CITATION: R. v. Brown, 2015 ONSC 6430
COURT FILE NO.: CRIM(P) 383/13
DATE: 2015 10 19
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Michael P. Michaud, for the Crown
- and -
NATALIE BROWN
Maurice J. Mattis, for the Defence
REASONS FOR SENTENCE
FAIRBURN J
Overview
[1] During the evening of July 19, 2012, in three separate incidents, at three separate bus stops, three separate transit users were robbed at gunpoint. The gun-toting robber was Revington Bailey, Natalie Brown’s then boyfriend. Ms. Brown acted as the getaway driver. Ms. Brown, a mother of four, used the family van for this purpose.
[2] While Ms. Brown faced an indictment involving all three robberies, she was only convicted of the second and third ones. My task is to determine a fit sentence.
The Facts
The Circumstances of the Offences
[3] The first robbery occurred at 10:25 p.m. on July 19, 2012. Matthew Sinaga was waiting at a bus stop at the corner of Steeles Avenue and Torbram Road. He was approached by Revington Bailey. After a short discussion, that turned out to be a ruse, Bailey took Mr. Sinaga’s phone, "flashed a gun" in his direction, and told Sinaga and his friend to "keep walking". They complied.
[4] As for the second robbery, about 30 minutes later, Vimmi Dhingra was sitting down inside of a bus shelter at the corner of Dixie Road and Bovaird Drive. Revington Bailey approached her from the back of the bus shelter. He asked her for the time. He then pulled a gun from his pocket, pointed it at her "belly", and said "OK, give me whatever you have. Like cash, or your cell phone."
[5] Ms. Dhingra told Mr. Bailey that she had no cash, at which time he told her to hand over her cell phone. She then put her phone in her purse and zippered it closed. Bailey told her to hand over her purse. Ms. Dhingra tried to run from the bus shelter. There was a brief struggle and then Bailey fired a shot into some nearby grass. At this point, Ms. Dhingra released her purse and Bailey ran toward a waiting vehicle on Dixie South. The vehicle belonged to Natalie Brown. She was the getaway driver.
[6] Among other things taken from Ms. Dhingra were her Black Samsung Galaxy S2 phone, worth $500-$600. Her purse and cosmetics were also taken. So too were her Brampton transit bus tickets. The tickets and the receipt of purchase were later found in Ms. Brown’s vehicle.
[7] As for the third robbery, it occurred at a different bus shelter about 30 minutes later. Bhopinder Singh was followed by Revington Bailey while he walked toward a bus shelter. As he arrived, Bailey hit him from behind. Mr. Singh’s phone, which he had been speaking on, fell to the ground. Bailey picked up the phone and then showed Mr. Singh a gun. Mr. Singh told the police that the man discharged the gun while it was pointing at him. He said that he heard a “click sound”, but nothing came out. The man then ran away with Mr. Singh’s handheld device. He ran toward a waiting vehicle. Mr. Singh saw a woman driving the vehicle. He was also able to see and remember the licence plate number. The licence plate was later tracked to Ms. Brown’s vehicle. The police closed in and she was arrested shortly after.
[8] Following trial, I found beyond a reasonable doubt that Revington Bailey was the principal offender in respect to each of the robberies. I also found beyond a reasonable doubt that Natalie Brown was the getaway driver in respect to each of the robberies. She was acquitted on the first robbery involving Matthew Sinaga because I had a reasonable doubt that she formed the mens rea for this particular offence.
[9] As an aider to an offence, the person must do or omit to do something for the purpose of aiding the principal to commit the offence. This means that the aider must know that the principal intended to commit the offence and the aider must have intended to assist the principal in some way: R. v. Helsdon (2007), 2007 ONCA 54, 216 C.C.C. (3d) 1 (Ont. C.A.), at para. 38.
[10] While I found beyond a reasonable doubt that Natalie Brown acted as the getaway driver for each of the robberies, I had a doubt about whether she may have been caught off guard by Bailey's conduct during the first bus stop robbery. By the second and third bus stop robberies, though, I had and have no doubt that she must have known that Bailey was robbing people and was intent on aiding him in that endeavour. She knowingly and intentionally aided him by parking her van close to the bus stops, waiting for his return and then driving away from the scene.
[11] While she was the driver in the first robbery incident, she is only being sentenced in respect to the second and third robberies upon which she was found guilty.
The Circumstances of the Offender
[12] Natalie Brown is a 33 year old first time offender. She is the mother of four children, 4, 8, 12, and 15 years of age. Each child has a different father. Ms. Brown is a single mother and receives no child support from the fathers of her children.
[13] She came to Canada from Jamaica in 1997. She is a permanent resident. She has never applied to become a Canadian citizen. Ms. Brown lived in Jamaica with her aunt after her mother came to Canada. When she was 15 years of age, she joined her mother here.
[14] She was interviewed by the probation officer putting together a pre-sentence report [PSR]. She says that she has been physically abused by partners in the past. She admits to having made poor choices in men. I pause to note that this appears to be an understatement of significant proportion. One need look no further than her involvement with the gun-toting-robbing Revington Bailey, and her choice of intimate partners who provide no financial support for their children, to get a sense of the clear need for Ms. Brown to learn to exercise better judgment when it comes to men. If not for herself, she must do this for her children.
[15] Ms. Brown did not graduate from high school. She dropped out of grade 11 when she got pregnant with her first child. While she tried to attend a college program, she also dropped out of that when she became pregnant. She has only maintained sporadic employment over time and is now living on Ontario Works and child benefit supplements. She lives with her 74 year old mother and has done so since November of 2014. They both contribute to the finances of the household.
[16] The offender is involved in her church. According to the pastor, she acts as an usher and cooks meals when needed. She is described by the pastor as a “humble, nice” person. Ms. Brown has told the pastor that she wishes to use her experience with the criminal justice system to guide church youth in making “right choices”. The pre-sentence report suggests that Ms. Brown has received a good deal of counseling on issues “ranging from salvation to family”.
[17] To the probation officer, Brown expressed her desire to move outside of the Greater Toronto Area where she may find cheaper rent and start over.
[18] There are no reported concerns about alcohol or drug abuse. While Brown suggested to the probation officer that she suffers from anxiety and depression, there is no confirmation of this fact. Her mother said that she does not suffer from any major mental health issues.
[19] While she did not testify at trial, Ms. Brown told the probation officer that she drove Bailey to Brampton on the night in question. He asked her to “stop several times because he had recognized someone he was familiar with at the bus-stop.” She said that at first she did not know what he was doing and once she caught on, and tried to resist, “he threatened her by pointing his gun at her and stating that, ‘he would shoot me if I did not co-operate’”. She told the author of the PSR that she did not tell the police this because she was fearful for her children. She told the author that she is “no longer afraid for her children’s safety now that her co-accused is serving time in jail”.
[20] I do not accept Ms. Brown’s late-breaking suggestion, delivered through the medium of a PSR, that Bailey forced her to aid in the robberies by pointing a gun at her. Not only is it a curiously late suggestion of what one might consider a significant fact, but her explanation as to why she held the information until now makes no sense. Mr. Bailey was in jail at the time of the trial in this matter, May of 2015. If Ms. Brown felt she was acting under some form of duress, the time to raise it was at trial. She did not do that because it did not happen.
[21] If Mr. Bailey had done what she suggests, Ms. Brown had all kinds of time to remove herself from the situation when Mr. Bailey got out of the vehicle on the second and third robberies. She could have driven away while he was out of the vehicle. She did not do so because she was wanted to aid him in execution of these robberies. Her attempt to distance herself from culpability, describing herself as a victim, belies genuine remorse for what she has done.
[22] However inconsistent it may be with someone who assists with committing robberies after their children have gone to bed, there is some objective evidence to suggest that Ms. Brown is a good mother. First, Ms. Brown’s mother says that her daughter is committed to her children and is a good parent. The pastor at her church and the person who has provided counseling also suggests she is a good mother. Finally, the Children’s Aid Society has been involved with the family and written a positive report about Ms. Brown and her parenting.
[23] The CAS got involved in February 2014. While it is unclear what triggered their involvement, a child protection investigation was conducted. The CAS remained involved with the family for about a year. In a letter dated March 11, 2015, a family services worker had the following to say:
During the course of the Society’s involvement, you have acted as a protective parent ensuring your children have been kept safe and have not been exposed to any adult conflict. You have been co-operative with the society and have been able to develop a positive working relationship with me. You have demonstrated that your children are your priority; you have provided them with a safe, appropriate home. Your home has always been very well kept.
You ensure that your children were always supervised by your mother Mavis, who has demonstrated her dedication to supporting the children. All of your children presented well at all home visits and all spoke well of you and their home life. All the children appear to be happy and well cared for. Your children have not disclosed any concerns.
[24] The letter concludes by saying that the Society has no child protection concerns and “is confident that you will continue to make positive choices and ensure your children’s safety”. I accept what the Children’s Aid Society has said to be a fact.
[25] Ms. Brown says that her children are the most important people in her life. Despite this fact, the probation officer notes that she still appears to be living a “happy-go-lucky lifestyle”. An example of this is that she told the writer that she is involved in a new relationship, but does not know whether the man has a criminal record.
[26] In the end, the PSR suggests that Ms. Brown would benefit from attending certain programs to assist her in making better decisions.
[27] Ms. Brown addressed the court at the end of sentencing submissions. She apologized and said she has learned a lesson. She said she was sorry to have wasted the court’s time and felt badly, but said that she is also a “victim”. By this I assume she is referring to the story she told the probation officer about why she was involved in the offences.
The Impact of the Offences on the Victims
[28] Ms. Vimmi Dhingra was the victim in the second robbery. She provided a Victim Impact Statement. She said that she is now afraid. For several days after the offence, she did not go outside. She could not sleep alone for quite some time. She no longer talks to strangers and does not go outside alone. She lost her cell phone which was $500-600 in value.
[29] As for Mr. Bhupinder Singh, he too provided a Victim Impact Statement. He said that he is afraid when waiting at bus stops and can no longer go out by himself at night. His head was very sore after he was struck from behind. He says he was charged $876 by Bell Canada, who told him that because of his contract, if he did not pay, his credit rating would be affected.
Revington Bailey’s Sentence
[30] Mr. Bailey was tried in the Superior Court of Justice before André J. In addition to the three robbery charges, he also faced three counts of using a firearm during the robberies. The trial judge found that Mr. Bailey was in possession of an imitation firearm when he committed the three robberies. He based this finding on three things: (a) the fact that two of the victims believed that the handgun was “fake”; (b) Ms. Dhingra’s evidence that when the firearm was discharged, it only made a “muted” sound; and (c) despite an “extensive” forensic search, no evidence was located from a discharged firearm at the scene of the second robbery.
[31] Mr. Bailey was a 24 year old first time offender. Justice André found that he would be deported as a result of his crimes. He received a two year sentence on the first robbery, with two years concurrent on both the second and third robberies. He also received one year consecutive sentence on each of the firearm convictions. His total sentence was five years in custody.
The Positions of the Parties
[32] The Crown argues that a fit disposition is in the two to three year range. While Revington Bailey received a two year sentence on the first robbery, and two years concurrent on the others, he was also convicted of and sentenced for having used a firearm. Mr. Michaud argues that the two years on the robberies should be considered against the totality principle. If it were not for the one year consecutive sentences imposed on the firearm offences, the sentence involving the robberies would have been higher.
[33] The Crown acknowledges that Ms. Brown has served just over eight months pre-trial custody and that she should be credited at a rate of 1:1.5.
[34] Mr. Michaud says that this should be followed by a period of two years probation, including the following conditions: (1) no contact with Revington Bailey; (2) no contact with anyone with a criminal record; (3) restitution of $500 to each victim; (4) attend school or seek and maintain gainful employment. In terms of programming, while the Crown supports Ms. Brown obtaining programming, he says the choice of programming should be left to the probation officer.
[35] Defence counsel argues that if Ms. Brown is sentenced to a lengthy term of imprisonment, she will face deportation. She has served eight and a half months of pre-trial custody and should be credited with just over a year.
[36] Mr. Mattis argues that Ms. Brown played a far lesser role than Revington Bailey in the robberies and, as such, her sentence should reflect this fact. While he asked me to find a reasonable doubt that she did not know that Bailey had a firearm, I do not have a doubt. Ms. Brown’s suggestion to the probation officer that she was forced to commit these crimes because Bailey threatened her with the gun directly contradicts what I am being asked to find. Even if she had not said this to the probation officer, I would have been satisfied beyond a reasonable doubt that Ms. Brown knew full well that Bailey had a gun and was using it.
[37] As Bailey got two years on the robberies, concurrent on the second and third, and he was the principal player, counsel says that Ms. Brown’s sentence should be substantially less.
[38] Mr. Mattis asks that I be sensitive to the fact that Ms. Brown is only a permanent resident and vulnerable to deportation. I am encouraged not to impose a sentence that will not trigger deportation implications.
[39] Taking into account her pre-trial custody and the fact she has been on what are described as strict bail conditions, it is suggested that she should receive a sentence of time served and probation. The maximum period of imprisonment, it is suggested, should be ninety days intermittent. As for probation, counsel suggests that a curfew is not necessary. Nor should I impose a condition that Ms. Brown not associate with anyone with a criminal record. I am told that this will be near impossible for Ms. Brown as, among other issues, a father to one of her children has a criminal record.
[40] In reply, the Crown argued that I should give no credit for the time Ms. Brown spent on release pending trial. Mr. Michaud says there is no evidence that it was onerous.
The Applicable Sentencing Principles
[41] Section 718 of the Criminal Code provides that the “fundamental purpose of sentencing is to contribute … to respect for the law and the maintenance of a just, peaceful and safe society”. This is to be done by imposing sanctions that have various objectives in mind, including denunciation, deterrence, separation of the offender from society where necessary, rehabilitation, and the promotion of a sense of responsibility in offenders. I take all of these sentencing principles into account.
[42] Section 718.1 demands that whatever sentence is imposed be proportionate to the seriousness of the offence committed and the “degree of responsibility of the offender”.
[43] Various principles must be taken into account when arriving upon a fit disposition. Section 718.2 of the Criminal Code sets out a number of these principles. For purposes of this case, an important principle is found in s. 718.2(b), that a sentence should be “similar” to sentences imposed on similar offenders who have committed similar offences in similar circumstances.
[44] Parity in sentence is an important principle. Everyone involved in an offence need not receive the same sentence. Individual roles and backgrounds will often result in different dispositions. What the principle of parity requires is that if there is to be a difference in the sentences imposed on different offenders for the same offence, that the difference is understandable when the cases are examined together: R. v. Issa (1992), 57 O.A.C. 253, at para. 9; R. v. Cox, 2011 ONCA 58, at para. 44 [Cox]. As the court held in Cox, at para. 46: “[t]he principle of parity does not preclude disparity, where warranted by the circumstances, because of the principle of proportionality”.
[45] The Court of Appeal for Ontario has repeatedly emphasized that the principle of parity does not require that co-accused, whether tried separately or together, receive the same sentences. So long as it is warranted in all of the circumstances, different offences for the same offences are acceptable: R. v. Downes, 2015 ONCA 674, at para. 10. See also: R. v. Ipeelee, 2012 SCC 13, [2012] S.C.J. No. 13, at paras. 78 to 79. In short, if there is to be a disparity in sentence between joint actors, the disparity requires a justification.
[46] Leaving aside co-actors, the principle of parity also requires that trial judges have regard to the range of sentence imposed on offenders in similar circumstances. I have considered a number of authorities. The range of sentence for this offence is wide. In R. v. Panchon, 2013 ONSC 5567, the equivalent of a three month sentence was imposed on a young, first time offender, who aided in a robbery by luring the victim to the scene. The victim was beaten by two co-principals who then stole his car and cell phone. As noted by Code J., the aider was not a principal in the acts of force or violence and did not cause any injuries.
[47] In R. v. Nouri, 2015 ONSC 116, MacDonnell J. imposed a sentence of six years on the aider in a robbery. While Nouri was an aider pursuant to s. 21(1)(b) of the Code, she did more than simply drive the co-principals to the jewelry store where the robbery occurred at gunpoint. Rather, among other things, she solicited the help of a makeup artist who assisted in applying disguises on the faces of the robbers. Ms. Nouri provided input on the disguises. The victims were physically attacked. A gun and stick were used as weapons.
[48] In R. v. Williams, 2014 ONSC 1762, MacDonnell J. makes reference to a getaway driver who assisted in an armed robbery of a jewelry store where half a million dollars in inventory was taken. She was young with no prior record. She pled guilty before the preliminary inquiry. A joint submission of 2 ½ years was accepted by the court.
The Impact of Potential Deportation
[49] As above, Mr. Mattis asked that I impose a sentence that will not impact on Ms. Brown’s status as a permanent resident. Regardless of the sentence I impose, she will be vulnerable to a removal order.
[50] Pursuant to s. 36(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, [IRPA], a permanent resident is "inadmissible on grounds of serious criminality" where, among other things, he or she has been convicted in Canada of an offence that is punishable under an Act of Parliament by a maximum term of imprisonment of at least ten years, or of an offence under an Act of Parliament for which he or she has been sentenced to six months imprisonment or more. Pursuant to s. 344(1)(b) of the Criminal Code, robbery is punishable by life imprisonment. This means that Ms. Brown will be subject to potential deportation. Importantly, this does not mean that she will be deported. It merely creates this potential. A removal order is made under s. 49(1) of the IRPA. Under s. 49(1)(a), if there is no right of appeal, then the removal order comes into effect on the day it is made.
[51] The length of sentence imposed becomes important in terms of whether an individual may appeal from a removal order if one is made. Section 64(1) of the IRPA removes any right of appeal from a permanent resident where he or she has been convicted on the basis of "serious criminality". For purposes of this provision, s. 64(2) defines serious criminality as being "with respect to a crime that was punished in Canada by a term of imprisonment of at least six months or that is described in paragraphs 36(1)(b) or (c)". This means that a person who is convicted of a crime that is punishable by life, but who receives a sentence of less than six months, retains a right to appeal from an order of removal. A sentence of six months or more removes the right of appeal.
[52] Immigration consequences can be a relevant consideration on sentence. In R. v. Pham, 2013 SCC 15 [Pham], the court concluded that it is sometimes appropriate to take immigration consequences into account when arriving upon a fit and just sentence. See also: R. v. Edwards, 2015 ONCA 537, at para. 7; R. v. B.R.C., 2010 ONCA 561, at paras. 7-8; R. v. Nassri, 2015 ONCA 316, at paras. 25-29.
[53] In Pham, Wagner J. concluded that while sentences can be tailored to account for the collateral consequences resulting from the IRPA, the principle of proportionality must remain intact. He cautioned against the crafting of artificial sentences simply to avoid the clear will of Parliament, as expressed through the IRPA. It is unacceptable to create a quasi-separate sentencing scheme for those facing a potential removal order. Any implications arising from the IRPA should not be conceptualized as aggravating or mitigating circumstances. Rather, their relevance is linked to "the principles of individualization and parity", relating to the objective of assisting an offender in rehabilitation: Pham, at para. 11.
[54] Only where two possible sentences are appropriate as they relate to the gravity of the offence and the responsibility of the offender, can the one that avoids or minimizes IRPA implications be imposed. The further a varied sentence is from the appropriate range of sentences, "the less likely it is that it will remain proportionate to the gravity of the offence and the responsibility of the offender": Pham, at para. 18.
Discussion and Conclusion
[55] As the getaway driver, Ms. Brown was an important knowing and intentional player in the second and third robberies. Many robberies cannot occur without a getaway driver in wait. To be sure, these robberies would not have occurred without her assistance. Her decision to assist by parking close by and waiting until Bailey came running back to the van was critical to the scheme. He needed a vehicle to get away in and she provided it, along with a driver.
[56] With that said, I acknowledge that her role was very different than that played by Revington Bailey. The different roles played in robberies can be a factor for consideration. The court should take into account whether the individual is directly involved in the assaultive behaviour and whether there is any evidence that he or she “countenanced or envisaged the violence that would occur”: R. v. Price (2000), 2000 5679 (ON CA), 140 O.A.C. 67, at para. 55.
[57] I have taken into account the fact that, unlike Mr. Bailey, Ms. Brown was the getaway driver. There is no evidence and I specifically find that she was not involved in planning the robberies. Moreover, I take into account the fact that, unlike Bailey, she has only been convicted of two of the three robberies.
[58] I also accept the findings of fact made by André J. that the firearm used by Revington Bailey was an imitation one. The Crown accepts this fact as well.
[59] I find that Ms. Brown has not shown any genuine remorse. Her expression of victimization during the PSR process is an example of this fact. What she said to the court is another. While her lack of remorse is not an aggravating factor, it deprives her of what might have been a mitigating factor.
[60] I am further aware of the fact that I am sentencing a first time offender. On the whole, and aside from her attempt to justify her conduct, the PSR is generally positive. I have hope for Ms. Brown’s rehabilitation. What is most obvious is her self-acknowledged poor choices in men. I have no doubt that Ms. Brown did not look to go out and act as a getaway driver in the two bus stop robberies she has now accumulated a criminal record for. But she did it. Ms. Brown, a single mother of four, needs to think about the implications of her conduct, not only for herself, but for her four vulnerable and impressionable young children. She owes it to them to immediately start making better choices.
[61] The victim impact is an aggravating factor in this case. Both victims expressed an inability to feel safe after the robberies took place. Both had difficulties using public spaces after their victimization.
[62] The mitigating factors in this case are the following:
(a) Ms. Brown has no criminal record.
(b) Ms. Brown has made strides toward rehabilitation and has been involved in counseling.
(c) She has volunteered at her church and is well liked by the pastor.
(d) She conducted the trial responsibly, including coming to agreement on fact where appropriate, which saved significant trial time.
[63] The aggravating factors in this case are the following:
(a) The victim impact is serious.
(b) In addition to the imitation gun being used to intimidate the victims, the last robbery victim was physically assaulted.
(c) Ms. Brown did not distance herself from Revington Bailey after the robberies and, in fact, attended at the police station with him to report her vehicle stolen. It had actually been seized by the police.
[64] I find that an appropriate disposition for Ms. Bailey is one of eighteen months incarceration. In arriving at this number I take into account the principle of parity, including that Revington Bailey, who was the principal offender, received a two year sentence for three robberies. While Ms. Brown’s role in the second and third robberies was serious, and critical to the completion of the offences, her moral culpability is less than that of Bailey.
[65] She is a first offender and the mother of four children. Bearing in mind the positive PSR, I am hopeful for her rehabilitation. At the same time, general deterrence and denunciation must play a significant role in the disposition. People should be permitted to use public transit without fear that they will be robbed at gunpoint. These were serious offences and a message must be sent to Ms. Brown and other would-be getaway drivers that their crimes will not be taken lightly.
[66] Having regard to the principles of sentence, the aggravating and mitigating circumstances of the case, I find that eighteen months is the correct disposition.
Pre-Sentence Custody and Bail Conditions
[67] Ms. Brown spent 8.5 months in pre-trial custody. Bearing in mind the absence of any criminal record and all of her personal characteristics, as reviewed above, I am prepared to accede to the position of both counsel that she be credited, pursuant to s. 719(3.1) of the Criminal Code, at a rate of 1:1.5: R. v. Summers, 2014 SCC 26. As such, I credit her with already having served one year and twenty days in custody. This is the number provided by her counsel.
[68] Counsel argued that Ms. Brown should receive a deduction in sentence for her bail conditions, including a curfew she has been under and the fact she could not attend in Peel Region. She has been on bail for two and a half years. There was no evidence led with respect to impact of the bail conditions on Ms. Brown.
[69] Credit for pre-trial bail is not to be approached like a “compulsory or inflexible” factor in mitigation of sentence: R. v. Ijam (2007), 2007 ONCA 597, 87 O.R. (3d) 81 (C.A.), at para. 33, per MacPherson J.A. for the majority on this issue. In R. v. Downes (2006), 2006 3957 (ON CA), 79 O.R. (3d) 321 (C.A.), Rosenberg J.A. set out the approach to credit for “stringent pre-trial bail conditions”. House arrest is one such condition. There is no formula – statutory or otherwise – that applies to stringent bails conditions and how they should act to reduce sentence. The factors for consideration include: “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”: Downes, at para. 37. See also: R. v. Aguas, 2015 ONSC 5732, at para. 43.
[70] Stringent bail conditions less than house arrest can, in some circumstances, justify a decrease in an otherwise fit sentence: R. v. Dragos, 2012 ONCA 538, at para. 77, Cronk J.A. It is important not to lose sight of the fact that while the impact of some bail conditions may be obvious, they should rarely be assumed: Downes, at para. 28.
[71] While curfews can be stringent, they should not be equated with house arrest. Ms. Brown has been on bail, abiding by a 10 p.m. to 6 a.m. curfew for 2.5 years. While her counsel argued that this has been highly restrictive, what would constitute “stringent” in Downes, I do not accept this to be the case. Ms. Brown is a mother of four children, the youngest being four years of age. While in the normal course she should not be bound to her home simply because of the age of her children, the reality is that with four children, a single parent is not as mobile at night as she might like to be. I find that the curfew of 10 p.m. aligns with where Ms. Brown should have been, for the most part, at 10 p.m., home with her children, ensuring their safety and wellbeing.
[72] Moreover, the fact that she could not attend in Peel Region while on bail is hardly restrictive. As recently noted by Benotto J.A. in R. v. H.E., 2015 ONCA 531, where the respondent was permitted to live at home, go to and from work, pick up his partner from her work, see his lawyer and leave the house if accompanied by his partner or a friend, the terms of bail were “anything but stringent”. The court declined to grant any credit for the bail conditions.
[73] Bearing in mind the absence of evidence respecting the impact of this curfew on Ms. Brown, I have decided to grant her only one month and ten days in credit.
[74] When the one year and twenty days for pre-sentence custody is combined with the one month and ten days for the curfew on bail, the accused is entitled to a total credit of one year and two months. Accordingly, the sentence of eighteen months is reduced to a four month term of imprisonment. This will be imposed on count two and a concurrent four months on count three.
The Probation Order
[75] Ms. Brown will also be bound to the conditions of a two year probation order upon her release from custody. The mandatory statutory terms in s. 732.1(2) of the Criminal Code will be accompanied by the following additional terms:
(a) Report to a probation officer within two working days of release from custody and thereafter as directed by the probation officer.
(b) Have no contact with Revington Bailey.
(c) Have no contact with anyone known to have a criminal record, the exception being a father of her children.
(d) If not employed, perform 240 hours of community service over a period of 18 months, which service must be approved by the probation officer.
(e) Fully participate in all counseling programs, including counseling on education, employment, and parenting, as directed by the probation officer.
(f) Obey a curfew of between 10 p.m. and 6 a.m. for the first twelve months of probation, unless prior advanced written permission is provided by the probation officer.
It is my hope that this probation order will assist Ms. Brown in her rehabilitation.
Ancillary Orders
[76] Robbery is a primary designated offence under s. 487.04(a) of the Criminal Code. I make an order pursuant to s. 487.051(1) of the Code requiring that bodily samples be taken from Ms. Brown.
[77] Pursuant to s. 109(1)(a) of the Criminal Code, a weapons prohibition order is imposed for a period of ten years, which starts after the accused is released from the period of imprisonment imposed today.
Conclusion
[78] Ms. Brown is sentenced to a term of four months in custody on count two and a concurrent term of four months custody on count three. It is to be followed by a period of two years probation on the prescribed terms. She is subject to a DNA order and a weapons prohibition order. She shall also pay the victim fine surcharge.
FAIRBURN J
Released: October 19, 2015
CITATION: R. v. Brown, 2015 ONSC 6430
COURT FILE NO.: CRIM(P) 383/13
DATE: 2015 10 19
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
NATALIE BROWN
REASONS FOR SENTENCE
FAIRBURN J
Released: October 19, 2015