ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-15-186
DATE: 20151023
BETWEEN:
Her Majesty the Queen
Mr. Michael Martin, for the Crown
- and -
Ronald Blair Alexander Eby
Ms Jill Gamble, for the Accused
Accused
HEARD: October 20, 21, 22 and 23, 2015
REASONS FOR SENTENCE
Conlan J.
I. Introduction and the Facts
[1] On May 26, 2015, in the middle of the dark night, a very small man was sitting alone in the office of the Mac’s Convenience Store in downtown Owen Sound. Mr. Kim was working one of his many long shifts at the store operated by his folks.
[2] In walked a masked intruder, Mr. Eby. He marched swiftly towards the office. He assaulted Mr. Kim by pushing his head against the door and exerting pressure with his forearm to the neck and throat area of the victim. Mr. Eby, much taller and significantly larger than the store clerk, threatened Mr. Kim by saying, twice, “don’t let me hurt you”.
[3] Mr. Eby stole cigarettes and money and left the store. All that Mr. Kim was left with was fear and probably a sense of wonder at what in the world had just occurred.
[4] Ronald Eby was tried before me, without a jury, in Owen Sound in October 2015. I found him guilty of robbery with violence contrary to subsection 344(1)(b) of the Criminal Code of Canada, disguise with intent under subsection 351(2) and threatening under subsection 264.1(1).
[5] The sentencing was held today, October 23, 2015. Mr. Eby specifically waived the preparation of any presentence or Gladue report. His counsel did not ask that the sentencing be adjourned for any reason. Neither did the Crown.
[6] The offender and his mother were unequivocal that they wanted the matter dealt with today. Everyone, including the Court, agreed that we had sufficient information about Mr. Eby’s background, most particularly his Aboriginal heritage.
II. The Offender
[7] Mr. Eby, now 29 years old, is a First Nations man of the Cape Croker community, on the Bruce Peninsula. His father, an Aboriginal man, is deceased. His mother is an Aboriginal lady and raised Mr. Eby largely on her own. Mr. Eby’s mother, a victim herself of her mother and father’s alcoholism, was adopted as a child. She had a lengthy history of being in and out of foster care.
[8] As a very young child, Mr. Eby witnessed sexual abuse of his sister at the hands of the offender’s step-father and uncle.
[9] Mr. Eby and his wife, with whom he has been in a relationship for fifteen years, recently located to the town of Oliphant, not far from Cape Croker. They have two children – a ten year old girl and a five year old boy.
[10] Mr. Eby is physically healthy. He has been employed in the past as a fisherman. The commercial fishing is the predominant way in which the offender has engaged his traditional First Nations roots. It is physically demanding and, at times, dangerous work.
[11] Mr. Eby has a history of some substance abuse but not hard drugs.
[12] The offender has a terrible criminal history. His record includes close to thirty prior convictions as a youth and adult between 1998 and 2015. Those prior convictions include crimes of violence – assault and arson as examples. Also included are related crimes for which the offender is now being sentenced – break and enter and commit theft, theft and uttering threats, as examples. Also included are crimes of dishonesty and multiple convictions for breaching Court Orders.
[13] Mr. Eby, in the past, has received many custodial sentences, some of them lengthy. For instance, in April 2011, on convictions for arson, uttering threats and assault, Mr. Eby was sentenced to a penitentiary sentence of two years plus one day on top of 149 days of presentence custody.
[14] There is no flattering way to say it; Mr. Eby is a chronic recidivist.
III. The Positions of the Parties
[15] The parties agree that Mr. Eby be credited with the equivalent of 68 days of presentence custody (45 actual days at the rate of 1.5 to 1).
[16] The Crown requests the following sentence: three years in the penitentiary in addition to the presentence custody.
[17] The ancillary Orders requested by the Crown are to be issued on consent and are therefore addressed below in succinct fashion.
[18] The Defence requests the following sentence: two years plus one day in the penitentiary in addition to the presentence custody.
[19] The Defence takes no issue with any of the ancillary Orders sought by the prosecution.
IV. Analysis
The Basic Legal Principles on Sentencing
[20] Sentencing is a highly discretionary and individualized process.
[21] I must have regard to the principles of sentencing outlined in section 718 of the Criminal Code of Canada – denunciation, specific and general deterrence, the need to separate certain offenders from society, rehabilitation, restorative justice and the promotion of responsibility in offenders.
[22] Because of the nature of these offences and the personal circumstances of this offender, the predominant sentencing principles at play here are specific and general deterrence, the need to separate Mr. Eby from society and rehabilitation.
[23] Pursuant to subsection 718.2(e), I must have regard to Mr. Eby’s Aboriginal status. That subsection does not create a “race-based discount on sentencing”. It simply requires that I, in determining a fit and proper sentence, pay particular and careful attention to Mr. Eby’s Aboriginal heritage and how that may have affected his overall circumstances generally and/or his criminal behaviour in May 2015. R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433 (S.C.C.), at paragraph 75.
[24] There is no evidence before me that Mr. Eby’s Aboriginal status or background had anything to do with what happened on May 26, 2015. I do accept, however, that the offender’s difficult upbringing in his First Nations community may have contributed to Mr. Eby’s foray in to criminal behaviour, particularly as a youth.
[25] Any sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender – section 718.1.
[26] These were very serious offences. The robbery conviction, for example, is punishable by life imprisonment.
The Aggravating and Mitigating Factors
[27] Other than the violent and frightening nature of the incident itself, the chief aggravating factor is Mr. Eby’s very lengthy and, in some respects, related criminal history.
[28] The only real mitigating factor is that the offender has a family. His wife and his two young children desperately need Mr. Eby to find a way to turn his life around.
What is a fit Sentence for Mr. Eby?
[29] Our neighbours who operate and work in convenience stores deserve to carry on their livelihood without being in fear of being assaulted and robbed.
[30] Those who choose to victimize innocent, hard-working individuals like Mr. Kim need to clearly understand that they will not be treated with any lenience by this Court.
[31] Mr. Eby himself needs to be separated from society for a period of time. He cannot seem to control his criminal proclivities. He needs to be individually deterred.
[32] Rehabilitation for Mr. Eby is not out of reach but will have to take place, first and foremost, in a correctional institution. It gives me no pleasure to say that. It certainly is not fair to the offender’s family.
[33] In all of the circumstances, I have determined that a fit sentence for this offender for these crimes is a global one of three years in the penitentiary, less credit for presentence custody. The result would be something between 33 and 34 months imprisonment; I will round that down to 33 months.
V. Conclusion
[34] The sentence of the Court is as follows.
[35] First, convictions are registered on all three counts.
[36] Second, a primary DNA Order is issued on the robbery conviction and secondary DNA Orders on the other two matters.
[37] Third, a section 109 Order is issued for life on the robbery conviction, and a section 110 Order is issued for ten years on the threatening count.
[38] Finally, on the robbery conviction, Mr. Eby is sentenced to a period of imprisonment of 33 months from today. On the disguise with intent, the sentence is one year in custody from today, concurrent. On the threatening, the sentence is one year in custody from today, concurrent. The effective global sentence is 33 months in jail from today.
[39] I will hear any submissions from the Defence as to a recommendation for where Mr. Eby will serve his penitentiary sentence, if such a recommendation is desired.
[40] I want Mr. Eby to know that his life means something to me. And it means a lot to his family. I hope that a different Mr. Eby emerges from prison.
Conlan J.
Released: October 23, 2015
COURT FILE NO.: CR-15-186
DATE: 20151023
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
- and -
Ronald Blair Alexander Eby
Accused
REASONS FOR SENTENCE
Conlan J.
Released: October 23, 2015