ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR140000621

DATE: 20150901

BETWEEN:

HER MAJESTY THE QUEEN

– and –

COSMO JAMES

Defendant

Frank Schembri, for the Crown

Shane Martinez, for the Defendant

HEARD: July 10, 2015

REASONS FOR SentENCE

CLARK J.

INTRODUCTION

[1] On March 19, 2013, the accused before the court and one Jafari Hunter robbed the Bell store at 170 Rimrock Rd., in Toronto. A confederate, one Brandon Caleb, drove the get-away car. The accused was tried by this Court, sitting without a jury, on a three-count indictment charging robbery, wear disguise with intent, and possession of property obtained by crime. On June 19, 2015, in a brief oral pronouncement, I found the accused guilty on all three counts. On July 10, I released written reasons for judgment and heard submissions on sentence. What follows are my reasons for sentence.

FACTUAL OVERVIEW

[2] At approximately 4:20 p.m., the accused and Hunter entered the Bell store, announced that they were robbing the store, and demanded to be shown where the high-end cell phones were kept. After being manhandled, but not injured, by this accused, one employee, Joselito Santua, remained stationary and put his head down on his desk. Another, Loren Schwamborn, took Hunter to the store safe, located in an adjacent room. He then sat on the floor as first Hunter and, in turn, this accused proceeded to scoop 102 cellular telephones into a hockey bag and leave. After the robbers left, Bell staff called 911. As noted above, Caleb drove the men away from 170 Rimrock Rd. in a car he rented earlier that day specifically for the purpose of committing the robbery. Thanks to a 911 call from a passing motorist, the accused were arrested less than half an hour later.

POSITION OF THE CROWN

[3] Crown counsel suggests that the court should impose a global sentence of 5 years’ imprisonment.

POSITION OF THE ACCUSED

[4] On behalf of the accused, defence counsel suggests that the Crown’s position is unreasonably harsh and suggests, instead, a sentence of 23 months’ imprisonment to be followed by two years’ probation.

DISCUSSION

Multiple Convictions for the Same Delict

[5] The conviction on Count 3 on this indictment involves possession of the cell phones stolen less than an hour earlier in the robbery charged in Count 1. I am of the view, and the Crown does not protest, that, a conviction cannot lie for both offences: R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729. Accordingly, I hereby enter a provisional stay on Count 3.

Antecedents of the accused

[6] The accused was 28 years of age at the time of his arrest; he is 30 now. He has a criminal record consisting of convictions stemming back ten years, including:

2003-09-04 Fail to Comply Recognizance
2003-10-30 Assault
. Uttering Threats
2004-10-14 Dangerous Driving
Fail to Comply Recognizance
Fail to Comply Probation
2006-12-13 Fail to Comply Recognizance
2007-03-07 Traffic in Schedule I Substance
2007-12-06 Possession of a Restricted Prohibited Firearm with Ammunition
Possession of Firearm or Ammunition Contrary to a Prohibition Order
2012-08-02 Assault Peace Officer
2014-06-30 Assault
2015-04-03 Obstruct Peace Officer
2015-04-27 Possession of Property Obtained by Crime

The accused is the second eldest of 10 children.

The accused has not completed high school.

[7] As for his work history, I am told that the accused has had the occasional manual labour-type job, but has never held steady, full time employment. Even though he did not graduate from high school, I simply do not accept that he could not have found some meaningful lawful employment, had he been so inclined. Counsel acknowledged as much in his submissions when he said, at one point, that the accused simply found it more lucrative to deal drugs than to work at any lawful employment he might have been able to secure.

[8] The accused has done nothing since leaving school to upgrade his education or to acquire any marketable skills.

[9] The accused is presently single, but has been in a long-term relationship with a young woman who has two children. The accused is the biological father of the younger child, but has stood in loco parentis to both.

General Principles of Sentencing

[10] To begin, I am mindful of the principles of sentencing set out in sections 718 and 718.1 of the Criminal Code.

Rehabilitation

[11] As in every sentencing, I must be mindful of the principle of rehabilitation. Rehabilitation is most important, of course, when dealing with youthful first offenders: R. v. Brown, 2015 ONCA 361, [2015] O.J. No. 2655, at para. 7; R. v. Laine, 2015 ONCA 519, [2015] O.J. No. 3619. This accused is neither youthful nor a first offender.

[12] Mr. Martinez contends that since his incarceration on these charges, the accused now wishes to change his life and to “be there”, so to speak, for his young family. Counsel relies heavily on the letter written by the accused’s girlfriend, Chantel Blair, (now Exhibit 4 on sentence) in which she articulates how difficult her life and those of her children have been since the accused has been incarcerated. I accept that her life is hard and that both she and her young children miss the accused.

[13] Ms. Blair also spoke of wishing to relocate to some locale other than Toronto in order that the accused not be in a position to associate with his negative peers.

[14] Mr. Martinez submits that the accused wishes to better his education and acquire a trade.

[15] It is, with respect, easy enough to postulate by way of sentencing submissions that a man wishes to turn his life around, but actions speak more loudly than words. The undisputed facts are that the accused has done nothing to better himself in the more than a decade since he left school, choosing instead to involve himself in a steady stream of criminal activity.

[16] It is interesting that I heard nothing from the accused concerning any plan to redirect his life upon his release from prison. Thus, while I do not discount them entirely, I would have been more inclined to take seriously the hopes of rehabilitation expressed by his girlfriend and his counsel had they been forthcoming from the accused himself.

[17] I am mindful that “[t]he length of a first penitentiary sentence for a youthful offender should rarely be determined solely by the objectives of denunciation and general deterrence. Where, as here, the offender has not previously been to penitentiary or served a long adult sentence, the courts ought to proceed on the basis that the shortest possible sentence will achieve the relevant objectives”: R. v. Borde (2003), 2003 4187 (ON CA), 172 C.C.C. (3d) 225 (Ont. C.A.), at para. 36; Brown, at para. 7.

[18] In summary, when viewed objectively against the backdrop of his life to this point, in particular his almost non-existent work record and his significant criminal record, there is very little before me to warrant an optimistic view of this offender’s prospects for rehabilitation.

Retribution

[19] In passing sentence, the court is also obliged to consider retribution, not in the vengeful sense, but, rather, in the sense of conveying society’s denunciation of the abhorrent conduct: R. v. M. (C. A.), 1996 230 (SCC), [1996] 1 S.C.R. 500.

Deterrence

[20] While rehabilitation is certainly a factor to be considered in determining a fit sentence, it was not contested by counsel for Mr. James that denunciation and deterrence, both general and specific, are the primary principles of sentencing to be considered in this case: R. v. Jarsch, 2007 BCCA 189, [2007] B.C.J. No. 738 (B.C.C.A.), at para. 18.

Mitigating Factors

[21] Counsel argues that the accused grew up in the Lawrence Heights area of Toronto, which he contends is an underprivileged neighborhood with a high crime rate. This fact, Mr. Martinez contends, explains how the accused came to associate with a negative peer group and, in turn, to become involved in crime. I note, however, that according to what I have been told, he is the only one of his siblings to have run afoul of the law.

[22] Counsel argues that the accused has strong support from his girlfriend. Strong family support is considered to be a mitigating factor.

[23] It is trite to observe that remorse, where present, is a mitigating factor. In this case, however, as he was perfectly entitled to do, Mr. James pleaded not guilty and stood his trial. Thus, while I do not treat his plea as an aggravating factor, he cannot now rely on remorse to mitigate what would otherwise be an appropriate sentence: R. v. Sawchyn, 1981 ABCA 173, [1981] A.J. No. 26, 60 C.C.C. (2d) 200 (C.A.); R. v. Champion, 2009 ONCA 184, [2009] O.J. No. 829; R. v. Valentini, 1999 1885 (ON CA), 43 O.R. (3d) 178, [1999] O.J. No. 251 (C.A.); R. v. Pavich, 2000 16971 (ON CA), [2000] O.J. No. 4209, (C.A.).

[24] When asked whether he wished to say anything prior to sentence being imposed, the accused said simply that he was sorry. However, despite his professed contrition, I am not persuaded that the accused truly repents his misdeeds. Accordingly, while I do not discount his expression of remorse entirely, it is too little too late to be of any real mitigating effect on sentence: R. v. Cleyndert, 2006 33851 (C.A.), at para. 10.

Aggravating Factors

[25] The case has the following aggravating factors:

(i) the robbery was premeditated, as evidenced, inter alia, by the fact that Caleb rented a car specifically for that purpose;

(ii) the telephones had a retail value of at least $50,000;

(iii) albeit he did not injure him, the accused manhandled Mr. Santua; and

(iv) the accused fled from the police and an officer was injured (albeit only slightly) when he was struck by a car in the course of chasing the accused.

Similar Sentences for Similar Offences and Offenders

[26] An accused is entitled to be sentenced in keeping with sanctions imposed on similarly situated offenders in similar circumstances: Criminal Code s. 718.2(b). In that vein, I have considered the cases proffered by the parties as well as a number of other authorities.

[27] In R. v. Brown, 2013 ONSC 7910, [2013] OJ. No. 5902 (S.C.J.), a case relied on by defence counsel, Spies J. referred to the decision of R. v. Panchan, [2013] 4032. At para. 33 of that case, Code J. stated:

The offence of robbery is serious but a short sharp sentence of two to three months in jail, followed by probation, can be appropriate in the case of a young first offender with good rehabilitative prospects, where no real violence is involved. However, "different considerations apply in serious crimes of violence, particularly where careful planning is evident". In these latter kinds of robberies, sentences of fifteen months to two years less a day are appropriate even in the case of well-situated first offenders. See: R. v. Demeter and Whitmore (1976), 1976 1413 (ON CA), 32 C.C.C. (2d) 379 (Ont. C.A.); R. v. Gonidis, McCullough and Stevenson (1980), 1980 2879 (ON CA), 57 C.C.C. (2d) 90 (Ont. C.A.).

I adopt Code J.’s remarks. I focus on that passage because “careful planning is evident” in this case and because this accused, far from being “a well-situated first offender”, has consistently recidivated over the course of more than a decade. Moreover, during that time, he has been sentenced to prison on numerous occasions, including one disposition that (when considered together with what is known in the vernacular as the “dead time” that preceded it) was tantamount to a penitentiary sentence. Yet these sanctions have not deterred the accused from committing further serious offences. That said, I consider, with respect, the position advanced by Mr. Martinez to be unrealistic.

[28] Turning to the Crown’s position, I am of the view, in short, that the authorities upon which Mr. Schembri relies do not support the period of incarceration he seeks. Nor, generally speaking, do the various other cases to which I have referred.

Parity

[29] As well as being obliged to consider similar sentences imposed on similarly situated offenders generally, where, as here, there were multiple offenders involved in the commission of the offences, I must also be mindful in passing sentence of the principle of parity. However, the principle of parity is not absolute and should not divert the court's attention from other sentencing criteria, such as the nature and seriousness of the offence, and the individual characteristics of the accused: R. v. LeBlanc, 1997 9544 (NB CA), [1997] N.B.J. No. 125, (C.A.).

[30] For his part, Mr. Martinez places great emphasis on this issue. For his role in the robbery, Caleb received a sentence of 18 months’ imprisonment. Hunter was sentenced to 21 months’. What Mr. Martinez ignores, however, is that each of the co-accused pleaded guilty, whereas the accused stood his trial. By pleading, Caleb and Hunter saved the state the considerable time and expense of conducting both a preliminary inquiry and a trial.

[31] As noted above, the presence of remorse is a mitigating factor on sentence. As is obvious, a guilty plea is taken to be a sign of remorse. Although obvious, perhaps, it is also worthy of mention that a guilty plea is not mitigating only because it saves the state the time and expense of a trial. In a case such as this, it also saves the victim the anguish of having to relive unpleasant events in minute detail. In this case, each of the two victims was obliged to recount what was clearly a very unsettling experience.

[32] The fact of a guilty plea by one accused can be a proper basis upon which to distinguish a more lenient sentence for that person as against the sentence imposed upon a co-accused who does not plead guilty: R. v. Mohamad (2004), 2004 9378 (ON CA), 69 O.R. (3d) 481, [2004] O.J. No. 279, (C.A.). In that case the Court of Appeal dismissed an appeal by Mohamad from a custodial sentence despite his co-accused having received a conditional sentence for the same offences.

[33] Having said that, I do not make as much of the presence of remorse on the part of Caleb and Hunter as I might in another case. It would be naïve to think that either of them has had an epiphany. Rather, I suspect that, in all likelihood, their guilty pleas were motivated largely by a cost/benefit analysis of pleading guilty versus standing trial. Nonetheless, whatever the motivations underlying a guilty plea, it is well settled that it is to be recognized as a sign of remorse. That said, I must give them credit for remorse in weighing parity of sentence in relation to Mr. James: R. v. Gagne, [1996] O.J. No. 3839, (S.C.). In the final analysis, in contrast to Caleb and Hunter, however limited their actual remorse may be, there is no meaningful evidence before me of any remorse on the part of Mr. James.

[34] Also distinguishing this accused from his co-accused is his criminal record. At the time of the robbery, Hunter had no criminal record and Caleb had only 2008 convictions for possession of a Schedule I substance for the purpose of trafficking, flight from a police officer and fail to comply with a recognizance. These offences were all dealt with on the same occasion and the court imposed a conditional sentence to be served concurrently for all three offences. That makes both Mr. Hunter and Mr. Caleb far differently situated than the accused, who, as earlier noted, on one occasion received a disposition that, when pre-sentence custody is taken into account, was the equivalent of a penitentiary sentence.

[35] In R. v. Price, 2000 5679 (ON CA), [2000] O.J. No. 886, (Ont. C.A.), Fred Price was sentenced to nine years imprisonment for the robbery of a jewellery store. He was the getaway driver, but did not participate in the robbery itself. The court found that there had been no evidence that Price had "either countenanced or envisaged the violence that occurred." Price had a positive pre-sentence report and, although he had a prior record, it did not contain any convictions for offences of violence. A co-accused, Victor Price, had pleaded guilty and testified against Fred Price. Notwithstanding what McMurtry C.J.O. described as "a serious criminal record", and the fact that he had taken part in the robbery while being armed, Victor Price was sentenced to five years' imprisonment. On appeal, the court held unanimously that the trial judge had erred in treating Fred equally to the other participants in the robbery, when the net effect of that was to give him a sentence that was nearly twice that received by Victor. Accordingly, they reduced Fred Price's sentence from nine to six and a half years. For present purposes, the important fact that emerges from this case is that, even after Fred Price's sentence was reduced on appeal, notwithstanding that Victor Price was armed, actually participated in the robbery, and had a serious criminal record, he still received a lesser sentence than Fred Price. See also R. v. Green, [1999] O.J. No. 5607, where O'Connor J. distinguished between the sentences to be imposed on two offenders on the basis that one had pleaded guilty whereas the other stood his trial.

Pretrial custody

[36] The accused has been in custody since his arrest on the day of the robbery. The vast majority of that time has been taken into account in fashioning sentences for offences arising since his arrest on these charges. Accordingly, it is agreed that the only period I must consider in fashioning the sentence I am about to impose is from July 6, 2015, until today. Since it is only scant days shy of two months, I will, for purposes of this calculation, consider it as two months. The parties agree that I should apply the maximum statutory differential of 1.5:1: R. v. Summers, 2014 SCC 26. Although, in my view, the accused is not a good candidate for early release, I will acquiesce in the joint submission and subtract three months from what I consider to be a fit disposition in this case.

SENTENCE

[37] I have concluded that a fit sentence on the robbery count, is one of three and a half years’ imprisonment. On the count of wearing a disguise, I impose a sentence of two years. Those sentences will be served concurrently. Deducting three months in light of the accused’s pre-trial custody, the actual sentence I impose is one of 39 months in the federal penitentiary.

ANCILLARY ORDERS

Section 109 Order

[38] The Crown seeks, and the accused does not oppose, an order pursuant to s. 109(1) of the Criminal Code. I hereby order that the accused be prohibited from possessing any of the things mentioned in s. 109(2) for the rest of his life.

DNA Order

[39] The Crown also seeks, and the accused does not oppose, an order pursuant to s. 487.051 of the Code requiring the authorities to take from the accused such samples of his blood or other bodily substance as are reasonable required for purposes of inclusion of his DNA profile in the national DNA databank. Since robbery is a primary designated offence, the making of the order is mandatory: s. 487.051(1)(a). Order to go accordingly.

R. A. Clark J.

Released: September 1, 2015