Regina v. Howard Smith, 2016 ONSC 4700
Court File No.: CR-15-30000203-0000 Date: 2016-07-20 Superior Court of Justice - Ontario
Re: Regina v. Howard Smith
Before: E.M. Morgan J.
Counsel: Dominique Kennedy, for the Crown Corey Nishio, for the Defendant
Heard: Sentencing submissions, June 23, 2016
Sentencing Judgment
[1] Howard Smith was charged with forcible confinement, choking, and robbery, all of which related to an incident that occurred in the morning hours of May 28, 2014. After a 5-day jury trial, he was convicted of robbery and acquitted of the other charges.
[2] The incident took place in a room at the Avon Motel in Scarborough, Ontario, after the victim, Tara Golfetto, had invited Mr. Smith and his friend, Dustin Knapp-Legault (known to Mr. Smith as Dusty), into her motel room to party earlier that morning. After spending a few hours drinking, smoking marijuana, and socializing with Ms. Golfetto, Mr. Smith and Dusty robbed her of her purse. In the process, Ms. Golfetto was trapped in the motel room and choked with a bath towel that was twisted as a rope around her neck.
[3] The evidence was clear that it was Dusty, not Mr. Smith, that did the choking, and the jury concluded that it was also Dusty who imposed the forcible confinement on Ms. Golfetto, while Mr. Smith took her purse and whatever money was in it. The purse itself was later found discarded outside the motel.
[4] Accordingly, while Mr. Smith was not convicted of the more violent aspects of the crime, he was involved in what turned out to be a violent incident of robbery that terrorized a young woman in the confines of her motel room. The Crown submits that this is akin to a robbery that takes place during a home invasion, where a person feels especially violated in breach of the sanctity of a place where they expect to feel secure. By contrast, the defense submits that this is akin to a quick purse snatching, since Ms. Golfetto had invited Mr. Smith into her motel room and he did not perpetrate any of the violence other than grabbing the purse from her hand.
[5] The pre-sentence report on Mr. Smith indicates that he has had a strained family relationship with his parents and a history of defiance, although he has no previous criminal record. There is some suggestion in the report that he suffers from depression, and that he is generally rudderless, has no job prospects, never finished high school, and has had only very short term jobs.
[6] He did express some remorse to the interviewer, who indicated in the report that, “He relates that he is ‘genuinely remorseful’ about the offence and feels ‘ashamed’ of his behaviour as he has two sisters whom he would not wish to be hurt in any way.” However, as counsel for the Crown observes, this expression of remorse contains no real insight into his own behavioral control problems. Mr. Smith has a history of violent outbursts and defiance and “an anti-social thread”, as she put it, that is never acknowledged by him. Although this is his first criminal conviction, unfortunately, the conduct in the offence here cannot be said to be out of character for Mr. Smith.
[7] The Crown has submitted a victim impact statement from Ms. Golfetto. She reports that she was unable to keep her job after this incident because she felt overwhelmed by the robbery and violence perpetrated on her, which, as she describes it, kept “playing out in my head daily”. She is now seeing a psychiatrist, and only copes from day to day with heavy dosages of Prozac. Ms. Golfetto says that she also has fears for her safety now, and that she is no longer the “social butterfly” that she used to be. In general, having been a victim of this crime turned her from an open and trusting person to a person who is extremely wary and untrusting of people.
[8] The Crown seeks a 12 to 15-month custodial sentence, plus 2 years’ probation. The defense seeks a suspended sentence and 3 years’ probation.
[9] Counsel for the Crown relies heavily on R v Braithwaite, 2013 ONSC 7400, aff’d 2015 ONCA 132. There, the defendant had met a prostitute in a motel, where he and a co-accused confined her and robbed her. As with Mr. Smith, it appears that Mr. Braithwaite was not the prime actor and that his co-accused was the driving force, and the complainant did not suffer lasting physical injuries. Unlike here, Mr. Braithwaite was also found guilty of unlawful confinement. He was a 27-year old first time offender whose pre-sentence report was generally positive, and who showed remorse and testified against co-accused. He was sentenced to 18 months in custody.
[10] It is clear from the court’s reasoning in Braithwaite that part of the reason for the relatively heavy custodial sentence was that the court considered the offense to be akin to a home invasion. Section 348.1 of the Criminal Code says that if a person is convicted under s. 343 (robbery) in relation to a dwelling-house, “the court imposing the sentence on the person shall consider as an aggravating circumstances the fact that the dwelling-house was occupied at the time of the commission of the offence”. The court found that a hotel or motel room is a “dwelling house” for the purposes of this section.
[11] In R v Wright, [2006] OJ No 4870, the Court of Appeal provided a range of sentences for home invasion cases. At para 23, the Court says that a home invasion robbery can range from a low of 4 to 5 years in custody to a high of 11 to 13 years. Counsel for the Crown explains that she is not asking for that high a sentence here given the unique circumstances, but this shows that there is a need and a societal expectation for a custodial sentence. Crown counsel concedes that Mr. Smith has rehabilitative prospects, but she submits that for a crime of this nature some message must be sent.
[12] The Wright case can be contrasted with R v Panchan, 2013 ONSC 5567, where the accused and her boyfriend lured someone into a parking lot for the purpose of robbing him. She was the lookout, not the beater or actual robber, she was a first time offender, and was found guilty of being a party to the robbery rather than the primary actor. In sentencing her to 90 days in custody, Code J. stated, at para 32:
The principles of sentencing pull in opposite directions in this case. On the one hand, both accused are young first offenders with good rehabilitative prospects who pose little or no risk of re-offending… On the other hand, robbery and aggravated assault are serious crimes and…[d]enunciation and general deterrence are generally the primary sentencing values in such cases and more significant custodial sentences are required, even for first offenders.
[13] The Crown submits that Mr. Smith’s case requires more than Panchan because he is the primary actor not a party, and, in addition, the offense at issue here carries the statutorily aggravating factor of being a home invasion.
[14] During the sentencing hearing, Mr. Smith asked for the opportunity to address me himself. He told me that at age 15 he was removed from his home by Children’s Aid. He has now returned to his parents’ home, but the relationship has not mended. He confirmed that he has been struggling with depression, and stated that, “It is experiences like this that makes me realize how much one incident can impact on his life.” He also stated that he does sympathize with Ms. Golfetto, and has remorse about not intervening with Dusty and stopping the situation when he realized it had gone too far.
[15] Mr. Smith stated that this day in 2014 has made him re-focus on his future. He plans to complete high school and hopefully learn a trade. He went on to say that he has renewed ambition to be a contributing member of society, and that he feels he has potential as a person who now seeks an opportunity to fulfill that potential.
[16] Counsel for the defense points out that the offense was unplanned, and there were no injuries related to Mr. Smith’s involvement. The assault element of the robbery perpetrated by Mr. Smith is the grabbing of Ms. Golfetto’s purse, but no hitting or choking – all of that was done by Dusty. Defense counsel also observes that Mr. Smith has kept his bail conditions, obeyed his curfew, has consumed no alcohol, etc.
[17] Defense counsel also relies on R v Pinas, 2015 ONCA 136, where the two accuseds each received sentences of 6 months for a planned home invasion robbery with a weapon. He points out that in the present case, not only was there no weapon but there was no advanced planning; the crime was entirely opportunistic, and was committed after Mr. Smith and his friend were unexpectedly invited into the motel by Ms. Golfetto.
[18] The defense therefore submits that here, “either a period of probation or a short, sharp custodial period followed by probation are appropriate kinds of sentences”: Panchan, at para 33. He suggests that although the possibility of a conditional sentence has been eliminated from the legislation, a suspended sentence with probation is still available. He submits that a suspended sentence is not a lack of a sentence; rather it just suspends it to see if the probationary period is respected. He has provided a number of cases which illustrate that a first offender convicted of robbery can be given a period under probation rather than custody.
[19] In my view, this case is more than a simple purse snatching in that it took place in a confined space and during the course of a violent encounter, although the worst of the violence itself was not perpetrated by Mr. Smith. On the other hand, it is less than a planned home invasion where perpetrators burst into a person’s residence unexpectedly and carry out a planned attack. Mr. Smith got carried away after being invited to party with Ms. Golfetto. Although Ms. Golfetto’s naivety in inviting two strangers into her motel room in the small hours of the morning does not excuse Mr. Smith’s conduct, the unusual circumstances do take some of the aggravating features out of this offense in a motel room.
[20] Given the combination of a traumatic impact on the victim, and reasonable prospects of rehabilitation by Mr. Smith, this is an appropriate case for what Justice Code has characterized as “a short, sharp custodial period followed by probation”: Ibid. Denunciation, deterrence, and rehabilitation are all pillars of sentencing, and this combination of a period in custody followed by a somewhat longer probationary period would balance all three objectives.
[21] I hereby sentence Mr. Smith to 120 days in custody, followed by 2 years’ probation. In addition, the two ancillary Orders sought by the Crown are both granted. There will be a DNA Order and a section 109 firearms prohibition Order for 10 years.
[22] The terms of probation to be adhered to by Mr. Smith are as follows:
- that he will keep the peace and be of good behaviour;
- that upon completion of the custodial sentence, he will report to a probation officer as required;
- that he will have no communication or contact, direct or indirect, with Tara Golfetto, including in person, by telephone, digitally, or via any social media;
- that he will not to be within two hundred metres of any place where he knows Tara Golfetto to be present;
- that he will perform 150 hours of community service as approved by the probation officer;
- that he abstain from consuming alcohol and from consuming or having in his possession any substances or drugs listed in the schedule to the Controlled Drugs and Substances Act, except as may be prescribed for medical purposes;
- that he maintain employment or schooling, or diligently seek out employment, and provide proof of same to the probation officer.
- that he notify the probation officer of any change of address, change of employment or school attendance;
- that he not associate with anyone known to have a criminal record, except as may be exempted by his probation officer.