REASONS FOR SENTENCE

A.J. O’MARRA J.

[1] Anthony Birch and Lance Richardson were found guilty after a judge alone trial on two counts of robbery contrary to s. 343; two counts of use imitation firearm in the commission of an indictable offence contrary to s. 85(2) (a); two counts of assault causing bodily harm contrary to s. 264.1(1) (a) of the Criminal Code involving the robbery of Floryna Balagbad and Andre Pal on August 21, 2014. Mr. Birch was also found guilty of having worn a disguise during the commission of an offence contrary to s. 351(2) of the Criminal Code. Mr. Richardson is here today to be sentenced for these offences.

[2] Mr. Birch and Mr. Richardson robbed, assaulted and threatened to cause the death of Ms. Balagbad and Mr. Pal as they were having a late night picnic in the Baycrest Park on the evening of August 21, 2014. Ms. Balagbad and Mr. Pal had met earlier that evening at the Yorkdale subway station and walked into the Baycrest Park where they found a bench near the middle of the park off the pathway and south of the baseball diamond at approximately 11:00 p.m. As they had their picnic, sitting on the bench they observed two people approach them from the direction of the pathway to the Yorkdale Mall. One of the males wearing a black hoodie zipped up over his face with his skeleton mask, Mr. Birch. The other person wearing a green hoodie but nothing covering his face was Mr. Richardson.

[3] Mr. Birch in his black zipped up hoodie produced a silver revolver and Mr. Richardson brandished a long large clever like knife. They demanded that Ms. Balagbad and Mr. Pal had over all their belongings. Mr. Birch pointed the gun in his hand at Ms. Balagbad’s head and then turned it toward Mr. Pal pointing it at his head and stated that he was to give him everything he had. Mr. Pal gave them his wallet and cell phone. Ms. Balagbad turned over her purse.

[4] After taking the wallet from Mr. Pal Mr. Birch put the gun to his head and asked him where he was from and at one point stated to Mr. Richardson “I might have to kill this nigger”. Mr. Birch pistol whipped Mr. Pal and knocked him to the ground. Ms. Balagbad was pulled to the ground and both of them were repeatedly kicked and punched. Both robbers threatened to kill them. At one point Ms. Balagbad covered her head with her hands to prevent from being kicked further and pretended to be dead.

[5] Both Mr. Richardson and Mr. Birch left but returned a few minutes later stating. One of them stated: “where’s the shank”? Mr. Richardson had dropped it and had returned to find it. He punched Mr. Pal and knocked him to the ground again and then began to kick and punch him. Before they left the second time one of them picked up Mr. Pal’s bicycle and hit him with it.

[6] Both victims said that the male in the green hoodie, Mr. Richardson was intoxicated and they could smell alcohol.

[7] Mr. Pal, as a result of being hit with the gun was cut and bleeding from the top of his head, he was bruised back of his left ear and had a large bump on his head. Ms. Balagbad indicated that she had a golf ball size lump to the forehead, her ear was swollen and her stomach was sore from where she had been kicked a few times. Similarly, her wrist was sore and she had difficulty moving it for a long time afterwards.

[8] Mr. Pal recovered his wallet and contents other than a few dollars the next day having been discarded during the flight by Mr. Richardson and Mr. Birch. Similarly, Ms. Balagbad was able to gather up the contents of her purse that had been strewn about the scene of the attack.

Victim Impact Statements

[9] Mr. Pal age 27 indicated in a victim impact statement the following:

This incident changed the way I perceive the world I live in. I was once secure thinking that if I didn’t look for trouble I wouldn’t find it. That being said the only thing that was taken from me that night that I valued was that very sense of security. I have trouble in places I don’t recognize. People that look a little too long. To this day I still replay the incident in my head and can’t seem to find the closure I seek.

…Because I work in TV and film I had to wait for my injuries to clear up. I missed out on quite a few opportunities that could have potentially help further my career.”

[10] In addition to the physical injuries that night he experienced physical anxiety as a result of the paramedic checking him for stab wounds after the incident.

[11] Ms. Balagbad, the partner of Mr. Pal, stated that ever since the incident she has been weary of every dark path that she has come across. She has had flashbacks of the incident which causes her feelings of fear, anxiety and apprehension.

[12] She indicated that as a result of her experience it affects her relationships with her friends and family by her having to explain to them why she feels uncomfortable walking in areas that are similar to the setting of the incident. She has anxiety whenever her partner, Mr. Pal is late coming home after work fearing that something might have happened to him. She stated: “I didn’t realize it at the time, but I feel they definitely robbed me of something that I took for granted and was of great value to me until this day. I will never go through dark areas without having second thoughts, I will never feel safe again while travelling at night, and I will never get my sense of security back”.

[13] Cynthia Scott, the mother of Mr. Pal, was an indirect victim of the events that night. Her son, who was living with her at the time returned home early in the morning. In her victim impact statement she stated “I am and have been an emotional wreck ever since waking up to see him (Andre) bloodied, swollen, scared and in shock…

[14] Later that morning she went with him back to the park to assist him search for his wallet. She located the clever like knife that was used and dropped by Mr. Richardson in the park, which had a traumatic impact. As she described: “…I got forever seared into my memory the picture of a horrific weapon (that God awful knife) lying in the grass at the Baycrest Park.

[15] As to the continuing effect she stated: “Over the past three years we have been sleeping a bit better at nights and sleep is punctuated by fewer screams and crying outbursts from Andre.” She noted that as a family they had enjoyed the Baycrest Park over the years living in the neighbourhood however, since the incident just walking through it, even seeing it from the road or hearing its, name triggers traumatic memories for her.

Circumstances of the Offender

[16] Mr. Richardson is now 27. He is single but has a long term relationship. He has a criminal record that consists of the following:

March 5, 2010 theft over $5,000, suspended sentence and probation for 18 months
October 20, 2010 failed to appear, 1 day in jail
April 25, 2013 failed to comply with probation, conditional discharge and 12 months' probation
June 7, 2013 failed to appear, conditional discharge and 12 months’ probation
March 4, 2014 carry concealed weapon, suspended sentence and 12 months’ probation

[17] Mr. Richardson was on probation for carrying a concealed weapon at the time of these offences.

[18] A pre-sentence report was ordered which indicated that Mr. Richardson had been diagnosed as a youth with fetal alcohol syndrome and attention deficit disorder. His home life was somewhat chaotic with his mother and her subsequent partners’ use and abuse of alcohol. Mr. Richardson when he was 13 and his younger sister were placed in foster care while his mother attempted to address her alcohol dependency. There were a number of different placements and his mother did not retain custody until he was 16. In the pre-sentence report the writer states:

The subject has overcome some aspects of his fetal alcohol syndrome and attention deficit hyperactivity disorder diagnoses in that he claimed to complete the Ontario Secondary School diploma and a career college program in auto mechanics and claimed to have held positions at various mechanics shops. He has also overcome family deficits and now appears to have pro-social family support through his two sisters but unfortunately their involvement in his life and career progress was not sufficient at the time of the offence to prevent the matter before the court. The subject has not disclosed any involvement or interest in addiction treatments or counselling to address any abandonment issues. Since the offence the subject has secured employment as an audio/video system installer…

[19] A letter was provided by the President/Owner of an audio video company indicating that Mr. Richardson had been employed for over two years as a junior AV installer.

[20] Although he acknowledged alcohol and marijuana use, and that he was intoxicated when investigated and arrested for the carry a concealed weapon offence there was no expressed interest in addiction counselling.

[21] Counsel requested a Gladue report on the basis Mr. Richardson was of indigenous heritage. However, no report was prepared due to lack of information provided by Mr. Richardson and his family to the reporting service as to his indigenous background or antecedents.

Position of the Parties

[22] The position of the Crown is that Mr. Richardson should be sentenced to a period of incarceration of between three and four years less pre-trial custody. The Crown further seeks a s. 109 weapons/firearms prohibition for life and a DNA order.

[23] The Defence position is that Mr. Richardson should be sentenced to a period of two years’ incarceration less pre-trial custody of 290 days together with enhanced credit for experiencing 69 lockdowns during his pre-trial custody and for having been placed on house arrest when bail was granted. Counsel submits that court should impose a sentence of time served, plus probation for three years.

Sentencing Principles

[24] Section 718 of the Criminal Code directs that the fundamental purpose of sentencing is to ensure respect for the law on the maintenance of a just, peaceful and safe society. The sentence imposed should have regard to the objectives of denunciation, deterrence, rehabilitation, and the promotion of a sense of responsibility in offenders. The sentence must be proportionate to the gravity of the offence and the offender’s degree of responsibility (s. 718.1).

[25] In determining the appropriate sentence I must assess the following considerations pursuant to s. 718.2:

(a) The aggravating and mitigating factors;

(b) Evidence that the offences had a significant impact on the victims, considering their age and other personal circumstances, including their health and financial situation;

(c) A sentence shall be similar to sentences imposed on similar offenders for similar offences and similar circumstances;

(d) Where consecutive sentences are imposed the combined sentence should not be unduly long or harsh; and

(e) An offender should not be deprived of liberty if less restrictive sanctions may be appropriate.

[26] While I consider the importance of rehabilitation as a consideration, in the instance of a robbery with violence, as in this instance, the paramount sentencing objectives must be those of denunciation and deterrence.

[27] I find the cases of R. v. K.G., 2012 ONSC 3523, [2012] O.J. No. 2785 and R. v. Bailey, [2014] O.J. No. 1406 to be of some assistance in determining the appropriate range of sentence to be imposed in this case.

[28] In R. v. K.G., a case of some similarity to the instant case, an accused 18 with two others used an imitation firearm and carjacked a young woman in front of her residence. She was able to flee after being accosted into her own home and call police. The victim was profoundly traumatized requiring therapy afterward. The offender had a prior record and was on probation at the time for assault and subject to a weapon’s prohibition order. In that case it was held that a global sentence in the range of 3 ½ years’ incarceration was appropriate. Unlike in this matter, there were no injuries or threat to cause death.

[29] In R. v. Bailey the accused robbed three victims at a bus stop while using an imitation firearm within the space of one hour. He showed the handgun in his waistband to the first victim, fired it into the grass with the second and pointed it at the third and pulled the trigger, but it did not fire. Both the second and third victim thought the gun was fake. The court observed as aggravating factors that all victims were traumatized, the accused discharged, pointed the firearm and struck one of the victims in the head. The mitigating factors considered were that the accused had no criminal record, he would be deported on release from serving his sentence and none of the victims were injured seriously. In that instance, the court held that the global sentence of 5 years was appropriate.

Aggravating and Mitigating Factors

[30] Here, there are multiple aggravating factors to take into account. Mr. Richardson used a clever-like knife to intimate and threaten the victims. He was a party to Mr. Birch’s use of an imitation firearm to the same end. Mr. Pal was pistol whipped and at one point Mr. Richardson laid the clever-like knife on his shoulder in an act of intimidation. Both victims had the pistol pointed at their heads.

[31] The offenders used gratuitous violence in a cowardly attack while armed, notwithstanding the victims’ ready compliance in turning over their property on demand. Both victims were knocked to the ground, kicked and punched repeatedly. They were threatened with death. At one point while being kicked and punched, Ms. Balagbad had to cover her head for protection and as she said “played dead” in fear of her life to have it stop. Both victims sustained not only physical injuries but lasting psychological effects from having been terrorized in a public park.

[32] At the time of the offences, Mr. Richardson was on a probation order for the offence of carrying a concealed weapon.

[33] In terms of mitigation considerations, it appears that Mr. Richardson has overcome his early disturbed home life and aspects of fetal alcohol syndrome and ADHD by having completed high school and maintained steady employment for the past two years. There is rehabilitation potential.

[34] Further, although Mr. Richardson was a part to the use of the imitation firearm it was his co-accused, Birch who used it to assault and intimidate the victims, as such I am prepared to moderate the period of incarceration I would otherwise impose for the robbery offences.

Enhanced Credit

[35] In addition to pre-trial custody credit of 1.5 to 1 with respect to the 290 days detention the defence suggests that there should be additional credit because Mr. Richardson was subject to 36 days of full lockdown and 33 days of partial lockdown. Counsel submits credit up to an additional 1 ½ months should be given as a result. In addition, because Mr. Richardson was on bail with house arrest conditions for 490 days Counsel suggests an additional 25% credit of 125 days should be allowed.

[36] With respect to enhanced credit for house arrest while on bail, the Court of Appeal in R. v. Downes, 2006 3957 (ON CA), [2006] O.J. No. 555 stated at para 37 the following:

In summary, credit for a pre-trial bail condition should be approached in the following manner:

Time spent on stringent pre-sentence bail conditions, especially house arrest is a relevant mitigating factor.

As such, the trial judge must consider the time spent on bail under house arrest to determine the length of sentence.

The failure of the trial judge to explain why time spent on bail under house arrest has not been taken into account is an error in principle.

The amount of credit to be given for time spent on house arrest is within the discretion of the trial judge and there is no formula that the judge is required to apply.

The amount of credit will depend upon a number of factors including, the length of time spent on bail under house arrest; the stringency of the conditions; the impact on the offender’s liberty; the ability of the offender to carry on normal relationships, employment and activity.

Where the offender asks the trial judge to take pre-sentence bail conditions into account, the offender should supply the judge with information as to the impact of the conditions. If there is a dispute as to the impact of the conditions, the onus is on the offender to establish those facts on a balance of probabilities in accordance with s. 724(3) of the Criminal Code.

[37] In this instance, I am advised that Mr. Richardson while on bail has been able to maintain employment, and the schedule of his employment. Further, he had developed and maintained a relationship over the intervening period. There is nothing before me which would suggest that having been subject to house arrest conditions has had a significant impact on his liberty or ability to carry on normal relationships, employment and other activities. As such, I see no basis to provide the enhanced credit as requested by counsel.

[38] With respect to conditions of detention, while no doubt periods of lockdown make the experience more unpleasant there is again nothing before me to suggest that it aggravated or made conditions more harsh than are already taken into account in terms of providing increased credit of 1.5 to 1. The three considerations that form the rationale for giving enhanced credit for pre-trial custody are: (1) that other than for life sentences, legislative provisions for parole eligibility and statutory release do not take into account time spent in pre-sentence custody; (2) there are few rehabilitative, educational or retraining programs available in detention centres; and (3) the conditions in detention facilities are often more crowded and more onerous than in correctional facilities (see: R. v. Francis, 2006 10203 (ON CA), 2006 79 O.R. (3d) 551 and R. v. J.E.D., 2007 ONCA 385 at para 1.)

[39] The Supreme Court in R. v. Summers, 2014 SCC 26, at para 72 stated with respect to enhanced credit of 1.5 to 1 that it covers the harsh conditions inherent in institutional custody.

[40] The defence has not provided evidence to suggest that Mr. Richardson experienced some greater or harsher conditions than others pending remand. Mr. Richardson shall be given credit of 1.5 to 1 for the 290 days pre-trial custody.

Sentence

[41] In this instance, based on the aggravating factors of having committed robberies in which gratuitous violence was inflicted on the victims leaving them highly traumatized and in consideration of the mitigating factors of his rehabilitative potential and apparent family support, a global sentence of 4 years is appropriate.

[42] Mr. Richardson shall be sentenced to 3 years to be served concurrently with respect to the counts of robbery and assault causing bodily harm. A sentence for threatening death shall be 12 months, again concurrent to the robberies and assault causing bodily harm. The sentence for being a party to the use of an imitation firearm in the commission of an indictable offence shall be the one year mandatory minimum period of incarceration, consecutive to all other sentences and concurrent to each other as a result having occurred at the same time and not in separate instances.

[43] Mr. Richardson shall be given credit for 290 days pre-trial custody on the basis of 1.5 to 1, the equivalent of 15 months.

[44] In summary, Mr. Richardson is sentenced to 4 years’ incarceration, (48 months) less 15 months, thereby requiring a further period of incarceration of 2 years, 9 months, (33 months).

[45] In addition, I make an order for a s. 109 firearm prohibition for life, and order that samples of bodily substances be provided for the purpose of forensic DNA analysis pursuant to s. 487.051 of the Criminal Code.

A.J. O’Marra J.

Released: December 8, 2017

CITATION: R. v. Birch and Richardson, 2017 ONSC 7072

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ANTHONY BIRCH and LANCE RICHARDSON

REASONS FOR SENTENCE

A.J. O’Marra J.

Released: December 8, 2017

R. v. Birch and Richardson, 2017 ONSC 7072

Case Summary

REASONS FOR SENTENCE

Victim Impact Statements

Circumstances of the Offender

Position of the Parties

Sentencing Principles

Aggravating and Mitigating Factors

Enhanced Credit

Sentence

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 9

Legal Tests 2

Legislation 1