BRACEBRIDGE COURT FILE NO.: CR-16-0004

DELIVERED ORALLY: 20170106

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

TRISTAN TAYLOR

Defendant

T. Carlton, for the Crown

C. Sheppard, for the Defendant

HEARD: December 19, 2016

ORAL REASONS FOR SENTENCE

MULLIGAN J.:

[1] Mr. Taylor, is there anything you wish to say to the court before I impose sentence?

[2] This matter proceeded by way of an eight-day non-jury trial with respect to four counts on an indictment. On October 21, 2016, Mr. Taylor was found guilty on all four counts. The matter was then adjourned. The court ordered a Pre-Sentence Report, and the Crown requested an opportunity to obtain Victim Impact Statements. At the sentencing hearing, both Crown and defence filed Casebooks of Authorities and made submissions to assist the court in determining a fit sentence for Mr. Taylor. At the hearing, a Pre-Sentence Report was filed and the Crown filed as exhibits, Mr. Taylor’s criminal record, as well as a Victim Impact Statement from Marcia Oke.

[3] Count 1 alleged that Mr. Taylor used a firearm in committing a robbery of the Huntsville IDA. Section 344(1)(a.1) imposes a minimum sentence of four years for this offence. Count 2 alleged that Mr. Taylor committed an assault on Allan Norton while committing the robbery, contrary to s. 267(a) of the Code. Count 3 alleged that Mr. Taylor had his face masked while committing this robbery, contrary to s. 351(2). Count 4 alleged that Tristan Taylor was in the possession of a firearm while prohibited from doing so pursuant to a court order, contrary to s. 117.01(1) of the Code.

Circumstances of the Offences

[4] On March 3, 2015, the IDA Pharmacy in downtown Huntsville was the subject of an armed robbery. Allan Norton was the pharmacist on duty. The pharmacist’s assistant on duty that day was Marcia Oke. It is not necessary to review all of the evidence about what occurred at the pharmacy, but a brief overview will provide context about the events. Just before noon on March 3, 2015, an intruder forced his way into the dispensary area of the Huntsville IDA Pharmacy. The intruder was dressed in dark clothing with a hoodie pulled down over his forehead. His face was masked with a scarf or similar object of clothing. He demanded opioids and when the pharmacist, Allan Norton initially resisted, he struck Mr. Norton across the forehead with a weapon, which was held in his hand. Opioids were then provided to him in the form of full and partially full bottles from the opioid counter in the dispensary by Mr. Norton. Mr. Norton not only saw a gun in the intruder’s hand, he felt it as it struck him across the forehead. Marcia Oke, the pharmacist’s assistant, also observed the intruder and saw the gun in his hand. The whole incident lasted about one minute. The police arrived shortly thereafter, conducted a search and interviewed witnesses. A few witnesses stated that they thought they saw the intruder moments later. One witness, who came forward after the events in question, identified that Tristan Taylor, an individual known to him, approached his vehicle and demanded a ride to Novar. The demand was accompanied by threatening comments. This witness refused to drive Mr. Taylor away from the vicinity of the robbery.

[5] Mr. Taylor was arrested on March 4, 2015, and has been in custody since then.

Circumstances of the Offender

[6] Mr. Taylor is 25 years of age. He was 23 at the time of the robbery. Mr. Taylor has a previous record for convictions in Youth Court and adult court. A copy of his full record, as updated by the Crown, was filed at the sentencing hearing. Mr. Taylor has served custodial sentences and has been subject to probation orders, but has not received a penitentiary sentence with respect to any of these previous convictions. With respect to his most recent conviction, on December 3, 2013 he received a sentence of 30 days in jail for a theft under conviction.

[7] The Pre-Sentence Report provides some background as to Mr. Taylor’s family history and life experiences. Mr. Taylor’s biological father was not part of his life until he lived with him briefly as a young teenager. He was raised by his mother and her spouse, who acted as a step-father until he passed away in a house fire. Mr. Taylor seems to have had a strong relationship with his mother until she passed away in 2013. The Pre-Sentence Report notes that this was a devastating event for him.

[8] The Pre-Sentence Report indicates that Mr. Taylor was a good student but had difficulties at school leading to numerous suspensions. He eventually finished high school and was enrolled briefly in a community college course in Barrie. Financial difficulties prevented him from continuing and he moved back to the Huntsville area.

[9] Mr. Taylor has had an involvement with drugs in the past. He began using Marijuana in elementary school, progressing to OxyContin when he was 16. In 2011, he was in a Methadone program. Lana MacDonald provided a letter of support for Mr. Taylor and indicated to the author of the Pre-Sentence Report that he was probably addicted to OxyContin. She was a good friend of Mr. Taylor’s late mother. She remains supportive of Mr. Taylor and indicates that he has a place in her home upon his release.

Victim Impact Statement

[10] There were two victims as a result of this armed robbery. The pharmacist, Allan Norton, was struck on the head when he first resisted the intruder attempting to enter the dispensary area. He did not file a Victim Impact Statement, but testified at trial about the events of that day.

[11] The second victim, Marcia Oke, the pharmacist’s assistant, witnessed the robbery and filed a Victim Impact Statement. In that statement, she stated:

I’m not sure exactly how to say what I feel due to what I had to experience on March 3, 2015. I want to feel safe when I’m at work but I don’t, I want to look at someone who’s wearing a hoodie or a coat with the hood up to think they’re just cold but I can’t, I want to look at others inside or outside of where I work and not be suspicious. I want my sense of security and safety back, I want to forget that day ever happened but I can’t. I don’t feel that another person has the right to take that away from me.

Position of Crown and Defence

[12] It is the Crown’s position that a global sentence of six to eight years is an appropriate sentence for this offender in these circumstances. The defence submits that a sentence of four-and-one-half years would be a fit sentence for Mr. Taylor. Both Crown and defence acknowledge that credit should be given for time served because Mr. Taylor has been in custody since his arrest. Crown and defence differ as to the amount of credit and I will deal with that later in these reasons.

Mitigating and Aggravating Circumstances

Mitigating Circumstances

[13] The defence submits that there are a number of mitigating circumstances that ought to be considered here. They can be summarized as follows:

• Mr. Taylor was 23 at the time of the offences, so he should be considered a youthful offender.

• Mr. Taylor has never served a penitentiary term.

• Mr. Taylor has family support from his brothers and his mother’s good friend, Lana MacDonald.

• Mr. Taylor has finished high school and would like to resume his college education upon his release.

• He has struggled with drugs but has not consumed any drugs during his period of incarceration. No programs were offered to him, but he would be amenable to such programming while serving his sentence.

• This was not a sophisticated robbery in all of the circumstances.

• Although the court found that a firearm was in his hand, it was not pointed at the victims nor was it discharged.

[14] The Crown points to a number of factors that the court ought to consider as aggravating under these circumstances:

• Mr. Taylor, in spite of his relatively young age, has an extensive record going back to Youth Court.

• He has served custodial terms for previous convictions, including assaults and possession for the purpose of trafficking.

• This was a daytime robbery of a drugstore where members of the public were present.

• This was an armed robbery involving violence. Mr. Norton was struck across the head with a handgun.

Principles of Sentencing

[15] Section 718 of the Criminal Code directs sentencing judges to consider denunciation, deterrence, separation from society, rehabilitation, reparation, promotion of responsibility and acknowledgement of harm when sentencing offenders. Sentencing judges are also required to consider as a fundamental principle that punishment must be proportionate to the gravity of the offence or offences, and the degree of responsibility of the offender. The primary applicable principles in this case are deterrence and separation from society, but rehabilitation cannot be overlooked given Mr. Taylor’s age.

[16] Both Crown and defence filed Casebooks of Authorities to assist the court in determining both a range of sentence and an appropriate sentence for Mr. Taylor. The cases relied upon provide different facts, different counts before the court, and in some cases, pleas of guilty. However, a review of those cases indicates the sentences that were imposed in those cases either by the sentencing judge or as modified by the Court of Appeal. The cases also indicate certain principles that are often considered by sentencing judges.

[17] In R. v. Dayes, 2013 ONCA 614, [2013] O.J. No. 4615, the Court of Appeal upheld a trial judge’s global sentence of six years including five years for the armed robbery offence. Mr. Dayes was one of a number of armed robbers who robbed individuals in a vehicle.

[18] In R. v. Eldemire, [1998] O.J. No. 438, the Court of Appeal upheld a six-year sentence for an armed robbery of a grocery store. The offender was 19 years of age and had no record for violence. The offender’s face was masked, his partner carried a sawed-off shotgun which was pointed at the victim during the robbery.

[19] In R. v. Uniat, 2015 ONCA 197, [2015] O.J. No. 1436, the Court of Appeal upheld a seven-year sentence after credit for time spent in pre-sentence custody. The offender was an 18-year-old recidivist who was on probation. He was armed with a shotgun and held the victims at gunpoint. As the Court stated at para. 8, “Despite his youth, rehabilitation must occupy a secondary place in his sentencing analysis.”

[20] In R. v. Lewis, [2009] O.J. No. 4681, the Court of Appeal upheld a nine-year custodial sentence for an offender who had served a previous penitentiary term. As the Court of Appeal noted at para. 3, “The Court has repeatedly said that robberies of convenience stores will attract heavy sentences.” As the sentencing judge noted in her Reasons for Sentence, “This was a robbery with a sawed-off shotgun as a weapon and the offender had his face masked.” In noting that Mr. Lewis had a criminal record, the Court noted that there was a pattern of spiralling armed robberies by Mr. Lewis.

[21] In R. v. Haughton, [2004] O.J. No. 2103, the Court of Appeal upheld a sentence of five years and six months in custody after a credit of pre-trial custody for a robbery of a Subway Restaurant at gunpoint. The offender was under a firearms prohibition at the time of the offence.

[22] In R. v. Nouri, [2015] O.J. No. 49, the sentencing judge imposed a sentence of six years for a first offender. This was a jewellery store robbery where the intruders stole $700,000 worth of jewellery. This offender was not one of the assailants in the store but had played an extensive role in the planning, deliberation, and preparation for this robbery. She was 27 years of age and had no prior criminal record. As the Court noted at para. 33, after discussing cases relied upon by Crown and defence:

As one might expect, each of these cases contain circumstances that make it distinguishable from the case at bar. They make clear however, that insofar as armed robberies of jewellery stores are concerned, substantial penitentiary terms are the usual result. [Citations omitted.]

The Court further noted:

Ms. Nouri’s prospects for rehabilitation are good. In light of the need for a sentence focused on denunciation and deterrence however, a substantial term of incarceration must be imposed.

[23] In R. v. Butchart, [1993] O.J. No. 1252, the Court of Appeal reduced a seven-year sentence to a five-year sentence for a 36 year old offender who had an extensive criminal record. This was a robbery of a pharmacy. The Court noted:

Although the robbery of a pharmacy committed with the use of weapons, including a pellet gun and a knife requires a substantial penitentiary term of imprisonment, we think that the seven years imposed in the case was too long.

After noting, “No gratuitous violence or physical harm was inflicted on the victims.”

[24] In R. v. Gobin, 2012 ONSC 3523, [2012] O.J. No 2785, the sentencing judge imposed a sentence of three-and-one-half years for an offender who was 18 years of age at the time of the offence. The offender was on probation and subject to a weapons prohibition order. He was party to an armed robbery with the use of an imitation firearm. The sentencing judge made reference to the “Jump” principle and stated at paras. 33-34:

As an aspect of restraint in the use of incarceration and sentencing, the Court should generally respect the Jump principle, whereby sentences for a repeat offender should increase gradually, rather than by large leaps…

In considering the imposition of a penitentiary sentence for a youthful offender, the length of such sentence should rarely be determined solely by the objectives of denunciation and general deterrence. And where young offenders receive their first penitentiary sentence, that sentence should be as short as possible, given the gravity of the offence. [Citations omitted.]

[25] In R. v. Murchison, [2013] O.J. No. 1746, the sentencing judge imposed a sentence of four years and seven months less pre-trial custody, based on a joint submission. This was a pharmacy robbery by an offender who was 27 years of age with a lengthy criminal record. The robberies involved threats of harm. The joint submission followed a guilty plea by the offender.

[26] In R. v. Noor, [2015] O.J. No. 3920, the Court of Appeal noted that the sentencing judge did not err in imposing a sentence of five years’ imprisonment. The offender was 19 years of age and robbed a commercial establishment while he was masked and armed with weapons, including an imitation firearm. The offender was on probation. The Court of Appeal modified the sentence after considering the appropriate credit to be given for pre-trial custody.

[27] In R. v. O’Leary, 1995 CarswellOnt 3611, was a case where the current minimum sentence was not involved. The offender received a three-year sentence for robbing a jewellery store with a firearm.

[28] In R. v. Oswald, [2013] O.J. No. 4131, the sentencing judge imposed a global sentence of five years for a home invasion robbery involving violence. The offender was 30 years old and had a record. With respect to rehabilitation, the Court noted at paras. 74-75, “I do believe there is a chance for rehabilitation”…“Nevertheless, the crimes are serious and a significant penitentiary sentence is required.”

[29] The Court also noted at para. 78:

The global sentence is to be five years and I consider that to be at the low end of the range for sentences for crimes of this nature. Such sentences provide for a significant amount of penitentiary time to satisfy the principles of denunciation and deterrence. It is also not so long as to prevent the offender from rebuilding his relationship with his children upon his release.

[30] In R. v. Street, 2012 CarswellOnt 17451 (OCJ), the court imposed a sentence of 41 months on a 36 year old offender with a lengthy criminal record. None of the prior sentences involved a penitentiary term. The sentencing decision does not indicate that any weapon was involved with this offender with Aboriginal heritage.

[31] In R. v. Stoddart, 2005 CarswellOnt 6523, the sentencing judge imposed a global sentence of six years, which consisted of a sentence of six years for the robbery and two years concurrent for wearing a mask during the robbery. The offender was a 29 year old individual with a criminal record. As to aggravating factors, the court noted at para. 6:

The principle among these is the fact that the robbery involved a small convenience store. Such stores are particularly vulnerable to such activities. In addition, the financial impact on a storeowner is a great deal more significant than for a large corporation. It also impacts severely on the owners or employees involved in such harrowing experiences, particularly whereas here, those events happened late at night when the employee is alone.

[32] In R. v. Bedard, [1998] O.J. No. 2087, the Court of Appeal upheld a ten-month sentence for assault with a weapon and related charges. The victim had been punched and pistol-whipped. This was not a case involving an armed robbery.

[33] In R. v. Williams, [2013] O.J. No. 1539, the sentencing judge imposed a global sentence of four years for an offender who had a lengthy record and was convicted of gun-related offences. The offender was 19 and had a supportive family. Although he had previous convictions, he had not been incarcerated in an adult facility or a penitentiary. In those circumstances, the Court noted at para. 23, “A first penitentiary sentence should be as short as possible.”

Conclusion

[34] Mr. Taylor is now 25 years of age. He has never served a penitentiary term but he has had several incarcerations for shorter periods since he became an adult. I have considered the aggravating and mitigating circumstances with respect to this offender. A minimum term of imprisonment of four years is the floor in connection with Count 1. Some of the aggravating factors here such as the mask and the assault are also separate counts before the court, and therefore must be subject to separate sentences which can either run consecutively or concurrently to Count 1. As previously noted, Count 2 involves the use of a weapon, the handgun, to commit an assault on Mr. Norton. Count 3 involves wearing a mask while committing the offence. Count 4 deals with committing an offence while subject to a prohibition order.

[35] If small convenience stores are considered vulnerable, then pharmacies are more so given their stock of opioids on hand for legitimate medical prescriptions. General and specific deterrence must take priority.

[36] I am satisfied that a global sentence of six years is an appropriate sentence for this offender under the circumstances. That sentence can be broken down as follows:

Count 1 – Section 344(1)(a.1) – use of a firearm in a robbery – 5½ years in custody;

Count 2 - Section 267(a) – assault with a weapon – 1 year concurrent to Count 1;

Count 3 – Section 351(2) – committing an offence while face masked – 1 year concurrent to Count 1;

Count 4 - Section 117.01(1) – possession of a firearm while prohibited from doing so – 6 months, consecutive to Count 1.

Credit for Pre-trial Custody

[37] Mr. Taylor has been in custody since his arrest on March 4, 2015. He is therefore entitled to credit for time served. The Crown submits that he is entitled to credit to the date of the sentencing hearing for 21½ months on a ratio of 1:1.5, equivalent to 32¼ months together with ongoing credit until this sentence is pronounced.

[38] The defence on the other hand, submits a different and lower figure. The defence submits that Mr. Taylor be given credit for the following days: (i) March 5, 2015 to July 25, 2015, equal to 143 days; and (ii) July 26, 2016 to December 19, 2016, equal to 147 days; totalling 290 days at an enhanced rate of 1.5:1, equivalent to 435 days, together with additional dates from the date of the hearing until the date of sentence pronouncement. That equates to an additional 28 days. The total therefore sought for credit by the defence is 463 days.

[39] Because the defence submitted a figure which was substantially less than the Crown requested, I initially adjourned the hearing so the Crown and defence could discuss this disparity. When court resumed, defence maintained the same position. The Crown made no further submissions. Under the circumstances, I am satisfied that defence counsel has a good-faith basis for this request. Subtracting the pre-trial credit of 15 months and eight days as requested by the defence from the global sentence of six years, yields a remaining sentence of four years, eight months and 22 days. In addition, I impose the following ancillary orders:

(i) There will be a mandatory weapons prohibition order under s. 109 of the Criminal Code; for life.

(ii) There will be a DNA order requiring Mr. Taylor to provide such samples of his bodily substances as may be required for forensic analysis pursuant to s.487.05(i)(b) of the Criminal Code with respect to the primary offences.

[40] Good luck to you, Mr. Taylor.

Delivered orally on January 6, 2017

NOTE: This ruling, as delivered orally, is to be considered the official version and takes precedence over these written reasons read into the record. If there are any discrepancies between the oral version and this written version, it is the oral version that is the official record to be relied upon.