Superior Court of Justice

B E T W E E N:

HER MAJESTY THE QUEEN

v.

SEAN ALANZO THOMAS

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

OF THE HONOURABLE JUSTICE L. BIRD

On March 8, 2016, at OSHAWA, Ontario

APPEARANCES:

M. Flagg Counsel for the Crown M. Wyszomierska Counsel for Sean Alanzo Thomas

Reasons for Sentence

TUESDAY, MARCH 8, 2016

BIRD, J. (Orally):

[1] Sean Thomas comes before me for sentencing after entering pleas of guilty to nine counts on an indictment spanning a time period of approximately six weeks. In June and July of 2012, Mr. Thomas targeted innocent and vulnerable members of the community by engaging in a relentless and extremely violent crime spree that only ended when he was arrested following a police chase after his last offence.

[2] The facts of the offences to which he pled guilty are very troubling and demonstrate a complete disregard for the law and, more importantly, for the physical and emotional well-being of the victims. Mr. Thomas was ruthless in his quest for money, resorting to the use of weapons and violence to obtain what he wanted. Although the fraud, which is Count 1 on the indictment, is the least serious offence, its facts are, nonetheless, aggravating because they involve a breach of trust. In his capacity as an employee of Wind Mobile, Mr. Thomas created numerous fraudulent accounts using the identities of various people. Some of the SIM cards that were fraudulently obtained were used in the commission of his later offences. He also sold a number of devices that he stole from Wind Mobile to another store.

[3] On June the 28th, 2012, Mr. Thomas committed a planned and deliberate home invasion robbery after contacting the victim through Kijiji. Ms. Levin was selling a laptop computer and agreed to allow Mr. Thomas to come to her home to pick it up. He and another male attended at the home at approximately eleven o’clock p.m. dressed in dark clothing. They had their faces covered and pepper sprayed Ms. Levin in the face when she opened the door. This caused her to fall backward and resulted in her badly spraining her ankle. Mr. Thomas and his accomplice entered the home and pepper sprayed Ms. Levin’s parents. There were two young children in the home at the time. The children had been sleeping but were woken by Ms. Levin’s parents and taken into the backyard. Mr. Thomas and the other male stole the laptop and fled. The family had to leave the home for several days due to the effects of the pepper spray. The computer was ultimately recovered from one of Mr. Thomas’ friends, who he gave it to after the robbery.

[4] On July 5, 2012, Mr. Thomas, Mr. Omar and two other males met Mr. Rajper in a small plaza for the purported purpose of completing an agreement in relation to the sale of cellular phones. Mr. Rajper had responded to an ad that Mr. Thomas had placed on Kijiji offering phones for sale and agreed to meet with him at eleven o’clock at night to complete the transaction. When Mr. Rajper got out of his car, Mr. Thomas and his three friends ran at him. Between them, Mr. Thomas and his accomplices had an imitation Uzi-style firearm, a black handgun and a double barrelled shotgun, all of which were brandished at Mr. Rajper. Mr. Omar had a baton which he used to smash a window of Mr. Rajper’s car. Mr. Thomas and the other males were also smashing windows on the car to search for money. While he was trying to flee from his assailants, Mr. Rajper fell and fractured his hand. Mr. Thomas and his friends did not get any money, but Mr. Rajper’s car was heavily damaged.

[5] The next day, Mr. Thomas committed yet another violent robbery, this time of the Mac’s Milk on Martin Road in Bowmanville. He committed this offence with Jonathon Smith and Bailey Fantinato, who acted as a getaway driver. The complainant was working alone in the store when Mr. Thomas and Mr. Smith entered shortly after midnight. They were wearing dark clothing, gloves and had their faces disguised. Mr. Thomas pointed an Uzi-style imitation firearm at the victim while Mr. Smith went behind the counter to take cash and lottery tickets. The complainant was then forced, at gunpoint, to open the cash register. After getting $40 from the register and some cigarettes, Mr. Thomas and Mr. Smith fled to their getaway car. The weapon used in this robbery was later recovered and was found to be a pellet gun.

[6] Later that night, Mr. Thomas was driven to a residential area where, along with two accomplices, he waited for Mr. Ahmed, who had agreed to attend that location to buy cellular phones and other electronic devices, again, through Kijiji. One of the accomplices, Omeaid Omar, was unmasked and approached Mr. Ahmed to put him at ease. As the two men approached a house, Mr. Thomas and Mr. Smith approached Mr. Ahmed with their faces masked, one from each side. Mr. Thomas was carrying a shotgun and Mr. Smith had a pellet gun and pepper spray. They both pointed their weapons at Mr. Ahmed and took $3,000 from him. During the robbery, Mr. Smith sprayed Mr. Ahmed in the face with pepper spray. As the offenders were fleeing, the shotgun was discharged. It is not alleged that it was Mr. Thomas who discharged the gun and fortunately no one was injured as a result.

[7] The next robbery occurred on July the 18th, 2012, and involved a planned home invasion. In advance of the robbery, Mr. Thomas picked up a bag containing dark clothing and pepper spray. He and Mr. Smith, along with two other men, were driven to the target’s home. Mr. Thomas and Mr. Smith put on dark clothing and left the car with the pepper spray. They also had their faces covered. They approached the door and when the complainant answered it, he was immediately pepper sprayed in the face. He was able to close the door before his assailants could enter and his mother called 911.

[8] The following day, there was another robbery at approximately 10:45 p.m., involving Mr. Tang, who had responded to an advertisement on Kijiji. Mr. Tang attended at a Tim Horton’s in Toronto expecting to buy a large number of electronic devices. This meeting was arranged by Mr. Thomas with the intention of it being a robbery. He and six accomplices went to the Tim Horton’s for the purpose of carrying it out. Several of the assailants were armed with weapons including an imitation firearm and pepper spray. The seven assailants, including Mr. Thomas, accosted Mr. Tang in the parking lot and demanded that he hand over his money. Guns were pointed at him, he was pepper sprayed in the face, and his friends were surrounded as they sat in their car. Mr. Tang was robbed of approximately $2,000.

[9] The final robbery occurred at about ten o’clock p.m. on July the 20th, 2012, and also involved two citizens who were expecting to purchase a large number of cellular phones as arranged on Kijiji. The victims attended in a residential area as they had been instructed to do. When Mr. Qureshi got out of his car, he was accosted by three masked men, including Mr. Thomas. Mr. Thomas was armed with an Uzi-style pellet gun. Mr. Smith was also armed with a handgun which he pointed at Mr. Qureshi. Mr. Smith asked the victim where the money was. When Mr. Qureshi said it was in his car, Mr. Thomas went to the car and took a wallet while Mr. Smith took a bag containing $12,000, some cellular phones and a tablet computer. Both victims were then pepper sprayed and left on the street. The three assailants got into their getaway car and fled the area. The police had been conducting surveillance on them and were able to stop the vehicle quickly. Mr. Thomas attempted to flee on foot but was caught by the police. The victims’ money, phones, computer and wallets were found in the vehicle along with the weapons used during the robbery.

[10] In total, Mr. Thomas has pled guilty to committing one fraud and seven robberies, one home invasion, one attempted home invasion, one involving a convenience store and four that involved luring the victims under false pretenses through Kijiji.

[11] Mr. Thomas has been in custody since July of 2012, which is 1,328 days. He is entitled to credit on a 1.5 for 1 basis, so he has already served the equivalent of 1,992 days or five years and five and a half months.

[12] The Crown seeks a global sentence of 11 years, less credit for pre-sentence custody along with a number of ancillary orders which are not in dispute. The position of the defence is that seven years less credit for pre-sentence custody is a fit sentence in light of Mr. Thomas’ youth and prospects for rehabilitation.

[13] Mr. Thomas will turn 22 later this month. He was just four months past his 18th birthday when he committed these offences. He has a criminal record that contains four entries. While it is not a lengthy record, two of the findings of guilt are for crimes of violence: an aggravated assault as a youth in May of 2011 for which he received 60 days secure custody, followed by 30 days of supervision in the community. He was placed on probation for 18 months and was prohibited from possessing firearms for two years. In March of 2012, again as a youth, he was found guilty of sexual assault, theft under, and failing to comply with a youth sentence. He was placed on probation for 18 months.

[14] Sections 718 and 718.2 of the Criminal Code set out the factors that I must take into account in arriving at a fit and fair sentence. Notwithstanding the extremely serious nature of these offences, I must take into consideration the fact that Mr. Thomas is a youthful offender. The Court of Appeal in R. v. Brown 2015 ONCA 361, [2015] O.J. No. 2655, stated that when sentencing a youthful first offender, the judge must impose the shortest term of imprisonment that is proportionate to the crime and the responsibility of the offender. Individual deterrence and rehabilitation are the primary objectives of sentencing such an offender. While Mr. Thomas is not a first offender, he is youthful, this is his first adult sentence, and I must ensure that any sentence imposed is not crushing. He has expressed his remorse, both through his pleas of guilty and in court, for his conduct and says that he intends to rehabilitate himself. However, as noted by the Court of Appeal, the sentence that is imposed must be proportionate to the crimes and his degree of responsibility, which I find is extremely high. With violent crimes of this nature, the principles of general deterrence and denunciation are still deserving of serious consideration.

[15] With respect to the range of sentencing for home invasion robberies, it is generally between 4 and 13 years as set out by the Court of Appeal in cases such as R. v. Willimott [2015] O.J. No. 2100 and R. v. Wright (2006) 2006 ONCA 40975, 83 O.R. (3d) 427. However, as noted in R. v. Jacko 2010 ONCA 452, [2010] O.J. No. 2583 (C.A.), sentencing ranges are not immovable and do not create a de facto minimum sentence. In this case, there is no question that Mr. Thomas should be given a penitentiary sentence that falls somewhere within the wide range described in Wright and Willimott. The real issue given the number of offences committed by Mr. Thomas, is what a fit sentence is, in totality, balancing the seriousness of the offences against his youth.

[16] When an offender has committed separate and distinct offences at different times, as Mr. Thomas has, one issue which must be addressed is whether the sentences ought to run concurrently or consecutively to each other. The imposition of consecutive sentences prevents an offender from benefitting from committing multiple crimes over a short period of time. However, Section 718.2(c) of the Criminal Code codifies the principle of totality by stating that when consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. This is a very live issue in Mr. Thomas’ case given the gravity of all of the robbery-related convictions. If I were to impose consecutive sentences which reflected the gravity of each individual robbery, the combined result would be crushing.

[17] In R. v. R.B. 2013 ONCA 36, [2013] O.J. No. 278 (C.A.), the court provided guidance on how to apply the principle of totality. First, I must identify the most serious part of the offences that resulted in the criminal charges. I must next determine what the appropriate total sentence is and impose sentences for each offence that add up to the total fit sentence. The sentence for each offence must properly reflect the seriousness of that offence. It is at this point that I decide whether the sentences should be concurrent or consecutive, taking into account the total sentence to be imposed (see R. v. R.B. at paragraph 30). Artificially low sentences can't be imposed for each offence solely for the purpose of allowing them to be consecutive to each other as opposed to concurrent.

[18] The principle of parity among co-accused is also an issue in this case. Counsel for Mr. Thomas points out that the other participants in the robberies received sentences significantly shorter than what the Crown is suggesting is appropriate for him. However, none of the other participants had the same level of involvement as Mr. Thomas did and several of them were youths, so were sentenced under an entirely different regime - the Youth Criminal Justice Act. The principle of parity does not require equivalent or near equivalent sentences to be imposed on all participants in a joint venture, (R. v. Uniat 2015 ONCA 197, [2015] O.J. 1436 (C.A.) at paragraph 6). It is sufficient if the sentences imposed on co-accused are understandable when they are examined together. (See Willimot at paragraph 7.) Sentencing is an individualized process.

Aggravating and Mitigating Factors

Turning now to what is a fit and fair sentence for Mr. Thomas, I must take into account any aggravating and mitigating factors that are present.

There are several aggravating factors present including:

1. The level of sophistication and planning involved in these offences is exceptionally high. The victims in five of the robberies were targeted using Kijiji and were set up by Mr. Thomas and his accomplices. Mr. Thomas and his cohorts each had specific roles which allowed the robberies to be carried out with great precision. They had with them the tools of their trade - dark clothing, masks and weapons. They were well prepared and took every step they could to maximize the effectiveness of the robberies while minimizing their risk of getting caught. Much thought and preparation went into these robberies, which significantly increases the degree of moral blameworthiness of the offenders.

2. The vulnerability of the victims is a further aggravating factor. People who work in convenience stores are particularly vulnerable to crimes of violence when they are alone, late at night, as Mr. Matthies was. Websites such as Kijiji are commonly used by a wide segment of the community to buy and sell various items. In agreeing to meet strangers to complete the transactions, these innocent citizens are placing themselves in a vulnerable position.

3. The fact that two of the robberies were home invasions is a significant aggravating factor. The first robbery was particularly traumatizing for the victims. Ms. Levin was a university student at the time and trustingly invited Mr. Thomas to her family home thinking that he was going to buy her computer. Instead, he terrorized her, her parents and the two young children who were also present in the home. It was a violation of everything the family valued - their home and their sense of security.

4. The use of weapons in all of the robberies is highly aggravating. Several of the victims were pepper sprayed, even though they did not offer up any resistance to their attackers. In the second robbery, one of the assailants used a baton to smash a car window. Either Mr. Thomas or one of his accomplices was armed with an Uzi-style pellet gun during five of the robberies. This gun was recovered after the final robbery and was found to be a pellet gun, but the victims who were confronted with it would have had no way of knowing that it was not a real firearm. During the Mac’s Milk robbery, Mr. Thomas pointed the pellet gun at Mr. Matthies to ensure his cooperation. In the course of the sixth robbery, two guns in addition to the Uzi-style pellet gun were used. Mr. Tang was pepper sprayed and had a gun pointed at him. In the final robbery, one of Mr. Thomas’ accomplices pointed a handgun at Mr. Qureshi’s chest. Of most concern is the fact that during the fourth robbery, a shotgun was discharged into the driver’s door of the victim’s car. The presence of a loaded firearm during this robbery is extremely aggravating.

5. The impact of the robberies on the victims is also aggravating. Ms. Levin suffered a serious sprain to her ankle during the robbery. While trying to flee Mr. Thomas and his accomplices, Mr. Rajper fell and fractured his hand. Ms. Levin and her mother, Holly MacEachern, filed victim impact statements. Ms. MacEachern attended the sentencing hearing and read her statement in open court. The victim impact statement and Ms. MacEachern’s demeanour in court are compelling evidence of the devastating impact the robbery had on the entire family. Although the offence occurred almost four years ago, each member of the family is still suffering serious effects and will continue to do so for a long time. Although none of the other victims filed formal victim impact statements, there is no doubt that they would have been traumatized by the terrifying nature of the events they endured.

6. Mr. Thomas was bound by two different probation orders and a prohibition order at the time of the current offences. He had already failed to comply with his first probation order and was clearly in breach of the statutory condition of both orders requiring him to keep the peace and be of good behaviour. His blatant disregard for three court orders is a further aggravating factor.

Balanced against those aggravating factors are the following mitigating circumstances:

1. Mr. Thomas is a very youthful offender. Although he is now almost 22 years of age, he was only months past his 18th birthday when he committed these offences. He has been in custody for almost four years and says he has matured significantly in that time, as is to be expected. As noted earlier, a jail sentence for a youthful offender must take into account rehabilitation and it cannot be crushing. Mr. Thomas is certainly young enough to turn his life around and become a productive, law-abiding member of society. It is in everyone’s best interests for him to do so - obviously his own, his family’s and also the community’s.

2. Mr. Thomas has expressed his remorse for his involvement in these offences both through his guilty pleas and in court. He apologized directly to the MacEacherns, who were the only victims present during the sentencing hearing. I accept that his remorse is sincere and that bodes well for his rehabilitation. He seems to genuinely understand the serious and long-lasting impact his offences have had on his victims.

3. Mr. Thomas is fortunate to have the support of his family, who submitted letters on his behalf. His parents and extended family wrote of a young man who was always kind to others and concerned about the less fortunate. They accept that he has committed serious offences, but have great deal of hope for his future based on the person they know him to be.

4. As with many youthful offenders, it is difficult to reconcile the young man who had so much potential with the offender who committed such serious offences. In the case of Mr. Thomas, he was a gifted athlete, an excellent student through the early years of high school and held a leadership position in the Air Cadets, which speaks to his ability to be disciplined and respectful of rules. He had so much going for him that his participation in these offences is difficult to understand, except that he became involved with alcohol and drugs at the age of 16. He was a heavy user of MDMA and became addicted to gambling. Since he has been in custody, Mr. Thomas has completed a self-study gambling program. He asked to be assigned to the school range in the detention centre but was not successful in this request. He has used his time in custody to renew his religious faith and to read on his own. Mr. Thomas would like to complete his remaining high school credits and obtain a post-secondary education. There is no question that he is bright enough to do that if he puts forth the required effort. His father operates an H-VAC business and would be happy to have Mr. Thomas come to work for him upon his release from custody. Mr. Thomas says that he is a different person than the young man who committed such serious offences while fuelled by drugs, alcohol and an addiction to gambling. Time, of course, will tell. But he has all of the tools necessary to rehabilitate himself if he chooses to do so. I accept that he is genuine in his desire to be the person that his parents, grandmothers and aunt believe him to be.

I find that the above four factors are mitigating and should reduce the sentence I would otherwise impose.

Mr. Thomas submitted that the harsh conditions he has endured in the detention centre should further mitigate his sentence. A letter from the Central East Correctional Centre sets out the number of hours of lockdown he has been subjected to. The total number of hours up to February 3, 2016, was 1,837. If one were to apportion that in days, based on eight hours per day, it is the equivalent to approximately 230 days of lockdown. As of February 3rd, he had been in custody for 1,293 days, so roughly 17.7 per cent of those days would have been spent on lockdown. He submits that this amount of time on lockdown is beyond what can reasonably be expected and should be taken into account as a mitigating factor. He concedes that I have no discretion to give him any more than 1.5 to 1 credit for his pre-sentence custody by virtue of Section 719(3.1) of the Criminal Code. There is no question that regular lockdowns make the already difficult conditions of pre-sentence custody much harder. They are regrettable and should not be condoned by the court. However, Mr. Thomas was subjected to the same conditions as was every other person in the Central East Detention Centre and likely across the province during the past several years. He makes no allegations of abuse or mistreatment of himself personally. If I were to reduce what is otherwise a fit and appropriate sentence to reflect conditions of pre-trial custody that affected most, if not all prisoners, I would effectively be granting more than the statutorily permissible credit for pre-sentence custody. I decline to do so.

Mr. Thomas, please stand up. The offences for which you are being sentenced are of the utmost seriousness. But for your youth and your prospects of rehabilitation, I would impose a significant double digit penitentiary sentence on you. Taking into account all of the facts of the offences and all of the relevant sentencing principles, a fit and fair sentence is one of nine years in totality, less credit for pre-sentence custody of five years and five and a half months. That sentence will be apportioned as follows:

On Count 1: You are sentenced to six months in custody.

On Count 3: You are sentenced to six years in custody, consecutive to the sentence on Count 1.

On Count 4: You are sentenced to one year in custody consecutive to Count 1, but concurrent to Count 3.

On Count 6: You are sentenced to six years in custody, consecutive to Count 1, but concurrent to Counts 3 and 4.

On Count 9: You are sentenced to two and a half years in custody, consecutive to the sentences on all other counts.

On Count 12: You are sentenced to six years in custody, consecutive to the sentences on Counts 1 and 9, but concurrent to the sentences on Counts 3, 4 and 6.

On Count 16: You are sentenced to two years in custody, consecutive to the sentences on Counts 1 and 9, but concurrent to the sentences on Counts 3, 4, 6 and 12.

On Count 19: You are sentenced to six years in custody, consecutive to the sentences on Counts 1 and 9, but concurrent to the sentences on Counts 3, 4, 6, 12 and 16.

On Count 22: You are sentenced to six years in Custody, consecutive to the sentences on Counts 1 and 9, but concurrent to the sentences on Counts 3, 4, 6, 12, 16 and 19.

The pre-sentence custody will be applied to each of counts 3, 6, 12 and 19 equally, to reduce the time to be served on those sentences by five years and five and a half months.

As a result, your global sentence is one of nine years. To be clear, the sentences on Counts 3, 4, 6, 12, 16 and 19 are to run concurrently with each other. The sentence on Count 1 is to run consecutively to all other sentences as is the sentence on Count 9. The time left to be served after taking into account your pre-sentence custody is three years and six and a half months.

In addition, on Counts 3, 4, 6, 9, 12, 16, 19 and 22, pursuant to Section 109 of the Criminal Code, Mr. Thomas is prohibited from possessing any firearms, ammunition, cross-bow, prohibited weapons, restricted weapons, prohibited devices and explosive substance for the balance of his life.

Mr. Thomas is also required to provide a sample of his DNA suitable for analysis on all counts - Counts 1 and 4 are secondary designated offences and the others are all primary designated offences.

There will be a victim fine surcharge of $200 on each count.

Finally, pursuant to Section 743.21 of the Criminal Code, Mr. Thomas is prohibited from communicating directly or indirectly with the following people while is in custody: Elizabeth Levin, Holly MacEachern, Michael MacEachern, Shaheryar Rajper, Kevin Matthies, Muhammed Ahmed, Thomas Burns, Wendy Burns, Ian Tang, Farid Ahmed and Naved Qureshi.

Mr. Thomas, the nature of your offences required me to impose a lengthy penitentiary sentence on you. As I said, it would have been a longer sentence if not for your remorse, your youth and your prospects for rehabilitation. The purpose of this sentence is not to crush you but rather to hold you accountable for your offences. You will serve your remaining time in a federal penitentiary where they have excellent programs to assist with substance abuse and gambling addictions. You will also have the opportunity to further your education. I hope that you take advantage of the time you have remaining in custody to do everything you can to better yourself. You are very fortunate to have the support of your family. You have the intelligence to obtain a post-secondary education if you choose to do so. You will be a very different person leaving custody than you were going in. I take you at your word when you say that you have learned from your past behaviour, and you won't repeat it. If you do come back before the court again, you will be sentenced as a repeat adult offender and should not expect to receive any leniency. I truly hope, for your sake, for the sake of your family, and for the sake of the community that does not happen.

That is the sentence of the court.

MR. FLAGG: Thank you, Your Honour.

THE COURT: Any questions or clarification necessary, counsel?

MR. FLAGG: No, Your Honour.

MS. WYSZOMIERSKA: No.

THE COURT: All right. Thank you both for your assistance on this matter.

M A T T E R C O N C L U D E D

Certificate of Transcript

FORM 2

CERTIFICATE OF TRANSCRIPT (SUB-SECTION 5(2)) Evidence Act

I, Monica Mayer, C.C.R., certify that this document is a true and accurate transcript of the recording of R. v. Sean Alanzo Thomas in the Superior Court of Justice, held at OSHAWA, Ontario, on March 8, 2016, taken from Recording No. 2812_206_20160308_133502__10_BIRDLA, which has been certified in Form 1 by Lynn Whitewolf.

June 16, 2016 Monica Mayer, C.C.R.

Transcript ordered: March 3, 2017 Transcript completed: June 16, 2016 Ordering party notified: March 11, 2017