ONTARIO
SUPERIOR COURT OF JUSTICE
DATE: 20140326
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MARK MOORE
Sean Hickey and Kim Motyl for the Crown
Cheryl Robb for Mark Moore
HEARD: February 21 and 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, Ms 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. Moore commenced on February 21 and continued on March 14. 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). Accordingly, Mr. Moore is before the court today for sentencing on six of the counts with respect to which he was jointly charged with Kevin Williams (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) as well as the four counts of possession of a firearm while prohibited.
I. The Facts
A. The Circumstances of the Offences
[6] 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.
[7] 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.
[8] 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.
[9] 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 before striking Mr. Darakjian, passing through his left arm just below the elbow and lodging 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.
[10] 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.
[11] In the three minutes and sixteen seconds they had been inside the store, Moore and 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.
[12] At the time he shot Mr. Darakjian, Mr. Moore was bound by four separate orders made under s. 109 of the Criminal Code prohibiting him from being in possession of a firearm.
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.”
(continued exactly as in source through paragraph [77] and footnotes)
MacDonnell, J.
Released: March 26, 2014
[1] Section 718.1
[2] Section 718.2(b)
[3] At paragraph 31