ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-13-1897
DATE: 2014/09/12
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Paul Arthur Doyle
Defendant
Julian Daller, for the Crown
Paul Lewandowski and Laura Hunt, for the Defendant
DECISION ON SENTENCING
RATUSHNY J.
[1] Mr. Doyle has plead guilty to six offences spanning three bank robberies, one attempted bank robbery and the facts in support of his pleas include a fifth bank robbery that is uncharged.
THE FACTS
[2] In each robbery Mr. Doyle generally wore a hoodie over his head together with sunglasses as a form of disguise and handed the teller a note that either said, “…for everyone’s safety, pass me $5000” or, “…you know what this is…hand me 5000 or else, make it quick.” He was not armed with a weapon and neither did he gesture to suggest that he was armed. Aside from the obvious threat of harm and the atmosphere of fear he created, no one was physically injured. Mr. Doyle took away approximately $6,000 in cash from the three robberies and $2,700 in cash from the uncharged robbery. All of the robberies occurred to sustain his cocaine addiction and pay his drug purchase debts.
THE ACCUSED
[3] Mr. Doyle is 50 years of age. He has a criminal record beginning in 1984 when he was 20 years of age and ending with a 2013 conviction for a theft under. His record includes 11 prior convictions for variety store/bank robberies resulting in four different penitentiary sentences in 1991, 1999, 2004 and 2009, each in the range of three to four years’ incarceration. He has been a parole or statutory release violator on four separate occasions, the last being in 2012. He has attended seven addictions treatment programs while in federal custody and admits to routinely returning to cocaine use after short returns to the community, with “no willpower to avoid relapse.” He has been institutionalized for most of the last 25 years.
[4] An excellent Presentence Report and an equally excellent full Gladue Report were prepared for sentencing.
[5] Mr. Doyle has aboriginal heritage from his mother. He is a “non-status First Nations Aboriginal descended from the New Brunswick Migma.” He has no experience with foster care or residential schools. When he was growing up he did not know that he possessed aboriginal heritage.
[6] He comes from an abusive and tragic background, growing up in rural New Brunswick as one of eleven children with an alcoholic and physically abusive father. His family is described as having been “dirt poor”. Food, shoes and clothing were often scarce and their residence was overcrowded and often unsanitary and without a washroom, just a bucket in the corner. He says they had to scramble to survive. His father was a hard-working and hard living man who turned into a raging bully when intoxicated and beat and terrorized his family, including Mr. Doyle’s mother. He remembers his Mom having black eyes and big lips and that “she’d be ashamed of herself” for looking this way. He recalls jumping on his Dad’s back as a small child, trying to stop him from hitting his mother.
[7] When he was around nine years of age and already traumatized by his experiences of poverty, abuse and neglect, a stranger arrived in his community and sexually abused him. Mr. Doyle has been left with traumatic memories of this that are extremely stressful to recount.
[8] Nothing got better after that.
[9] When Mr. Doyle was around fourteen years of age, one of his younger brothers was missing and family members were looking for him. Mr. Doyle found his brother’s partially burned body in the snow and has never forgotten seeing the snow falling away from a mound and hair being revealed, his brother’s hair. His brother also had a broken collarbone and a fractured skull and his family thinks a car might have struck him and somebody tried to hide the body.
[10] Mr. Doyle remembers his childhood as defined by poverty, abuse, loss and struggle together with a constant, often overwhelming measure of fear. When he got to school, he acted out and was a bully because he said he was afraid of getting hurt, as he had been in his family. He said he made sure he was always the “toughest” and so couldn’t be “messed with”.
[11] The Gladue Report comments that in this context, “it is not surprising that Paul’s life as an adult has been characterized by anger, addictions and anti-social behavior resulting in conflict with the law and incarceration.”
[12] Mr. Doyle managed to complete his grade 12 education and then left New Brunswick to join a brother in Toronto. There, he led a life of drinking, dancing and doing drugs and started his cycle of criminal behavior to support his increasing drug habit. He has had relationships but they have not been sustained through his frequent returns to using alcohol and drugs, committing offences and jail.
[13] He is a “jack of all trades” and has worked in construction.
[14] The Presentence Report at page 7 quotes from a Parole Board report of May 2012, after Mr. Doyle’s most recent violation of his federal parole release terms, as follows: “Mr. Doyle continues to be unwilling or unable to apply what he has learned in his programs into his everyday life. He has completed no less than eight programs during his four federal sentences but he has yet to demonstrate any significant change in his behavior.”
[15] The author of the Presentence Report goes on to comment that “despite Doyle’s repeated stated desire to enter yet another treatment program, and while being mindful of positive comments from program reports, it was felt his risk in the community was unmanageable and he was again returned to the penitentiary.”
[16] He is described as bright and having developed some insight into his repeated criminal behaviours. He says, “it’s been a long life of remorse, shame, hurt, anger, you know, regrets.” He has told the Court that he is tired of his cycles of addiction, crime and incarceration. He has apologized for the trauma he inflicted on his victims at the various banks. He wants to seek long-term treatment and realizes he may need it for his lifetime. He wants to pursue his culture. He says he now wants, at 50 years of age, to break the cycle of his past. He understands, as the author of the Gladue Report stated at page 8, that “he requires counseling for his addictions and to heal the substantial traumas which have impacted his life to date and which are, in large measure responsible for his troubles with drugs and alcohol. He believes that he is ready to heal, and has taken significant steps to involve himself with his Aboriginal culture and heritage.”
COUNSEL POSITIONS
[17] The Crown recommends a total sentence of nine to ten years of incarceration in light of the strong need for denunciation and general deterrence for a repeat offender who has already served fourteen years of incarceration for eleven prior robberies.
[18] The Crown submits the effects on Mr. Doyle of his aboriginal heritage should not be regarded as amounting to a strong link to his criminal behaviours or his present personality as there was little connection to that heritage while he was growing up. Instead, the Crown submits it was the presence of poverty, abuse, loss and struggle common to many regardless of heritage that contributed to his offending. The Crown also recommends I give more weight to the Presentence Report given its independent verification of Mr. Doyle’s character than to the Gladue Report that is largely based on Mr. Doyle’s self-reporting.
[19] Defence counsel recommends the total sentence be one of four years and one month which, after the deduction of pre-sentence custody credit that he submits be granted at the ratio of 1.5 to 1, will result in a sentence left to serve of two years less one day and allow a three-year period of probation and, therefore, a total of five years of supervision. Defence counsel submits that Mr. Doyle’s very difficult background including his aboriginal heritage must been given significant weight as it serves to reduce Mr. Doyle’s moral blameworthiness for his offences.
ANALYSIS
[20] The sentencing objectives are not difficult to discern. It is obvious for a repeat bank robbery offender with eleven prior related convictions, four parole violations and a longstanding and ongoing cocaine addiction, that the safety of the public has priority. Denunciation and general deterrence require emphasis and a substantial period of incarceration is required.
[21] What is more difficult to discern is how long that period of incarceration ought to be so as to leave open the possibility that Mr. Doyle will be able to struggle forward to control his addictions and change his behaviours. That objective would certainly better protect the public and for a longer term.
[22] The Crown submits that specific deterrence is not a sentencing objective for Mr. Doyle because of his repeated offending to date. I do not, however, close off the objective of specific deterrence as being operative in today’s sentencing. In all of Mr. Doyle’s circumstances including his background and his aboriginal heritage, it goes hand in hand with the objective of rehabilitation. As the justice of the peace remarked to Mr. Doyle after denying him bail that he shouldn’t lose hope, neither would it serve anyone’s interests to crush Mr. Doyle’s hope that he can succeed in his rehabilitation efforts.
[23] I accept that Mr. Doyle genuinely wants to change the pattern of his life at this time. I accept the sincerity of his words that at age 50 he is tired of his cycle of addiction, crime and incarceration, that he wants to break out towards a better life and that his re-connection with his aboriginal heritage is becoming important to him. I commend him for having been able, in his relationships, to not continue the cycle of abuse that was demonstrated to him by his father against his mother, and then by strangers. I commend him for finishing his high school education when all odds were against this happening. I commend him for acquiring job skills in the construction industry. I commend him for continuing to try to change by attending treatment programs. I accept that he had no intention of physically hurting anyone during the robberies for which he is being sentenced today. He was thinking only of himself and the obtaining of quick money for his cocaine addition, with no thought for the vulnerable bank employees.
[24] I realize, however, that in considering rehabilitation as being a realistic and viable objective of his sentencing, all we have to work with is a history of relapses when Mr. Doyle is in an unstructured environment notwithstanding repeated words from him of wanting to do better and now, new words of intention to do better at age 50. As the Crown has submitted, based on his past history, the prospects of rehabilitation can be regarded as low.
[25] I accord weight to both the Presentence Report and the Gladue Report, notwithstanding the latter’s reliance on self-reporting. Reliance on both of these reports provides, in my view, a balanced picture of Mr. Doyle both from a correctional perspective and an aboriginal healing perspective. I accept Mr. Doyle as a sincere man who, largely because of his traumatic childhood experiences, has been unable to sustain the good intentions he has had in his adult life.
[26] The factors serving to aggravate sentence are the seriousness of the offences against vulnerable bank employees and Mr. Doyle’s related criminal record including his parole violations and repeated relapses into substance abuse and crime.
[27] The factors serving to mitigate sentence are Mr. Doyle’s pleas of guilt, his sincere expressions of wanting to change, his as yet unsuccessful efforts but attendance at many treatment programs and his degree of insight into himself at this time. I agree it is to be viewed as a positive factor that Mr. Doyle has continued to try to be successful in his treatment efforts.
[28] Mr. Doyle’s cocaine and alcohol dependence is a factor that I am not able to characterize as either mitigating or aggravating. His cocaine addiction has been the primary trigger for his offences. His long-standing substance abuse certainly serves to increase his risk of re-offence if uncontrolled and it is also a factor that, together with his traumatic background, serves to increase his vulnerability and decrease his moral culpability for his offences.
SENTENCE
[29] Mr. Doyle, please stand.
[30] The bottom line, Mr. Doyle, is that this Court has not given up on you as a candidate for change but, at the same time, the public needs protection from you so that you can demonstrate through the healing and treatment you need that you have been able to successfully turn away from your pattern of past behaviours.
[31] In balancing all of the sentencing objectives and factors applicable to you and your offences, I have arrived at a total sentence of incarceration, before the deduction of a credit for presentence custody, of six years.
[32] This is much lower than the nine to ten years recommended by the Crown because in my view, a nine- to ten-year sentence of incarceration in all of your circumstances could well crush your sincere intentions to change and does not adequately take into consideration all of the mitigating circumstances and your background.
[33] A six-year sentence is a sentence, however, that is higher than the four years requested by your counsel so as to take into account your need to stabilize and finally turn towards your healing path, both for your own good and for the protection of the public.
[34] You are entitled to a deduction for pre-sentence custody. Your counsel has requested a 1.5 credit for each day of pre-sentence custody and I see no good reason, in accordance with recent Supreme Court of Canada pronouncements on this point (R. v. Summers, 2014 SCC 26) not to accord you that 1.5 credit for each of your days. You plead guilty on April 10, 2014 after a preliminary inquiry to explore identification issues. Your sentencing hearing was delayed for five months due to Crown unavailability and my unavailability. The harsh conditions because of overcrowding at the Regional Detention Centre of Ottawa Carleton are well known. Even if you are not presently a candidate for parole or early release in the future, I do not regard you as never being eligible for parole or early release. Parole for you viewed at the present time may be unlikely but that may change, so that with reference to statements in Summers at paras. 75-80 in particular, what I am saying is that I do not regard your “lost opportunity” for earned remission during your presentence custody to be a “meaningless lost opportunity” in terms of your future incarceration.
[35] I assign you a credit for your 508 days of pre-sentence custody as of today’s date at a rate of 1.5:1 so that your total credit is 762 days, which is just over 2 years. This means you have 1,428 days, which is just under 4 years, left to serve of your total sentence of 6 years or 2,190 days.
[36] I allocate your sentence to your six offences as follows. This allocation is somewhat arbitrary in recognition of the totality principle.
[37] For the November 19, 2012 robbery at the CIBC, your sentence is 6 years’ incarceration less your pre-sentence custody credit of 762 days, for a sentence left to serve of 1,428 days’ incarceration, which is just under 4 years. For the offence of disguising your face with sunglasses during that robbery, your sentence is 1,428 days incarceration concurrent.
[38] For the attempt robbery at Scotiabank on that same day of November 19, 2012, your sentence is 730 days’ incarceration, which is 2 years’ incarceration, concurrent.
[39] For the February 11, 2013 robbery at another Scotiabank, your sentence is 1,428 days incarceration concurrent.
[40] For the February 20, 2013 robbery of another Scotiabank, your sentence is 1,428 days’ incarceration concurrent. For the offence of having your face disguised by a hoodie and sunglasses during that robbery, your sentence is 1,428 days’ incarceration concurrent.
[41] There are two additional orders. The first is a DNA Order requiring you to submit to the taking of a bodily sample for DNA analysis and data bank storage. The second is an Order under s. 109 of the Criminal Code, prohibiting you for your lifetime from possessing any firearm, ammunition or any other item referred to in that section.
Justice L. Ratushny
Released: Delivered orally September 12, 2014
COURT FILE NO.: CR-13-1897
DATE: 2014/09/12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
Paul Arthur Doyle
Defendant
DECISION ON SENTENCING
Ratushny J.
Released: Delivered orally September 12, 2014