges, Mr. Williams was granted bail with named sureties. When the sureties learned that Mr. Williams had assisted the police they refused to sign his bail. Although the release order was in effect throughout his trial, Mr. Williams remained in custody because he could not find anyone willing to come forward for someone who was a target in the community. He has been seeing a psychiatrist twice a month while in custody for depression arising from the stress of his co-operation.
(iii) Mr. Williams’s letter to the court
[23] Prior to the sentencing hearing, Mr. Williams wrote a letter to the court in which he stated, in part:
The past 31 months of pre-trial custody have been convoluted for me. Due to the fact that I told the truth about 2 wanton murders that occurred on [September 29, 2010] in the urban community and the jail system I was automatically labelled a “rat”…
[B]ecause I am labelled a “rat” I’ve been humiliated, slandered, defamed, verbally and even at times physically abused. One example of being attacked happened in this very courthouse where…I was placed in the same bullpen as my co-accused Mark Moore, the same individual I am currently a Crown witness against. I nearly died that day after being kicked into unconsciousness repeatedly in the head. I suffered an orbital bone and cheekbone fracture…
I cannot put sole responsibility on [Moore], because my naivety and greed was also to blame. I know I have to go to the pen and I am quite frankly fearful for my life, being a known associate of Mark Moore, as well as labelled an informant… I will most likely have to spend all of my remaining time in solitary confinement…or shipped out of province away from the very few remaining friends that stuck by me throughout this ordeal.
Even though I have had my fair share of run-ins with the law this is the first time I have ever been in this much trouble and convicted of such a serious offence.
I have had 2 and a half years to do soul searching and figure out where I went wrong. Partly I feel it was the company I kept as well as the type of music I made that seemed to attract that company. I now focus on making more positive-styled music and hope to deter youth growing up in the same environments I did from making the same mistakes.
With all these factors taken into consideration, I hope your honor would see fit to grant a little clemency when sentencing me…
(iv) Mr. Williams’s statement to the court
[24] Pursuant to s. 726 of the Criminal Code, Mr. Williams was asked at the conclusion of the sentencing hearing if he had anything to say. He stated:
I just want to say that I feel like a very different person than when these events occurred, and I’m very remorseful for all these events that transpired. Losing my freedom is the least that I’ve lost over this time and I just want to express my remorse for everything that happened. I made a lot of bad choices. I was around bad company, and I guess common sense isn’t too common. I pride myself as being an intellectual but I was extremely naïve when these things transpired.
II. The Positions of the Parties
[25] On behalf of the Crown, Mr. Hickey submitted that the appropriate global sentence for Mr. Williams, leaving aside credit for pre-sentence custody and consideration for assisting in the investigation of Mark Moore, would be a term of imprisonment of 11 years. Mr. Hickey acknowledged that as a result of his co-operation with the police, the conditions of Mr. Williams’s pre-sentence custody have been difficult and sometimes dangerous, and that he should receive enhanced credit of one and one-half days for each day of that custody. Mr. Hickey further acknowledged that the sentence that Mr. Williams would otherwise have received should be reduced as a result of the co-operation he has rendered to the police, but he made no submission as to the extent of the appropriate reduction.
[26] On behalf of Mr. Williams, Mr. Aubin submitted that the appropriate global sentence for Mr. Williams, leaving aside credit for pre-sentence custody and consideration for assisting the police, would be a term of 6 to 8 years. He submitted that the assistance that Mr. Williams provided to the police was significant and that it was provided at great personal risk to Mr. Williams’s safety, and that the sentence imposed should be no more than the statutory minimum, which in this case is 6 years. With credit for pre-sentence custody, this would leave an effective sentence of approximately 27 to 28 months.
III. Analysis
(a) The rule against multiple convictions
[27] The Crown conceded that counts 4 and 6 should be stayed pursuant to the rule against multiple convictions. Counsel for Mr. Williams submitted that counts 3 and 8 should be stayed for the same reason. No one has suggested that the success or failure of that submission would have any impact on the length of the global sentence to be imposed in this case.
[28] It is well-established that where an accused has been found guilty of multiple offences, the rule against multiple convictions will only be applied where there is both a factual and legal nexus between the offences in question. Where the rule applies, a conviction will be registered in relation to the more serious of the offences and a judicial stay will be entered on the less serious offence.
[29] Discharging a firearm with intent to endanger life contrary to s. 244(1) (count 5) is a more serious offence than using a firearm in committing an aggravated assault contrary to s. 85 (1) (count 3) for two reasons. First, while both offences are punishable by 14 years imprisonment, and both carry a mandatory minimum term of imprisonment, the mandatory minimum for the s. 244(1) offence is five years whereas the mandatory minimum for the s. 85(1) offence is one year. Second, the s. 244(1) offence requires a specific intent to wound, maim, disfigure or endanger life, whereas the s. 85(1) offence only requires objective foreseeability of the risk of bodily harm. In other words, the s. 244(1) offence requires a more blameworthy state of mind.
[30] The question, therefore, is whether in light of the conviction to be registered on count 5 the rule against multiple convictions precludes a conviction on count 3. It will only do so “if there is no additional and distinguishing element that goes to guilt contained in the offence for which a conviction is sought to be precluded…”: R. v. Prince, [1986] 2 S.C.R. 480.[^1] In coming to that conclusion in Prince, Chief Justice Dickson reasoned that “[no] element which Parliament has seen fit to incorporate into an offence and which has been proven beyond a reasonable doubt ought to be omitted from the offender's accounting to society, unless that element is substantially the same as, or adequately corresponds to, an element in the other offence for which he or she has been convicted.”[^2]
[31] In order to prove guilt for the offence of discharging a firearm with intent to wound, maim, disfigure or endanger life, the Crown was not required to prove that anyone was wounded, maimed, disfigured or endangered. In order to prove the offence of using a firearm to commit an aggravated assault, however, the Crown did have to prove that one of those things occurred. In other words, the offence to which Mr. Williams seeks to apply the rule against multiple convictions, Count 3, has an additional element going to guilt, namely proof of a particular consequence. Count 3 is aimed directly at holding Mr. Williams accountable for that consequence. To apply the rule against multiple convictions to count 3 would omit that consequence from Mr. Williams’s accounting to society. Accordingly, the rule should not be applied to preclude a conviction on count 3.
[32] Discharging a firearm with intent to endanger life is also a more serious offence than possession of a loaded prohibited or restricted firearm without an authorization, license or registration certificate contrary to s. 95(1) (count 8). As I have said, the maximum term of imprisonment for the former offence is fourteen years, and where the firearm that was discharged was a restricted or prohibited firearm there is a mandatory minimum of five years imprisonment. The maximum for the s. 95(1) offence is 10 years, and until it was struck down on constitutional grounds the mandatory minimum was three years.
[33] The offence charged in count 5 contains elements in addition to those required to establish the s. 95(1) offence, but that is not the relevant inquiry. The question, as I indicated above, is whether the s. 95(1) offence contains an additional element going to guilt beyond those required for count 5. In my view it does, namely the requirement of proof that the possession of the firearm was unauthorized. The purpose of s. 95(1) is to prohibit possession of certain kinds of firearms in the absence of authorization. The absence of authorization to possess a restricted or prohibited firearm is not an element of the s. 244(1) offence. That is, the possession of the firearm that was discharged does not have to be unlawful in order for the discharge to constitute an offence under s. 244(1). Accordingly, the rule against multiple convictions should not be applied to preclude a conviction on count 8.
(b) The applicable sentencing principles
[34] Section 718 of the Criminal Code provides, in part, that the fundamental purpose of sentencing “is to contribute… 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 [six] objectives.” Those objectives include the denunciation of unlawful conduct, deterrence of the offender and others who might be similarly tempted, separation of the offender from society where necessary, rehabilitation, and the promotion of a sense of responsibility in the offender. Whatever sanction is imposed “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”[^3] Further, a court that imposes a sentence “shall also take into consideration” the principles, among others, that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”.[^4]
[35] The objectives set forth in s. 718 sometimes pull in different directions. Ordinarily, which direction will ultimately prevail will be a case-specific determination. With respect to several of the offences with which Mr. Williams is charged, however, the discretion of sentencing courts has been constrained by the enactment of mandatory minimum terms of imprisonment. For the offence of robbery committed with the use of a restricted or prohibited firearm (count 1), the minimum penalty is five years imprisonment. For the offence of discharging a restricted or prohibited firearm with intent to endanger life (count 5), the minimum penalty upon conviction is also five years imprisonment. For the offence of using a firearm to commit the indictable offence of aggravated assault (count 3), the minimum penalty is one year imprisonment, which must be served consecutively to any other term of imprisonment imposed for an offence arising from the same event or series of events. Accordingly, the minimum global term of imprisonment to which Mr. Williams is subject, regardless of the specifics of what he did and of his personal circumstances, is six years.
[36] By making terms of imprisonment of that length mandatory, Parliament has ensured that denunciation and deterrence will be the primary sentencing objectives in cases such as this. However, even without those mandatory minimums, the brazen and premeditated nature of this gunpoint robbery of a jewellery store, in the course of which an employee was cold-bloodedly shot and wounded, would necessarily have made denunciation and deterrence the paramount objectives and would in any event have led to a substantial period of incarceration.
(c) Mr. Williams’s rehabilitative prospects
[37] Denunciation and deterrence are not the only considerations, however. Notwithstanding Mr. Williams’s criminal record and his central role in carrying out the Arax robbery there is reason to be hopeful with respect to his eventual rehabilitation. The last conviction for an offence of violence on his record was registered in 2001. There was a six-year gap in his record between 2002 and 2008. In the years immediately preceding the robbery he had achieved success in the music business. While his record was not enviable, he had not demonstrated himself to be irretrievably devoted to a life of crime. His involvement in the robbery is disturbing, but his willingness to co-operate with the police in their investigation of what is alleged to have been a series of callous and cold-blooded murders suggests that he has the potential to be a responsible member of the community once his debt to society is paid.
(d) The principle of parity: the sentence imposed on Sarah Patsula
[38] Where an offender commits an offence together with other persons, the principle that "a sentence should be similar to sentences imposed on similar offenders for similar offences" requires a consideration of the sentences imposed on those other persons. This does not require that everyone involved receive the same punishment, regardless of their individual roles, backgrounds and circumstances. What it requires is that if there are differences, the differences be understandable: R. v. Issa (1992), 57 O.A.C. 253 (C.A.), at page 255.
[39] Shortly before the preliminary inquiry was to commence Sarah Patsula pleaded guilty to robbery and to using an imitation firearm while committing robbery. The sentencing judge, Justice Otter, accepted a joint submission for a global sentence of 2½ years imprisonment, which was achieved by imposing 18 months for the robbery and 12 months consecutive for the use of an imitation firearm.
[40] There are important differences between the situation of Sarah Patsula and that of either Kevin Williams or Mark Moore. The primary difference is that while Ms Patsula knew that Moore was armed with a gun, she did not believe it to be a real firearm until she heard the shot fired. She did not abandon the plan at that point because of fear of what Moore might do to her, her family or Williams if she fled. Second, Ms Patsula was younger than either Moore or Williams, she had no prior record, she was employed in a responsible position in a bank and she had considerable family support. And, third, of course, she pleaded guilty at a relatively early stage.
[41] Sarah Patsula was clearly in a markedly different position for sentencing purposes from the position that Mr. Williams is in now. The difference between their positions justifies markedly different sentences.
(e) The principle of parity: sentences in other cases
[42] The principle that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances” inevitably draws a sentencing court to a consideration of sentencing precedents.
[43] In that regard, the Crown relies heavily on the decision of the Ontario Court of Appeal in in R. v. Young, 2009 ONCA 891, which upheld an effective sentence of 15 years imposed by Justice Molloy for a series of offences arising from the robbery of a jewellery store.[^5] The Crown submits that the similarities between the facts of Young and those of the case at bar are sufficiently strong to call for a similar sentence for Mr. Moore – namely 15 years imprisonment. The Crown submits that Mr. Williams should receive a lower sentence that Mr. Moore, but using the sentence imposed in Young as a benchmark, the Crown submits that Mr. Williams should receive 11 years.
[44] The jewellery store targeted by Mr. Young was located in the Sherway Gardens Shopping Centre in Toronto. Young disguised himself as a UPS delivery driver, complete with a UPS uniform, a hand-held UPS computer device and a white UPS box addressed to one of the employees of the jewellery store. By means of this elaborate ruse, he was able to induce the owner of the store to permit him into the store prior to business hours. Once inside, he produced a loaded handgun and ordered the owner and an employee to the floor. He then held the gun to the owner’s head, and demanded that he open the safe. The owner was terrified and was having difficulty with the combination. Young told him he would kill him if he did not comply and started to count to ten. The owner managed to push an alarm button, which alerted the security company. When the security company telephoned the store, Young realized what had happened and he and his accomplice fled from the store, heading toward the mall exit. The owner ran after them. When Young reached the exit he turned and pointed the gun directly at the owner. The owner pleaded with Young not to shoot him. Young ignored those entreaties and fired, striking the owner in the leg, Young and his accomplice then made their getaway.
[45] While the facts of Young are not identical to those of the case at bar, I agree that there are many similarities. But there are also significant differences. The shot fired at the owner of the store in Young shattered his shinbone, he was hospitalized for an extended period, and he had to endure multiple surgeries, including painful bone grafts. For many months after the shooting, his leg was held together with metal rods. He was unable to return to work for over a year. As of the time of the trial, more than three years after the robbery, he still needed the support of a cane, he had a noticeable limp, and he suffered from constant and serious pain. The limp and the pain were expected to be permanent conditions. The injuries suffered by Mr. Darakjian in the case at bar were far less serious.
[46] Further, Young’s criminal record was much worse than that of either Mr. Moore or Mr. Williams. As Justice Molloy noted, “For the thirty years from his first conviction in 1977 until now, there has been virtually no time when [Young] was not either in jail or engaged in criminal activity”. I will not go through the extensive list of his convictions but I would note that Young’s record began when he was 19 years of age with convictions for four counts of armed robbery, for which he received a sentence of imprisonment of two years less a day. In 1982, he received a total sentence of six years imprisonment for armed robbery, using a firearm while committing robbery, theft and break and entry. On his release from prison, he resumed his criminal career, continuing to commit thefts, assaults and weapons offences, undeterred by any of the dispositions imposed on him. At the time of the robbery for which Justice Molloy sentenced him, he was on probation from his most recent offences.
[47] In my opinion, those circumstances place Young further along the spectrum of gravity than the case at bar. While the sentence affirmed by the Court of Appeal in Young suggests that a lengthy term of imprisonment is called for here, it does not, on the basis of the principle of parity, suggest that the term for either Moore or Williams should be 15 years.
[48] In my search for guidance as to the appropriate range of sentence I have also considered the decision of the Ontario Court of Appeal in R. v. Allison and Dinel, [1983] O.J. No. 64. In that case, the two appellants went to a jewellery store and waited outside for customers to leave. Upon entering, they asked to see some rings. Allison then pulled out a shotgun from under his coat, put it on the counter, and told the owner that it was a hold-up and to put his hands up. Dinel was armed with a loaded sawed-off 22 rifle, which he produced after Allison produced the shotgun. Allison took the owner by the arm to lead him to the back of the store, but the owner was able to break free and he knocked Allison to the floor. The owner pulled a handgun from his coat. Dinel saw the gun pointed at Allison and yelled to Allison"shoot him". While still lying on the ground, Allison fired the shotgun, wounding the owner in the stomach. Both appellants fled the store without taking anything. They were arrested shortly afterwards and gave inculpatory statements to the police. As a result of the gunshot wound, the owner required extensive medical treatment over a period of weeks and had part of his stomach and gall bladder removed. There was no indication of any permanent injury or disability caused by the shotgun wound.
[49] The offenders were 22 and 18 years of age. They pleaded guilty in the Provincial Court to four counts: (1) discharging a firearm causing bodily harm; (2) robbery; (3) using a firearm while committing an indictable offence; and (4) possession of a prohibited weapon, namely a rifle. They were sentenced to a total of 10 years imprisonment: 8 years concurrent on the first two counts, two years consecutive on the third, and six months concurrent on the fourth. The Court of Appeal declined to interfere with those sentences.
[50] The reasons of the Court of Appeal do not shed much light on the personal circumstances of the offenders. However, both were younger than Mr. Williams and Mr. Moore, both pleaded guilty, and both entered those pleas at a relatively early stage. There are also differences between the manner in which the robbery of the jewellery store unfolded in that case and the way it unfolded in the case at bar. However, the 10-year sentences affirmed by the Court of Appeal provide some guidance as to the appropriate range to be considered.
(f) The appropriate sentence but for co-operation and pre-sentence custody
[51] As I have said, there is reason to hope that Mr. Williams can and will be rehabilitated, and that hope must be kept in mind in determining a sentence in this case.
[52] However, while Mr. Williams may be cut from a different cloth than his co-accused, Mark Moore, the fact is that he played a significant role in a well-planned, carefully orchestrated, violent robbery in which half a million dollars in jewellery was stolen. It is true that the one gun involved belonged to Mark Moore, and that it was Mark Moore who fired that gun, but Mr. Williams clearly knew that the use of the gun was part of the plan, and it was reasonably foreseeable that in carrying out the plan Moore might fire it at someone. Further, Mr. Darakjian was shot at the beginning of the robbery, before Williams had even entered the store, but that did not deter Mr. Williams from continuing with the robbery. Not only did he not exhibit the slightest concern for Mr. Darakjian’s condition during the robbery, at one point he took the gun from Moore and trained it on Mr. Darakjian and Shant Khatcherian. He was a full participant in this terrifying crime. Notwithstanding his potential for rehabilitation, the paramount objectives of sentencing in this case must be denunciation and deterrence.
[53] Mr. Williams is to be sentenced for six offences. While each of those offences must receive a separate sentence, in substance five of the six are aggravating features of a single course of conduct, specifically the robbery charged in count 1. The most sensible way to approach the determination of the individual sentences, therefore, is to first consider what global sentence would be appropriate for the overall course of conduct and then to impose individual sentences that will achieve that global sentence: see R. v. Gramlick and Jewell (1995), 100 C.C.C. (3d) 270 (Ont. C.A.).
[54] Approaching the matter in that fashion, I conclude that but for Mr. Williams’s assistance to the police, the appropriate global sentence for his participation in the Arax robbery would have been 10 years imprisonment.
(g) Assistance to the police
[55] It is well-established that assistance provided by an offender in the investigation and/or prosecution of others is a factor that can lead to a reduction of the sentence to which the offender would otherwise have been subject: R. v. C.N.H., [2002] O.J. No. 4918, at paragraphs 38-45 (C.A.). There is no fixed tariff for the discount that a co-operating offender may receive. The extent of the consideration given will be a case-specific determination: R. v. X.Y, 2007 ONCA 996, at paragraphs 23-25.
[56] There are two circumstances in this case that call for significant credit for the assistance that Mr. Williams has provided to the police.
[57] First, Mr. Williams’s assistance has been rendered at great cost to his personal safety and security. He has already paid a significant price in that regard. Even though he has been in protective custody he has been subjected to humiliating and threatening behaviour from other inmates. As I mentioned earlier, he was beaten into unconsciousness in this very building as a direct result of his co-operation. He has been ostracized in the community in which he grew up. It is reasonable to anticipate that the danger of retaliation will remain even after he serves his sentence.
[58] Second, Mr. Williams’s cooperation strikes a very important blow to the insidious code of silence that infects many vulnerable communities in this city, including the community of Lawrence Heights, where both Mr. Moore and Mr. Williams grew up. It is widely understood in those neighborhoods that assisting the police or providing them with information concerning a crime can lead to violent retaliation, not only against the person who has co-operated with the authorities but also against his or her family: see, e.g. R. v. Boswell, 2011 ONCA 283, [2011] O.J. No. 1646, at paragraph 39 (C.A.); R. v. Brown [2013] O.J. No. 3094, at paragraph 151 (Sup. Ct.); R. v. S.B., 2013 ONSC 3139, [2013] O.J. No. 2462, at paragraph 151 (Sup. Ct.); R. v. Sappleton, 2010 ONSC 5704, [2010] O.J. No. 5366, at paragraph 34 (Sup. Ct.). The code of silence not only hampers the efforts of the police to bring serious and often violent offenders to justice, it leaves the communities in which those offenders operate at their mercy. In a very real sense it deprives those communities of the quality of life than the rule of law brings. The willingness of individuals to step forward in defiance of the code is essential to the battle to break its hold. There are strong public policy reasons to encourage individuals to take that step and to offer significant rewards to those who do take it, regardless of the motivation for the co-operation.
[59] I am satisfied, therefore, that Mr. Williams’s co-operation merits a significant credit in the sentencing calculus. As I indicated earlier, the minimum penalty that can be imposed is six years imprisonment – five years for the robbery committed with a restricted and prohibited firearm, five years concurrent for the discharge of the firearm with intent to endanger life, and one year consecutive for using the firearm to commit an aggravated assault. Mr. Aubin submitted that Mr. Williams’s sentence should be reduced to that mandatory minimum, which amounts to a discount of 40%. In the circumstances of this case, I agree with that submission.
[60] Accordingly, the global sentence that I would have imposed, but for the pre-sentence custody, is six years (72 months) imprisonment.
(h) Credit for pre-sentence custody
[61] Mr. Williams was arrested for the Arax robbery on October 3, 2011. As of today, therefore, his pre-sentence custody is 29 months and 21 days. Because of the difficulties Mr. Williams has faced while in custody, in no small measure because of the assistance he has rendered to the police, the Crown concedes that he should receive the maximum credit that the law will allow, namely 1.5 days for each day of pre-sentence custody. I agree, and the credit therefore will be 44.5 months. That credit will be applied against the five-year mandatory minimum sentences for robbery and discharging a firearm, reducing them to 15.5 months. The global sentence that results, therefore, is 27.5 months.
IV. Disposition
[62] In accordance with the foregoing reasons, the following sentences are imposed:
Count 1: Robbery – five years, reduced to 15.5 months by reason of pre-sentence custody;
Count 2: Aggravated assault by wounding – 15.5 months concurrent to count 1;
Count 3: Using a firearm to commit aggravated assault – 12 months consecutive to count 1;
Count 5: Discharging a firearm with intent to endanger – five years, reduced to 15.5 months by reasons of pre-sentence custody, to be served concurrently with count 1
Count 7: Being masked with intent to commit an offence – 12 months concurrent to count 1
Count 8: unauthorized possession of loaded prohibited firearm – 15.5 months concurrent to count 1
[63] Robbery is a primary designated offence within the meaning of paragraph (a) of s. 487.04 of the Criminal Code, and accordingly an order authorizing the taking of a sample of bodily substances for the purpose of forensic DNA analysis is mandatory.
[64] Several of the offences committed by Mr. Williams bring him within s. 109(1) of the Code and therefore he is subject to a mandatory order under s. 109(2) or (3) prohibiting him from possession of prohibited or restricted firearms, prohibited weapons, ammunition or devices for life. With respect to other firearms and restricted weapons, ammunition or devices, the term of the order is discretionary – it can be anywhere between ten years and life. Bearing in mind Mr. Williams criminal record, the fact of a prior s. 109 order, and the circumstances of the present offences, I am of the view that the order should be for life.
MacDonnell, J.
Released: March 25, 2014
[^1]: at paragraph 32 [^2]: at paragraph 31 [^3]: Section 718.1 [^4]: Section 718.2(b) [^5]: Justice Molloy’s reasons are reported at [2007] O.J. No. 31 (Ont. Sup. Ct.)