CITATION: R. v. Hyacinth Moore, 2017 ONSC 5626
COURT FILE NO.: CR 13-30000673-0000
DATE: 20171002
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
HYACINTH MOORE
Defendant
Donna Kellway, for the Crown
Joanne M. Prince, for the Defendant
HEARD: September 5, 2017
REASONS FOR SENTENCE
A.J. O’MARRA J.
[1] Hyacinth Moore was convicted after trial by jury of being an accessory after the fact to an armed robbery of a jewelry store committed by her son, Mark Moore and his accomplice, Kevin Williams. Her crime involved disposing of a garment worn by Mr. Moore during the commission of the robbery at his request. Ms. Moore is here today to be sentenced.
[2] On August 9, 2010, Kevin Williams and Mark Moore, armed with a handgun, barged through the back door of a jewelry store, Arax Jewelry, 660 Eglinton Avenue East, Toronto. On entering the store Mr. Moore shot and seriously wounded one of the jewelers present, Art Darakjian. He forced Shant Khatcherian, store manager at gun point to open the jewelry cases from which Mr. Williams grabbed jewelry. They made off with approximately $600,000 in jewelry. Both men were masked. Part of the police investigation involved obtaining security camera video tape footage which showed both the shooting of Mr. Darakjian and the robbery. The robber who shot Mr. Darakjian was much larger than the other and wore a red sweater with a logo in the shape of a large “R” on the upper left chest area.
[3] The robbery went unsolved until early October, 2011 when the police arrested Kevin Williams and his girlfriend, Sarah Patsula, who had acted as the getaway driver for Moore and Williams. The second masked robber who wore the red sweater and shot Mr. Darakjian was still unidentified.
[4] Mr. Moore was in remand custody on other matters at that time. As a part of a larger project investigation involving homicide, drugs and firearm offences in which Mr. Moore was suspected called Project Summit, the police had obtained wiretap authorizations to intercept telecommunications of named parties, which included Mr. Moore’s use of the detention centre range telephone, and telephones of his mother Hyacinth Moore and girlfriend Tassandra Whyte, as well as a number of other targeted persons.
[5] The police decided to try to stimulate discussion amongst the named parties about the earlier robbery by issuing a press release about the arrest of Kevin Williams, known as “Mayhem Moriarty” and Sarah Patsula, together with internet access to the store security video which showed the shooting of Mr. Darakjian and the robbery.
[6] In intercepted calls between Mr. Moore and his mother on October 4, 2011, they discussed the arrest of Mr. Williams and his girlfriend that had been reported in the media. Mr. Moore asked Hyacinth to dispose of a distinctive red sweater with an “R” logo he had worn during the commission of the robbery. Ms. Moore agreed to do so. During the call she described going to her son’s closet, finding the sweater, and describing it to confirm it was the one he wanted thrown out.
[7] Officers were dispatched to the apartment building where she lived in in order to check the garbage chute and bins. They found nothing.
[8] Because the Project Summit investigation was ongoing and intercept authorization continued for several weeks a search warrant was delayed until its completion. On October 26, 2011a search warrant was executed at Ms. Moore’s apartment. The red sweater that Ms. Moore said she had found in her son’s closet when he had requested that she throw it away was not located during the search. Ms. Moore had disposed of the potentially incriminating evidence.
[9] Notwithstanding, Mr. Moore and co-accused Kevin Williams were found guilty after trial on February 3, 2014 for the Ajax jewelry store robbery and the shooting of Mr. Darakjian. Based on evidence led at trial, Mr. Moore was identified as the bigger and taller masked robber described by Shant Khatcherian, who wore the red sweater with the “R” logo and shot Art Darakjian as he came through the back door of the store.
Victim Impact Statement
[10] On sentencing the Crown introduced the victim impact statements of Art Darakjian and Shant Khatcherian. Mr. Khatcherian indicated that he suffers from post-traumatic stress, anxiety and has difficulty working without thinking about being robbed on a daily basis. Mr. Darakjian who suffered wounds in both his arm and leg as a result of having been shot was unable to work for five weeks. Later, when he was able to return to work he has continued to have thoughts that something similar will happen to him.
[11] I bear in mind that Ms. Moore is not the author of the victim’s distress however, it is important to note the effect of her son’s crime which she knew he had committed when she tried to help him escape detection and avoid prosecution.
Background of the Offender
[12] Ms. Moore 55 years has a minor criminal record from 1985 for theft under $200 for which she received a suspended sentence and three years’ probation.
[13] Ms. Moore was born in Jamaica where she spent her early life and immigrated to Canada at the age of 13 in 1973 with her mother. She is a permanent resident and has never acquired Canadian citizenship.
[14] Ms. Moore attended grades 7, 8 and 9 in Canada. She did not complete her high school education having quit at age 17. However, in her 30’s she attended a private college and obtained an academic certificate. During the period 2014 to 2016 she was involved in a program to become a personal support worker and social service worker, but was unable to complete the program because of the matter before the court.
[15] She has four children, all boys, the three eldest having the same father and the youngest a different father. Her eldest son was murdered in 2008. Two of her sons are in custody, which includes Mark Moore who is serving a life sentence in the federal penitentiary. Her youngest son age 25 continues to reside with her.
[16] A number of people, provided information in support of Ms. Moore. Hazel Anderson, her mother described Ms. Moore as “an easy going, quiet person who does not keep friends, and who is not a party person”. Further, she does not make trouble or mischief for other people. Her siblings and friends describe her similarly as a very quiet easygoing person who is never confrontational.
[17] Ms. Moore has little work history however, she has been seeking assistance through the Elizabeth Fry Society by way of their BEST (Building Employment Strategies Together) program designed to move her toward her employment goals. Ms. Cynthia Richards, pre-employment counsellor reported that Ms. Moore has been attending workshops to help with employment readiness, computer skills, life skills and job interview techniques to help her enter the work force successfully.
[18] She has completed 48 hours of community service with the Daily Food Bank. She has subsequently graduated with her Ontario Secondary School diploma and has taken the course to become a personal support worker and social service worker. She was unable to complete the program because of the matters before the court. She did work at a group home from 2014 to 2016, where she was responsible for the daily dietary needs of 13 residents. There, she was also involved in administering treatment, medication and housekeeping chores.
[19] Ms. Olga Reshetova, job skills counsellor for the YMCA Scarborough employment service, reported that Ms. Moore has been involved in an active job search since being registered at the YMCA in July 2016. In Ms. Reshetova’s opinion, due to the efforts Ms. Moore has undertaken, she is serious about securing employment.
Position of the Parties
[20] The Crown seeks a period of incarceration in the range of 12 months, less pre-trial custody, which in this instance is 157 days (10.5 months on a 1 to 1.5 basis), probation and DNA order to provide a bodily fluid sample for analysis.
[21] Counsel for Ms. Moore has advised the court that Ms. Moore as a permanent residence and not a Canadian Citizen may attract serious immigration consequences if she receives a sentence of six months or more custody. She would lose her right of appeal of a removal order.
[22] The court has been provided with an opinion letter from counsel specializing in immigration matters, Shedrack Agbakwa as to the immigration consequences to a permanent resident found guilty of an offence which qualifies as “serious criminality” under the Immigration and Refugee Protection Act where the term of imprisonment is more than six months in custody. It could result in a removal order from Canada without a right of appeal:
Under section 36(1) (a) of the Immigration and Refugee Protection Act (IRPA), a permanent resident is “inadmissible” on grounds of “serious criminality” for having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than 6 months has been imposed…
The maximum punishment for the offence of being an accessory after the fact of robbery is 14 years imprisonment. Thus, it meets the definition of “serious criminality” under the IRPA. Therefore, as a permanent resident convicted of this offence, you will be declared inadmissible to Canada and will be subject to a removal order.
[23] What is of greater importance to Ms. Moore is that under s. 63(3) of the IRPA a permanent resident may appeal to the Immigration Appeal Division (IAD) against the decision to make a removal order against them for any admissibility if the Immigration Appeal Division is satisfied that sufficient humanitarian and compassionate considerations warrant special relief in all the circumstances. However, a permanent resident can only appeal a removal order to the IAD if the sentence received is less than 6 months in custody. Under s. 64(2) of the IRPA a permanent resident does not have a right to appeal a removal order based on inadmissibility due to serious criminality with respect to a crime that was punished in Canada by a term of imprisonment of at least 6 months.
[24] In this instance, the defence suggests, given the pre-trial custody and the serious immigration consequences to Ms. Moore, the court not give her any advanced credit for pre-trial custody and impose a suspended sentence with two years’ probation.
Sentencing Objectives
[25] The leading case, oft quoted, that sets out the sentencing objectives the court should consider when dealing with a person who has committed the offence of being an accessory of the fact is Regina v. Wisdom, [1992] O.J. No. 3110 (Gen. Div.), in which Watt J. (as he then was) stated the following:
Accessoryship after the fact to a crime is an offence which constitutes an interference with the administration of justice. An offence has been committed by a principal offender, in this case crime of murder. It is the purpose of the accessoryship, as it was the accused, to enable, indeed to facilitate the principal offender to escape detection and/or punishment for his or her criminal conduct. By the means adopted, whatever they may be, the accessory interferes with the investigation of crime and the detection of offenders. Serious crimes may go unsolved and dangerous criminals left at liberty only to reoffend. The resourceful accessory stifles the investigation and deflects attention from the true principal, as much as the suborned witness perjury seeks to avoid successful prosecution. The due administration of justice is defeated in the event of success, as much in the one case as it is in the other.
Accessoryship after the fact frustrates the legitimate investigation of crime. It is as much a part of such investigation to clear the innocent, as it is to convict the guilty. To the extent that accessories deflect the investigation and investigators from their proper true course, the attendant risks are obvious…
It is of utmost public importance that all who knowingly in touch with criminals and who might be minded for whatever reason, to offer further assistance ought to be alive to and fully cognizant of the fact that should they receive, comfort or assist them in order to enable the or a principal to escape, then they, the accessories, themselves run substantial risk of losing their own liberty for a very substantial period of time.
[26] The primary objectives in sentencing such offenders are general deterrence and denunciation of the conduct. However, in sentencing any offender I must bear in mind the need to consider rehabilitation.
[27] The consequence of sentencing Ms. Moore to a period of incarceration six months or greater would have the effect of removing a right of appeal should the Immigration and Refugee Tribunal make a removal order.
[28] It is the position of the Crown that it would be an error to sentence Ms. Moore to anything less than 12 months incarceration with credit for 5 ½ months pre-trial custody on a 1 to 1.5 days credit, plus a period of probation. As such she should be sentenced to a further 2 months incarceration.
[29] The cases referred to by the Crown include: Regina v. Vanderheyden, 2006 ABPC 121, [2006] A.J. No. 457 in which an offender who had assisted a friend after a store robbery by driving him to his house and then splitting the proceeds to purchase drugs received a sentence of 18 months conditional with community service. In a case referred to in the judgment, Regina v. Moyan 1984, A.J. No. 387 the only other case in which an accused was sentenced for being an accessory after the fact to robbery, resulted in an accused, who when intoxicated provided shelter for an accused after committing an armed robbery received a sentence of 14 months imprisonment was reduced on appeal to 6 months.
[30] Counsel also referred to Regina v. Jayawarden, [2008] O.J. No. 3430 (SCJ) in which an offender found guilty of being an accessory after the fact of first degree murder having assisted the accused killer by helping him to get a forged passport, dispose of the car used in the killing and to acquire a cell phone received a sentence on a guilty plea and an expression of sincere remorse, 18 months in prison followed by one year probation.
[31] Ms. Moore’s conduct is deserving of a sentence that involves a deprivation of her liberty however, it was much less egregious conduct than the offenders committed in the cases cited. The disposal of potentially incriminating evidence to assist her son is serious it did not in fact inhibit the investigation or a successful prosecution of the robbery.
[32] Counsel for Ms. Moore has urged the court to sentence Ms. Moore to time served and to give her credit for the pre-trial custody on a 1 to 1 basis as permitted under s. 719(3), rather than (3.1) which allows if circumstances justify a 1 to 1 ½ day credit. Her sentence on the basis of 1 to 1.5 would allow for pre-trial credit of almost 8 months. The request is made that it be on a 1:1 basis in order that Ms. Moore avoid the draconian consequences of not being able to appeal a removal order if her sentence is 6 or more months in custody.
[33] In R. v. Hamilton, 2004 CanLII 5549 (ON CA), 2004 O.J. No. 3252, Doherty J.A. noted that “the risk of deportation cannot justify a sentence which is inconsistent with the fundamental purpose and principles of sentencing identified in the Criminal Code. The sentencing process cannot be used to circumvent the provisions of the policies of the Immigration and Refugee Act.” However he added, there are two types of cases where deportation can be considered where there may be “some reduction” in the term of imprisonment; one, where deportation is inevitable and where for pragmatic reasons, such as sparing Canadians the expense of incarceration of an accused to be deported, and two, where deportation can be avoided by a modest adjustment of the sentence.
[34] Ms. Moore has been a permanent resident in Canada since 1973 with only a minor dated and unrelated record. In my view, it would offend our notion of fairness and proportionality to impose a sentence which would be tantamount to an effective removal of Ms. Moore from Canada to a country with which she has little or no contact over the intervening years since her immigration here as a 13 year old. In my view, this is the kind of case which requires “some reduction” to permit a compassionate review should a removal order be made.
[35] In addition to the aggravating circumstances I take into account in mitigation the positive pre-sentence report that was provided and the ongoing efforts of Ms. Moore to further her education, to obtain employment and to make meaningful change in her life.
[36] I am prepared to accede to counsel’s request to consider Ms. Moore pre-trial custody on a 1 to 1 basis pursuant to s. 719(3).
[37] In the result, Ms. Moore is sentenced to one day in jail with credit for 157 days pre-trial custody, and probation for 18 months during which she will perform one hundred twenty hours of community service at a rate of not less than ten hours per month, commencing within 30 days of this sentence.
[38] In addition, for commission of a secondary offence, I order the collection of a bodily fluid sample for DNA analysis pursuant to s. 487.051(3) of the Criminal Code.
A.J. O’Marra J.
Released: October 2, 2017
CITATION: R. v. Hyacinth Moore, 2017 ONSC 5626
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
HYACINTH MOORE
Defendant
REASONS FOR SENTENCE
A.J. O’Marra J.
Released: October 2, 2017