Court File No. 15-14001-00 CITATION: R. v. Lewin 2016, ONSC 6954

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

AARON LEWIN

R E A S O N S F O R S E N T E N C E

BEFORE THE HONOURABLE JUSTICE M. FUERST

on AUGUST 22, 2016, at OSHAWA, Ontario

APPEARANCES:

M. Gillen Counsel for the Crown

C. Angelini Counsel for Mr. Lewin

REASONS FOR SENTENCE

FUERST, J. (Orally):

On Hallowe’en night 2013, Aaron Lewin participated in the robbery of a jewellery store at a mall in Durham Region. He was arrested that night.

He pleaded guilty to robbery, being masked with intent to commit an indictable offence, and possession of a weapon for a purpose dangerous to the public peace.

There is no question that a jail term must be imposed for these offences. The issue is its length.

The Circumstances of the Offences

Mr. Lewin and his associates, Baseer Ahmed and Elton Alexander, decided to rob a jewellery store. The store was located in the Pickering Town Centre, which is an indoor shopping mall.

At approximately 7:30 p.m. on October 31, 2013, Mr. Lewin and Mr. Alexander went into the jewellery store. Mr. Alexander went in first. He wore a black hoodie with a construction vest over top, a white dust mask covering his nose and mouth, and white gloves on his hands. Mr. Lewin followed him into the store. Mr. Lewin wore a white one-piece painter suit, white gloves, and a construction vest. He carried a blue recycling box. Both men wore hats with hoods over top.

Events inside the store were captured on a video recording.

Once inside the store, Mr. Alexander immediately began to pry open display cases, using a crow bar the men brought with them. Mr. Lewin followed behind him, scooping up jewellery from the cases into the blue box.

Mr. Alexander removed a black handgun from his waist area. He put it on a stool beside him. He then assisted Mr. Lewin in scooping jewellery out of the cases.

Mr. Lewin picked up the gun and put it in the blue box.

After removing the jewellery, both men left the store. They got into a car driven by Mr. Ahmed, who was wearing a clown mask. Mr. Ahmed drove them to Mr. Alexander’s car, which was parked a short distance away. Mr. Lewin and Mr. Alexander got into that car and drove toward Highway 401 westbound.

Civilians at the mall noted the licence plate of Mr. Ahmed’s car, and passed that information on to the police.

The police located Mr. Ahmed’s car driving in tandem with Mr. Alexander’s car. They pulled over both vehicles. All three men were arrested. In the trunk of Mr. Alexander’s car, the police found the blue recycling box, the disguises worn in the store, the jewellery, and the gun.

The gun was not brandished or pointed in any way while the men were inside the store. None of the witnesses was even aware of its presence.

It is not disputed that Mr. Lewin did not know that Mr. Alexander had a gun until Mr. Alexander removed it and put it on the stool. However, Mr. Lewin acknowledges that he knowingly possessed the gun when he picked it up and put it in the recycling box.

Mr. Lewin and Mr. Alexander were in the store for approximately one minute. They did not speak or gesture to anyone in the store.

No Victim Impact Statements were provided.

The Circumstances of Mr. Lewin

The defence did not request a pre-sentence report. Instead, information about Mr. Lewin’s background and personal circumstances was provided in a report prepared by Dr. Hy Bloom. Dr. Bloom conducted a psychiatric and risk assessment of Mr. Lewin.

Mr. Lewin was 21 years old when he committed the offences. He is now 24 years old. He is single. He lives with his parents. His parents came to Canada from Jamaica. He has two older brothers. He also has six half-siblings, as a result of his father’s relationships with women other than Mr. Lewin’s mother.

Mr. Lewin described his family as dysfunctional. Although the family is comfortable financially, there are problems between his parents. It seems that their marriage disintegrated some time ago. They still live together, but are emotionally estranged. Mr. Lewin has always had a difficult relationship with his father, whom others describe as an intimidating figure. His father singled him out for verbal mistreatment and for harsher discipline than his older brothers received. Mr. Lewin’s relationship with his mother is much more positive. He also is close to his two brothers.

Mr. Lewin completed high school. He dropped out of university in his first year. His employment history is weak. He last worked a couple of years ago, in his father’s immigration consulting practice. It is unclear how he has supported himself since then. He lives at home and his father reportedly gives him money randomly. Mr. Lewin aspires to be a professional comedian. He has appeared on stage as a stand-up comic dozens of times.

Mr. Lewin has no previous criminal record. There is no history of alcohol or drug abuse.

Mr. Lewin expressed a measure of remorse for his offences to Dr. Bloom.

Mr. Lewin told Dr. Bloom that several weeks before the robbery, he mounted a comedy show with money from his father, but it was a financial failure. This left him feeling down and demoralized.

Dr. Bloom noted that Mr. Lewin has problems with anger management. However, Dr. Bloom found no evidence that Mr. Lewin suffered from a major mental disorder before or at the time of the robbery.

Dr. Bloom concluded that Mr. Lewin “does not have a good grasp of the psychological motivations and underpinnings of his involvement” with the group that planned and carried out the robbery. Dr. Bloom observed that such serious criminal activity was out of character for Mr. Lewin, but he could not offer a firm opinion as to Mr. Lewin’s motivations. Dr. Bloom suspects a number of psychological factors were at play, beyond a need for money. These included a need for condemnation and punishment over the failed comedy show, anger, and a bid for attention, along with poor judgement, opportunism, and confusion about attainment of his life goals.

Dr. Bloom stated, “It is more likely than not that Mr. Lewin’s offences are a one-time, out-of-character behavioural aberration, and do not represent the inception of a career in crime.”

On that basis, Dr. Bloom rated the risk of recidivism by Mr. Lewin as low. He recommends psychotherapy/counselling to help Mr. Lewin deal with the motivations behind the offences. He also suggests that Mr. Lewin should have psychological support while he is incarcerated, because of the potential negative impact of the prison milieu.

On November 18, 2013, Mr. Lewin was released on a bail that required him to be accompanied by a surety when out of his residence. Crown counsel agreed to remove the house arrest condition on Mr. Lewin’s request at the completion of the sentencing hearing in mid-July 2016. There is no evidence before me that Mr. Lewin sought to have that condition varied at any earlier point in time.

In court, Mr. Lewin specifically acknowledged the “pain and torture” that he caused to those who were in the jewellery store at the time of the robbery. He said that his participation in the robbery was the worst mistake he ever made. He asked me to consider his potential to change.

The Charges Against the Co-Accused

Mr. Alexander pleaded guilty in the Ontario Court of Justice at the end of a preliminary hearing, to robbery while armed with a firearm and being masked with intent. He was sentenced to 5 years in jail for the robbery and one month in jail consecutive for the offence of being masked.

Mr. Ahmed pleaded guilty in another jurisdiction where he had outstanding charges, to robbery and being masked with intent. He was sentenced to 2 years and 8 months in jail in addition to credit for 3 months of pre-trial custody, apparently treated as 4 and one half months.

I was not advised of the facts admitted to by Mr. Alexander or Mr. Ahmed on their guilty pleas, or of the personal circumstances of either offender.

The Positions of the Parties

On behalf of the Crown, Mr. Flagg seeks a sentence of 4 years in jail for the robbery, with concurrent sentences for the other offences, a DNA order, and a S.109 order for 10 years. He emphasizes that this was a well-planned robbery of a vulnerable retail outlet, the perpetrators carried it out wearing costumes to conceal their identities on a date when they were less likely to stand out, multiple weapons in the form of a gun and a crow bar were used, and a quantity of jewellery was obtained. In mitigation, he concedes that Mr. Lewin is relatively young and a first offender, and that he pleaded guilty. But, he did so after a preliminary hearing and in the face of a strong Crown case.

On behalf of the defence, Mr. Angelini seeks a global sentence of 2 years less a day, less credit for pre-trial custody and an additional credit of 8 months because of the strict bail conditions. He emphasizes that Mr. Lewin pleaded guilty without any trial date being set, he is a first offender who is still youthful, and he expressed remorse. He concedes that the robbery was planned, but it did not involve forcible confinement, it was carried out very quickly without any explicit threats, Mr. Lewin did not know that Mr. Alexander would bring along a gun but in any event it was not used, and all the property was recovered. The offences were out of character for Mr. Lewin. He has a strong network of support from family members and friends. His rehabilitative prospects are excellent, and his risk of recidivism is low according to Dr. Bloom.

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 to victims and to the community.

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 circumstance and consistent with the harm done to victims or to the community be considered.

The principles of sentencing that are paramount in cases of robbery are denunciation, and general deterrence. Where the accused is a youthful first offender, specific deterrence and rehabilitation cannot be overlooked, but given the seriousness of the offence of robbery, particularly one involving a gun, those objectives take a back seat to denunciation and general deterrence: see R. v. Thurairajah, 2008 ONCA 91.

Analysis

The maximum sentence for robbery is life imprisonment. The range of sentence for the offence is, however, wide. See for example, R. v. Mearow, [2006] O.J. No. 4025; and R. v. Brown, 2015 ONSC 6430. Where within the range a particular sentence falls depends largely on the balancing of the case-specific aggravating and mitigating factors.

There are several aggravating factors that are important in determining the just and appropriate sentence in this case. This was a well-planned and well-executed robbery. The perpetrators chose to commit it on Hallowe’en night, an occasion when the wearing of costumes assisted in their disguise while ensuring that they did not attract undue attention. They brought with them a crow bar to use to rapidly open the display cases, and a blue box into which the jewellery could quickly be dumped. They wore gloves, which ensured that fingerprints would not be left behind. A get-away driver was involved. A second vehicle also was available to assist Mr. Lewin and Mr. Alexander to leave the scene quickly, while minimizing the chance of their detection.

This was not impulsive, spur-of-the moment behaviour borne of immaturity. It was calculated, premeditated conduct.

I recognize that Mr. Lewin did not bring the gun to the robbery and that when he saw it, he put it into the bin. As a result, it was not in plain view. I accept that he did not know in advance that a gun would be involved. Nonetheless, even once he realized that Mr. Alexander had a gun, Mr. Lewin chose to carry on with the robbery, rather than abandoning its pursuit.

The fact that a retail jewellery store was targeted is an additional aggravating factor. Because of the merchandise they carry, jewellery stores are uniquely vulnerable to robberies, particularly those that are well-planned and involve weapons. The potential for both physical and emotional harm to employees of these businesses, not to mention innocent bystanders going about their business in a shopping mall, is high. The protection of the public is an important consideration in sentencing for this kind of offence.

Although the amount of property taken in the robbery was not specified, and all of it was recovered, it is a reasonable inference and one that I draw that a quantity of jewellery was scooped out of the display cases by Mr. Lewin and Mr. Alexander.

No victim impact information was provided. It is, however, a matter of common sense that those in the store at the time of the robbery would have suffered some measure of emotional distress.

In mitigation, I take into account that Mr. Lewin is a relatively youthful first offender. He pleaded guilty, which is a sign of remorse and willingness to take responsibility for his actions. He expressed remorse for his actions to Dr. Bloom, and acknowledged the harm that he caused in his remarks to me in the courtroom. He has a supportive network of family and friends, which is important for his rehabilitative prospects. He did not explicitly threaten anyone during the robbery. His possession of the gun was brief, and he did not brandish or display it. Fortunately, no-one was physically injured during the robbery or the police apprehension of the accused.

I accept that the offences were out of character for Mr. Lewin. I accept that he was not the mastermind behind the robbery. It is concerning, however, that there is no clear explanation for his involvement in such serious criminality. Mr. Lewin seems to have limited insight into his own behaviour. Dr. Bloom’s opinion, couched in terms of what he “suspects”, is rather speculative. Accordingly, I approach his assessment of Mr. Lewin’s risk of recidivism as low, with a measure of caution.

I accept Dr. Bloom’s statement that Mr. Lewin would benefit from psychological treatment. To date, Mr. Lewin has not attended any counselling or psychotherapy. Nor has he returned to school or pursued steady employment. Unlike the offender in R. v. Pich, 2015 ONSC 1502, he has not used his many months on bail to begin a process of rehabilitation.

I have considered the jurisprudence provided to me by Crown and defence counsel. Reformatory length sentences have certainly been imposed for the crime of robbery as a result of joint submissions, but this is not a case where a joint submission is before me. Nor is it a case where the accused comes from a disadvantaged background, or is of low intelligence, or suffered from a mental illness at the time of the crime.

The gravity of this offence of robbery requires that a penitentiary length sentence be imposed, even though Mr. Lewin is a relatively young first offender with rehabilitative prospects.

Mr. Lewin spent 19 days in custody before his release on bail. I agree that when credited on the basis of one and a half days to one, this time equates to one month.

Mr. Lewin was released on a bail with a house arrest condition. I acknowledge that there was some constraint of his liberty as a result. However, there is no evidence before me that the house arrest bail imposed undue hardship on Mr. Lewin: See R. v. Ijam, 2007 ONCA 597. There is no evidence that Mr. Lewin sought to have the bail condition removed or loosened, so that he could work or attend school or engage in counselling, at any time before the date of the sentencing hearing. Mr. Angelini conceded that the house arrest condition did not prevent Mr. Lewin from performing as a stand-up comedian, because his mother accompanied him to his shows. In these circumstances, there is no basis on which to give extensive credit for restrictive bail conditions. I credit Mr. Lewin with 6 months for the period of time that he spent on house arrest bail.

Conclusion

Mr. Lewin, please stand. As I have said, because of the gravity of the robbery you committed, a penitentiary sentence is required. In light of your age and the fact that you are a first offender with rehabilitative prospects, I impose the shortest term of imprisonment that is proportionate to the crime and your responsibility for it.

I sentence you on the robbery count to 3 years in jail, less credit of 7 months for time spent in custody and on a form of restrictive bail. This leaves a sentence to be served of 2 years and 5 months in the penitentiary. On count 2, possession of the gun, I sentence you to 3 months in jail concurrent. On count 3, being masked, I sentence you to one year in jail concurrent.

I make a DNA order on all counts, and a S.109(2)(a) order for 10 years and a s.109(2)(b) order for life on the count of robbery.

I recommend that you be considered for placement in a minimum security institution, and that you receive psychotherapy and/or counselling while serving your sentence. You may be seated.

Mr. Gillen and Mr. Angelini, is there anything that needs to be clarified? Mr. Gillen? MR. GILLEN: I’m sorry, Your Honour.

THE COURT: Is there anything that needs to be clarified?

MR. GILLEN: No, Your Honour. No.

MR. ANGELINI: No, thank you, Your Honour.

MR. GILLEN: If the remaining charges have not been so, could they please be withdrawn at the request of the Crown?

THE COURT: Yes. Just a moment. I have endorsed:

Mr. Lewin is sentenced on Count 1 to two years and five months in jail which is in addition to seven months for pre-trial custody credit and credit for house arrest bail; three months in jail concurrent on Count 2; and to one year in jail concurrent on Count 3. There is a DNA order on all three counts. A s.109(2)(a) order for ten years and a s.109(2)(b) order for life on Count 1. I recommend minimum security placement, and psychotherapy and/or counselling while in custody. All other counts are withdrawn at the request of the Crown.

Madam Registrar, you will make sure that my recommendations are also noted on the warrant of committal, please?

THE REGISTRAR: Yes, Your Honour. Brief indulgence.

THE COURT: Mr. Flagg had not specifically requested the victim surcharge be imposed, I do not know what your wish is.

MR. GILLEN: I believe the offence is long enough ago that it is a discretionary matter, Your Honour. I make no submissions.

THE COURT: All right. I take it Mr. Angelini, in the circumstances, you would ask that I not impose it?

MR. ANGELINI: Yes.

THE COURT: All right. On that basis, there is no victim fine surcharge imposed. I think that is everything then. There is some paperwork, Madam Registrar that you will have him sign. Thank you all very much.

MR. ANGELINI: Thank you.

MR. GILLEN: Thank you, Your Honour.

Form 2 Certificate of Transcript Evidence Act, Subsection 5(2)

I, Amber Lihou, certify that this document is a true and accurate transcript of the recording of Monday, August 22, 2016 in the Superior Court of Justice, held at 150 Bond St. E., Oshawa, ON, taken from Recording #2812-204-20160822-090850-10-FUERSTM which has been certified in Form 1. ___________________ ___________________________________

(Date) Signature of Authorized Person(s)