ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 0361/12
DATE: 20140617
BETWEEN:
HER MAJESTY THE QUEEN
– and –
VLADMIR TCHEREZOV
Rebecca Edward, for the Crown
Tanya Thompson, for the Accused
SPEYER J.
[1] Mr. Tcherezov appears before me for sentencing on charges of robbery and assault while carrying a knife.
The Circumstances of the Offence
[2] On the evening of July 7, 2011, the victim, Nora Denes had just pulled into the underground parking lot of her residence at 45 Oakmount Road in Toronto. While unloading her vehicle, she was approached by the accused and a second man, each of whom were wearing sunglasses and hats in their attempt to disguise themselves. The men demanded the keys to the victim’s motor vehicle. In making the demand, Tcherezov produced a folding knife. Fearing for her safety, the victim immediately complied with the demand and gave over the keys to her vehicle notwithstanding her wallet and other personal belongings were in the glove compartment. Tcherezov and his confederate drove off while the victim went to her apartment and immediately phoned police.
[3] The following day, this accused and his co-participant, Mr. Al-Jundi were apprehended in the City of Nipissing following a high-speed chase. Mr. Al-Jundi was the driver: Al-Jundi subsequently pleaded guilty to a charge of dangerous driving.
[4] While in custody, Mr. Tcherezov provided a video-taped statement to the police telling authorities that he and Al-Jundi had waited in the garage for two hours. He indicated he and his co-participant approached the victim because she was a female and believed she would not fight back. He also advised authorities that he and Al-Jundi took the car to meet some girls at a Lake Simcoe cottage. He acknowledged that he took the lead in the robbery and was the one to confront the victim. He did so out of peer pressure and his desire not to appear to be weak.
The Circumstances of the Offender
(i) Criminal Record
[5] Mr. Tcherezov was nineteen, one month shy of his twentieth birthday, when he committed these offences. After being arrested in North Bay with his accomplice Mr. Al-Jundi, he was sentenced to 30 days in jail and one year probation for possession of the stolen car owned by the victim. Prior to sentencing, Mr. Tcherezov served 39 days in pre-trial custody.
[6] Subsequent to the commission of these offences, in 2012, Mr. Tcherezov committed and was convicted of failure to comply with a recognizance and theft under $5,000. In each instance, he received a suspended sentence and probation.
(ii) The Pre-Sentence Report and Mental Health Issues
[7] Mr. Tcherezov is an only child. He is 21 and lives in an apartment. He is unemployed but receives support from a provincial government benefits program. He comes from a good home. He is described as generally a good student without academic struggles until his mid-high school years. When he was in Grade 11, things started to go downhill. He started to skip classes or, take off entire days of school. He began to frequently use excessive amounts of marijuana and associate with individuals who were a negative influence.
[8] Prior to the date of this offence, in July 2011, Mr. Tcherezov was not diagnosed as a person with a mental health illness. That changed following the laying of these charges. A series of events between late 2012 and early 2014 led to Mr. Tcherezov’s hospitalization on five occasions: on four occasions, he was admitted to the psychiatric care unit of St. Joseph’s Hospital and in January 2014, he was admitted to the psychiatric unit at the Toronto General Hospital. A summary of the events that triggered Mr. Tcherezov’s hospitalization and his subsequent diagnosis of mental illness is contained on pages 1 and 2 of the discharge summary from the Toronto General Hospital. This summary has been filed as an exhibit in this case. Another useful summary of the triggering events that warranted Mr. Tcherezov’s being frequently hospitalized are provided on pages 4 and 5 of the Pre-Sentence Report.
[9] In a nutshell, Mr. Tcherezov’s has been diagnosed with schizophrenia accompanied by a history of depression. He has exhibited from time to time episodes of psychosis and this has been especially exacerbated by marijuana use.
[10] On the last occasion earlier this year when Mr. Tcherezov was hospitalized, his mother became his substitute decision maker. It is abundantly clear, on the record before me, including her appearances in court with her son, that she has an abiding love and concern for his wellbeing. Indeed, on a number of occasions, it has been Mr. Tcherezov’s parents who have phoned the police when they feared their son was suicidal or where they felt he was exhibiting signs of delusions, paranoia and unpredictable behaviour.
The Victim Impact Statement
[11] Victim Impact Statements are a mechanism used in the criminal justice system to convey to the court the injuries or loss suffered by a victim. In this case, the victim, Nora Denes, has been significantly impacted emotionally as a result of the ordeal she suffered during the robbery. She states that she has been emotionally challenged for the last two years by re-living this experience almost on a daily basis. She states “as yet I have not been able to overcome the crime committed against me”. Again, using her words, she states “I now assume the worst when seeing young men in close proximity. I get scared, paranoid and my emotions run high asking myself what their intentions may be”.
The Sentencing Disposition of the Co-accused Al-Jundi
[12] The co-accused Al-Jundi was sentenced by Justice Green for his participation in these offence to one day in jail and two years’ probation. Mr. Al-Jundi had served four months of pre-trial custody. Accordingly, this was the functional equivalent of six months in jail.
Position of the Parties
[13] Ms. Edward, on behalf of the Crown, recommends that a sentence in the upper reformatory range be imposed. On the other hand, Ms. Thompson, on behalf of Mr. Tcherezov, submits that in view of the time her client served in pre-trial custody taken in combination with the fragility of the offender’s mental health, the protection of the public is best served by the imposition of a non-custodial sentence combined with appropriate terms of probation.
Sentencing Factors
[14] The aggravating factors are as follows.
• First, this was a crime of violence in which Mr. Tcherezov used a knife to threaten a vulnerable woman in order to carry out the theft of Ms. Dene’s car, wallet and other belongings.
• Second, while Al-Jundi was a co-participant in this robbery, he played a secondary role. It was Tcherezov who used the knife to threaten the victim. In his statement to the police, acknowledges playing the lead role.
• Third, this robbery was a planned event. Mr. Tcherezov in his statement to police that he and Al-Jundi had waited for two hours in order to carry out their plan.
• Fourth, Tcherezov, as well as Al-Jundi, used hats and sunglasses to disguise their appearance.
• Fifth, Tcherezov preyed on a vulnerable woman who had a right to believe she was safe in the underground parking facility of the building here she resided. As the accused acknowledged to police, he approached Ms. Dene because she was a female and he believed she would not fight back.
Mitigating Factors
• First, Mr. Tcherezov is a comparatively young offender. He was 19 at the time of these events. He had no pre-existing criminal record.
• Second, he has pleaded guilty and taken responsibility for his actions. He acknowledges in his pre-sentence report “that it was the worst decision I made in my life”.
• Third, Mr. Tcherezov’s plea of guilty made it unnecessary for Ms. Denes to testify at a trial. Nor did she elect to appear in court to read or hear her Victim Impact Statement. Relieving a victim from reliving the events of July 7/11 is not an insignificant consideration.
Discussion
[15] The principles of sentence are set out in s.718-718.2 of the Criminal Code. A judge imposing any sentence must consider and balance the factors specified in those sections of the Criminal Code in arriving at a fit and proper sentence.
[16] When one robs a vulnerable victim at knife point, denunciation and deterrence are always pressing considerations. All sentencing is case specific. In the present case, another factor I must take into account is the parity principle enunciated in s. 718.2(b) of the Criminal Code. That is, a sentence should be similar to sentences imposed on similar offenders for similar offences. As noted, the co-accused Al-Jundi, played a subordinate role in the robbery and was sentenced to the functional equivalent to six months in jail.
[17] A concern in this case is Mr. Tcherezov’s mental illness and what effect it ought to play in the imposition of sentence. As earlier observed, the diagnosis of mental illness occurred after the events that bring us to court. However, it is probable, if not certain, that his illness pre-existed these events. That said, there is no evidence that the offender’s mental condition played any role in the robbery.
[18] In R. v. Haly, 2012 ONSC 2302, MacDonnell J. helpfully summarized the law concerning mental illness and sentencing principles in cases such as the present one at paragraph 34 as follows:
No doubt, mental illness falling short of a defence under s. 16 of the Criminal Code may lessen the moral blameworthiness of an offender and in that manner it may mitigate sentence, but whether it will do so will depend on all of the circumstances. Generally speaking, “for a mental illness to be considered as a mitigating factor in sentencing, the offender must show a causal link between his illness and his criminal conduct, that is, the illness is an underlying reason for his aberrant conduct”: R. v. Prioriello, 2012 ONCA 63, [2012] O.J. No. 650 (C.A.), at paragraph 11; R. v. Shahnawaz (2000), 2000 16973 (ON CA), 149 C.C.C. (3d) 97 (Ont. C.A.). Even where a link is established, if the offender’s mental illness makes him or her a continuing danger “[the illness] is not necessarily a reason to reduce what would otherwise be an appropriate sentence”: R. v. Corpus, 2000 1226 (ON CA), [2000] O.J. No. 549 (C.A.) at paragraph 8; see also R. v. Worth (1995), 1995 366 (ON CA), 98 C.C.C. (3d) 133 (Ont. C.A.).
[19] There is no evidence to support a finding that Mr. Tcherezov poses a continuing danger to the public. While it is troubling that this offender would be convicted on two occasions, of comparatively minor offences after the robbery, I note those offences occurred at times when he was in and out of hospital dealing with his illness.
[20] Taking into consideration all factors, the appropriate sentence is 15 months in reformatory. Credit must be given for pre-trial custody of 90 days. In this respect, Crown counsel concedes the offender is entitled to credit on a 1.5 to 1 ratio for the 39 days actually served awaiting sentence in respect to the possession of a stolen vehicle charge. This is a fair concession when one considers the possession charge as part of one continuous transaction. In addition, the offender is entitled to the further credit of the 30 days actually imposed on that charge. Accordingly, after crediting Mr. Tcherezov with 90 days of pre-trial custody, I sentence the offender to 1 year in jail on each charge to be served concurrently.
[21] In view of the mental health issues exhibited by Mr. Tcherezov as described above, I recommend to reformatory authorities that this offender be placed in an institution with a proper psychiatric facility. In this regard, consideration ought to be given to The St Lawrence Valley correctional institution. A copy of these reasons and the exhibits shall accompany the warrant of committal.
[22] The accused will be placed on probation for a period of 2 years following his release. The probation order is to include a term to report when and as required by his probation officer, and to take whatever psychiatric or other counselling probation services deems appropriate.
[23] There will be a s. 109 (1) order that Mr. Tcherezov not possess any firearm-other than a prohibited firearm or restricted firearm-and any crossbow, restricted weapon, explosive substance and ammunition for ten years. Further, he not possess any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.
[24] A DNA order shall issue.
___________________________ Speyer J.
Released: June 17, 2014
COURT FILE NO.: 0361/12
DATE: 20140617
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
VLADMIR TCHEREZOV
REASONS FOR JUDGMENT
Speyer J.
Released: June 17, 2014