ONTARIO
SUPERIOR COURT OF JUSTICE
OTTAWA COURT FILE NO.: 13-9209
DATE: 2015/11/17
BETWEEN:
HER MAJESTY THE QUEEN
– and –
SEBASTIEN SAVARD-COTE
Accused
Suzanne Schriek and Marie Dufort, for the Crown
Peter Beach, for the Accused
SENTENCING HEARING HELD: March 11 and October 23, 2015
SENTENCING DECISION
RATUSHNY J.
[1] Mr. Savard-Cote has pled guilty to two bank robberies, the first committed on November 20, 2012 in Montreal and the second committed on January 17, 2013 in Ottawa, both contrary to s. 344(1) of the Criminal Code. He has also pled guilty to using an imitation firearm in the Montreal robbery, contrary to s. 85(2)(a) of the Criminal Code.
[2] The issues on this sentencing engage the sentencing principles of proportionality and totality and their intersection with the mandatory minimum consecutive sentence required by s. 85 (3)(b), as well as allocation of presentence custody credit.
1. The Facts
[3] For the Montreal bank robbery Mr. Savard-Cote wore a hat and sunglasses. He approached the teller asking her for money and showing her a silver pistol at his belt. He was handed $850. He was not identified or arrested at that time. The silver pistol was an imitation firearm.
[4] For the Ottawa bank robbery he again wore a hat and sunglasses. He presented the teller with a note stating, “Give me all your cash, I got a weapon and I will kill you”. He had his right hand inside his jacket at the time. No actual gun was seen. He was handed $850.
[5] Before committing the Ottawa robbery, a retired police office had observed him as seeming to “case” a different bank. As a result, the officer recorded Mr. Savard-Cote’s Quebec licence plate on his vehicle and notified that bank of the suspicious activity so that video stills of his presence in the bank would be preserved. After the Ottawa bank robbery and with the benefit of the licence plate number, the police contacted Mr. Savard-Cote’s mother. She identified him as the person in the bank video stills.
[6] Mr. Savard-Cote was arrested on January 25, 2013 for the Ottawa robbery.
[7] The police then obtained the address of his apartment in Lachine, Quebec and executed a search warrant at the residence. The property seized included a manual and box for an air pistol, his surveillance notes of the bank he had robbed in Montreal, a receipt for a motel in the Ottawa area before the Ottawa robbery, stick-on mustaches and stick-on Hassidic side locks.
[8] With the evidence linking Mr. Savard-Cote to the Montreal robbery, he was then arrested for that earlier robbery.
2. The Accused
[9] Mr. Savard-Cote is 40 years of age. He is unmarried and has no children. His mother lives in Sherbrooke, Quebec and his family includes a brother and three nephews.
[10] He declined to disclose information about himself for the purposes of a presentence report. The probation officer commented that he was pleasant and respectful though somewhat defeated but realistic and future oriented. He told her he comes from a broken family, has served time in the military and has completed a labour relations degree. He indicated he knew what he did “was bad” and that he wanted to stop hurting people.
[11] There is no evidence that Mr. Savard-Cote suffers from any addictions or mental disorders.
[12] The most salient fact known about Mr. Savard-Cote is his criminal record.
[13] In 1994 he was convicted in Florida of robbery and sentenced to 51 months incarceration and 3 years probation. In 1998 he was extradited to Canada.
[14] In April 2000 his Canadian criminal record commences with convictions for mischief, breach and threats. In December 2000 he was convicted in respect of two armed robberies, firearms offences, dangerous driving and a robbery. His total sentence was 10 years incarceration. In 2002 he was convicted for an assault causing bodily harm that occurred in the penal institution. No details are available. He was released in 2007 but was back in custody almost one year later in 2008 for violating his release conditions. He remained in custody until January 2010 when he was released but was again incarcerated three months later in April 2010 until his warrant expiry date in September 2010.
[15] A little more than one year later he robbed the Montreal bank and two months after that, the Ottawa bank.
[16] His criminal record reveals that since the time of his Florida conviction in 1994 when Mr. Savard-Cote was 20 years of age he has been incarcerated for all but 4 years and 2 months of those last twenty-one years. That alone is a sad situation.
[17] Mr. Savard-Cote went through a preliminary inquiry on the Ottawa charges so as to test the circumstantial evidence and issues related to identification and seized property. Trial dates were scheduled and then cancelled after he agreed to plead guilty to both the Montreal and the Ottawa charges without testing the evidence on the Montreal offences. Unfortunately, it took more than 15 months for the Montreal charges to be transferred to Ottawa.
[18] Mr. Savard-Cote has been in custody on the present offences since his arrest on January 25, 2013, a total of 2 years, 9 months and 23 days to today’s date.
3. Analysis
Counsel Positions
[19] The Defence requests a total sentence of 6 years incarceration less credit for presentence custody on a 1.5 to 1 ratio, leaving a balance left to serve of 2 years less one day.
[20] The Crown requests a total sentence of 10 years less the same credit for presentence custody, leaving a balance left to serve in the range of 6 years incarceration.
[21] Because of Mr. Savard-Cote’s convictions in 2000, his s. 85 imitation firearm offence carries with it a statutory minimum sentence of 3 years to be served consecutively to the sentence for the robberies pursuant to s. 85(3)(b).
Aggravating Circumstances
[22] The aggravating circumstances are obvious.
[23] All bank robberies are serious offences because they target vulnerable bank employees and place them and members of the public at great risk. The threat of violence and death is a terrifying experience. Neither teller knew whether or not the threat posed by the gun was real.
[24] Mr. Savard-Cote’s crime of choice appears to be robberies, as evidenced by his criminal record and the two present robberies separated by a few months. His long periods of incarceration for similar past offences did not deter him from committing the present offences.
[25] There is evidence of his planning for both robberies. He took measures each time to conceal his identity.
Mitigating Circumstances
[26] The only mitigating circumstances are Mr. Savard-Cote’s guilty pleas and particularly his pleading to the Montreal charges without testing that evidence and without setting a trial date. These guilty pleas saved substantial court time and resources in Ottawa, although more so in Montreal, and exert a substantial mitigating effect.
[27] Mr. Savard-Cote is also entitled to have the inordinate delay in the transfer of the Montreal charges to Ottawa, so as to be able to deal with all outstanding charges together, considered as a mitigating circumstance. He spent a large portion of that delay at the Ottawa Detention Centre, an institution well known for its over-crowded conditions and resulting hardships. I take judicial notice of that hardship at this time. The circumstances of the seemingly unnecessary delay in the transfer of the Montreal charges to Ottawa contributed to and exacerbated the hardship of Mr. Savard-Cote’s presentence custody and made it more onerous. This operates as a mitigating circumstance influencing not only the amount of his credit for presentence custody but also the totality of his sentence.
Sentencing Principles and Objectives
[28] It is also obvious that the primary sentencing objectives are protection of the public, denunciation, and deterrence both general and specific. Specific deterrence is to be emphasized, given Mr. Savard-Cote’s persistent recidivism. The objective of rehabilitation, while not inoperative, takes a back seat to these primary objectives.
[29] Defence counsel points out that Mr. Savard-Cote is still a relatively young man who is capable of making something of his life ahead. I certainly hope he can change. He appears to be very capable of change but that decision is up to him. His prospects for rehabilitation are unknown.
[30] It hardly needs to be stated that the principles of proportionality, totality and parity are also engaged in considering a sentence that adequately reflects the need for denunciation and deterrence of both robberies in Mr. Savard-Cote’s circumstances. I appreciate the thoughtful review of these principles in R. v. Johnson, 2012 ONCA 339 beginning at para. 15. As R. A. Blair J.A. summarized at para. 18, “…a combined sentence must not be unduly long or harsh in the sense that its impact simply exceeds the gravity of the offences in question or the overall culpability of the offender.”
[31] Incarceration of Mr. Savard-Cote is required to serve those objectives and principles and only its length is in dispute.
[32] Sentences for bank robberies reflect the seriousness of that offence. The Crown has provided cases with roughly similar fact situations where the courts have imposed sentences of incarceration of between 6 and 11 years, the latter being for nine bank robberies, in Johnson.
[33] Mr. Savard-Cote is a repeat offender who has been incarcerated for almost seventeen of the last twenty-one years as a result of a more than 4 years sentence and then an 8 years sentence for robberies. He then committed the Montreal and Ottawa robberies just over two years after the completion of his 10 years total sentence. In this context and considering only the step principle, the Defence position of a total of 6 years for both robberies or the equivalent of 3 years for each robbery can be said to be too low and the Crown position of a total of 10 years or the equivalent of 5 years for each robbery, to be at the low end of the range.
[34] However the principle of totality operates to reduce the total sentence to one that “is in the aggregate ‘just and appropriate’” as referred to in Johnson, at para. 17, quoting Chief Justice Lamer in R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, at para. 42.
[35] The s. 85 statutory mandatory minimum of a three years consecutive sentence for the use of the imitation firearm in the Montreal robbery also operates to affect the length of sentence able to be allocated to the robberies.
[36] I have determined that a “just and appropriate” total sentence for Mr. Savard-Cote’s three offences is 8 years less a credit for presentence custody calculated on the ratio of 1.5 to 1. I turn to consideration of that credit.
Credit for Presentence Custody
[37] Neither counsel disagrees with the assignment of the maximum statutorily available credit under s. 719 (3.1) of the Criminal Code of 1.5 days for every one day of presentence custody, pursuant to the rationale set out by the Supreme Court of Canada in R. v. Summers, 2014 SCC 26.
[38] I agree that Mr. Savard-Cote is entitled to a 1.5 credit. As explained in Summers beginning at para. 20, there is a “quantitative rationale” for the granting of enhanced credit to him for his loss of “early release” considerations during his presentence custody. There is also a “qualitative rationale” to justify an enhanced credit for him, although with the statutory capping at 1.5 under s. 719 (3.1), the circumstance of Mr. Savard-Cote’s time in presentence custody being more onerous than post-sentence incarceration does not allow for an increased credit as a consequence.
[39] While the Defence requests a 1.5 credit based on these Summers rationale, the Crown only agrees to a 1.5 credit, it has submitted, so as to allow for a sentence that accords with the principles of proportionality and totality. In other words, I understand the Crown has arrived at its 10 years recommendation for a total sentence by looking at the balance remaining after the deduction of the presentence custody credit and working backwards to the 10 years position.
[40] However, if I am correct in understanding this to be the Crown’s position, I disagree that presentence custody can influence the consideration of what the total sentence should be according to principles of proportionality and totality. Of course, the Crown’s position has had to factor in the mandatory 3 years minimum consecutive sentence required for the s. 85 offence and this complicates the issue of totality of sentence.
[41] In my view in considering the quantum of Mr. Savard-Cote’s sentence, the principles of proportionality and totality impact on the total sentence imposed before its reduction for presentence custody. That reduction then becomes simply a mathematical exercise after the appropriate credit is determined. In other words, the principles of proportionality and totality are to be considered in arriving at a “just and appropriate” sentence and considered separate and apart from the sentence remaining after deduction of the presentence custody credit.
[42] I have calculated Mr. Savard-Cote’s 1.5 credit for his 2 years, 9 months and 23 days of actual presentence custody to today’s date as amounting to 51 months. Reduced to days, this amounts to 1530 days or 4 years and 3 months already served of his total 8 years sentence, leaving him with a balance left to serve of 3 years and 9 months.
[43] There is one final issue raised by the Defence with respect to the allocation of the presentence custody credit and my assertion to Defence counsel during the sentencing hearing that credit for the same presentence custody days should not be able to be attributed more than once among counts. To do so amounts to increasing the credit beyond the 1.5 statutory maximum because the credit becomes doubled or tripled, as the case may be, by contributing to the reduction of sentence more than once.
[44] The Defence has forwarded written submissions to me to the effect that presentence custody can be attributed to multiple counts or offences and has included decisions from the Ontario Court of Appeal in support of its position: R. v. Monje, 2011 ONCA 1; R. v. Wilson, 2008 ONCA 510.
[45] I agree that the total amount of presentence custody credit can be divided up and allocated among different offences. It may be that the Defence has simply misunderstood our sentencing hearing exchanges. My only point is that the same amount of presentence custody time cannot be allocated more than once among offences because to do so would contravene the maximum imposed by s. 719 (3.1) of the Criminal Code.
[46] I agree, according to R. v. Wust, 2000 SCC 18, [2000] 1 SCR 455, that the mandatory minimum sentence of 3 years consecutive under s. 85 is able to be reduced below that minimum by applying a credit for presentence custody.
4. Sentence
[47] Mr. Savard-Cote, please stand at this time.
[48] I impose a total sentence of 8 years for the three offences to which you have pled guilty. Applying your 4 years and 3 months credit for presentence custody, you have a sentence left to serve of 3 years and 9 months.
[49] I allocate your total sentence of 8 years between the two robberies and the s. 85 offence so as to respect the principles of proportionality and totality and still comply with the statutory requirement for at least a 3 years sentence for the s. 85 use of the imitation firearm offence that is consecutive to the sentences for the two robberies. This requires a mathematical division of the total sentence and of the presentence custody credit.
[50] To comply with the requirements of s. 85, your total sentence of 8 years incarceration is allocated as a sentence of 5 years for the Montreal robbery, 5 years concurrent for the Ottawa robbery and 3 years consecutive for the s. 85 use of the imitation firearm offence.
[51] Applying the deduction for presentence custody credit in the total amount of 4 years and 3 months, 3 years of that credit can be used to satisfy the 3 years sentence for the s. 85 offence. This leaves a presentence custody credit of 1 year and 3 months that I apply to the Montreal robbery, leaving a sentence left to serve of 3 years and 9 months on that 5 years sentence. Your sentence for the Ottawa robbery is a concurrent one, namely a concurrent 3 years and 9 months left to serve on that 5 years concurrent sentence.
[52] Your warrant of committal is to state, therefore, that your sentence is 5 years incarceration for the Montreal robbery less a credit for presentence custody of 1 year and 3 months leaving you with a net sentence left to serve of 3 years and 9 months. Your sentence for the Ottawa robbery is the same in concurrent time. Your sentence for the s. 85 offence is 3 years incarceration consecutive to the robbery sentences less a 3 years credit for presentence custody so that your sentence for that offence is one of time served.
Justice L. Ratushny
Released: Delivered orally November 17, 2015
OTTAWA COURT FILE NO.: 13-9209
DATE: 2015/11/17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
SEBASTIEN SAVARD-COTE
Accused
SENTENCING DECISION
Ratushny J.
Released: Delivered orally November 17, 2015