CITATION: R. v. John, 2016 ONSC 396
COURT FILE NO.: 0019B/12
DATE: 20160201
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
NICHOLAS JOHN
Y. Laine, for the Crown
Allan Lobel, for the Accused
HEARD: January 15 and February 1, 2016
REASONS FOR SENTENCE
GARTON J.:
[1] On November 9, 2015, a jury found the accused, Nicholas John, guilty of robbery with a firearm, assault while using a weapon, the commission of an indictable offence while having his face masked, and possession of property obtained by crime.
[2] The firearm used in the convenience store robbery was a pellet gun. Section 344(1) (a.1) of the Criminal Code provides for a mandatory minimum sentence of four years for robbery where a firearm is used in the commission of the offence.
[3] In March 2013, Mr. John’s former co-accused, Mikhail Gomez, was found guilty of the same offences following a trial before Strathy J. sitting without a jury. On July 10, 2013, Strathy J. imposed a sentence of four years and nine months, which he reduced to three years and six and two-third months after allowing nine months credit for time spent under restrictive bail conditions, as well as time spent in pre-trial custody.
[4] The Crown submits that the appropriate sentence in Mr. John’s case is five years. The position of the Crown is that a marginally higher sentence than four years and nine months should be imposed on Mr. John, given the fact that the robbery was Mr. John’s idea, that he was in possession of the pellet gun, and that he struck the victim on the head with the gun several times during the robbery. The victim required stitches to close the wound.
[5] The Crown also pointed out that unlike Mr. Gomez, who expressed remorse at his sentencing hearing for having committed these offences, which is a mitigating factor, Mr. John has consistently denied any involvement in the robbery: he denied under oath that he was the perpetrator when he testified at Mr. Gomez’s trial, as well as when he testified at a voir dire and before the jury at this trial. Mr. John also denied his guilt to the author of the pre-sentence report, Ramona Young. When asked at the conclusion of this sentencing hearing on January 15, 2016, if he had anything he wished to say to the court, Mr. John indicated “no.”
[6] On January 28, 2016, Mr. Lobel, counsel for Mr. John, emailed to the court a letter that states, in part, as follows:
As you are aware, Mr. John has testified under oath several times that he wasn’t involved with the robbery. His family were present on the last day when he and I discussed this after court and, for obvious reasons, he was reluctant to speak on the record.
Regardless, Mr. John has asked me to express to you how terrible he feels about what happened the day of the robbery.
[7] Today, after being assured that the Crown would not be pursuing perjury charges, Mr. John himself took responsibility for his actions and apologized to the court for having committed the robbery.
[8] Defence counsel submits that any differences in the roles and personal circumstances of Mr. John and Mr. Gomez are minimal. He therefore submits that Mr. John should receive the same sentence that was imposed on Mr. Gomez – that is, four years and nine months – less credit for time spent in pre-trial custody and time spent while on restrictive bail conditions.
Circumstances of the offences
[9] On January 6, 2010, at around 10:00 p.m., Mr. John and Mr. Gomez, both of whom were 19 years old, robbed a convenience store operator, Jing Yi Li, age 56. Mr. Li was behind the counter of his store on Carlaw Avenue and attending to a female customer, Patricia Koury, at the time. No one else was in the store when the two accused entered with their faces covered. Mr. John brandished a pellet gun and ordered Ms. Koury to the ground. He pointed the gun at Mr. Li’s head, demanded money, went behind the counter, pushed Mr. Li into a corner, and removed $100 from the cash register. Mr. Gomez then went behind the counter, removed packages of cigarettes from a shelf, and put them into a duffel bag.
[10] Mr. Li grabbed a metal stick from under the counter and poked Mr. Gomez with it once on the right side of his face. Mr. Gomez then “dove” at Mr. Li and the two men began to wrestle with each other. During this struggle, Mr. John, who was now on the other side of the counter, hit Mr. Li on the head five or six times with the gun. Mr. Li described the force that Mr. John used as “very heavy.” Mr. Li was bleeding “all over [his] face”, and yelling “Help!” Mr. John and Mr. Gomez then fled the store.
[11] Mr. Li chased Mr. John and Mr. Gomez for a block or two until he was too tired to continue. At that point, Laird McMurray, who happened to be in the area walking his dog, took up the chase. He followed Mr. John and Mr. Gomez unobtrusively from a distance while communicating with the 911 operator on his cell phone. When Mr. John and Mr. Gomez reached the Chester subway station, Mr. McMurray advised the operator of their location. The police arrived minutes later and arrested Mr. John and Mr. Gomez on the subway platform. Mr. John was in possession of the $100 stolen from the store. The pellet gun was in his waistband. Mr. Gomez, who was bleeding from his temple as a result of the wound inflicted by Mr. Li, was in possession of the duffle bag containing the stolen cigarettes.
[12] Mr. John admitted his involvement in these offences to the investigating officers following his arrest. However, at trial, Mr. John testified and denied robbing the store. He claimed that he and Mr. Gomez found the gun, the money and the cigarettes after those items were abandoned by the real robbers. He advised Ms. Young, the author of the pre-sentence report, that he was in the wrong place at the wrong time. As outlined earlier, Mr. John now appears willing to take responsibility for his role in the robbery.
Impact on the victims
[13] In his victim impact statement, Mr. Li indicates that even though the robbery took place six years ago, he continues to feel insecure and unsafe, especially when bigger and stronger men enter his store. He is aware of his vulnerability as a convenience store operator. He describes this incident as a “shadow” on his mind.
[14] Ms. Koury testified that after Mr. John ordered her to the floor at gunpoint, she crouched down “like a possum” and covered herself with the large scarf she was wearing. She did not want the robbers to see her and she did not want to see them. However, she could hear yelling and shuffling. The gunman sounded irritated and was telling Mr. Li to stop fighting. Ms. Koury feared that he would shoot Mr. Li and then shoot her. She put her hand over her heart to protect herself and tried to remain calm. She remained on the floor and covered by her scarf until she was sure everyone had left.
[15] There can be no doubt that this was a very traumatic event for Ms. Koury who, in her victim impact statement, describes how the robbery has affected her everyday life. She has a sense of trepidation whenever she enters a convenience store, and is keenly aware of everyone in the store. If there is a line-up at the cash register, she will not wait but immediately leaves without making a purchase. She no longer walks alone at night, and is even fearful of going into her own back yard after dark. She keeps all her doors locked when she is home alone, and only opens the door for people whom she knows.
Circumstances of the offender
[16] Mr. John is now 25 years old. He resides with his mother, father and younger sister in Scarborough. He has an older brother, who is 35 years old. The family is described in the pre-sentence report as stable, close knit, and very supportive of Mr. John. One or more family members were present in court throughout the trial. Mr. John’s father is a self-employed limousine driver. His mother is a personal support worker. No one in the family other than Mr. John has been involved in the criminal justice system.
[17] Mr. John’s parents indicate that he did not exhibit any significant behavioural problems when growing up. He was, however, diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) when he was ten years old. He was placed on Ritalin and assigned to special education classes. He stopped taking the medication in Grade 8, apparently with no negative consequences. According to his mother, Mr. John did well in school with encouragement and extra tutoring. After completing Grade 12, he applied to attend a construction and trade program at George Brown College, but those plans were put on hold following his arrest on these charges.
[18] Mr. John and his girlfriend of five years, Ayari Monroy, have a one-year-old daughter. Ms. Monroy and the infant reside in Hamilton. Mr. John and Ms. Monroy described their relationship as “good”, although they acknowledged one incident involving violence on both their parts. This incident occurred when they were celebrating Ms. Monroy’s birthday. They had both consumed alcohol.
[19] Mr. John’s parents advised Ms. Young that violence and anger are not the typical reactions that they have seen in their son over the years. They describe him as respectful, well-mannered and quiet. His sister described Mr. John as soft-spoken, caring and helpful. Mr. John’s mother and sister re-iterated these sentiments in their respective letters that were filed today as exhibits. In other words, these offences appear to be out of character for Mr. John.
[20] Mr. John advised Ms. Young that when he was 18 or 19 years old, he experimented with marijuana for about three or four months. During this period, without his parents’ knowledge, he smoked one joint a day. However, on the day of these offences, he had smoked two joints. Mr. John claims that he has not used marijuana since his arrest. However, Ms. Monroy stated that Mr. John still uses marijuana occasionally when he is stressed. She last observed him smoking the drug in June 2015.
[21] No one whom Ms. Young contacted for the purposes of preparing the pre-sentence report expressed any concerns regarding substance abuse by Mr. John.
[22] Mr. John is currently unemployed and relies on Ontario Works for financial support. After paying his parents $450 in rent, he is left with only $200 for personal expenses. His only work experience has been a 15-month stint as a packer at a warehouse. He quit that job in the spring of 2015 in anticipation of his trial, which began in October 2015.
[23] Neither Mr. John nor Mr. Gomez had a criminal record when they were charged with these offences. However, both offenders were charged in separate incidents with breaching the terms of their bail. On February 10, 2012, Mr. John received a conditional discharge and was placed on probation for one year for failing to comply with his house arrest condition. He completed 50 hours of community service while on probation. His reporting was described as satisfactory.
Aggravating factors
An aggravating factor in this case is the fact that the robbery involved a small convenience store. As observed by Nordheimer J. in R. v. Stoddart, [2005] O.J. No. 6076, at para. 6, such stores are particularly vulnerable to such violence. He continued:
In addition, the financial impact on a store owner is a great deal more significant than it is for a large corporation. It also impacts severely on the owners or employees involved in such harrowing experiences, particularly where, as here, these events happened late at night when the employee is alone.
[24] Strathy J., in sentencing Mr. Gomez, also noted the vulnerability of victims in these kinds of crimes. At page 6 of his reasons, he stated:
Convenience stores are vulnerable to robbery. For the convenience of the public, they stay open at night, sometimes all night. They have minimal staff – often only one person, frequently the owner, operator, or a family member. The staff are often elderly, but sometimes they are young and sometimes female. They work long hours for modest compensation. This corner store [referring to Mr. Li’s store] was targeted by Mr. John and Mr. Gomez because it had minimal staff and little customer traffic late on a cold winter night.
Crimes such as this promote an atmosphere of fear. Workers in these stores live in fear that any night could be the night that a masked man with a gun walks in and demands money. The courts have an obligation to protect the hard-working people who run these stores and to deter those who would exploit their vulnerability.
[25] A further aggravating factor is the violence Mr. John employed during the course of the robbery. Mr. John ordered Ms. Koury to the ground at gunpoint, pointed the gun at Mr. Li’s head when demanding money, and pushed Mr. Li into a corner before grabbing the $100 from the cash register. He then struck Mr. Li on the head with the gun five or six times after Mr. Li attempted to defend his property and was wrestling with Mr. Gomez. Mr. John could have just left the store but chose instead to inflict injury to Mr. Li, who required stitches to close the resulting wound.
[26] The robbery, which Mr. John acknowledged to the investigating officers was his idea, was planned and deliberate. He told Mr. Gomez about the convenience store and asked him to come with him to “scope out the place” the day before the robbery. The two men observed Mr. Li’s movements, how the store was set up, and the location of the cash register. They planned the use of disguises to conceal their identity. They discussed which subway station they would attend in order to flee the area following the robbery.
[27] Another aggravating factor is the impact that this offence has had on the victims. Although the pellet gun wielded by Mr. John was not loaded, the victims were unaware of that fact, or that it was a pellet gun as opposed to some other kind of firearm. Ms. Koury feared that Mr. John would shoot and kill her. The offence has affected how she goes about her day-to-day activities and how she behaves when in a convenience store or alone in her own home. Mr. Li continues to feel fearful and unsafe in his own store.
Mitigating factors
[28] In terms of mitigating factors, Mr. John, like Mr. Gomez, is a youthful first offender. Neither of them had any previous run-ins with the criminal law prior to January 6, 2010, although both were subsequently found guilty of failing to comply with the terms of their bail on these charges. Mr. John breached the house-arrest term of his bail. He received a conditional discharge and completed a one-year probationary term and 50 hours of community service without incident.
[29] These offences appear to be out of character for Mr. John. He advised Ms. Young that since his arrest, he has kept to himself and does not associate with any of his past companions.
[30] Mr. John had a stable upbringing and continues to have the strong support of his family, which bodes well for his rehabilitation. He and his girlfriend have been in a relationship for five years. They now have a one-year-old daughter, whom Mr. John describes as the “greatest thing that has ever happened” to him.
[31] Prior to receiving Mr. Lobel’s email on January 28, 2016, I determined that Mr. John could not benefit from the mitigating factor of remorse. Up until that time, Mr. John had not expressed any remorse for having committed these offences. Although I found his statement to the police to be voluntary, Mr. John maintained that he was “forced” to confess to the crimes and refused to take responsibility for his behaviour. However, given Mr. John’s statement to the court today, remorse is a mitigating factor in this case, albeit expressed somewhat late in these proceedings. Taking responsibility for his actions is Mr. John’s first step in the road to rehabilitation.
Sentencing principles and the appropriate sentence in this case
[32] Pursuant to s. 344(1)(a.1) of the Code, the mandatory minimum sentence for robbery with a firearm is four years.
[33] In determining the appropriate sentence in this case, I bear in mind the sentencing principles set out in ss. 718 to 718.2 of the Code, including the aggravating and mitigating factors outlined above, as well as the principle of parity. Section 718.2 (b) states that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
[34] Mr. Gomez received a sentence of four years and nine months. Although Mr. Gomez’s and Mr. John’s personal backgrounds are similar, and they committed these offences together, Mr. John’s role in the robbery was somewhat more serious than that of Mr. Gomez.
[35] The robbery was instigated by Mr. John – it was his idea. According to his statement to police, he had already selected the Carlaw convenience store as the target when he told Mr. Gomez to come with him in order to scope it out the day before the robbery.
[36] Mr. John told the police that he came into possession of the pellet gun two days prior to the robbery. He used the gun to intimidate Ms. Koury, pointed it at Mr. Li’s head when demanding money, and then struck him with it when Mr. Li was struggling with Mr. Gomez. Mr. Gomez did not carry or use a weapon in committing these offences.
[37] Having considered all of these factors and the submissions of counsel, I find that a slightly higher sentence than that imposed on Mr. Gomez is warranted. In my view, a sentence of four years and 11 months is fit and proper in all of the circumstances.
Credit for time spent on restrictive bail conditions
[38] According to R. v. Panday, 2007 ONCA 598, 87 O.R. (3d) 1, time spent under restrictive bail conditions cannot be credited against a mandatory minimum sentence. It can, however, reduce the total sentence to the extent that it exceeds the mandatory minimum.
[39] Mr. John has been on bail for these charges for 6 years and 3 weeks.
[40] For the first 19 months of his bail, or until August 15, 2011, Mr. John was required to be in his house at all times unless he was in the presence of his parents. The bail conditions were then amended to allow him to leave his home unaccompanied for the purpose of searching for a job. One year later, on August 24, 2012, the house arrest condition was replaced with a curfew of 10:00 p.m. to 6:00 a.m. However, Mr. John was permitted to be outside his home if he was with his parents or had their written permission to leave the home.
[41] Mr. John’s liberty was more severely restricted during the first two years and 7 ½ months of his six years on bail. The terms thereafter, which imposed a curfew, were not as onerous, although the overall length of time he has been on bail is significant. In the circumstances, and in accordance with the principles set out in R. v. Downes (2006), 2006 3957 (ON CA), 79 O.R. (3d) 321 (CA), I find that Mr. John should be credited with 11 months for the time that he has spent on strict terms of release.
Credit for time served in pre-trial custody
[42] Mr. John was released on bail on January 12, 2010. His time in pre-trial custody is therefore seven days which, when credited on a 1.5:1 ratio, is the equivalent of a sentence of 11 days.
The sentence imposed
[43] I have determined that the appropriate sentence is four years and 11 months. The time credited with respect to strict terms of release is 11 months. The time credited for pre-trial custody is 11 days. The sentence imposed is therefore 3 years and 354 days. This sentence is imposed on each of the four counts in the indictment, to be served concurrently.
Ancillary orders
[44] There will be a DNA order under s. 487.051 of the Code, as robbery is a primary designated offence.
[45] There is a mandatory weapons prohibition order for life, pursuant to s. 109 of the Code.
[46] There will also be a forfeiture order with respect to the items seized by police; namely, the firearm, the Canadian currency totalling $100, and the cartons of cigarettes.
GARTON J.
Released: February 1, 2016
CITATION: R. v. John, 2016 ONSC 396
COURT FILE NO.: 0019B/12
DATE: 2016/02/01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
NICHOLAS JOHN
REASONS FOR SENTENCE
GARTON J.
Released: February 1, 2016