Court File and Parties

Court File No.: CRIMJ(P) 1351/15 Superior Court of Justice

Her Majesty the Queen

v.

Amrik Dusanjh

Reasons for Sentence

Before the Honourable Justice S.C. Hill

on June 6, 2016, at MILTON, Ontario

Appearances: T. Powell, Counsel for the Crown R. Posner, Counsel for Amrik Dusanjh

Superior Court of Justice Table of Contents

Exam. Cr- Re- WITNESS : in-Ch. exam. exam. REASONS FOR SENTENCE Page 1

Exhibits

EXHIBIT NUMBER ENTERED ON PAGE Transcript Ordered: .................... June 20, 2016 Transcript assigned to ACT: ............ June 23, 2016 Draft Transcript Completed: ............ June 27, 2016 Approved for Release by Justice: ....... June 29, 2016 Transcript Completed: .................. June 29, 2016 Ordering Party Notified: ............... June 30, 2016

Monday, June 6, 2016 Reasons for Sentence

HILL, J. : (Orally)

Introduction

After a trial, the offender was convicted of robbery and of committing robbery while masked. It falls to be determined what a fit sentence is for these crimes.

The factual context of the offences was fully reviewed in the court’s earlier reasons (2016 ONSC 2358) and accordingly need only be summarized here.

Armed with a knife, and with his face masked to avoid detection, the offender robbed a gas bar/convenience store attendant of $80.00.

Offender’s Background

The offender is currently 34 years of age. He was born in Punjab, India and immigrated to Canada at about age 5.

The current Pre-sentence Report (PSR) author, in making reference to 2012 Ministry records, states that the records:

...indicated that the subject witnessed the domestic violence during his childhood, and that his father had an substance abuse (alcohol) issue. It is also indicated that the subject’s father was strict and had an authoritative attitude.

The subject’s father set strict standards of conduct and punished the subject when the rules were not followed. Ministry records further indicated that the subject experienced verbal and physical punishment from his father.

The offender completed high school. According to the PSR, while in school the offender was suspended for fighting. The offender’s employer for the past 10 years described him as “an unpredictable employee”, who was excellent, hard-working and knowledgeable “when ... sober” and not missing in action.

In addressing the subject of substance abuse, the PSR states:

As per Ministry records, it is noted that the subject started consuming alcohol while in high school, and he would consume alcohol daily, (for stress relief), often resulting in him missing school.

The subject admitted to being an addict to both alcohol and cocaine. He reported to use marijuana occasionally; however, stated that his biggest vice was cocaine. During the PSR interview he requested to not discuss his issues or how it relates to the present charges before the Court. The subject stated, however, that he has a future intent to attend the Ontario Correctional Institute (OCI) in Brampton, Ontario, or an alternate in-patient treatment program to address and receive substance-abuse treatment. When asked if the subject is participating in any substance abuse programs while incarcerated, he stated no, and he further stated that he specifically dislikes attending Alcoholics Anonymous programs.

The PSR further states:

The subject reported that he has been intoxicated during all of his past offences which have led to convictions. He stated that he is now motivated to correct this behaviour and participate in treatment in a serious manner.

According to 2009 Ministry records, the subject attended anger-management counseling at the Elizabeth Fry society, as per his Court conditions. It is noted that the subject did not enjoy the intervention as the program was on a 1-1 basis, and he had difficulty connecting to the counselor and the lessons. There is no reported present psychiatric or psychological intervention that he has completed and no diagnosed mental health issues are identified presently.

The subject is not currently consuming any prescribed medication, and he denied any history of personal mental illness. The subject did report however that when intoxicated, his anger-management becomes problematic, uncontrollable, and that he has been involved in physical altercations in the past. The subject stated that since his recent incarceration he has remained sober from all drugs and alcohol.

During the Pre-Sentence Report, the subject was not forthcoming with personal information, and was not willing to discuss the offence presently before the Court. He did not express regret for his current charges and stated due to being intoxicated at the time of the offence, he does not recall the totality of the events.

Ministry records indicate that the subject has a record of non-compliance to community orders. Records indicate that the subject has poor problem-solving skills, displayed issues with anger-management and with intimidation and control, which often leads to his unpredictable and criminal behaviour. The subject reported that he currently has minimal friends. Ministry records indicate that, in the past, his peers have been a negative contribution to his offending.

On the issue of “Response to Community Supervision”, the PSR author observed:

The subject has an extensive criminal record, along with several convictions for fail to comply with community supervision orders. His response to previous community supervision orders has been poor. Although he complied with counseling conditions, he has numerous failed to reports list[ed] on his file and he has re-offended while on probation and other community supervision orders.

Ministry records indicate that, during previous periods of community supervision, the subject never accepted full responsibility for his criminal conduct and displayed little regret for his actions.

The subject acknowledged that he does not want to continue to involve himself in a criminal lifestyle, and appreciated the negative impact this current involvement has had upon his life. The subject failed to acknowledge, however, any empathy towards the victim or the harm inflicted upon them. Motivation as a barrier exists as he displays a pattern of goal setting; he rarely follows through with any medium or long-term goals that he sets for himself. As reflected by his criminal record, the subject has struggled to comply with Court-ordered sanctions, most frequently by failing to keep the peace and previously by consuming drugs.

The offender’s overall and more recent response to community supervision has been unimpressive. The subject has been in conflict with the law since he was been a youth. The subject does not suffer from any mental illness. He has issues with managing anger and substance use.

The subject’s consistent irresponsibility, continuous substance abuse and disregard for the safety of others have been a concern. Support from his parents and short-term treatment has not worked in the past. The subject has a history of not complying with Probation conditions and appears to lack problem-solving skills. Previous court sanctions involving probation have failed to deter or rehabilitate the subject, especially with respect to his serious drug problem.

According to the PSR, the offender self-identifies as an addict who maintains that he requires professional treatment. The offender has not committed to abstinence despite years of notice and community supervision orders designed to curtail substance abuse.

The offender is not a first offender. He has a prior criminal record commencing in Youth Court at the age of 17. In all, there are 23 entries in the record, with 18 adult court convictions between 2000 and 2011, prior to the commission of the current offences in 2013. Of relevance to the present proceeding are the following aspects of the record: 2011, robbery and wear disguise while committing an indictable offence; assault with a weapon in 1999 in Youth Court and subsequently in 2006; possession of a weapon in 2001; assault causing bodily harm, 1998, in Youth Court, and subsequently in 2006; convictions for assault in 2002 and 2007; and a conviction for assault resisting arrest in 2002.

The offender is a Permanent Resident of Canada. On August 11, 2006, he was declared inadmissible and ordered deported on October 10, 2007. Mr. Dusanjh obtained a 3-year stay of that order on December 10, 2009. With the offender’s September 26, 2011 sentencing for robbery, the Immigration Appeal Division by operation of statute canceled the stay on February 18, 2013. In submissions here, the offender was described as being currently considered “removal ready” with deportation essentially inevitable.

Position of the Parties

The Crown

On behalf of the Crown, Mr. Powell submitted that a fit sentence would be 4 years’ incarceration less credit for pre-sentence custody. While counsel described a range of 2 to 4 years as the appropriate range, he submitted that, in particular the offender’s history of violence supports a disposition at the upper end of this range. Mr. Powell took no position as to whether the amount of credit properly attributable for pre-sentence custody should be at an enhanced rate or not.

Crown counsel noted the aggravating facts of not only the prior record, but also the use of a weapon and the inevitable impact of the crime upon the victim. Deterrence and denunciation, it is said, should dominate as the governing sentencing principles.

Mr. Posner, while recognizing the general applicability of a 2 to 4 year range, submitted that an appropriate sentence would be about 3 years – a global sentence comprised of 18 months’ imprisonment along with 1.5:1 credit for about a year of pre-sentence custody referable to the current charges, in effect, about 18 months’ credit.

Without diminishing the gravity of the offence or the prior criminal record, Mr. Posner emphasized the offender’s current commitment to substance abuse treatment, and the consequence of deportation and separation from his supportive family. Counsel submitted that a court-recommendation for treatment at the Ontario Correctional Institute (OCI) would serve to conquer the chronic substance abuse problem prior to deportation.

Analysis

The fundamental principle of sentencing is that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender: Criminal Code, s. 718.1; R. v. Lacasse , 2015 SCC 64 , [2015] 3 S.C.R. 1089 , at para. 12 ; R. v. Clouthier , 2016 ONCA 197 , at para. 53 .

Robbery is punishable by a maximum of life imprisonment. The crime has been described as “a serious offence”: R. v. Shiwprashad , 2015 ONCA 577 , at para. 72 . As a crime of violence, the overarching principles for a sentencing court are general deterrence and denunciation in furtherance of the protection of the public. Employed victims, working alone in convenience-like establishments, even on day shifts, are particularly exposed to robbery. In R. v. Carriére (2002) , 164 C.C.C. (3d) 569 (Ont. C.A.) , at para. 11 the court stated, “[a]s this court has often said, operators of convenience stores are a particularly vulnerable group”: see also R. v. Clarke , [2012] O.J. No. 4084 (C.A.) , at para. 11 ; R. v. Allison-McLeish , [2001] O.J. No. 845 (C.A.) , at para. 13 .

“A plea of guilty is an important mitigating factor”: R. v. Spencer (2004) , 72 O.R. (3d) 47 (C.A.) , at para. 38 , leave to appeal refused [2005] S.C.C.A. No. 4. Where an offender maintains his or her innocence, he or she “cannot rely on remorse or an acknowledgment of harm to the victim” to reduce a sentence: R. v. Araya , 2015 ONCA 854 , at para. 31 (conviction appeal allowed 2015 SCC 11 , [2015] 1 S.C.R. 581 ). A sentencing court may take into account in the exercise of its sentencing discretion, not as an aggravating feature of sentencing, but as the absence of a factor entitling sentence reduction, and as relevant to whether restorative objectives can be satisfied in a particular case, an offender’s lack of remorse and acceptance of responsibility for his or her crime: R. v. Proulx , 2000 SCC 5 , [2000] 1 S.C.R. 61 , at para. 113 ; R. v. Valle-Quintero (2002) , 169 C.C.C. (3d) 140 (Ont. C.A.) , at p. 164 ; R. v. A.(K.) (1999) , 137 C.C.C. (3d) 554 (Ont. C.A.) , at p. 570 ; R. v. Valentini (1999) , 132 C.C.C. (3d) 262 (Ont. C.A.) , at paras. 81-3 .

Mr. Dusanjh has a significant prior criminal record which amounts to an aggravating factor on sentencing: R. v. Larche , [2006] 3 S.C.R. 762 , at para. 28 ; R. v. Taylor , [2004] O.J. No. 3439 (C.A.) , at paras. 39-40 . Of course, an offender is not to be re-punished for prior crimes and a sentencing court may not raise a sentence beyond what would otherwise be a fit sentence on account of a prior record. Depending upon its nature, as in the present case, the record may temper the leniency to be extended by the court as the criminal history is highly relevant to specific deterrence, the chances of rehabilitation, and the likelihood of recidivism. Of course, on the facts here, Mr. Dusanjh has demonstrated that he is a threat to public safety, who must be specifically deterred.

The PSR report, as said, records hearsay information that the offender has substance abuse issues. While there is no direct evidence that the offender was under the influence of a drug or other intoxicant at the time the current offences were committed, the Crown accepts that that was so. In all the circumstances, including the information provided to the PSR author, the court accepts this to have been the case. However, there is no “linkage” between the crimes and any addiction, such as may have existed: see R. v. Barham , 2014 ONCA 797 , at paras. 6 , 8.

Because, in sentencing, an offender’s individual circumstances must be taken into account, the fact that an offender faces the collateral consequences of deportation is a relevant factor for consideration – this respects the proportionality of punishment principle: R. v. Pham , 2013 SCC 15 , [2013] 1 S.C.R. 739 , at paras. 11-20 . Consideration of immigration consequences cannot, however, become an invitation to impose an unfit sentence. While, in some instances, this factor may tip the scales toward a lighter sentence ameliorating specific immigration consequences , for example, R. v. Frater , 2016 ONCA 386 , at paras. 2-6 , that will not always be the case as here, especially where such a sentence would fall outside the range of appropriate sentence: see Pham , at para. 18 ; R. v. Freckleton , 2016 ONCA 130 , at paras. 2 , 7-8; R. v. Stein , 2015 ONCA 720 , at paras. 5-9 ; R. v. Malicki , 2015 ONCA 204 , at paras. 2 , 5, 7-10; R. v. Badhwar , 2011 ONCA 266 , at paras. 42-45 .

The aggravating circumstances of this case are manifestly apparent, including the following:

(1) the offender robbed a gas bar/convenience store employee while armed with a knife produced in a threatening manner;

(2) the robbery was committed less than 2 years after completion of a penitentiary-length sentence for robbery, and during the currency of a probation order;

(3) the $80.00 was not recovered;

(4) the offender, a recidivist for crimes of violence, has a relatively negative Pre-sentence Report.

In the balance, in mitigation, these factors must be considered:

(1) no actual violence was inflicted beyond the terror imposed by menacing the threat of use of a knife;

(2) the offender was very likely under the influence of a drug or intoxicant when the crimes were committed;

(3) the offender will be deported once his sentence is complete.

An offender held in pre-sentence custody, who is subsequently convicted, is generally entitled to credit on sentence for pre-sentence custody at the rate of 1.5:1: R v. M.O. , 2016 ONCA 236 , at para. 22 . This is not an invariable rule – “[t]he applicable principle comes from Summers , 2014 SCC 26 , [2014] 1 S.C.R. 575 ]: 1.5 for 1 credit can be denied if the possibility of early release or parole is highly unlikely”: R. v. Beckwith , 2015 ONCA 588 , para. 2 ; see also Summers , at para 71 ; R. v. Johnson , 2016 ONCA 69 , at paras. 6-7 ; R. v. Rotman , 2015 ONCA 663 , at para. 18 . While, as said, double jeopardy considerations preclude further punishment for a prior criminal record, depending on specific circumstances, the record may inform a Court’s prospective view of the likelihood of early parole. Because this offender’s prior history, his record and poor response to community supervision, tends toward the profile of a dedicated recidivist with limited rehabilitative potential, he is not clearly a candidate for early release and accordingly a full enhancement of 1.5:1 credit is not supportable here.

A court has a discretion to impose consecutive sentences respecting discrete crimes: Criminal Code , s. 718.3(4)(c)(ii). Frequently, in the case of sentencing for robbery, a companion conviction for a s. 351(2) offence is ordered to be served concurrently. This is not always the case: R. v. Long , 2014 ONCA 10 , at paras. 1-2 ; R. v. Carlson , [2002] O.J. No. 1884 (C.A.) , at paras. 2 , 22-3. While keeping sight of the total sentence as a fit disposition (s. 718.2(c)), consecutive sentences are justified here. The offender is a recidivist respecting the commission of robbery while disguised. The masking of the face in the current robbery served to defeat the store video security system.

There is of course no invariable rule that a present sentence must be no shorter than a previous disposition: R. v. Vincent , 2010 ONCA 332 , at para. 3 . That said, depending upon the circumstances of a particular case, “[i]t is not an error in principle for a sentencing judge to apply the concept of progressive punishment, so long as the sentence imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender.”: R. v. McBain , 2012 ABCA 104 , at para. 5 ; see also R. v. Catenacci , 2012 ONCA 187 , at para. 1 ; R. v. Yeck , 2011 ONCA 768 , at para. 6 ; R. v. E.O. , [2003] O.J. No. 563 (C.A.) , at para. 15 ; R. v. Borde (2003) , 63 O.R. (3d) 417 (C.A.) , at para. 39 .

Having regard to the facts of the offences and the gravity of the offender’s conduct in light of his past criminal history, the court imposes the following sentences.

With credit for 15 months of pre-sentence custody, on the robbery count, the offender is sentenced to a further 18 months on that charge.

On count number 2, the offender is sentenced to 6 months less 1 day to be served consecutively. While the effective sentence is about 3 years and 3 months, the imprisonment remaining to be served is 2 years less one day.

In addition, on count number 1, an 18-month probation order on the mandatory statutory terms set out in s. 732.1(2) of the Criminal Code will be imposed along with the following optional conditions:

(1) report to probation services within 2 working days of release and thereafter as required by your probation officer;

(2) abstain from the possession and consumption of alcohol;

(3) abstain from the possession and consumption of drugs except in accordance with a medical prescription.

It is expected that the probation officer, to facilitate immediate deportation, will on the appropriate date, apply to the court, pursuant to s. 732.2(3) of the Code to terminate the order.

By way of collateral orders, the offender is sentenced to life-long weapons prohibition orders pursuant to ss. 109(2) and (3) of the Criminal Code . In addition, in respect of the armed robbery, a primary designated offence as defined in s. 487.04 of the Code , there will be an Order pursuant to s. 487.051 for the taking of samples for DNA analysis.

The Warrant of Committal shall bear the endorsement that the Court recommends that the offender’s imprisonment be served at the Ontario Correctional Institute with a view to intensive anger management and substance abuse treatment.

The Superior Court of Justice Trial Coordinator in Brampton shall order a copy of these reasons to be forwarded to the Ontario correctional authorities and to the Peel Crown Attorney’s office (Attention: Tyler Powell) to be sent on to the relevant immigration authorities.

...WHEREUPON THIS MATTER WAS CONCLUDED.

Form 2 Certificate of Transcript

Evidence Act , Subsection 5(2)

I, Sherry McHady, certify that this document is a true and accurate transcription of the recording of R. v. Amrik Dusanjh , in the Superior Court of Justice, held at 491 Steeles Avenue East, Milton, Ontario , taken from Recording No. 1211_5_20160606_091753_10_HILLCAS.dcr, which has been certified in Form 1 by J. Sealey.

June 29, 2016

_________________ ­_______________ (Date) (Signature of authorized person)

This certification does not apply to the Reasons for Sentence since they were judicially edited.