minicounsel

Citation: R. v. Dacosta, 2015 ONSC 3551

FRIDAY, MAY 15, 2015

R E A S O N S F O R S E N T E N C E

HILL, J. (Orally):

On February 12th, 2014, Julio Dacosta pled guilty to attempted robbery. A sentencing hearing did not proceed immediately for a number of reasons. Following the plea, in an interim proceeding, an abuse of process motion was dismissed with reasons reported at 2015 ONSC 1586.

It now falls to be determined what a fit and just sentence is for the offender’s crime.

Because the factual background of the offence was extensively reviewed in the court’s earlier reasons, only summary reference is necessary here.

On December 16, 2011, the offender entered the Cash Shop at 269 Queen Street East in Brampton. Mr. Brahmbhatt was the manager and sole employee on this date. The offender wore dark glasses. He placed on the store’s front counter what he represented to be a bomb. He stated, “Give me $5000 or else I’ll blow this place”. The proprietor was told that only nine minutes remained. The offender began to count backwards counting down the minutes. The offender intended to scare the victim into believing that he was armed with a real bomb and that he would be physically harmed if he failed to comply.

The offender continued his demands for money. Despite feeling nervous and panicked, Mr. Brahmbhatt called 911 from behind the protective glass separating the locked office from the customer area of the store where the offender was standing.

When the offender became aware that the victim had phoned for the police and that no money was forthcoming in response to his threat, he fled from the store north across Queen Street into a vacant lot as Peel Regional Police Service officers arrived on scene and commenced a foot pursuit of the offender. Mr. Dacosta failed to comply with multiple police commands. Responding officers had their service firearms drawn. In the end, lethal force was not employed. During a forceful arrest of the offender, he was kicked to the ground and handcuffed.

The force used upon the offender, found to be reasonable in the court’s earlier reasons, had the unintended consequence of fracturing Mr. Dacosta’s sternum. Parts of the fake bomb were recovered from the Cash Shop and the scene of the arrest.

No victim impact statement was filed by or on behalf of the victim.

The offender is currently 47 years of age. He has a grade 9 education and has been employed in the general labour field. Married in 1992, the offender and his wife separated in 2011. The presentence report indicates that the offender, who has been receiving Ontario Works assistance since 2008, is currently unemployed.

At paragraphs 65 to 74 of the earlier reasons, Mr. Dacosta’s overall medical history and circumstances were reviewed and are summarized as well in the presentence report.

The offender underwent surgery to repair his sternum but the injury has resulted in permanent disability. The offender has been prescribed a number of medications for his various medical conditions. He has also been under the treatment of a psychiatrist.

The offender has a prior criminal record from December 2003 for assault, break and enter with intent, and possession of property obtained by crime for which he received a six-month conditional sentence.

The presentence report author at pages five and six of the report notes that:

The subject does not appear to accept responsibility for his actions. He claims that he was pressured by “some people” to commit these offences so that “they” could gain financially from it. However, members of the subject’s family who were contacted for purposes of this report have claimed that the main motive for the subject to carry out these offences before the court was for his personal financial gain as it appeared that he was desperate for money at that time.

On this subject, counsel jointly agreed that Mr. Dacosta does in fact take responsibility for his actions and understands them to have been criminal in nature. His motivation in attempting to rob the Cash Shop was to obtain quick money to repay persons to whom he owed money.

Given the opportunity in this proceeding to speak personally to sentence, Mr. Dacosta expressed acceptance of full responsibility for his crime, regret that he gave in to difficult pressures, and remorseful concern for the impact of his offence on the victim.

On behalf of the Crown, Mr. Falls submitted that while no precise case is instructive on a range of sentence for facts similar to those in the present case, a sentence in the area of four years, discounted by a year for certain factors, would be fit – resulting in a sentence of three years’ incarceration. Counsel submitted that the court entertains a relatively broad discretion respecting the appropriate range of sentence including a penalty in the

reformatory range.

Mr. Falls identified general and specific deterrence and denunciation as predominate considerations in circumstances of a calculated and planned offence designed to terrorize the victim into surrendering cash from his financial institution. Crown counsel recognized that some discounting of the four-year figure was appropriate considering the guilty plea, the injuries suffered by the offender connected to his arrest, and his observance of relatively strict bail terms.

In response, Mr. Ben-Eliezer argued that a starting point for the appropriate sentence would be in the area of 18 months with about a further 1-year reduction from that figure on account of the strict bail conditions for over 3 years and the fact and consequences of the offender’s injuries at the time of his arrest very shortly after the offence.

Mr. Ben-Eliezer agreed that the offender’s crime was a very serious and aggressive offence against a victim establishment akin to a bank. That said, in light of the offender’s positive presentence report, prior compliance with community supervision and plea of guilt, it was submitted that a reformatory disposition followed by probation was properly part of the applicable range of sentence for this offender who has serious medical issues. In addition, it was submitted that lengthy compliance with strict bail conditions and the fact and consequences of the offender’s injuries stemming from his arrest are deserving of special consideration in reducing the sentence to be imposed to about 6 months’ incarceration.

The aggravating features of this crime are manifestly apparent including:

(1) the offence was premeditated – the offender constructed what he intended to be taken as a real bomb – this was a planned crime to steal $5000 through terrorizing the victim

(2) the offender attempted to execute an armed robbery in the sense that he intended to scare the victim into compliance on the threat of being blown up by a bomb detonated in his store

(3) the bold daylight robbery was of a vulnerable one-employee business

(4) the apparent motive was a quick option to repay persons to whom the offender owed money

(5) in committing the crime and fleeing the scene, the offender perpetuated a volatile situation.

In the balance, in mitigation, these factors must be considered:

(1) albeit only at the time of trial, the offender did plead guilty to the attempted robbery

(2) the offender has been compliant with the terms of his judicial interim release order for a period of about three-and-a-half years

(3) the offender is genuinely remorseful for his criminality.

Two factors, not easily characterized as either mitigating factors, or collateral consequences as defined in R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739 at para. 11 are:

(1) The qualified house arrest term of the offender’s bail – to remain on the property of the surety and only leave in the company of the surety

(2) The offender’s permanent disability arising from the circumstances of his apprehension by the police.

The first factor, adherence to a restrictive bail condition over a lengthy period, is an appropriate consideration which may in the court’s discretion be taken into account in determining the length of sentence: R. v. E.B., 2013 ONCA 429, at paras. 9 to 10; R. v. Davey, 2014 ONCA 594, at para. 2. Mr. Dacosta has observed a qualified house arrest condition for about three-and-a-half years and this feature of the case deserves recognition in the amelioration of penalty.

The second factor is perhaps more problematic in terms of articulating a rationale for discounting sentence. On a just desserts approach, it might be said that in fleeing the scene and not complying with police commands the offender was the author of his own misfortune. On the other hand, it might be said that the offender’s injury and in turn disability, indirectly related to his participation in the crime before the court, is a penalty of sorts suffered and being suffered and therefore properly taken into account in the individualization of the sentencing process. I am inclined to the latter view, as were counsel before the court in this hearing, that this feature of the case does contribute to amelioration of the harshness of the sentence to be imposed.

While the health circumstances of an offender are worthy of some consideration in sentencing, in the absence of evidence to the contrary it may be assumed that health concerns of an inmate can be properly managed by the responsible correctional authorities: see the discussion of the relevant authorities in R. v. M.E., 2012 ONSC 1078, at paras. 58 and 59.

Turning to the caselaw, reference can be made to only two decisions provided by counsel.

In R. v. Kaddoura, [2003] O.J. No. 224 (C.A.), the court upheld a sentence of 30 months on top of credit for 217 days of presentence custody, a global sentence equivalent of just over 3 years. The offender pleaded guilty to robbery of a bank in which he demanded money after informing a teller that the package he placed on the counter was a bomb. At para. 4 of the decision, the court stated:

As to the appellant’s contention that his sentence was harsh and excessive, particularly in light of his long standing drug abuse, this argument simply dissolves against the backdrop of the facts of the offence, which we repeat –- the appellant robbed a bank with a package he said contained a bomb. In our view, the trial judge was correct in imposing a sentence “to reflect this society’s repulsion and disapproval of the conduct committed by the accused”.

I note that the offender in that case committed his crime only months after completing a term of probation following an assault conviction and that the conviction was for robbery not attempted robbery.

In R. v. Strelocke, 2010 ONCA 601, the court upheld a sentence of 18 months’ imprisonment comprised of 9 months’ incarceration for one robbery followed by a consecutive 9-month sentence for a second robbery. The offender pleaded guilty to both offences. The first robbery involved the female offender handing a bank teller a note telling her “cooperate or bomb blows – no cops”. In this case, there was evidence that the offender, the single-mother of a 10-year-old, had experienced sexual abuse as a child and may have had other psychological issues leading the trial judge to state at [2009] O.J. No. 2796 (S.C.J.) at para. 16 that the offender was “a troubled individual”. At para. 2 of its decision, the Court of Appeal observed:

The appellant committed two bank robberies. These robberies were accompanied by a measure of planning and threats of violence. In light of these aggravating considerations the sentence imposed was fit.

Armed robbery is a grave offence. The attempted robbery in this case in broad daylight of a financial institution was a planned crime of violence.

In these circumstances, the paramount sentencing considerations necessary to contribute to respect for the law and the maintenance of a just, peaceful and safe society are general deterrence and denunciation.

The sentence to be imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The offender acted alone. He planned and prepared to commit an armed robbery with a bomb in terrorizing circumstances.

Mr. Dacosta is a mature individual. He is not a first offender. He is not in good health.

In my view, a proper balance of the relevant considerations already discussed justifies a sentence of 18 months’ incarceration on top of credit for 8 days of presentence custody.

There will be a 2-year probation order on the mandatory statutory terms set out in s. 732.1(2) of the Criminal Code and the following optional conditions:

(1) Report to probation services as required by your probation officer

(2) No communication or contact, directly or indirectly, with Pinakin Brahmbhatt.

In addition, there will be a s. 109(2)(a) weapons prohibition order for 10 years from the date of the offender’s release from prison and a s. 109(2)(b) order for life. There will also be a s. 487.051 order for the taking of DNA samples.

Count number two in the indictment will be marked as withdrawn at the request of the Crown.

FORM 2

Certificate of Transcript

Evidence Act, Subsection 5(2)

I, Patti Keran, certify that this document is a true and accurate transcription of the recording of R. v. Julio Dacosta, in the Superior Court of Justice held at 7755 Hurontario Street, Brampton, Ontario, taken from Recording No. 3199_406_20150515_094706__30_HILLCAS.dcr, which has been certified in Form 1.

(Date) (Signature of authorized person)

SUPERIOR COURT OF JUSTICE

T A B L E O F C O N T E N T S

WITNESS

Exam.

In-Ch.

Cr-

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E X H I B I T S

EXHIBIT NO.

PAGE NO.

Reasons for Sentence 1

Transcript Ordered:................... May 20, 2015

Date submitted for judicial review.... May 25, 2015

Transcript Completed:................. June 4, 2015

Ordering Party Notified:............... June 5, 2015

Court File No. CR-13-131