Court File and Parties
COURT FILE NO.: CR-15-70000324-0000 DATE: 20160422
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – ROBERT SHAH Defendant
Counsel: Lindsay Kromm, for the Crown Amanda Taylor, for the Defendant
HEARD: February 1-2, 2016 at Toronto
Michael G. Quigley J.
Reasons for Sentence
Introduction
[1] Robert Shah was charged with seven separate counts of robbery and related assault offences arising out of robberies against three separate complainants. All of the offences took place in the early morning hours of October 22, 2014 on D.[…] Avenue in Toronto, just east of Y.[…] Street. The victims of the offences were three women, Debbie Lohnes, A.B., and Imelda Oller.
[2] In addition to being charged with having robbed those three victims, Mr. Shah was charged with sexual assault against Ms. A.B. and committing an aggravated assault on her by wounding. He was also charged with assault causing bodily harm against Imelda Oller. There was one further charge of confining Imelda Oller, but it was withdrawn as part of the partial resolution of this matter.
[3] On Monday, February 1, 2016, after being arraigned on the first six charges, Mr. Shah pleaded guilty before me to having robbed Debbie Lohnes, to having robbed and committed an aggravated assault on A.B., and having robbed and committed an assault on Imelda Oller that caused her bodily harm. In light of these pleas, the matter was close to resolution. However, Mr. Shah did not plead guilty to having sexually assaulted A.B. and the Crown would not abandon or withdraw that charge.
[4] As a result, before reading in the agreed facts relative to the other five charges to which the accused pleaded guilty and convicting him of those offences, a trial was held relative to count three, the sexual assault against A.B.. There were three witnesses at the trial: the complainant, A.B., a passerby named V.E. who lived in the neighbourhood who was walking along D.[…] towards the subway station at that hour of the morning and witnessed some of what transpired and the accused, Robert Shah, who testified in his own defence. I rejected Mr. Shah’s evidence in its entirety. In contrast, I found the evidence of Ms. A.B. to be entirely credible and reliable.
[5] Ms. A.B. was an honest and forthright witness. If there was any fault in her testimony, it was the detail with what she was willing to acknowledge at particular points that she did not remember perfectly. However, her chilling evidence of being grabbed from behind by the defendant, thrown to the ground, punched in the face numerous times resulting in a broken nose and damage to her cheekbones, and having had this assailant bang her head hard into the sidewalk five to seven times during the course of three to five minutes as he robbed her in the dark before sunrise that morning, was entirely believable. Not only was it believable because of the detailed accuracy of her evidence relative to the assault, the robbery, and the sexual assault, but his plea of guilty to robbery and aggravated assault against her, and the photographic evidence of the injuries she sustained, provided graphic and disturbing proof of his violent assault.
[6] Thus, I have convicted the offender, not only of the three robberies charged against him by three terrified complainants, but also aggravated and sexual assault against one of them and assault causing bodily harm against another of them.
[7] These are very serious crimes perpetrated randomly and without known cause against three women who had never met this assailant before. However, they will most certainly never be able to forget him because apart from being robbed in public, and the physical and mental damage and injury they sustained at the hands of this offender, the quality of their lives was quite plainly forever changed by the brief episodes of terror he inflicted upon them in a state of complete intoxication. This is the horrific and disturbing background against which I must determine a fit sentence for this offender having regard to his criminal antecedents, in all of the circumstances of this case.
Circumstances of the Offences
[8] All three separate robberies and the assaults that accompanied them took place in a matter of seconds in the early morning along the south side of D. […] Avenue in Toronto. All three of the victims were people who used the TTC to get to work or school and were out on the street on that late October morning going about their own business and heading to the Subway station at D.[…] and Y.[…]. It will suffice at this stage of my reasons to indicate that all three victims were suddenly set upon by the accused, punched and grabbed and for one, thrown to the ground and robbed.
[9] The agreed facts were read into the record at the time convictions were entered against Mr. Shah. I will summarize them here.
[10] On October 22, 2014, Debbie Lohnes left her apartment building, located in the Y.[…] and D.[…] area of the city of Toronto, at approximately 5:45 AM. She observed Mr. Shah, who was unknown to her, blocking the interior lobby doors of her building. She said “excuse me” and Mr. Shah opened an interior door to allow her to exit. She went out, looked behind her and saw Mr. Shah standing at the exterior doors and felt like she was being followed. She pulled her cell phone out of her pocket and pretended to call her husband, although she did not actually speak with him.
[11] She walked and crossed the street while pretending to talk on the phone. As she reached the sidewalk, Mr. Shah came up beside her and used his left hand to grab the left side of her coat. He said “are you the girl that I just called on the phone?” Ms. Lohnes responded “no”. She told him to let her go, as she had to get to work and her husband was on the phone.
[12] Mr. Shah said words to the effect of “come to work for me; you don’t have to go to work. Come to work for me.” He told Ms. Lohnes that he had ecstasy, and made several other comments she could not hear. She replied “my husband is on his way down from the building.” Mr. Shah responded “fuck your husband. I have a bigger dick than your husband; come work for me.”
[13] Mr. Shah attempted to grab a reusable plastic bag that was looped over Ms. Lohnes’ right hand. He was not able to obtain the bag, as Ms. Lohnes had her hand in her right pocket. Ms. Lohnes tried to pull away and yelled for help towards a man who was walking a dog on the opposite side of the street. The man stopped and Mr. Shah released Ms. Lohnes. She ran across the street to the man with the dog who walked her back to her building. She returned to her apartment to ask her husband to walk her to the subway station. When she came back downstairs, however, she encountered Ms. A.B., the second of the three victims. Ms. A.B. had just been assaulted. Police arrived on the scene at approximately the same time. Ms. Lohnes did not sustain any physical injuries.
[14] The facts relating to the robbery and assault against Ms. A.B. are set out in paragraphs 6-15 of my Reasons for Judgment. I will summarize them here.
[15] A.B. lived at 200 B.[…] Ave., one block south of D.[…] Avenue. She was a student at the University of Waterloo at the time of the offence. She now works as a teacher in English as a second language. She has a Masters degree from University of Waterloo where she graduated in June of 2015.
[16] She regularly used the subway in Toronto. On October 22, 2014, she was walking along the street at 5:40 a.m. intent on catching the subway at 5:50 a.m. She had not had a lot of sleep the night before, as she was preparing for a presentation that she had to give at the University of Waterloo that morning. She was heading towards the subway station to catch the train that would take her towards the bus station for the trip to Waterloo.
[17] As she walked, she saw a male who she described as loitering. He was located near one of the apartment buildings on the south side of D.[…] Avenue approaching Y.[…] Street. He was on or near the sidewalk. Just after passing him, he grabbed her from behind and knocked her to the ground. He pulled her hair held her on the ground. The accused got on top of her. She screamed “what do you want”. He started punching her in the face with a closed fist eight or nine times. The complainant was fully conscious throughout the attack. She was exceptionally frightened. He was banging her head on the sidewalk and punching her in the face and telling her to shut up and keep quiet. She asked him if he wanted money and he said “yes give me the money”. She reached for her backpack beside her, opened the zipper, and took out a $20 bill and a $10 bill to give to the assailant.
[18] The assailant responded in anger. He said “only $30? Is that all?” At the same time, she said that he told her “give me more money or get naked”. Those were his exact words and she was very frightened. She offered him her debit card, and she had a recollection of fearing that he was going to rape her, and saying to him “anything but that.”
[19] While this was transpiring, she said he started to pull her pants down a few inches. He did not undo the zipper that was at the side of her pants. His efforts were dedicated to pulling at her waist to try and pull the pants down but she did not think they went down more than a few inches. At the same time, he was repeating “give me more money or get naked.” When she gave him her bank debit card, he started to scream at her to give him the PIN number. She gave him a number, and then he took the card and started to walk away.
[20] After she gave him money and her bank card, two passersbys walked by. The first did not look or ask if she needed assistance. The second, Mr. V.E., who testified here, described the altercation he witnessed. Seconds later, after he had walked past by two or three metres, the woman was up off the ground, came up behind him, and he realized that it had not been an argument between two people involved in a relationship, but that the woman had been the subject of an attack of some kind. It was this witness who called the police and remained with her until they arrived.
[21] Turning to Ms. Imelda Oller, sometime after 6:00 a.m. on the same day, October 22, 2014, she returned home to her apartment located at D.[…] Avenue in Toronto. She got off the subway at Y.[…] and D.[…] and proceeded eastbound along D.[…] Avenue through a construction area towards her building.
[22] When she was fifteen to twenty feet away from the entrance to her building, Mr. Shah approached and grabbed her by the hair, pulling her head backwards. He said “give me your bag” Ms. Oller attempted to run towards the door of her building but was punched by Mr. Shah in the head and shoulder area until she fell to the ground with her back against the doorway to the building. Mr. Shah kneed Ms. Oller and continued to pull at her hair. She repeatedly said “don’t do this to me; why are you doing this to me?” Mr. Shah delivered two more punches to her head and grabbed her purse from her. The purse contained her debit and credit cards, $280 in cash, her cell phone and various personal items of clothing and toiletries.
[23] Mr. Shah asked Ms. Oller if she lived in the building. When she answered yes, he said “okay, go inside – I will not hit you.” Ms. Oller believed that since Mr. Shah now had her bag, he would permit her to leave to go up to her apartment. She did not want to try and run into the street because she did not know if Mr. Shah had a weapon or would harm her if she tried to do so. She entered the apartment lobby and moved towards the elevator but Mr. Shah followed her onto the elevator. She attempted to push the button for the 14 th floor, where her apartment unit was located, but Mr. Shah pushed various buttons including a button marked “Ex”, which leads to a rooftop swimming pool area of the building. This caused Ms. Oller to be fearful for her safety if Mr. Shah were to take her to the rooftop area. She did not know if he had a weapon and whether he intended to hurt or even kill her. She begged Mr. Shah “don’t do this to me.”
[24] When the elevator reached the sixth floor, Mr. Shah exited. He told Ms. Oller to get off the elevator but she hesitated. He grabbed her by the arm and forcibly pulled her off the elevator. He turned left to the first apartment next to the elevator and used a key to unlock the door. He told Ms. Oller to go inside. When she refused, he hit her several times in the upper arms and head with a closed fist. She yelled for help but no other residents exited their units. Mr. Shah then told Ms. Oller “don’t worry, I won’t hurt you” Mr. Shah did not actually open the door to the apartment and he did not attempt to force Ms. Oller into the apartment.
[25] Ms. Oller made her way to a bench area by the elevator and continued to say “don’t do this to me”. Mr. Shah did not make further physical contact with her. He pushed the button for the elevator. The elevator door opened and several individuals were inside the elevator. Ms. Oller immediately got on. Mr. Shah did not follow after seeing the other individuals in the elevator.
[26] Ms. Oller ultimately contacted police with the assistance of other individuals she saw when the elevator went down to the parking level. Toronto Police Services arrived on scene very shortly thereafter and spoke with Ms. Oller in the lobby. As they were doing so, she saw the elevator door open. Mr. Shah was in the elevator and Ms. Oller pointed him out to police at which point he was arrested.
[27] Ms. Oller attended Sunnybrook Hospital for treatment. She sustained bruising on her left eye that ultimately darkened to a degree not depicted in the SOCO photograph taken at the time. She does not recall how long the bruising lasted, but it was more than transient. She experienced significant discomfort in her jaw area that lasted for a significant period of time, although an x-ray taken at the time did not reveal any fracture. She had a headache for some period of time.
[28] When Toronto police attended D.[…], they spoke with Ms. Oller’s roommate, who indicated that she spoke with a male who answered Ms. Oller’s cell phone when she called it. The male said words to the effect of “I paid her for sex and now she’s sleeping.” Officers attended the apartment unit to the left of the elevator on the sixth floor and entered based on exigency to ensure that there were no other victims in the apartment. At that time, however, they noted numerous items including financial instruments in Ms. Oller’s name. They immediately sealed the unit, and applied for a search warrant for the unit, which was leased to Mr. Shah. Police recovered Ms. Oller’s purse, bills and financial cards in her name, and her personal effects, when they executed the search warrant.
[29] Officers also obtained surveillance footage from the lobby and elevator at D.[…]. Upon arrest, Mr. Shah was wearing the same clothing as that worn by Ms. Oller’s assailant, including running shoes with neon yellow laces. He also had in his possession at that time the CIBC debit card belonging to A.B..
Circumstances of the Offender
[30] The offender, Robert Shah, turned 33 years of age on October 21, 2014, the day the offences were committed. He is now 34 years old. At the time of the offences, Mr. Shah lived at D.[…] Ave., between M.P. and Y.[…] Street.
[31] Mr. Shah has three prior convictions prior to this series of offences. In 2006, he was convicted of assault and uttering threats and failing to comply with the terms of a recognizance and sentenced to one day on each of the charges concurrent, based on five months of presentence custody, plus probation for two years together with ancillary orders. On January 27, 2009, he was convicted of trafficking in a schedule one substance under the Controlled Drugs and Substances Act and sentenced to one day in jail and 12 months of probation based on 67 days of presentence custody. Finally, on March 27, 2009, he was convicted of criminal harassment, assault, and failing to comply with the terms of his probation. He received a sentence of 90 days in jail and three years of probation.
[32] Mr. Shah was born in Toronto. He was raised by his two parents in a good environment but was a “spoiled kid” since he was the youngest child and received a lot of attention. There was no violence in the family home, but his father did consume alcohol often. That consumption has declined over the years as other members of the family have actually succumbed to alcohol-related issues. Mr. Shah claims to have maintained a good relationship with his parents who have been supportive to him as these charges have been ongoing.
[33] He has an older brother and an older sister and has a good relationship with his sister and her daughter. He has minimal contact with his brother who lives in British Columbia. He and his brother appear to have a turbulent past. Mr. Shah is single, has never been married and has no children. The probation officer reports that he indicated he is thankful he does not have a child since he “cannot even take care of himself, let alone a child.”
[34] Mr. Shah has had relationships with females in the past, but they are also associated with domestic incidents and assaults. His first relationship was from the age of 23 years to 28 years old, with a woman who was the victim of both of the domestic violence matters referred to above, in 2006 and 2009. However, the probation officer’s Pre-Sentence Report records that he minimizes his actions in those incidents and claimed the assaults were not “violent”. In contrast, records from the Toronto Police Service indicate that after he’d only been dating the victim for some months, he engaged in choking, stocking and grabbing. It was noted at the time that he told the victim’s family that “nothing will stop ‘me’, not even bullets.” Nonetheless, while speaking to the probation officer, the PSR reports that Mr. Shah indicated he could not understand why that woman’s family was unhappy with him.
[35] He had another relationship with a woman from the age of 28 to 30 years, but the relationship ended amicably after she told him she was unable to bring him home to meet her parents due to the fact that he was employed in nightclubs.
[36] Mr. Shah has not completed his secondary school education. Instead, he immersed himself in the nightclub culture that he was involved in at the time that these offences occurred. He failed a few of his classes and did not want to go back for the next year to complete and receive his high school diploma. In 2008, he paid a local college cash to be accepted into their music administrative program. However, he could not complete the program because he was arrested and incarcerated within the first term. He did not complete any of the credits towards a college diploma.
[37] From 14 to 29 years of age, Mr. Shah admits having trafficked marijuana while involved in promotion at nightclubs. Mr. Shah claimed that he would not traffic in marijuana again since he gave it up to start casting music videos with his friend and employer in 2009. Nevertheless, when the probation officer sought to contact the employer, he did not wish to be involved in the preparation of the report. Regardless, the fact remains that Mr. Shah is only missing a few secondary school credits and reportedly has been working to complete those credits while in custody over the past 16 months. He claims that due to numerous lockdowns while in custody he has been unable to complete the credits over that period of time.
[38] As for his own future, Mr. Shah envisages that following a release from custody he would get back into promotions at nightclubs in the casting of music videos since it keeps him busy and puts money in his pocket. This seems to be his preference apart from the fact that that industry has appeared to have had a negative impact on his life, and is associated with the alcohol and drug use in which he became involved.
[39] Mr. Shah started to consume alcohol around 17 or 18 years of age but he claims that he has “recently noticed ‘small signs’ of being an alcoholic.” He reported that he does not consume alcohol often unless he is going to the nightclub since he can consume it for free while he is there. He added that he does not consume alcohol every time he is at the nightclub but it is plain that alcohol was centrally involved in the matters for which he is being sentenced. As noted, he has used marijuana extensively and has trafficked in marijuana for some years. He admitted to using marijuana the night that these offences took place, and has experimented with other drugs, including cocaine. Interestingly, both his mother and his sister do not have any concerns with his alcohol consumption, although his sister does believe that he abuses marijuana.
[40] Turning to Mr. Shah’s character, the PSR notes that his mother and sister claim he has no anger management issues or negative attitudes towards women. They both acknowledge that he is mouthy, but have never witnessed him perpetrating any violence. His mother expressed the hope that her son would be released from custody so that he can obtain an education and get his life together.
[41] The probation officer who prepared the PSR attempted to contact all of the victims. Ms. Oller and Ms. Lohnes did not participate but they have prepared victim impact statements. Ms. A.B. also prepared a brief victim impact statement, which is referenced below. The PSR author specifically noted that it was difficult for Ms. A.B. to understand why Mr. Shah used so much violence against her. To this day she remains very anxious and paranoid walking by herself in the evening and in the early morning. She believes that feeling will stay with her for a very long time, if not for the rest of her life. Of considerable importance, however, she does express hope that Mr. Shah will be rehabilitated so that there will not be any further victims in the future. I would note positively here, relative to the prospects of rehabilitation, that he has completed numerous courses while in custody on this matter, and the certificates were made exhibits on this sentencing. This demonstrates some willingness to learn and some prospect of rehabilitation.
[42] The PSR records the probation officer’s view that Mr. Shah appears to be remorseful concerning his actions related to these matters and indicates that he expressed concerns for the victims, although he does not take responsibility for the sexual assault charge on which he was found guilty. However, records from the Toronto Police Service indicate that not only was he speaking sexually to Ms. A.B., but also to the other two victims as well. He also made inappropriate sexual comments to a third party who called the cell phone of one of the victims when he was in possession of it. That conduct portrays his mindset on the date of the matters for which he is being sentenced. All of the victims were women, yet the subject claims that he was not targeting women and that he does not have a negative outlook towards women. His conduct belies those claims. Moreover, his past antecedents show the service of multiple sentences in the community for domestic violence, uttering threats, and failing to comply with terms of probation, principally in relation to his relationship with a woman that he was seeing at that time.
[43] The presentence report concludes with two important paragraphs relevant to this sentencing:
Subject acknowledges “small signs” of alcoholism and he also admits to using marijuana daily. He reportedly has completed the Alcoholics Anonymous book while in custody and he is interested in applying for a marijuana prescription. It does not appear that the nightclub industry would be appropriate employment for someone dealing with substance abuse issues.
With regards to the matters currently before the court, the subject appears to be remorseful and he expressed empathy towards the victims. However he does not appear to have any insight into his offending behavior. A genuine commitment to addressing his substance use issues and possible negative core beliefs regarding women is needed to have any impact on decreasing the likelihood of recidivism. If community supervision is considered, strict guidelines are recommended in order to encourage a pro-social lifestyle for the subject while allowing the court to monitor his behavior.
[44] When he spoke to me in the course of this sentencing hearing, the offender’s comments reflected an absence of insight into the gravity of his offending behavior. While acknowledging that he had committed these offences, he claimed they were totally out of character and unexplainable, but that they would never happen again if only he would be released into the custody of his mother and permitted to go back into the community to get on with his life. It surprised me to hear him speak that way as it betrayed a total lack of comprehension of the gravity of the conduct that he perpetrated against these three women, conduct that was horrific and violent, totally random, and that will have a damaging impact on these three women for the remainder of their lives. It is plain from the comments that he made to me that Mr. Shah has no meaningful understanding of that reality. He seems to treat his conduct as having been some minor misdemeanor committed while exceedingly inebriated. His own lack of understanding shows the real public safety concerns that exist with releasing him back into the community.
Victim Impact
[45] In the victim impact statement filed by the first of the three victims, Debbie Lohnes, she records the severe emotional impact of persistent nightmares, of fear of walking alone in the dark and the impact that has had on her, and on her husband given his need to support her at a point in time when he was being treated for cancer and ought to have been supported by her. These events have caused her to always be on guard, always be looking over her shoulder, and always being concerned that someone is following her. That reality has taken away her independence and her love of life. She is simply not prepared to walk on her own to very many locations. Having to take taxicabs deprives her of the joy of walking through the city on foot. Moreover, she suffers panic attacks at getting into a car with a strange man, even a licensed taxi driver. These events have changed her relationship with her husband and caused severe stress to their marriage, but she happily reports they have survived it with the assistance of counselors and trained psychotherapists. After separating for a period of time, Ms. Lohnes and her husband have moved back in together.
[46] One of the most important impacts that she describes, however, is an enormous sense of guilt for not calling 911 on the morning she was assaulted when she was instead pretending to call her husband. She believes if she had called 911 rather than pretending to be speaking to her husband, the police would have gotten Mr. Shah earlier and the second and third assaults would not have occurred. She believes that Mr. Shah would have been caught and that the other victims would have been safe. She feels enormous guilt and a sense of sadness and apology for what she considers is her failure to the other two victims. In addition, it is plain from her victim impact statement that Mr. Shah’s assault caused her financial loss through missed time at work, the cost of expensive medical therapy and counseling relative not only to her own mental wounds caused by the attack, but also by its impact on her relationship with her husband. Finally, Ms. Lohnes has enormous fear that once Mr. Shah is released from jail he will look for her and hurt her and the other two victims. She is extremely anxious for her future and asks that he be required to post a peace bond upon his release into the community.
[47] Ms. A.B. suffered the physical impact of a fractured and disfigured nose that still may require corrective surgery, a bruised swollen face which lasted for weeks, severe headaches as a result of having her head bashed against the sidewalk pavement, and suffering from a sleep disorder for months requiring her to take medication. Emotionally, she has been severely depressed, has had suicidal tendencies and has required psychiatric treatment. The impact of the assault has prevented her from focusing on academic projects and attending school to the extent that she was forced to extend her school training for two additional semesters in order to complete her education, with the additional cost that entailed. That in turn has delayed her entry into the job market. She ran out of school funding and had to pay tuition fees out of pocket. Financially, she will also have to incur the cost of the corrective surgery that will be required for her nose, since it is not covered by provincial health insurance.
[48] Most importantly, the incident has dramatically changed the way she relates to others. She expresses a state of constant paranoia of all strangers, especially men who are of similar complexion to Mr. Shah, which she claims is very unfortunate for her since she has always taken pride in being trusting and unbiased of all members of the community. As a result of the attack, she feels very anxious commuting to work and school alone or being outdoors and in public places after dark.
[49] Finally, there is the victim impact statement of Imelda Oller. She claims that her life has changed since Mr. Shah terrorized her in the apartment building where she lived. She now lives with memories of fear, pain, confusion, embarrassment and suspicion. She is afraid to be outside early in the morning or after dark. She is afraid of being on the bus and subway, afraid to meet new people afraid of being in a crowd of people and afraid of being on empty streets. She is even afraid of being alone at home. She claims to feel that nowhere is safe anymore. She is suspicious of men and afraid that men want to hurt her. She has become shy and wants to hide to protect herself. She cannot any longer be the happy and friendly person that she was, but is instead now scared and nervous and un-trusting. She is uncertain that she will ever be able to have a relationship with a man because of what Mr. Shah did to her. She wakes up frequently during the night remembering what was done to her and being afraid to an extent that she cannot return back to sleep. Memories come into her head when she is working. They make her afraid and distract her from whatever task is at hand. Most of all, she expresses extreme fear of the offender himself. She says that she “can still feel the fright of when you hit me and the pain in my face and head. I can still remember my swollen face and bruises and my hurt head from banging and hair pulling. The memory of that pain is always there. I will never be the same because of what you did to me.” As with one of the other victims, Ms. Oller’s biggest fear is that one day Mr. Shah will get out of jail and will again terrorize her. She is frightened and anxious to learn what steps will be taken to ensure that this will not happen. We do not incarcerate offenders like this one for life, but Ms. Oller’s concerns reflect the need to have more certainty that Mr. Shah is fully assessed and treated for anger management and a tendency of violence toward women before being released back into the community.
Legal Parameters
Positions of the Crown and the Defence
[50] Crown counsel seeks a global sentence of 5 to 6 years of incarceration less credit for 25 months of pre-trial custody on a 1.5 to 1 credit basis in respect of the offences perpetrated by the offender in this case. As such, after credit for pre-trial and presentence custody, and apart from defence claims that additional credit should be provided because of circumstances in the correctional facilities, Crown counsel argues that Mr. Shah should be sentenced to serve a remaining sentence in the penitentiary of between 35 and 47 months. While Crown counsel claims that the appropriate sentence for each of the three offences is 3 to 4 years of imprisonment, in aggregate, she reduces the global sentence to that level in recognition of the principle of totality, and that this will be this offender’s first time in the penitentiary.
[51] Crown counsel also seeks ancillary DNA orders, a s. 109 weapons prohibition order for 10 years, forfeiture of $280 of the $300 cash that was in Mr. Shah’s possession when he was arrested, and importantly, arising out of his conviction for sexual assault in these circumstances associated with violence, a SOIRA order requiring him to be registered as a sex offender under s. 490.02 (1) of the Criminal Code for a period of 20 years.
[52] None of the ancillary orders are opposed. Relative to the sentence itself, however, defence counsel claims that the appropriate sentence in the circumstances of this case is a sentence of 30 months, that is 2 ½ years of incarceration, less 25 months of pre-trial custody credit for the time spent at the Toronto South Detention Centre, added to an additional 90 days of credit to be provided in accordance with R. v. Downes [1] and recent decisions out of the Ontario Court of Justice, because of pervasive lockdowns at the pre-trial custody facility. In essence, however, the defence position is that a net remaining sentence should be imposed on Mr. Shah of about only five months of custody in a provincial corrections facility.
Principles of Sentencing
[53] Section 718 of the Criminal Code states the fundamental purposes of sentencing and lists its underlying objectives. The fundamental purpose of any sentence is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by the imposition of just and appropriate sanctions. Among the specific objectives listed in section 718 of the Criminal Code, there are several that are relevant here. They are to denounce unlawful conduct, to deter the offender and others from committing offences and to separate offenders from society where necessary. In a case such as this, general deterrence to others is paramount. Specific deterrence of this offender also occupies a prominent place in deciding what sentence to impose. Denunciation is also key.
[54] Section 718.1 of the Code requires that the sentence be proportionate to the offence and the degree of the offender's responsibility. An offender is not to be deprived of her liberty if less restrictive sanctions may be appropriate in the circumstances of the case. All available sanctions, other than imprisonment, that are reasonable in the circumstances must generally be considered for all offenders.
[55] Given that the Code and the decision of the Supreme Court in R. v. Proulx [2] create at least a theoretical obligation on the court to consider the imposition of a non-custodial or conditional sentence on the offender rather than a term of incarceration for these most serious crimes, I nevertheless would note that offences such as these are not to be punished by conditional sentences and I note that neither counsel suggests that the objectives of sentencing can be achieved in a case such as this through the imposition of a non-custodial sentence.
[56] When looking at the sentence of an accused person, as the Supreme Court of Canada observed in R. v. Nasogaluak [3], a court such as this one is to strive to ensure that the sentence imposed respects the principles of proportionality and consistency of sentences for similar offences:
The principle of proportionality is central to the sentencing process set out in the Criminal Code and it requires that a sentence must speak out against the offence, but may not exceed what is just and appropriate given the moral blameworthiness of the offender and the gravity of the offence. The determination of a fit sentence is, subject to some specific statutory rules, an individualized process that requires the judge to weigh the objectives of sentencing in a manner that best reflects the circumstances of the case. No one sentencing objective trumps the others and the relative importance of any mitigating or aggravating factors will push a sentence up or down the scale of appropriate sentences for similar offences.
The sentencing judge’s discretion to craft a sentence which is tailored to the nature of the offence and the circumstances of the offender, while broad, is not without limits. His discretion is limited by case law, which sets down general ranges of sentences for particular offences which are to be used as guidelines in order to encourage consistency between sentencing decisions. It is also limited by statutes through the general sentencing principles and objectives enshrined in the Criminal Code and through legislated restrictions on the availability of certain sanctions for certain offences. Sentencing judges, while they can order a sentence outside the general range set by case law as long as it is in accordance with the principles and objectives of sentencing, cannot override a clear statement of legislated intent and reduce a sentence below a statutory mandated minimum absent a declaration that the minimum sentence is unconstitutional.
Case Law
[57] Crown counsel is correct in her very fair observation that it is difficult to arrive at a reasoned and principled range of appropriate sentence for the offences that have been perpetrated in this case because of their unquestionably factually unique nature. No firearms were used in the commission of these offences. While Mr. Shah does have a criminal record, which does show some prediction towards the direction of these offences, that record is neither lengthy nor excessively serious. Notwithstanding that, and the fact that there is a gap of some years between his last altercation with the law and the perpetration of these offences, the offences that took place here involve very significant amounts of violence against the victims and a severe invasion of their rightful sense of security of the person.
[58] Secondly, while each of the three offences against each of the three victims involved three separate and distinct courses of action, each of them takes a very brief period of time, and given that timeframe, seem more appropriate to regard globally as part of one series of transactions or events involving three victims, rather than as three separate and distinct offences. If they were looked at as three separate and distinct offences, Crown counsel has noted she would be seeking a sentence of 3 to 4 years per offence in the context of the totality of the offences. But rather than seeking a sentence of 9 to 12 years, she seeks a total sentence of 5 to 6 years less pre-trial credit as an appropriate first penitentiary sentence for these seriously violent crimes having regard to all of the relevant factors of sentencing.
[59] Counsel for the defence puts forward the proposition that Mr. Shah should also be granted 90 days of credit beyond the pre-trial credit permitted under the Code and R. v. Summers [4] of 1.5 to 1, on the basis of conditions in the pre-trial custody facilities. Mr. Shah has been housed during his period of pre-trial custody for about 16 to 17 months. I was told that there have been numerous lockdowns during that period. Defence counsel claims that of the 800 days Mr. Shah has spent in custody, 190 or 70% have been lockdown days due to staff shortages or labour disputes. This has resulted in the accused held in pre-trial custody being deprived of exercise time or exposure to sunlight for significant periods of time and effectively being kept in his cell without relief.
[60] In R. v. Doyle [5], M. Greene J. of the Ontario Court of Justice gave additional credit relative to pre-trial custody in such circumstances attributable to “particularly harsh treatment.” It was relevant there, however, that the particular harshness visited upon Mr. Doyle was in part a product of his personal medical condition, as a diabetic, and the absence of some of the extra care his condition necessitated due to those lockdowns. That is indeed harsh and unacceptable treatment, not unlike the harsh treatment of one Kenneth Horan [6] for which I gave 3:1 credit for some months in 2006 leading up to trial and sentence during which evidence called on the sentencing showed that Ontario Corrections officials had denied Mr. Horan access to a dentist when he had an abscessed tooth simply because it conflicted with the times he needed to be at court, and they were unprepared to have to pay an overtime dental charge to attend to his problem. That was conduct I likened to the Russian gulags. That, however, is hardly the circumstance here.
[61] I note that in R. v. J.B. [7], B. O’Marra J. of this court recently followed Justice Greene’s decision in Doyle. He allowed 90 additional days of pre-trial custody credit for some 220 days of lockdown in that case. I do not agree entirely with this line of thinking as being applicable in all circumstances, akin to credit under R. v. Downes [1]. I also think it is important to note, that lockdowns are an inevitable aspect of life in pre-trial custody facilities, which will never be like a weekend at the Holiday Inn. The concern should be whether lockdowns are inordinate, or whether the particular circumstances of the accused are such that the lockdown creates a disproportionate and harsh effect on that offender. Crown counsel here opposes the granting of any credit to this offender on that basis. Nevertheless, I am willing to grant Mr. Shah 30 additional days of credit to account for lockdown circumstances.
[62] So the question is what is the fit and just sentence in the circumstances of this case. Each one of these three offences represents a significant threat to the peace and good order of our cities and to all members of the public. The fact that these offences occurred at 5 o’clock in the morning and against random individuals who happened to be walking along the street to catch the subway to go to work points out their nefarious, horrific and violent nature, and places the emphasis on the two principal factors of sentencing that must be expressed in a sentence in circumstances like this, namely deterrence, general and specific, and denunciation. Individuals have the right to security of the person as they go about their lives fear from violence in our cities. It is that personal violation of the victims’ sense of security that is so horrific and that incites the need for a strong message of denunciation and deterrence to be given to an offender such as this in the strongest possible terms.
[63] R. v. Tourville [8] reviews the appropriate range of sentences for the offence of aggravated assault at paragraphs 28 to 30. The offence itself, committed contrary to section 268 of the Criminal Code, carries a maximum sentence of 14 years of imprisonment, per occurrence. Not surprisingly, however, given the range of possible circumstances in which an aggravated assault can arise, there is a wide range of sentences disclosed in the case law. Both counsel concurred that in the circumstances of this case it would be inappropriate to impose a sentence at either the lower or midrange as contemplated in that decision. The midrange cases are those where high reformatory level sentences have been imposed between 18 months and two years less a day, but typically for cases involving first offenders and generally containing some elements suggestive of consent fights but where the accused resorted to excessive violence.
[64] Plainly, that is not the circumstance here. These are unprovoked violent assaults against three unsuspecting women. Moreover, Mr. Shah has a background that does involve two prior assaults. While his criminal record is not excessive and egregious, it is present and in circumstances of unprovoked assaults with no suggestion of any elements of consent or self-defence, paragraph 30 of Tourville shows that the sentence must be imposed at the high-end of the range where sentences of 4 to 6 years of imprisonment are typically imposed involving recidivists with serious prior criminal records, or an absence of provocation and consent.
[65] The case that is most closely akin to these offences, albeit involving a single occurrence, was the recent sentence imposed by Justice Goldstein in R. v. Schell [9], a case involving a robbery and commission of an assault causing bodily harm. In that particular case, Goldstein J. found that the appropriate sentence was 18 months, but unusually, it was a case involving mitigating Gladue [10] circumstances not present here. At paragraph 14, Goldstein J emphasizes the impact of offences such as this on the victim in the community:
This is a case of robbery and violent assault carried out by a stranger against a small boulder vulnerable woman walking alone on her own street. This kind of crime is the sort that people living in crowded urban areas fear most, and with good reason. The impact on the community cannot be underestimated. Violent, visible crime creates a climate of fear and suspicion. It causes individuals, and especially women, to curtail normal lawful behaviour. In this case, that has been exactly the effect on Ms. Ni. In addition to painful physical injuries, it is fair to say she was traumatized. She has low levels of trust and no longer feels secure in our city. She moved from her neighbourhood. She has been prescribed antidepressant medication. Although she has recovered physically, it is doubtful and extremely tragic, but she will ever recover psychologically.
[66] This is a case where the offender has a history of violence against women. The presentence report raises concerns about a lack of insight into the nature and consequences of his conduct. As a result, protection of the public must unquestionably come into play. We know that Mr. Shah was seriously inebriated the night that these offences took place, but his statement gave no insight whatsoever into whatever the underlying issues may be that caused him to carry out these offences. Nor did they give me insight into whether he remains a considerable danger to the public, notwithstanding his protestations that he should go home to his supportive family.
[67] As such, in my view, 30 months of imprisonment less 25 months of pre-trial custody, yielding a net sentence of only 5 months, with him being released into the community in September or October of this year, would be totally unfit and irresponsible. It would release him into the community when there is no certainty or knowledge of what has underlined his animus and his conduct towards women in these circumstances. Even more importantly, apart from the protection of the public interest that must be engaged here, it would not in any way reflect the appropriate sharp message of denunciation and deterrence that must be associated with unprovoked and non-consensual violent crimes such as these for which there is no understandable explanation.
Mitigating and Aggravating Factors
[68] There are several serious aggravating factors in the circumstances of this case. Plainly the level of violence perpetrated against Ms. A.B. and Ms. Oller is significant. These are random physical attacks against vulnerable victims. It is gratuitous violence like in R. v. Schell [9]. Schell notes, at paragraphs 19, that if the purpose behind the assault was simply to rob the victim of her purse or goods that she was carrying, then the existence of the brutal conduct and violence perpetrated by the assailant against the victim is entirely gratuitous and unquestionably a seriously aggravating factor.
[69] Moreover, in that case, the complainant testified that during the course of the assault, Mr. Schell’s hand actually touched her crotch area under her skirt. The sexual touching that occurred in Schell was perhaps more aggressive than the touching that occurred in this case but which I found to constitute sexual assault, but it was nevertheless an aggravating factor in that case. Yet, the sexual touching in this case is only mildly aggravating in this circumstance given its nature. Nevertheless, as in Schell, and as the Crown agrees in the circumstances of this case, the sexual touching should have no impact on the overall sentence, apart from the need for a SOIRA order to be imposed.
[70] A second serious aggravating factor is the serious impact that these offences have had and the physical and mental damage caused to these three victims. The victim impact statements which each of them prepared, and two of them courageously delivered before the court confronting the offender with the reality of their lives since he assaulted them, show plainly that the likelihood of them ever recovering from the psychological damage that he has caused to them is low. They will carry the scars forever. That as well is a seriously aggravating factor. It is aggravating not only for the three victims who are present here, but for the need for the strong message to be conveyed to our community that women have the right to walk in safety on our streets and ought not to be encumbered by fear of the possibility of assault and unprovoked circumstances simply from being in the wrong place at the wrong time.
[71] It is also aggravating here that Mr. Shah is not a first-time offender and that his prior offences involve domestic assaults against women. Further, he continues to have no insight whatsoever into the conduct that gave rise to those convictions, a level of conduct which now seems to have been exacerbated by the circumstances of these offences. His statement to me once again displays he has no understanding or insight into the nature of the damage that he has caused. That necessarily calls into question the extent to which he can actually feel the remorse that he claims about his conduct.
[72] In mitigation, it is true that Mr. Shah pleaded guilty to these offences, but he did not plead at a time that would have avoided the three complainants having to go through the stress of having to testify about his conduct at the preliminary inquiry. He refused to plead guilty to any of these offences until the eve of trial. He refused to do so, notwithstanding the existence of video surveillance evidence which plainly shows his assault of Ms. Oller taking place and the horror and fear that is visible on her face in that video surveillance footage. Normally the accused’s plea of guilty shows remorse, but I am not satisfied that he was remorseful here. I would give that plea of guilty on the eve of trial relatively little weight. It is true that a trial originally scheduled for 7 to 9 days was reduced to two days, and certainly the court is thankful for the accused having the good sense, given the quality of evidence that was confronting him, to recognize that the Crown had an exceptionally strong case against him, but none of the other aspects associated with an early plea are present in these circumstances.
[73] As Justices Moldaver and LaForme note in R. v. Daya [11] at para 15:
First, the credit to be given for a guilty plea cannot be reduced to any formula, but “will vary with the circumstances of each case”: see R. v. Faulds (1994), 20 O.R. (3d) 13 (C.A.) at para.14. The circumstances of this case were that the appellant was caught red handed, he had no defence to the charges and a trial would simply have postponed the inevitable. By pleading guilty the respondent spared the administration of justice some time and expense, and for that, and according to R. v. Faulds, he was entitled to some credit. In our view, however, a 20-month discount for the guilty plea was excessive.
[74] In my view, consistent with this line of thinking, this offender should not be given significant credit for having pled guilty to charges of which he would inevitably been convicted, given the quality of the evidence that was there to be advanced against him. I will, however, recognize that he saved the court about five to seven days of court time by giving him an additional two weeks of credit for having pleaded to these offences, albeit on the courthouse steps.
Reasons
[75] The final case reference here should be to the decision of the Court of Appeal in R. v. Thompson [12], where on a Crown appeal from a 12-month sentence imposed on the accused for sexual assault and robbery, the sentence on the accused was increased to five years of imprisonment. In that case, the accused sexually assaulted and robbed a young woman in an underground garage a few hours after he had been released on parole. He had a lengthy prior record including one prior sexual assault, and he had spent 18 months in pre-trial custody. The Court of Appeal increased his sentence given that the offence was a serious sexual assault and robbery, that the victim was terrified, and that the accused had demonstrated over the years his total inability to resist criminal behaviour. In such circumstances, the sentence imposed of 12 months by the trial judge was demonstrably unfit based on the principles of denunciation and deterrence and protection of the public.
[76] This is not to suggest that this case is the same as Thompson. It is not. Plainly, the offender in that case had a lengthy and serious criminal record for similar offences and it should not go unnoticed that he committed the offence only hours after having been released on parole. Nevertheless, it shows the seriousness with which our Court of Appeal regards such gratuitous offences of violence against vulnerable victims. Indeed, in that case, taking account of the pre-trial custody, the message from the Court of Appeal is that the appropriate sentence in that case for a single occurrence and a single victim was 6 ½ years of imprisonment.
[77] Against that background, and the differing circumstances of this offender, as the Crown indicates here, a sentence of 3 to 4 years per occurrence would be appropriate, but that in turn would yield an aggregate sentence of 9 to 12 years. However, a sentence of 9 to 12 years would be a totally inappropriate global sentence here, having regard to all of the circumstances and the principle of totality. Neither does Crown counsel seek a sentence in that range. Instead, against the reality of that background, she reasonably seeks a much lower but still strongly denunciatory sentence of 5 to 6 years.
[78] Further, one final important consideration is that for whatever uncertainty the public has about what is going on in Mr. Shah’s mind, and whether he will be able to turn himself around and can ultimately be safely released to the public, the fact remains that he has never before been to the penitentiary. The principles in R. v. Borde [13] require that Mr. Shah be given the minimum sentence that will meet the objectives and factors of sentencing that are relevant in the particular horrific and gratuitously violent circumstances present here, but also recognizing that it is a first trip to the penitentiary for this offender.
Ancillary Orders
[79] The ancillary orders requested will go. These include ancillary DNA orders, a s. 109 weapons prohibition order for 10 years, forfeiture of $280 of the $300 cash that was in Mr. Shah’s possession when he was arrested, and importantly, arising out of his conviction for sexual assault in these circumstances associated with violence, a SOIRA order requiring him to be registered as a sex offender under s. 490.02 (1) of the Criminal Code for a period of 20 years.
Final Decision
You will now stand up please, Mr. Robert Shah
[80] Mr. Shah, these were despicable crimes against totally innocent unsuspecting women, three people who did nothing to provoke you and were merely trying to go about their ordinary daily lives when your actions and assaults brought to an end the prospect that any of them would ever have another ordinary day. Yet you seem unable to fully understand or appreciate the gravity and egregiousness of the offences you committed. We do not know why you did what you did. We do not know that it will not happen again. You require thoughtful and thorough investigation to find this out and commence to treat your underlying issues of aggression towards women. The sentence sought by your counsel of only a further 5 months in jail would not permit that exploration to occur, and it would not protect the public from you, and in my view, at least at present, the public does require protection from you.
[81] So for all the foregoing reasons, Robert Shah, I have determined that the appropriate sentence here is 5 years and 1 month. I have accepted a sentence at the lower end of the 5 to 6 years that I think is the appropriate range. I have done so to recognize the principles in R. v. Borde [13] and that you do have prospects of rehabilitation. As such, after granting you pre-sentence custody credit of 26 and a half months, both in respect of pre-trial custody, and an additional 45 days of credit for the specific reasons previously given, I sentence you to serve a remaining sentence of 34 and a half months, that is, 6 weeks less than 3 years in the federal penitentiary.
Michael G. Quigley J. Released: April 22, 2016