REASONS FOR DECISION ON SENTENCE

Court File and Parties

COURT FILE NO.: CR-16-30000137-0000 DATE: 20170428 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – MAREK ADAM Accused

Counsel: Josh Levy, for the Crown Robert Tomovski, for the Accused

HEARD: March 28, 2017

B.A. ALLEN J.

Background

[1] Marek Adam and his ex-co-accused, Daniel Crosby, were arrested on January 13, 2015 and charged with 22 counts related to armed robberies. The robberies involved the use of a pellet gun by Mr. Crosby and an axe by Mr. Adam. They were charged with committing the robberies while wearing disguises, with confinement without lawful excuse and forcible confinement.

[2] The robberies involved chain stores in Toronto: Subway restaurants, Pizza Pizza restaurants, Dollarama stores and a Mac’s Milk convenience store. Employees of the businesses and patrons were confined. Employees were forced to take cash from tills and vaults. There were 27 complainants subpoenaed as witnesses by the Crown for Mr. Adam’s trial.

[3] Mr. Crosby pleaded guilty to eight charges just before Mr. Adam’s preliminary inquiry. He decided to become a Crown witness against Mr. Adam. Mr. Crosby received a 7-year penitentiary term.

[4] On March 20th, the first day set for trial, Mr. Adam pleaded guilty to eight charges related to four robbery charges: (counts 7, 9, 19 and 21) and four wearing a disguise charges (counts 8, 10, 20 and 22). On his plea Mr. Adam admitted the facts of the other 14 charges.

Sentencing Principles

Basic Objectives of Sentencing

[5] Section 718 of the Criminal Code sets out the objectives for sentencing: denunciation, deterrence and the separation of the offender from society.

[6] A fundamental principle of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other potential future offenders from committing offences; and (c) to separate offenders from society.

[7] Proportionality is also a guiding principle for sentencing. A sentence must be proportionate to the gravity of the offence, determined on the particular facts of the case. The narrow focus of the sentencing process is directed to imposing a sentence that reflects the circumstances of the specific offence and the attributes of the specific offender: Criminal Code, s. 718.1 and R. v. Hamilton (2004), 186 C.C.C. (3d) 129, 72 O.R. (3d) 1 (Ont. C.A.).

[8] The parity principle is of particular interest in this case when considering the sentence received by Mr. Crosby.

[9] The parity principle requires a sentence be similar to sentences imposed on similar offenders for similar offences committed under similar circumstances. Sentencing is however an individualized process which necessarily means that sentences imposed for similar offences may not be identical: R. v. Cox, 2011 ONCA 58 (Ont. C.A.) and R. v. L.M, [2008] 2 S.C.R. 163, 2008 SCC 31 (S.C.C.).

[10] However, the parity principle does not require equal or identical sentences for similarly situated offenders, nor is it to be applied in a rigid fashion. “Rather, parity is only one of the several principles that must guide a sentencing judge’s crafting of a fit sentence”: R. v. Beauchamp, [2015] ONCA 260, at para. 277 (Ont. C.A.). “[T]he rule against unreasonable disparity in sentencing does not require equal sentences, but only understandable sentences when examined together”: R. v. Issa (T.) (1992), 57 O.A.C., at para. 9, leave to appeal to S.C.C. refused S.C.C.A. No. 476 (S.C.C.).

[11] Section 718.2 deals with the totality principle which states that when consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. This is to avoid sentences that cumulatively are out of proportion to the gravity of the offences. This requires the crafting of a global sentence for all offences that is not excessive.

Firearm Offences

[12] The Court of Appeal has emphasized that the principles of denunciation and deterrence must be clearly reflected in sentences for gun-related offences. As the Ontario Court of Appeal emphasized, “…our courts have to address the principles of denunciation and deterrence for gun-related crimes in the strongest terms. The possession and use of illegal handguns in the Greater Toronto area is a cause for major concern in the community and must be addressed”: R. v. Danvers, [2005] O.J. 3532, at para. 78 (Ont. C.A.).

[13] Under legislation enacted in November 2012, s. 742.1 of the Criminal Code made conditional sentences unavailable for convictions for certain offences including serious personal injury and firearm offences. Mr. Adam was charged in 2015 and is therefore not entitled to be considered for a conditional sentence.

Sentencing Young Persons

[14] The youth of an offender has been recognized as a mitigating factor on sentence, particularly a youth facing a first penitentiary sentence. “The length of a first penitentiary sentence for a youthful offender should rarely be determined solely by the objectives of denunciation and general deterrence … [T]he courts ought to proceed on the basis that the shortest possible sentence will achieve the relevant objectives”: R. v. Borde, at para. 36 (ON CA).

Aggravating and Mitigating Factors

[15] Section 718.2 (a) of the Criminal Code provides that “a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender”.

Mitigating Factors

• Marek Adam is a young person, being age 19 when he committed the offences;
• He does not have a criminal record;
• He pleaded guilty on the first day of trial;
• There is no evidence of substance issues or mental health challenges;
• He made a rather lengthy and heartfelt statement before the court apologizing to his family in the body of the court and to the court and everyone he disappointed by his criminal activity. He explained the type of thinking that led him to the crimes and the changes in his thinking that has led to a more positive life;
• He has graduated from high school and is employed as a general labourer. He has also been employed with his mother as a cleaner while on bail.
• He has been in compliance with the conditions of bail during his two-year bail period;
• He has support letters from his mother and brother, longtime friends, acquaintances, congregants and a minister from his church, a client of his mother’s cleaning business, a neighbour and an employer. The letters speak to the remorse he has expressed for his crimes and the changes he has made to be a productive member of the community. He is described as a hard worker and a devoted member of his church and of bible studies who was involved in behaviour that is out of character for him.

Aggravating Factors

• Mr. Adam was convicted of very serious offences: 8 armed robberies involving the use of a firearm and an axe to threaten the victims into meeting their demands for money;
• Although the firearm was a pellet gun, the victims would not have known whether it was a prohibited weapon;
• He admitted to the facts relating to the other 14 charges involving wearing a disguise and the confinement of victims;
• The robberies occurred in rather quick succession over an approximate two-month period and involved the victimization of a large number of about 25 persons.
• The offences involved forcibly confining the victims including a 10-year old girl and making one man strip down to his underwear;
• Mr. Adam’s co-offender held the gun on victims and shot at the surveillance camera and Mr. Adam banged the axe on counters;
• Both wore clown disguises and fled the premises after the robberies;
• The victims who provided Victim Impact Statements spoke of the trauma they experienced and the continuing anxiety and fear they face.

Victim Impact Statements

[16] Crown counsel read in three Victim Impact Statements. The victims spoke about the deleterious effect being captive and helpless during the armed robberies. They all spoke of the fear and trauma they experienced that continue to affect their lives. One victim spoke of having fears of entering stores and stated that when she has done so she has hurriedly made her purchases and left the store. Another victim spoke of the nightmares and anxiety she has experienced after being captive at the scene of an armed robbery.

The Immigration Issue

[17] Mr. Adam’s family emigrated from Czechoslovakia to Canada in 2009. They were granted refugee status. Mr. Adam’s mother’s husband, who is Mr. Adam’s stepfather, is in the process of sponsoring the mother and her two sons to obtain permanent resident status in Canada. Mr. Adam’s sister remains in Czechoslovakia. Mr. Adam, his mother and brother are refugees in Canada and have no status under immigration legislation. According to Mr. Adam’s criminal counsel the mother, brother and Mr. Adam are being sponsored on a joint application for permanent residence.

[18] Under the Immigration and Refugee Protection Act, SC 2001, c. 27 (“the IRPA”) if a person who is not a Canadian citizen, is convicted of an offence punishable by a maximum term of imprisonment of at least ten years, or of an offence with a term of imprisonment of more than six months, that person is subject to deportation from Canada. Armed robbery is an offence punishable by a sentence of over ten years. Mr. Adam faces deportation after his term of incarceration and the cancellation of his sponsorship for permanent resident status.

[19] Defence counsel submitted that because the family is on a joint application with Mr. Adam their application for permanent residence is also in jeopardy of being cancelled which would also result in their deportation. The defence seeks to have the court consider this as a mitigating factor on sentencing Mr. Adam.

[20] As the Crown pointed out, the defence has provided no support in law for jeopardy to the other family members’ application for permanent resident status because of Mr. Adam’s circumstances. No opinion letter from the family’s immigration lawyer was filed. No legislation or case authorities were provided. There is no support for the defence’s submission.

[21] There is also the question of whether the risk to the mother and brother also being deported is a consequence this court can consider on sentencing Mr. Adam.

[22] The Supreme Court of Canada has considered the collateral consequence to a non-Canadian offender of being deported. The sentencing court has the discretion to consider collateral consequences such as deportation in tailoring a fit sentence: R. v. Pham, [2013] S.C.R. 739, at paras. 17 – 19 (S.C.C.). The consequence considered in R. v. Pham is related to the sentence and the person facing the sentence.

[23] Mr. Adam’s crimes are punishable by a maximum imprisonment term of over 10 years and attract a term of imprisonment of more than 6 months. Due to the nature of his crimes I am sentencing Mr. Adam to substantially more than six months. In fashioning a sentence in this circumstance, there is no basis to consider the risk of Mr. Adam being deported. It is expected that Mr. Adam will be deported in the normal course under the IRPA.

[24] There is no authority for this court to take the other family members’ circumstances into consideration on mitigation.

Case Authorities

[25] The Crown takes the position that Mr. Adam should receive a global prison term of 7 years. The defence seeks a global prison term of 5 years. I considered the following case authorities:

• R. v. Borde – offender age 19, pleaded guilty to aggravated assault, 2 firearms offences and 3 breaches of recognizances; substantial youth record; never in penitentiary previously; on probation at time of offences; impoverished, dysfunctional family background; sentence 4 years, 2 months.
• R. v. Dilleon, 2010 CarswellOnt 847 (Ont. C.A.) – one accused age 20, participated with co-accused, age 22 in 15 consecutive convenience store robberies using a prohibited sawed-off shot gun or a handgun; court found callous, gratuitous violence against store employees; offender unstable family life; offender pleaded guilty to 8 counts; both offenders received 10-year global sentences.
• R. v. McQuade, 2009 CarswellOnt 46 (Ont. C.A.) – accused age 19, and co-accused age 25; convicted of 2 robberies; hand gun used; gratuitous violence caused skull fractures and other fractures to victims; accused, no criminal record, received 11-year prison sentence; co-accused, with a substantial criminal record; sentenced to 15 years’ imprisonment; on appeal, 11-year sentence reduced to 8 years’ imprisonment; court found accused’s offences an aberration.
• R. v. Zlatanov, 2007 ONCA 523 (Ont. C.A.) – offender age 18, prior criminal record; court found possibility of rehabilitation for a youth an important factor; court of appeal imposed sentence of 8 years taking pre-trial custody into account.

Pre-Trial Custody

[26] Section 719(3) of the Criminal Code provides for granting credit for pre-sentence detention. This section provides that “a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of 1 day for each day spent in custody.”

[27] Section 719(3.1) allows for a maximum of 1.5 days’ credit for each day spent in pre-trial custody “if the circumstances justify it”. The reason for allowing enhanced credit is the recognition that the conditions in pre-trial detention are frequently exceptionally harsh. This has been acknowledged by the Supreme Court of Canada: R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575 (S.C.C.).

[28] Mr. Adam was arrested on January 13, 2015 and released on February 3, 2015. He therefore served 22 days of pre-trial custody in a Toronto detention centre. He is entitled to 33 days’ credit.

Credit for Restrictive Bail Conditions

[29] Bail is not equivalent to pre-trial custody. It is in fact the opposite. Granting credit for pre-trial bail conditions is not an automatic right. It is in the discretion of the sentencing judge: R. v. Downes (2006), 79 O.R. (3d) 321 (Ont. C.A.). Stringent conditions on bail are only a potential mitigating factor: R. v. Lindsay, 2009 ONCA 532, at para. 45 (Ont. C.A.).

[30] Harshness in pre-trial bail conditions is a relevant consideration on sentencing. Defence counsel submits that Mr. Adam’s conditions on bail were sufficiently restrictive to warrant credit.

[31] From February 3, 2015 to October 16, 2015, 8 ½ months, Mr. Adam was on house arrest at his mother’s home and only permitted to leave the home for medical emergencies and in the company of one of his sureties. On October 16th his bail was varied to add a further condition that he be allowed to work and be away from home while travelling to and from work and while at work. This condition continues to apply until today. He has been required to report to his probation officer twice a week. He has been on house arrest for a total of 26 months. He has committed no breaches of his conditions.

[32] I will allow 6 months’ credit for the restrictive bail conditions.

Total Pre-Trial Credit

[33] Total credit to be deducted from sentence is 216 days (7 months) (6 months = 183 days + 33 days = 216 days).

Conclusion

[34] The parties made submissions asking the court to consider the parity principle as it relates to Mr. Crosby’s 7-year sentence. The 7-year sentence came about as a joint submission which was accepted by the sentencing judge. Little more is known about Mr. Crosby’s circumstances besides the fact he pleaded guilty on January 7, 2016, months earlier than Mr. Adam, he is a year older and he played the more aggressive role in the robberies.

[35] I apply the principle enunciated in R. v. Beauchamp that the parity principle does not require equal or identical sentences for similarly situated offenders. The sentences need only be understandable when examined together: R v. Beauchamp, at para. 277.

[36] Taking the aggravating and mitigation factors and the sentencing principles into account I find a fit sentence to be a global sentence of 5 years.

[37] The breakdown of the sentence shall be as follows:

• The sentence for each robbery charge shall be 5 years.
• The sentence for each wearing a disguise charge shall be 1 year.
• The 5-year sentences for the robbery charges shall run concurrently with each other.
• The 1-year sentences for the wearing a disguise charges shall run concurrently with each other and concurrently with the 4 robbery charges.

[38] Mr. Adam’s total sentence, deducting pre-trial custody time and time for restrictive bail conditions, is 53 months or 4 years, 5 months (60 months – 7 months’ credit = 53 months or 4.4 years). The pre-trial credit shall be allotted in equal measure to each of the four robbery charges meaning that the sentences for each of the four robbery charges shall be reduced by 54 days (216 days ÷ 4 charges).

Verdict

[39] I will now pronounce sentence. Marek Adam, will you please stand?

[40] You have been convicted of armed robbery on counts 7, 9, 19 and 21 on the indictment.

[41] I sentence you to 5 years’ imprisonment in a penitentiary on each of the four robbery charges to run concurrently with each other. Your total sentence for the robbery charges is 5 years’ imprisonment.

[42] You have been convicted on 4 counts of wearing a disguise while committing an indictable offence on counts 8, 10, 20 and 22 on the indictment.

[43] I sentence you to 1 year for each of the wearing a disguise offences to run concurrently with each other and concurrently with the sentences on the 4 robbery charges.

[44] Your total sentence on all counts is therefore 5 years in prison.

[45] You shall have credit for 216 days’ pre-trial custody. Taking pre-trial credit into account, your actual sentence is 4 years and 4 months’ imprisonment.

[46] In addition, there shall be the following ancillary orders: (a) a Criminal Code s. 487.051 order to provide a DNA sample. (b) a Criminal Code s. 109 weapon prohibition for life to commence after release from prison. (c) an order under s.743.21(1) of the Criminal Code prohibiting you from communicating, directly, or indirectly, with your co-accused, Daniel Crosby, and with any of the 27 victims, witnesses or other persons identified in the list of persons appended to this order during the custodial period of the sentence.

**B.A. ALLEN J.** **Released:** April 28, 2017