Citation: R. v. Bent, 2016 ONSC 3439
Court File No. CR-14-02834
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
ROY BENT
REASONS FOR SENTENCE
BEFORE THE HONOURABLE JUSTICE M. FUERST
on February 10, 2016, at NEWMARKET, Ontario
APPEARANCES:
M. Montemurro Counsel for the Crown
M. Wyszomierska Counsel for Roy Bent
REASONS FOR SENTENCE
FUERST, J. (Orally):
Roy Bent pleaded guilty to one count of robbery and one count of use of an imitation firearm while committing robbery. The offences are serious, and Crown and defence counsel agree that a significant sentence of incarceration is required. They differ as to the length of that incarceration, and the extent of credit for pre-sentencing custody that should be extended to Mr. Bent.
THE CIRCUMSTANCES OF THE OFFENCES
The victim worked as an escort, operating out of a motel in Richmond Hill. On the afternoon of February 11th, 2014, she received a telephone call from a male who asked about the cost of sexual services. She told him the price. About half an hour later, the same male called her again, told her he was at the motel, and asked for her room number. She told him.
About five minutes later, Mr. Bent came to the motel room. The victim opened the door, and Mr. Bent handed her an envelope. She believed that it contained her payment. In fact, it was empty.
On the basis that Mr. Bent was a paying customer, the victim engaged in sexual activity with him.
When the victim received a telephone call, Mr. Bent started to get dressed. He then removed what appeared to be a black handgun from his pants pocket, and pointed it at the back of the victim's head. He demanded that she go into the bathroom. She complied, as she believed the gun was real.
In the bathroom, Mr. Bent pushed her into the bathtub and closed the door. He began rummaging through the motel room. The victim came out of the bathroom and said that she just wanted her cell phone and that she did not have any money. Mr. Bent approached her with the gun, told her to take off her ring, and pushed her back into the bathroom.
Mr. Bent ripped the landline telephone cable before leaving the motel room. He took with him the victim's cell phone, approximately $300 in cash, approximately $500 worth of jewellery, and some pre-paid credit/gift cards. He also took a plastic bag from a wastebasket, which was believed to contain the condom he had worn.
After Mr. Bent left the hotel room, the victim came out in a state of undress and yelled for assistance. A York Regional Police officer who was on general patrol in the vicinity of the motel attended to her.
In her Victim Impact Statement, the victim states that she had to move from the motel, where she had been living, because she was scared that Mr. Bent would come back. She dropped out of school because she could not concentrate. She is scared to be by herself, and she sometimes has nightmares about what happened.
THE CIRCUMSTANCES OF MR. BENT
Mr. Bent is 23 years old. He has a three year old daughter by a woman with whom he maintains a relationship.
Mr. Bent has a high school education. His employment history appears to be uneven. His lawyer indicated that he worked at a number of jobs in the past. This included helping his uncle, who is an electrical engineer, to wire houses.
Mr. Bent has ADHD. He is prone to depression. His lawyer advised me that in the past, he dealt with his mental health issues by self-medicating, but he now recognizes that this is not appropriate.
Mr. Bent has a youth and criminal record dating back to 2010. In April 2012 he was convicted as an adult of robbery and use imitation firearm, for which he received a sentence of two years in jail after credit of seven months for pre-sentence custody, plus three years' probation. The robbery involved a fake gun that was pointed at the victim's head. Mr. Bent was on statutory release for those offences, having earlier been granted parole, when he committed the crimes for which he is now before me. He also was bound by a s. 109 weapons prohibition order. He was not found a statutory release violator, because his sentence had expired by the time he was arrested for the 2014 offences.
Mr. Bent maintains a relationship with his mother, who is supportive of him, as is the mother of his child. While in custody, he wants to take educational courses that will assist him in finding a job on his release. In court, he apologized to the victim, and said that he was very ashamed of what he had done. He also said that he wants counselling.
Mr. Bent was arrested on April 23rd, 2014. He has been in custody since that date, which totals approximately 662 days. Records from the Central East Correctional Centre indicate that there is some programming available there, such as addiction counselling, but the scope of programming is limited. The records also indicate that on 628 days, Mr. Bent experienced some sort of lock-down, mainly because of staffing shortages at the institution. The majority of these lock-downs were for three-hour periods in the evenings, and likely meant that he was confined to his cell without access to the day room, the telephone, or the showers. On 72 occasions, he was locked down for six hours or more, which likely also involved lack of access to the yard and to visits.
In addition, on 32 days he was assigned to a cell that was triple rather than double-bunked.
THE POSITIONS OF THE PARTIES
On behalf of the Crown, Ms. Montemurro seeks a sentence of six years in jail, less credit for pre-sentence custody calculated on a 1:1 basis. She emphasizes the many aggravating features of the offences, including that this was an unprovoked attack on a vulnerable victim in a place she considered her home, Mr. Bent's prior criminal record, and the fact that he was on statutory release when he committed the offences. She submits that Mr. Bent's pre-sentence custody credit should be limited to 1:1, because he committed the offences while on statutory release. She seeks a DNA order and a s. 109 order for life, both of which are mandatory.
On behalf of Mr. Bent, Ms. Wyszomierska seeks a sentence of four years in jail, less credit for pre-sentence custody credited on a 1.5:1 basis, followed by a lengthy period of probation to assist in his reintegration into society. She emphasizes that he pleaded guilty and is remorseful. She asks me to consider his rehabilitative potential, given that he is a young man. On the issue of credit for pre-sentence custody, she submits that there is no evidence before me that Mr. Bent would not receive parole or early remission, and the evidence establishes that he has been subjected to harsh conditions at the remand centre, in particular because of the frequent lock-downs.
THE PRINCIPLES OF SENTENCING
The objectives of sentencing long recognized at common law have been codified in s. 718 of the Criminal Code. They are: the denunciation of unlawful conduct, deterrence both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to the victims or the community, and promotion of a sense of responsibility in offenders and acknowledgement of the harm done.
Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It sets out various aggravating factors. It also requires that a sentence be similar to those imposed on similar offenders in similar circumstances, that the combined duration of consecutive sentences not be unduly long, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered.
The maximum sentence for robbery is life imprisonment. The maximum sentence for use of an imitation firearm is 14 years in jail. As this is his second such offence, Mr. Bent is subject to a mandatory minimum sentence of three years in jail, which must be served consecutively to the sentence for robbery.
ANALYSIS
The principles of denunciation, and deterrence, both general and specific, must be paramount in sentencing for these offences.
There is a plethora of aggravating circumstances in this case. They include:
The offences were committed against a vulnerable victim, who was working alone as a prostitute in premises that she regarded as her home.
There was an element of planning to the crimes.
Mr. Bent held a weapon that the victim believed was a real gun to her head. As the Supreme Court of Canada observed in R. v. Steele, 2007 SCC 36, 2007 S.C.C. 36, the use of a firearm, whether real or imitation, in the commission of a crime exacerbates its terrorizing effects.
In addition to employing an imitation weapon to threaten and intimidate the victim, Mr. Bent used violence against her, including pushing her into a bathtub.
Mr. Bent took steps to try to prevent the victim from summoning help and to avoid his detection.
The offences had more than a transitory impact on the victim.
Mr. Bent made no restitution.
He was on statutory release when he committed these offences.
He was on statutory release for the same kinds of offences, committed a few years earlier, and also involving holding an imitation handgun to a victim's head.
He was bound by a s. 109 order, the breach of which demonstrates his disregard for court orders.
He has a youth record that includes assaultive activity and breaches of court orders.
In mitigation, Mr. Bent pleaded guilty, which is a sign of remorse and his willingness to accept responsibility for his wrongdoing. He expressed remorse to me in court. The fact that his mother and as well the mother of his child are supportive of him is a positive factor.
Mr. Bent is relatively young, but he is not a youthful first offender. His circumstances can be contrasted to those of the offenders in R. v. Spence, 2004 CanLII 34919 (ON CA), [2004] O.J. No. 4449 (Ont. C.A.), and R. v. Burnett, 2007 ONCA 478, which are referred to in the caselaw provided to me by counsel. I cannot say that Mr. Bent's rehabilitative potential is anything more than limited on the evidence before me. Perhaps he will pursue both counselling and educational opportunities while he serves his sentence, but that remains to be seen. Expressing good intentions to a sentencing judge is one thing, but being motivated to carry through with those expressed intentions can be quite another.
In all the circumstances of Mr. Bent and his offences, a significant penitentiary sentence must be imposed to meet the needs of denunciation and deterrence. I have taken into account the principle of totality.
The remaining issue is the extent of the credit to be given for the pre-sentencing custody. In R. v. Summers, 2014 SCC 26, the Supreme Court of Canada recognized two rationales for granting offenders enhanced credit for pre-sentence custody. The quantitative rationale is that time spent in a remand centre does not count for the purposes of eligibility for parole, earned remission, or statutory release. The qualitative rationale is that detention in remand centres tends to be more onerous than post-sentence incarceration, because of factors that include conditions at the remand centre and the lack of programs for offenders. The onus is on the offender to demonstrate that he or she should be awarded enhanced credit.
In this case I am unable to draw the usual inference that Mr. Bent lost eligibility for early release, from the pre-sentence detention. It is incontrovertible that he committed the offences for which he is before me while he was on early release for the very same kinds of offences. The fact that no proceedings were brought to have him found an early release violator because his sentences had expired by the time he was arrested does not change this incontrovertible fact. On the information before me, I find that Mr. Bent is not an offender who is likely to obtain early release on the current offences. He has failed to establish that he lost eligibility for early release by reason of his pre-sentence detention.
I am satisfied, however, that Mr. Bent should receive enhanced credit because almost every day of his pre-sentencing custody involved some period of lock-down and consequent confinement to his cell. This is shocking, and frankly unacceptable for an institution that functions at least in part as a remand centre. Staffing shortages may explain the reason for the lock-downs. It does not excuse them, nor does it lessen the impact on the remand inmates who are confined to their cells as a result.
Given the extent of the lock-downs while Mr. Bent has been in pre-sentence custody, I grant him approximately 1.5:1 credit for the period of his pre-sentencing custody. On that basis, I treat the time to be credited as 33 months.
CONCLUSION
Mr. Bent, on count one, the offence of robbery, I sentence you to 33 months and one day in jail, less 33 months of pre-sentence custody, leaving a sentence to be served of one day. On count two, the offence of using an imitation firearm while committing robbery, I sentence you to three years in jail to be served consecutively. The total sentence remaining to be served is three years and one day in the penitentiary.
There is a DNA order and a s. 109 order for life on both counts.
Ms. Montemurro, Ms. Wyszomierska, is there anything that needs to be clarified or...
MS. MONTEMURRO: No, Your Honour. Thank you.
THE COURT: ...amplified?
MS. WYSZOMIERSKA: No. Thank you.
THE COURT: Could I have the Indictment, please?
MS. WYSZOMIERSKA: Your Honour, one request.
THE COURT: Yes.
MS. WYSZOMIERSKA: May I ask that the sentencing letters, this may have already been done, but that they be attached to I think it's the warrant of remand...
THE COURT: Yes.
MS. WYSZOMIERSKA: ...or whatever follows Mr. Bent to the jail so the authorities can then take a look at them.
THE COURT: Yes. There's a form that I fill out and sign with the help of Madam Registrar, and it will send those letters, along with a copy of the Indictment, and eventually a typed transcript of the Reasons for Sentence will go as well, so that's fine.
MS. WYSZOMIERSKA: Thank you very much, Your Honour.
THE COURT: I have endorsed: Mr. Bent is sentenced on count one to 33 months and one day in jail, less 33 months of credit for pre-sentence custody which is calculated on a 1.5:1 basis, leaving a sentence to be served of one day in jail, and on count two to three years in jail. The total sentence to be served is three years and one day in jail. There is a DNA order and a s. 109 order for life on both counts. I think that takes care of it.