R. v. Pich, 2015 ONSC 1502
COURT FILE NO.: CR/14/40000397/0000
DATE: 20150306
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
BRIAN PICH
P. Leishman, for the Crown
H. Cedro, for Mr. Pich
HEARD: February 18, 2015
M. Forestell J.
REASONS FOR SENTENCING
Offences
[1] Mr. Pich was found guilty of several offences: four counts of robbery, one count of using an imitation firearm in a robbery, disguising with intent, forcible confinement and assault with a weapon.
[2] On February 18, 2015 I heard submissions on sentencing and reserved my decision on sentencing until today.
Circumstances of the Offences
[3] The circumstances of the offences are set out in detail in my reasons for judgment dated December 1, 2014. I will state them briefly here. On January 25, 2012, Mr. Pich, along with four other men committed a robbery at the Lobster Trap Restaurant. The four counts of robbery relate to the eleven individuals who were the victims of the robbery that night. One of the men was armed with an imitation firearm. Another had a knife. All of the men who entered the restaurant and participated in the robbery covered their faces. During the robbery one of the patrons suffered a minor cut. As I indicated in my reasons for judgment, I cannot determine the precise role played by Mr. Pich during the robbery but I am satisfied that he was a party to the robbery. I am satisfied that he was an integral part of the planning of the robbery because he had worked at the restaurant and knew the routine and layout of the restaurant. I am also satisfied that he drove the participants to and from the robbery.
Victim Impact
[4] I have considered the Victim Impact Statements filed by Ms. Bocher and Mr. Wu. I have also considered the evidence of the other victims of the offences who testified that they were understandably terrified by the robbery and forcible confinement.
Circumstances of Mr. Pich
[5] Mr. Pich is a 26 year-old first offender. He was 23 at the time of these offences. He lives at home with his mother, stepfather and sister. He completed high school in 2007. In December 2012 Mr. Pich completed the Police Foundations Program at Seneca College. He was employed at part-time jobs from 2006 to 2011.
[6] The Pre-sentence Report for Mr. Pich was favourable. It notes that Mr. Pich has a very supportive family. As Crown counsel fairly pointed out in his submissions, Mr. Pich has been accompanied by his mother on most days if not every day of the trial proceedings.
[7] The Pre-sentence Report notes that Mr. Pich’s family has not had any conflict with the law and they were shocked by Mr. Pich’s arrest. The extended family has rallied around Mr. Pich since his release on bail. In his interaction with the probation officer who prepared the presentence report Mr. Pich expressed remorse for his conduct. He also expressed remorse when he addressed me after the sentencing submissions of counsel. Mr. Pich appears to be sincere in his expression of remorse. Mr. Pich in the interview with the probation officer and his remarks to the court said that his motivation for the commission of the offences, was that he wished to ‘fit in’ or gain the respect of his group of friends at the time. He said that he has come to understand that the respect of his family is far more important. He acknowledged the impact of his conduct on the victims of the offences and also on his family.
[8] Mr. Pich spent 5 days in pre-trial custody and he has spent just over three years and one month on a strict bail. He was required to live with his parents and not to be out of his residence except in the company of one of his sureties or designated family members and only for court, visits to his lawyer’s office, counselling appointments or school.
[9] During his time on a house arrest bail, Mr. Pich completed his college programme and helped his family members. He attended some counselling sessions arranged by his mother. Mr. Pich is reported to have had contact with a limited number of close friends who came to his home to spend time with him. He is reported generally to have used the time on the house arrest bail to begin a process of rehabilitation by working on school and his relationship with his family and close friends. The probation officer who authored the pre-sentence report noted that the collateral sources interviewed all shared the view that Mr. Pich has matured over the three years that he has been on bail.
Positions of the Parties
[10] The Crown submits that a sentence of 4 years’ imprisonment should be imposed on Mr. Pich in light of the seriousness of the offences, the breach of trust involved and the four year sentence imposed on a co-accused who entered a guilty plea before trial.
[11] Counsel for Mr. Pich submits that, after credit for the time spent on strict bail I should impose a reformatory sentence in light of Mr. Pich’s strong family support, his youth, his remorse, his good conduct on bail and his strong prospects for rehabilitation.
[12] In these reasons I will address the appropriate sentence to be imposed given the circumstances of this offender and this offence and the credit that should be given for pre-trial custody and strict bail conditions.
- The appropriate sentence to be imposed given the circumstances of this offender and this offence
[13] In considering the appropriate sentence to be imposed on Mr. Pich I have considered the general purposes, principles and objectives of sentencing, set out in the Criminal Code. The fundamental principle of sentencing set out in s. 718.1 of the Code requires that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[14] Section 718 of the Criminal Code identifies the objectives of sentencing, including denunciation, specific and general deterrence, separation of the offender from society and the rehabilitation of the offender.
[15] I have also considered s. 718.2 of the Code which requires that I take into account other principles, including that a sentence may be increased or decreased depending upon the presence of any relevant aggravating or mitigating circumstances relating to the offence or the offender.
[16] There are several aggravating factors in this case. Mr. Pich was a former employee of the restaurant that was robbed and his participation in the offences was a breach of trust. There were multiple victims of the robbery and weapons, including an imitation firearm, were used to threaten the victims.
[17] Mitigating factors are also present. Mr. Pich is a youthful first offender. The offence is out of character for Mr. Pich who has otherwise been a person of good character and who has no history of criminality or violence. Mr. Pich has shown remorse for his actions and has begun to rehabilitate himself during his time on a restrictive bail.
[18] In R. v. Hatimy,[^1] a case that is similar (although not identical) to the one before me, Campbell J. described the conflicting sentencing principles he faced as follows:
46 This is a case where there are conflicting sentencing principles to try to balance and ultimately reconcile.
47 The accused is a youthful first offender with very promising prospects for rehabilitation. His involvement in the robbery seems out of character for him. As the author of the Pre-Sentence Report has concluded, the accused appears to pose no imminent or ongoing threat to the community. Hopefully, in years to come, the accused will be able to look back on his participation in this robbery as an aberrant embarrassment of his youth, with no lasting consequences on his productive participation in society. In these circumstances, rehabilitation and individual deterrence are generally considered to be the main sentencing considerations, and usually shorter terms of imprisonment are imposed, followed by probationary assistance. See: R. v. Stein (1974), 1974 CanLII 1615 (ON CA), 15 C.C.C. (2d) 376 (Ont.C.A.); R. v. Vandale and Maciejewski (1974), 1974 CanLII 1610 (ON CA), 21 C.C.C. (2d) 250 (Ont.C.A.); R. v. Demeter and Whitmore (1976), 1976 CanLII 1413 (ON CA), 32 C.C.C. (2d) 379 (Ont.C.A.); R. v. Priest (1996), 1996 CanLII 1381 (ON CA), 30 O.R. (3d) 538, 110 C.C.C. (3d) 289 (Ont.C.A.).
48 At the same time, the accused has been found guilty of participating in a planned and deliberate robbery that involved violence and the use of an imitation firearm. This was a serious crime, with the inherent potential for significant personal injuries being suffered by all of the participants - victims and perpetrators alike. The sheer gravity of such crimes requires sentences that appropriately denounce this kind of criminal conduct, and which deters others from committing similar such offences. These kinds of crimes usually require the imposition of more lengthy custodial dispositions, even in the case of youthful first offenders. See: R. v. Gonidis, McCullough and Stevenson (1980), 1980 CanLII 2879 (ON CA), 57 C.C.C. (2d) 90 (Ont.C.A.); R. v. Campbell (1981), 1981 CanLII 486 (BC CA), 64 C.C.C. (2d) 336 (B.C.C.A.).
[19] In R. v. Hatimy, Justice Campbell resolved the conflicting sentencing principles by imposing a reformatory sentence followed by two years of probation.
[20] As explained by Campbell J., although deterrence, denunciation and the protection of the public are the paramount objectives in sentencing for this type of offence, rehabilitation remains a valid sentencing objective particularly in the case of a first offender.
[21] It is recognized that where a custodial sentence must be imposed on a youthful first offender, the sentence should be a short as possible.[^2] The Court of Appeal has held that sentences at the lower end of the range may be appropriate for youthful first offenders with good prospects for rehabilitation[^3].
[22] The principle of parity demands that a sentence should be similar to sentences imposed on similar offenders for similar offences in similar circumstances. In this case, a sentence of 4 years was imposed on a co-accused who entered a guilty plea before trial. The sentence was imposed as a result of a joint submission. The co-accused was younger than Mr. Pich and there was no breach of trust on his part. However, he was not a first offender. He had a record and was on probation at the time of the offences.
[23] In this case, considering all of the principles and in particular Mr. Pich’s youth and his lack of any criminal antecedents, I have concluded that I will impose a sentence that is less than the sentence imposed on the co-accused in this case. In light of the gravity of the offence, the sentence, before credit for strict bail conditions and pre-trial custody, would be 3 years imprisonment.
- The credit that should be given for pre-trial custody and strict bail conditions
[24] The next issue to be determined on this sentencing is the credit that should be given for pre-trial custody and for the period of just over three years on strict bail conditions. There is no dispute that Mr. Pich is entitled to 8 days credit for the 5 days spent in pre-trial custody.
[25] The principles governing the court’s approach to credit for pre-trial bail conditions were recently summarized by Campbell J. in R. v. Peterkin[^4] as follows:
In summary, credit for pre-trial bail conditions should be approached in the following manner:
Time spent on stringent pre-sentence bail conditions, especially house arrest, is a relevant mitigating factor.
As such, the trial judge must consider the time spent on bail under house arrest in determining the length of sentence.
The failure of the trial judge to explain why time spent on bail under house arrest has not been taken into account is an error in principle.
The amount of credit to be given for time spent on bail under house arrest is within the discretion of the trial judge and there is no formula that the judge is required to apply.
The amount of credit will depend upon a number of factors including, the length of time spent on bail under house arrest; the stringency of the conditions; the impact on the offender's liberty; the ability of the offender to carry on normal relationships, employment and activity.
Where the offender asks the trial judge to take pre-sentence bail conditions into account, the offender should supply the judge with information as to the impact of the conditions. If there is a dispute as to the impact of the conditions, the onus is on the offender to establish those facts on a balance of probabilities in accordance with s. 724(3) of the Criminal Code.
[26] In the case before me, as in Peterkin, there are few concrete details of the impact of the house arrest on Mr. Pich. However, Mr. Pich spent just over three years living with his parents and unable to leave his home without supervision. In Peterkin, Campbell J. credited Mr. Peterkin with 3 months for the 13-½ months of stringent bail conditions. As set out by Rosenberg J.A. in R. v. Downes, 2006 CanLII 3957 (ON CA), [2006] O.J. No. 555, there is no mathematical formula to be applied in determining credit for stringent bail conditions. I have considered the nature of the conditions, the inevitable impact on the life of Mr. Pich and the lengthy period of time that Mr. Pich was subject to the conditions. In all of the circumstances, I conclude that it is fair to credit Mr. Pich with 12 months for the thirty-seven months on judicial interim release. He is entitled to 8 days credit for the 5 days in pre-trial custody.
[27] The sentence that otherwise would have been imposed on Mr. Pich will be reduced by this total credit of 12 months and 8 days.
[28] As I indicated earlier, the global sentence that I would otherwise have imposed on Mr. Pich was 3 years’ imprisonment. With credit for his pre-trial custody and bail conditions the remaining sentence to be served is a global sentence of 2 years less 8 days.
Probation
[29] Having concluded that the sentence remaining to be served by Mr. Pich is a sentence of under two years, it is open to me to place him on probation following his release. In my opinion it is in the interests of Mr. Pich and in the public interest that Mr. Pich should be subject to the supervision of a probation officer for two years after his release. He has complied with his house arrest bail and used the time on that bail constructively. A probation order will provide similar structure for Mr. Pich after his release from custody.
Order
[30] I therefore impose the following sentence:
With credit of 12 months and 8 days for pre-trial bail and custody,
On counts 1 - 4, robbery, the sentence is 12 months less 8 days’ imprisonment, concurrent;
On count 5, using an imitation firearm in the commission of the robbery, the sentence is the mandatory minimum sentence of 12 months’ imprisonment, consecutive;
On count 6, having his face masked, the sentence is 9 months concurrent;
On count 7, forcible confinement, the sentence is 12 months concurrent; and
On count 8, assault with a weapon, the sentence is 9 months concurrent.
The sentence of imprisonment will be followed by a two-year probation order with the statutory terms and the following additional terms:
• He shall report to a probation officer within one week of his release from custody and thereafter as required by the probation officer;
• He shall not possess any weapons;
• He shall have no contact directly or indirectly with any of the witnesses in this case;
• He shall have no contact with his co-accused in this case;
• He shall not be within 100 meters of the Lobster Trap Restaurant;
• He shall take such counselling as is recommended by his probation officer;
• He shall seek and maintain employment or attend school.
Ancillary orders
[31] There will be a mandatory prohibition order under s. 109 of the Criminal Code. Mr. Pich is prohibited from possessing any firearm, cross-bow, restricted weapon, ammunition or explosive substance for ten years after his release. In addition he is prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device or prohibited ammunition for life.
[32] Robbery is a primary designated offence under the Criminal Code. I therefore make the order that Mr. Pich is required to provide such number of samples of bodily substances that are reasonably required for the purpose of forensic DNA analysis.
[33] Mr. Pich will pay a victim fine surcharge in the amount of $100.00. In light of the sentence of imprisonment that I am imposing and the inability of Mr. Pich to be employed over the past three years I have concluded that any additional amount would be an undue hardship to Mr. Pich.
Conclusion
[34] Mr. Pich is receiving a lenient sentence. I wish to be clear that this leniency is not based on a conclusion that Mr. Pich’s conduct is less blameworthy than the other participants in this robbery. It is more blameworthy. Mr. Pich breached the trust of his former employer and deliberately put his former co-workers in harm’s way. Further, I do not find that Mr. Pich was led astray by a negative peer group. He chose his peer group. He drove from Mississauga to Toronto to be with the peer group. Mr. Pich had choices. He needs to take responsibility for his conduct. He is receiving leniency because of his youth, his status as first offender and his prospects for rehabilitation. This type of leniency will not be shown again if he reoffends.
M. Forestell J.
Released: March 6, 2015
CITATION: R. v. Pich, 2015 ONSC 1502
COURT FILE NO.: CR/14/40000397/0000
DATE: 20150306
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
BRIAN PICH
REASONS FOR SENTENCING
M. Forestell J.
Released: March 6, 2015
[^1]: 2014 ONSC 1586, [2014] O.J. No. 1154
[^2]: R. v. Vandale, 1974 CanLII 1610 (ON CA), [1974], O.J. No. 1047 (Ont. C.A.)
[^3]: R. v. Green, [1982] O.J. No. 2504; R. v. Hayman, 1999 CanLII 3710 (ON CA), [1999] O.J. No. 1308; R. v. Priest, 1996 CanLII 1381 (ON CA), [1996] O.J. No. 3369
[^4]: 2013 ONSC 2116, [2013] O.J. No. 1614 at para. 38