FILE NO. 15-053/16-134
CITATION: R. V. B.S., 2016 ONSC 7089
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
B.S.B.S.
R E A S O N S F O R S E N T E N C E
BEFORE THE HONOURABLE JUSTICE FUERST
on AUGUST 4, 2016 at BARRIE, Ontario
Appearances:
L. Shirreffs Counsel for the Provincial Crown
C. Syme Counsel for B.S.
superior COURT OF JUSTICE
T A B L E O F C O N T E N T S
WITNESSES
IN-CH
CR-EX
RE-EX
No Witness Examinations
Transcript Ordered....................... August 16, 2016
Transcript Completed..................... November 28, 2016
Ordering Party Notified.................. November 28, 2016
THURSDAY, AUGUST 4, 2016
CITATION: R. V. B.S., 2016 ONSC 7089
R E A S O N S F O R S E N T E N C E
FUERST, J.(Orally):
B.S. pleaded guilty to two counts of robbery committed on two separate occasions, and one count of breach of undertaking in respect of a condition that she abstain from the consumption of drugs.
Crown and defence counsel agree that a jail sentence must be imposed, but differ as to whether a penitentiary term is required.
The Circumstances of Robbery Number One
On November 7th, 2013, Ms. B.S. went into a gas bar in New Tecumseth. The lower portion of her face was covered with a scarf. The upper portion was covered with a hat.
Ms. B.S. told the female clerk that she had a firearm, and put her hand in her pocket. She demanded money. The clerk handed over cash from the till. Ms. B.S. took the money and left.
The clerk called the police. They attended at the gas bar and viewed the surveillance video. It showed a female enter the store wearing a black hoody, and black jeans. It also showed her put her hand in her pocket as she spoke to the store clerk.
The police canine unit located a track to room X. of the R.[…]. The police knocked on the door of that room. They found Ms. B.S. inside. She identified herself. She was familiar to one of the officers, who recognized her from the gas bar surveillance video.
The manager of the hotel confirmed that Ms. B.S. had checked in on October 31st, 2013. She paid cash to secure a room for a period of weeks.
The police located a toque and a scarf, one in a dumpster and one on the track to the hotel.
Ms. B.S. was arrested. She confirmed to the police that she robbed the gas bar. She told the police that her common-law spouse owed money to a drug dealer, and that she committed the robbery to pay the dealer. More recently, she explained that she wanted to protect her children from the threat of harm arising from the drug debt.
Ms. B.S. obtained $330 from the robbery. She told the police that she gave the money to the drug dealer, who then left the area with her spouse.
Ms. B.S. entered into an undertaking to abstain from the consumption of drugs and to advise the police of any change of address.
The gas bar clerk declined to provide a Victim Impact Statement.
The Circumstances of Robbery Number Two
Ms. B.S. sentencing for the first robbery was adjourned for a period of months, for a variety of reasons, including the need to obtain a Gladue report, and her hospitalization. I cautioned her to stay out of trouble, pending her sentencing, which was to occur in late May 2016. Unfortunately, she did not heed the caution.
On April 1st, 2016, Ms. B.S. was convicted of three counts of theft under $5,000 and one count of fail to comply with recognizance. She was sentenced to 18 days in jail, in addition to 17 days of pretrial custody, followed by probation for 18 months. One of the terms of probation was that she keep the peace and be of good behaviour.
On the morning of April 22, 2016, Ms. B.S. called a retired taxi driver whom she knew, and arranged for him to pick her up at a doctor's office in Alliston that afternoon. When he did so, she was with another female. He drove the women to a gas station on Highway 89. Ms. B.S. got out of the car and went into the gas station, with her hood up. She looked at some toys, then went into the washroom. She returned to the cash area, with her head covered by the hood and her face covered with paper. She asked the cashier for a carton of cigarettes, which he gave her. She then asked him to open the till and give her the money. He asked if she was joking. She replied that she was not. She said that if he did not give her the money, she would shoot him. She also said that there were two black guys outside and that they would shoot the cashier if he did not give her the money.
The cashier opened the till and gave her approximately $300. Ms. B.S. returned to the car and had the driver take her and the other female to Barrie. She paid the driver $30 cash.
The cashier was able to get a description of the vehicle and its licence plate.
The police arrested Ms. B.S.. She told them that she was released from jail on April 19th, and that she had been staying at a "trap house". She had not advised the police of her change of address, as required by the existing undertaking. She told the police that she smokes crack cocaine, and that she had been smoking crack cocaine on April 22nd. She said that she had purchased cigarettes at the gas station. She denied stealing anything there.
The video of the robbery showed Ms. B.S. hitting the counter with a closed fist on four occasions.
No Victim Impact Statement was provided.
The Circumstances of Ms. B.S.
Ms. B.S. is 41 years old. As her father is Métis, a Gladue report was obtained in addition to a pre-sentence report.
Ms. B.S. had an apparently normal, happy childhood, although her mother suffered from depression. Ms. B.S. recently disclosed to her parents that her paternal grandfather sexually abused her.
Ms. B.S. became pregnant as a teenager, by the man who became her common-law spouse. As a result, she did not finish highschool.
Ms. B.S. and her common-law spouse have four children. Their "on and off" relationship has been very volatile. It has involved drug use and incidents of domestic violence. There have been periods when they did not live together. They broke up again in 2015, but continued to see one another.
Ms. B.S. has a history of drug abuse, including crack cocaine and cocaine. She has an addiction to painkillers, including oxycontin. She has been in a methadone maintenance program for years. In recent months, she failed to remain clean of other drugs.
The Children's Aid Society has been involved with the family. As a result, the children lived in Newfoundland with Ms. B.S. parents for a period of time.
Ms. B.S. is on ODSP because of bi-polar disorder. Her common-law spouse has been in and out of jail, does not maintain employment, and does not pay her any kind of support. She struggles financially, and resorts to food banks.
Ms. B.S. has been under the car of Dr. G. Lorberg, a forensic psychiatrist, since 2008. He describes her as suffering from major depressive order and panic disorder, as well as substantial addiction problems. He suggests that she "likely requires admission to a comprehensive and long-term treatment centre".
Ms. B.S. has a previous criminal record for fraud and other property offences. On May 29th, 2012, she received a suspended sentence with 18 months probation. That probation was still in effect on the day she committed the first robbery. To date she has paid nothing to satisfy stand-alone restitution orders. Her probation officer described her reporting as inconsistent and her response to community supervision as poor. She was charged with two counts of theft under while on probation, but the charges were diverted.
Ms. B.S. has a close relationship with her parents. They are supportive of her. She would like to move to Newfoundland in the future to be physically closer to them.
The Positions of the Parties
On behalf of the Crown, Ms. Shirreffs seeks a sentence of 18 months in jail for the first robbery, and a consecutive sentence of 12 months in jail for the second robbery, for a global sentence of 30 months in jail, less credit of 105 days for pre-trial custody credited on a one-for-one basis. She also requests a DNA order and a section 109 order.
She argues that, although small amounts of money were obtained by the robberies and no gratuitous violence was involved, Ms. B.S. disguised herself and on the first occasion gestured as though she had a gun, and on the second occasion threatened that the clerk would be shot. Ms. B.S. committed the first robbery while on probation, and the second robbery just after being released from jail and while awaiting sentencing on the first robbery. Clearly, she was not deterred.
On behalf of Ms. B.S., Mr. Syme seeks a global sentence of 12 to 15 months in jail less credit of 105 days for pre-trial custody credited on a one-for-one basis, and a recommendation that the sentence be served at the Algoma Treatment Centre.
He submits that Ms. B.S. committed the first robbery after a drug dealer demanded payment from her common-law husband, and the second after someone shot her up with heroin. Her offending behaviour was self-destructive. No weapon was involved in either robbery. She has had a very troubled past because of her common-law spouse. Her aboriginal background also must be considered. She needs to be educated about making positive life choices, and assisted in rehabilitating herself.
The Principles of Sentencing
The objectives of sentencing long recognized at common law have been codified in section 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 circumstances and consistent with the harm done to victims or to the community be considered, with particular attention to the circumstances of aboriginal offenders.
With respect to the latter factor, the Supreme Court of Canada explained in R. v. Gladue, [1991] 1 S.C.R. 688 and again in R. v. Ipeelee, 2012 SCC 13, that a sentencing judge must consider the unique systemic or background factors that may have played a role in bringing the aboriginal offender before the courts, and the types of sentencing procedures and sanctions that may be appropriate in the circumstances for the offender because of his or her aboriginal heritage or connection.
Analysis
The principles of sentencing that are paramount in cases of robbery are denunciation and deterrence, both general and specific. While the rehabilitation of an offender with a comparatively minimal prior criminal record cannot be overlooked, it must take a back seat to these objectives.
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.
The aggravating factors in this case are significant. Ms. B.S. has a prior criminal record for crimes of dishonesty. She committed the first robbery while she was still on probation with respect to those previous offences. She committed the second robbery while she was on a form of release, and while she was awaiting sentencing for the first robbery. She did so in the face of an explicit judicial caution to stay out of trouble. None of this deterred her from engaging in serious criminal activity. Each robbery was of a gas station. Courts have repeatedly recognized that those who work in such establishments are vulnerable victims who deserve protection from criminals inclined to target them. On each occasion, Ms. B.S. took steps to disguise herself, and so to attempt to avoid apprehension. Some degree of planning was involved in her conduct. Most concerning of all is that on each occasion, she purported to have a firearm. In addition, she threatened the victim of the second robbery that he would be shot by others who were supposedly outside, unless he complied with her demand for money.
Unfortunately, Ms. B.S. has a constellation of personal problems, including drug addiction and mental health issues. She has been unable to overcome them, even with professional help and the support of her parents. This raises concern about her prospects for rehabilitation on her release from jail.
In mitigation, I consider that Ms. B.S. pleaded guilty, which is a sign of remorse and willingness to accept responsibility for her offences. The robberies did not involve any gratuitous violence. She was not, in fact, armed. In each case, Ms. B.S. left the premises after obtaining a relatively small amount of money. Crown counsel did not dispute the explanation advanced that Ms. B.S. committed the first robbery to obtain money to pay her common-law spouse's drug debt.
I also take into account Ms. B.S. aboriginal background.
I am not persuaded that a global sentence of reformatory length would reflect the seriousness of the robberies. A penitentiary sentence beyond the minimum is necessary. Indeed, a very substantial penitentiary term would be appropriate, but in light of Ms. B.S. personal circumstances I agree with Crown counsel that a global sentence of 30 months in jail is appropriate.
Conclusion
Ms. B.S., please stand.
For the November 2013 robbery, I sentence you to serve 18 months in jail.
For the April 2016 robbery, I sentence you to 12 months in jail, to be served consecutively, less credit of 105 days of pre-sentencing custody, for a global sentence of 30 months less 105 days.
For the breach of undertaking, I sentence you to four months in jail, concurrent.
In respect of each robbery there is a section 109(2)(a) order for ten years, a section 109(2)(b) order for life, and a DNA order. I recommend that while in custody, Ms. B.S. receive treatment for substance abuse and mental health issues.
Is there anything that needs to be clarified?
MS. SHIRREFFS: I'm sorry, I just missed the very last line where you said how it all added up. 18 months on the first robbery, 12 months consecutive on the second, minus 105 days...
THE COURT: Right.
MS. SHIRREFFS: ...time served which equals, and I just missed that line.
THE COURT: I didn't say what it equals.
MS. SHIRREFFS: Okay. Thank you.
THE COURT: If you want me to specifically say what it equals....
MS. SHIRREFFS: Oh no.
THE COURT: The problem is there are two separate indictments.
MS. SHIRREFFS: Yes. No, I - sorry, I thought Your Honour had said it and I just missed it.
THE COURT: No.
MS. SHIRREFFS: That's all.
THE COURT: No.
MS. SHIRREFFS: Thank you.
THE COURT: And I take it all other counts are to be, are to be withdrawn?
MS. SHIRREFFS: Yes please, Your Honour.
THE COURT: So on the indictment for the November 2013 offence I've endorsed that Ms. B.S. is sentenced on count one to 18 months in jail, there's a DNA order, a section 109(2)(a) order for ten years and a section 109(2)(b) order for life. All other counts are withdrawn at the request of the Crown.
On the second indictment, dealing with the April 2016 offences, I have endorsed that Ms. B.S. is sentenced on count one to 12 months in jail less 105 days of pretrial custody, and on count four to four months in jail concurrent. The sentence is consecutive to the sentence on indictment 1-5-0-5-3 which is the previous indictment I've referred to. On count one there is a DNA order, a section 109(2)(a) order for ten years and a section 109(2)(b) order for life. All other counts are withdrawn at the request of the Crown. The pre-sentence report, the Gladue report, and the letter of Dr. Lorberg will accompany the warrant to the institution.
MS. SHIRREFFS: Thank you Your Honour.
FORM 2
Certificate of Transcript
Evidence Act, subsection 5(2)
I, Shannon Heryet, certify that this document is a true and
accurate transcript of the recording of R. v. B.S. in
the Ontario Superior Court of Justice, held at 75 Mulcaster Street,
Barrie, Ontario, taken from Recording
No.(’s)3811_01_20160808_084222_10_FUERSTM.dcr which has been
certified in Form 1.
November 28, 2016 __________________________________
Shannon Heryet - ACT #3389634078