CITATION: R. v. Powell, 2017 ONSC 7437
COURT FILE NO.: CR-17-5/709
DATE: 20171213
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
DEWAYNE POWELL
Aaron Del Rizzo, for the Crown
Mitchell Chernovsky, for the accused
HEARD: November 7, 2017
K.L. Campbell J.:
Reasons for Sentence
A. Overview
[1] At the conclusion of his trial, the accused, Dewayne Powell, was found guilty of the following three offences: (1) kidnapping with intent to hold for ransom; (2) unlawful confinement; and (3) conspiracy to commit kidnapping for ransom.
[2] Essentially, the victim, Mr. Abhivarman Paranirupasingam, was violently abducted from the parking lot of a Markham shopping center on January 6, 2015, and kept confined against his will, and tortured by one of the other offenders, until he was finally rescued by the police in the early morning hours of January 13, 2015. While the accused was not involved in the violence inflicted on the victim, he was an integral member of the conspiracy, albeit not as one of its original members, and was involved as a party to the kidnapping of the victim for ransom, and was personally involved in the ongoing unlawful confinement of the victim. The accused was arrested by the police on the night of January 12, 2015, when he tried to collect the $500,000 in ransom money that had agreed to be paid for the return of the victim. The victim was finally rescued within hours of the arrest of the accused.
[3] The accused now appears for sentencing. The accused has been in custody since his arrest. Accordingly, the accused has now been in custody for two years, 11 months, and two days. The parties agree that the accused should be given the maximum enhanced credit of 1.5 days for each one of these 1067 days he has spent in pre-sentence detention. I agree. See R. v. Summers, 2014 SCC 26, at paras. 7, 32-35, 68-83. Accordingly, the accused will be credited with having already served nearly four years, and five and one-half months (or approximately 1600 days). Defence counsel contends that the accused is also entitled to further credit for the harsh conditions under which he has served portions of this period of pre-sentence custody.
[4] The main sentencing issue between the parties, however, is whether or not the accused should be sentenced to any further period of incarceration. On one hand, defence counsel argues that, in all of the circumstances, this period of pre-sentence detention, which amounts to an effective sentence of nearly four years and five and one-half months imprisonment is a fit an appropriate sentencing disposition, and that no further period of imprisonment is required or justified, especially given the extra credit he should be given for the harsh conditions he has endured for parts of his pre-sentence detention. On the other hand, the Crown argues that the gravity of the crimes committed by the accused, together with his serious criminal record, requires the imposition of a sentence in the range of six to eight years imprisonment. Accordingly, once the accused is given the appropriate credit for his pre-sentence custody, the Crown effectively now seeks the imposition of an additional period of imprisonment somewhere between a reformatory sentence of 18½ months and a penitentiary sentence of 42½ months.
B. The Facts of the Offences
[5] The facts of the criminal offences committed by the accused are outlined in some detail in the reasons for judgment released at the conclusion of the trial of this matter. See R. v. Powell, 2017 ONSC 6698, at paras. 4-25, 29, 31-40. A more concise summary of those facts will suffice for purposes of sentencing.
[6] The victim was violently abducted on the afternoon of January 6, 2015, from the parking lot of the Markville Mall. He was forced into a minivan by two men, where he was punched, bound and blindfolded. He was then taken to some undisclosed location and kept locked in a washroom. He was forced to reveal passwords and other personal information to his captors. He was confined in this location for three days, and then moved to another secret location, where he was kept for another three days. The victim was kept blindfolded for most of the time he was held captive. While confined at this second undisclosed location, the victim was tortured with some hot object. Large areas of his body, including his chest, stomach, shoulders, arms, and legs, suffered third degree burns.
[7] The accused was not personally involved in the physical abduction of the victim, nor was he the person who inflicted the torture on the victim.
[8] On January 9, 2015, one of the victim’s close personal friends, began to receive text messages and audio clips from the victim and his abductors asking him to produce a large sum of money to ensure his safe return. They wanted $500,000. The following day, the victim’s father went to the police to report his son missing. Around this same time, members of the victim’s extended family, living in the United Kingdom, also began receiving ransom demands.
[9] In the days that followed, the police, acting in an undercover capacity, began to exchange messages with the kidnappers, acting as if they were the close personal friend of the victim they had initially contacted. Through these exchanges, the police learned that the victim was being tortured, and was in further danger. Threats were made that if the ransom money was not paid quickly, the victim’s fingers would be removed. The abductors also promised that, if there was any “bullshit with the [ransom] money,” the victim would not be coming home, and his friends would “never see him again.”
[10] Ultimately, it was agreed that $500,000 would be paid for the return of the victim. A photograph of a duffel bag, containing the $500,000, which had been collected for purposes of paying this ransom, was sent to the abductors. It was also agreed that the kidnappers would pick up the ransom money, on the night of January 12, 2015, from the trunk of a vehicle parked at the intersection of Eglinton Avenue East and Kennedy Road. The abductors indicated that they would release the victim once the ransom money was obtained.
[11] At approximately 9:20 p.m. on January 12, 2015, the accused arrived at this location to collect the ransom money. He was driving a white rented minivan. At that time, the abductors were still engaged in ongoing communications with the undercover police officer by means of text messages. Once the parties had communicated the details of how the money could be picked up, the accused exited his white minivan, and approached the vehicle with the open truck that was said to contain the duffel bag with $500,000 in cash. The accused briefly looked into the open trunk, but then continued walking. In fact, there was no money in the open bag in the trunk.
[12] When their suspicions were further provoked by the untimely arrival of a random citizen on the scene, the abductors sent text messages cancelling the ransom money pick-up, and suggesting that they should now “watch” the victim’s “fingers,” implying (as they had in earlier messages) that they would be removing the victim’s fingers.
[13] The white minivan was then driven away from the parking lot by someone else who had been inside the van. The accused was simply left behind. While undercover police officers tried to “box-in” the minivan and arrest its occupants, it was able to successfully escape from the area.
[14] The accused was quickly arrested by the police and taken to the 22 Division police station. Incident to his arrest, the police seized two cell phones that were in his personal possession. One of them was a BlackBerry Q5 smart phone.
[15] At approximately 4:46 a.m. on January 13, 2015, while the victim was being moved by cab by two other individuals, namely, Robert Zaya and Patrick Sweeney, the victim was rescued by the police, and the two men were arrested.
C. The Personal Circumstances of the Accused
[16] The 35-year-old accused is something of an enigma. On the one hand, in addition to committing the serious offences now before the court, he has a criminal record that displays convictions for earlier serious criminal offences. In September of 2004, he was convicted of two counts of robbery, discharging a firearm with intent, and use of an imitation firearm during the commission of an offence. After being given credit for having served the equivalent of two years in pre-sentence custody, the accused was sentenced to a nine-year penitentiary term of imprisonment. Accordingly, these offences must have been extremely serious crimes. I understand that the accused was just 21 years of age at the time he committed these offences. Subsequently, in January of 2005, the accused was sentenced to a six-month consecutive term of imprisonment for the offence of “carrying a concealed weapon.”
[17] On the other hand, the other information that has been provided on the sentencing hearing suggests that the accused is a hard-working, family man of otherwise good character. Articulate letters from the accused’s fiancé, his adult sister and his step-mother all describe the accused, in glowing terms, as an excellent, caring and engaged father to his three children (a 13-year old daughter, a five-year old son, and a two-year old son). Mr. Powell is described by his fiancé as a “kind, motivated and uplifting person” and a “dedicated” and “hardworking” individual with many “amazing qualities.” The accused is described by his sister as a “great life coach” who has encouraged and motivated her to move forward professionally to a better career, and provided her with helpful emotional support on occasions where it has been necessary. He is viewed by his step-mother as someone who would “make a good mentor to help encourage young men” not to become involved in criminal activity.
[18] It is apparent from these materials that the absence of Mr. Powell from his family has been especially hard on his fiancé and his children, who continue to wait for him to return home after his “time out.”
[19] In terms of his formal education and employment, the accused graduated from high school in 2000, and thereafter attended George Brown College studying “Building and Renovations.” These studies were interrupted when he was arrested in relation to the robbery and firearms offences. When he was released from the penitentiary in 2010, the accused worked as a Fork Lift operator until he started working in construction as a member of a Union. He also worked for Ellis Don for a period of time in 2014.
[20] Over the years, the accused has sought to improve his career prospects by taking a variety of different training courses. He took some of these while he was in the penitentiary, but most of them while he was out of custody. More particularly, he has completed the following courses: (1) training as a welder of carbon steel; (2) training in food-handling safety; (3) training as a Lift Truck operator; (4) training as a Forklift Operator; (5) occupational health and safety training; (6) employability skills through the Conference Board of Canada; (7) “construction craft” work through a Labourer’s Training Centre; and (8) Volunteer Organizers in Construction Empowerment through the Labourer’s International Union of North America.
[21] I understand that, when he is ultimately released from custody in relation to the present charges, the accused may be employed with a transportation company making deliveries on behalf of large companies.
D. The Rule Against Multiple Convictions
[22] The rule against multiple convictions for the same crimes prevents an accused from being convicted of multiple offences arising from the same transaction where the elements of the offences are substantially the same. In short, the rule prevents multiple convictions where there is both a factual and legal nexus amongst the different offences. In such circumstances, the accused should only be convicted of the more serious of the offences, and the findings of guilt in relation to the other similar, lesser offences should be stayed. See R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729, at pp. 744-754; R. v. Prince, 1986 CanLII 40 (SCC), [1986] 2 S.C.R. 480, at pp. 491-503; R. v. Provo, 1989 CanLII 71 (SCC), [1989] 2 S.C.R. 3, at pp. 12-18; R. v. K.(R.) (2005), 2005 CanLII 21092 (ON CA), 198 C.C.C. (3d) 232 (Ont.C.A.), at paras. 27-56; Mr. Justice E.G. Ewaschuk, Criminal Pleadings & Practice in Canada (Loose-Leaf, 2nd ed.), vol. 2, at §§ 16:6000-16:6200.
[23] This rule is applicable in the circumstances of the present case, in that it prevents the accused from being convicted of the offence of unlawful confinement. The very similar offence of kidnapping arose from the same factual transaction, and is clearly the more serious offence, as revealed by a comparison of their maximum potential punishments. While the offence of kidnapping is punishable, according to s. 279(1.1)(b) of the Code, to life imprisonment, the offence of unlawful confinement is punishable, according to s. 279(2)(a) of the Code, to imprisonment for a maximum of ten years. See R. v. Sharif, 2002 BCCA 95, at paras. 15-20; R. v. Vu, 2012 SCC 40, at para. 19; R. v. Opeyemi, 2015 ONCA 41, at para. 11; R. v. Oppong, 2017 ONSC 6684, at paras. 35-36; R. v. J.P.G., [1996] O.J. No. 4778 (O.C.J.), at para. 143.
[24] The rule against multiple convictions does not, however, prevent the conviction of the accused for the substantive offence of kidnapping and the inchoate offence of conspiracy to commit kidnapping. The legal gist of a conspiracy lies in the formation of an unlawful agreement between two or more parties. Culpability for the crime of conspiracy does not depend upon the commission of any overt act in furtherance of the conspiracy, or upon the practical implementation of the common unlawful design. Accordingly, as these two criminal offences are separate and independent delicts, the rule against multiple convictions does not apply. See R. v. Sheppe, 1980 CanLII 190 (SCC), [1980] 2 S.C.R. 22; R. v. Beeman (1978), 1978 CanLII 2502 (BC CA), 40 C.C.C. (2d) 76 (B.C.C.A.), removed from list, 1979 CanLII 209 (SCC), [1979] 2 S.C.R. 16; R. v. Grewall, 2003 BCCA 441, at paras. 133-136, leave denied, (2004), 329 N.R. 389 (S.C.C.); R. v. Smith, 2007 NSCA 19, at paras. 145-152, affirmed, 2009 SCC 5.
[25] In the result, the accused will be convicted for the offence of kidnapping with intent to hold for ransom (count one), and the offence of conspiracy to commit the offence of kidnapping with the intent to hold for ransom (count five), but the finding of guilt in relation to the offence of forcible confinement (count two) will be stayed.
E. The Governing Sentencing Principles
- The Generally Applicable Sentencing Principles
[26] Pursuant to s. 718 of the Criminal Code, the “fundamental purpose” of sentencing is to contribute 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: (1) to denounce unlawful conduct; (2) to deter the offender and others from committing offences; (3) to separate offenders from society where necessary; (4) to assist in rehabilitating offenders; (5) to provide reparations for harm done to victims or the community; and (6) to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and the community.
[27] According to s. 718.1 of the Code, the “fundamental principle” of sentencing is that a sentence “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”
[28] Section 718.2 of the Code requires a sentencing court to also consider a number of other principles: (1) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender; (2) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (3) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (4) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (5) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
- Sentencing in “Kidnapping for Ransom” Cases
[29] The crimes of conspiracy to commit kidnapping, and kidnapping for ransom, are especially serious crimes. These offences invariably involve the planned physical abduction of some victim against their will, and the unlawful confinement of that victim until a ransom is paid to the kidnappers for the safe return of the victim, or the kidnapper’s scheme is foiled by the intervention of the police. Physical violence, or at least the threat of physical violence, is inherent in the very commission of these offences. Indeed, for the victim and their family and friends, these are crimes of great terror, as the death of the victim is a possibility that hangs over their heads until the ordeal is over. Moreover, such crimes are motivated, almost by definition, by greed. Victims are unlawfully confined until the abductors are able to extort money from the victim’s family or friends.
[30] The sentencing jurisprudence in relation to these types of offences stresses the need for the imposition of lengthy penitentiary sentences that reflect the sheer gravity of the crime, and the coincident importance of denunciation and general deterrence. For example, in R. v. Lowman, 2006 BCSC 1565, Cullen J. concluded, at para. 36, that the appropriate range of sentence for this type of offence was “10 years to life,” and stated, at paras. 34-35:
Offences such as this are rightfully regarded as striking at the heart of the community’s sense of safety and security. The prospect of a carefully planned scheme to snatch a person from his or her daily tasks and pleasures, to confine them in circumstances sure to provoke extreme fear or even terror, to threaten their loved ones with their death or torture all in pursuit of commercial gain is something which demands a powerful message of denunciation and deterrence.
It is, of course, clear that the need for denunciation and deterrence does not remove from the courts the responsibility to consider a rehabilitation of the offender or to have regard for the need to impose a similar sentence to similar offenders in similar circumstances, and to consider the offender's degree of responsibility. Those considerations, however, must be undertaken in the context of the need to repudiate the conduct and forcefully and unambiguously challenge those who might consider similar conduct in the future.
[31] Similarly, in R. v. Raber (1983), 1983 ABCA 325, 57 A.R. 360, Kerans J.A., delivering the judgment of the Alberta Court of Appeal made the following comments about the imposition of sentences in cases involving the “organized kidnapping for ransom,” at paras. 4-6:
The decision of this Court in R. v. Sookram (1982), 42 A.R. 224, was intended to offer a guideline for a starting point for cases involving organized kidnapping for ransom. Laycraft, J.A. there said [at para. 14]:
“Kidnapping for ransom is, of course, one of the most serious offences in the Criminal Code; Parliament has prescribed a maximum sentence of life imprisonment. It will invariably call for a lengthy term of imprisonment. In the words used by Lieberman, J.A. in dismissing the appeals of the co-accused in this case: ‘Kidnapping ranks, in the litany of crimes, as one of the most heinous, depraved, and reprehensible, and attracts a severe sentence’ ... The normal range for kidnapping for ransom is from 10 to 20 years imprisonment.”
It should be understood that this is a [classic] example of deterrent sentencing. Those who commit crimes of this sort do so after some planning and deliberation. This deliberation, we are persuaded, includes an assessment of the chance of evading capture and also an assessment of the penalty which the criminal will suffer if caught. Anybody in Alberta who is tempted to commit this crime should understand clearly that he will be dealt with severely and that he should have no illusions about this, whatever may happen elsewhere.
[32] The decision of the British Columbia Court of Appeal in R. v. Wong and Poon, 2008 BCCA 64, dealt with the sentencing of two kidnappers, in a factual situation not unlike the present case. The accused were part of a group of young men who devised a plan to kidnap a victim for ransom. The victim was abducted from his underground parking garage. During the abduction, the victim was bound at his ankles and wrists and blindfolded. An imitation firearm was also pointed at him before he was loaded into the trunk of a vehicle. He was then driven to an undisclosed location. In the days that followed, the kidnappers made phone calls to his family demanding ransom money. They were warned not to contact the police. Initially, they demanded $150,000, but later reduced their demand to $130,000. While the negotiations continued, the victim was punched and threatened. His family was told that if they did not pay the ransom, he would never be seen again. Threats were made to cut off the victim’s fingers if the money was not paid by the set deadline. Both of the accused were deeply involved in the commission of this offence, but were not involved in making any of the threats or engaged personally in any of the violence inflicted on the victim. Both of the accused were educated and employed young men, without any previous criminal record, who had expressed their remorse, and who enjoyed the continuing support of their respective families. The offence was said to be “out of character” for them. In the result, the trial judge sentenced the accused Wong to 14 years imprisonment, and sentenced the accused Poon to 12 years imprisonment. On appeal, the 14 year term of imprisonment imposed upon the accused Wong was reduced to 12 years, as the court concluded that there was no reason to distinguish between these two accused. In concluding, at para. 29, that the trial judge was “correct in emphasizing denunciation and deterrence and in imposing sentences at the upper end of the range,” and in holding that sentences of 12 years imprisonment were fit sentences for each of the accused, Frankel J.A., delivering the judgment of the British Columbia Court of Appeal, stated as follows, at paras. 26-27:
This Court has made it clear that periods of imprisonment of ten years or more are appropriate in cases involving planned schemes of kidnapping for ransom. It has also made it clear that denunciation and deterrence are the principal factors in sentencing for this type of offence: … [case citations omitted].
The reason for this is that kidnapping strikes at the heart of the community’s sense of safety and security. It is an offence that is intended to incite fear and terror in not only the person kidnapped, but also his or her family and friends, many times using that fear to extort money in return for that person’s safe return. Even when the victim is released without having sustained any permanent physical injuries, the psychological and emotional scars may be slow to heal, if they ever do.
[33] See also R. v. Hui, (1995), 1995 CanLII 2836 (BC CA), 61 B.C.A.C. 234; R. v. Mills (1998), 1998 CanLII 15020 (BC CA), 129 C.C.C. (3d) 313 (B.C.C.A.), at paras. 12-13; R. v. Chong, 2000 BCCA 359.
[34] These principles have been similarly articulated and applied in the sentencing jurisprudence from Ontario. For example, in R. v. Lewers, 2012 ONSC 5332, at para. 13, Trafford J. imposed effective sentences ranging between eight and ten years imprisonment on three offenders for their crimes of kidnapping and forcible confinement (before reducing their actual sentences to between six years and seven and one-half years imprisonment to account for their respective periods of pre-sentence custody). In describing the applicable sentencing principles, Trafford J. stated, at para. 15:
The sentencing of an offender for kidnapping requires emphasis on the principles of general and specific deterrence, and denunciation, while having some regard for the rehabilitative interests of the offender. The sentence must be proportionate to the degree of culpability and the moral blameworthiness of the offender. This is the sentencing matrix in such cases because of the societal abhorrence of the arbitrary intervention by the offenders into the lives of the victims of the kidnapping, direct and indirect, and the value placed on the freedom of a person in a free and democratic society to live his or her life as he or she sees fit, compatible with the rule of law.
[35] See also R. v. Thind, 2011 ONSC 6635, at paras. 40-53; R. v. Oppong, at para. 56; R. v. Li (2002), 2002 CanLII 18077 (ON CA), 162 C.C.C. (3d) 360 (Ont.C.A.), at para. 37; R. v. L.D., [2002] O.J. No. 4695 (C.A); R. v. Stephens, 2013 ONSC 4492, at paras. 26-36.
F. The Custodial Credits Due to the Accused
[36] As I have already mentioned, the parties are agreed, and I have accepted, that the accused should receive the maximum enhanced credit of 1.5 days for each of the 1067 days he has spent to-date in pre-sentence detention. Accordingly, the accused will be credited with having already served nearly four years, and five and one-half months (or approximately 1600 days).
[37] Defence counsel argues, however, that the accused should receive additional credit to account for the harsh conditions he has experienced while detained at the South Detention Centre. According to the affidavit materials that were filed on the sentencing hearing, the accused has been under “lock down” conditions in this facility for nearly 300 full days and just over 140 partial days. Such conditions require inmates to remain locked in their cells instead of being permitted access to the range. Such conditions also result in: (1) restricted visits from friends and family; (2) limited use of the telephone; (3) sporadic access to showers and changes of clothing and bedding; (4) meals are often provided late and cold; and (5) restricted access to exercise in the yard. The accused testified, by way of affidavit, that these lock down conditions caused him stress and were harsh and punitive, especially to the extent that they prevented him from enjoying regular visits with his family.
[38] In R. v. Duncan, 2016 ONCA 754, the Court of Appeal for Ontario recognized, at para. 6, that credit in relation to pre-sentence incarceration is not “capped” at the statutory limit of 1.5 days for each day of pre-sentence custody in s. 719(3.1) of the Code, but rather may, in appropriate circumstances, include additional credit for “particularly harsh presentence incarceration conditions.” The court in Duncan noted that, in considering whether any enhanced credit should be given for such conditions, the sentencing court should “consider both the conditions of the presentence incarceration and the impact of those conditions on the accused.” Moreover, the court suggested that where an accused has served a significant part of his or her pre-sentence incarceration in “lock down” conditions, which had an “adverse effect” on the accused, such additional credit will be appropriate. See also R. v. Henry, 2016 ONCA 873, at para. 9; R. v. Johnson, 2017 ONSC 3512, at paras. 66-81.
[39] There is no helpful mathematical formula that might be applied in these circumstances to calculate the appropriate credit for these types of harsh conditions of pre-sentence custody, which have had this type of negative impact upon an accused. The specific nature of the appropriate credit is left to the discretion of the sentencing court. In my view, in the circumstances of this case, given the duration of the lock down conditions, and their adverse impact on the accused, there should be a credit provided to the accused that is equivalent to approximately four months imprisonment.
[40] In the result, fairly combining these custodial credits together results in a total credit of four years and nine and one-half months of imprisonment. Accordingly, the custodial sentence that would otherwise have been imposed upon the accused will be reduced by that total credit.
G. The Sentence Imposed on the Accused
[41] In all of the circumstances of this case, and applying the governing sentencing principles, in my view, the accused should receive an effective sentence of seven years imprisonment. A sentence of at least this effective duration is required in order to properly serve the critical interests of general and specific deterrence, and denunciation.
[42] Accordingly, once the total credits accorded to the accused (i.e. four years and nine and one-half months) are deducted from this period of seven years of imprisonment, the sentence that I now impose upon the accused is a penitentiary sentence of two years and two and one-half months in duration.
[43] In reaching this conclusion, there are a number of aggravating circumstances that must be considered. The kidnapping offence was itself a fully planned, calculated and sophisticated crime, financially motivated by pure greed. The participants in this conspiracy decided that they would abduct the victim and keep him confined until they were given at least $500,000. Initially, they had sought an even larger sum of ransom money. The victim was kept unlawfully confined, and blindfolded, for approximately a week, in two different undisclosed locations. While the accused was not personally involved in the abduction, and was not a party to the violent torture that was later inflicted on the victim, the accused could not have failed to be aware of the violence inherent in any offence of kidnapping for ransom. Predictable threats of serious violence and death were uttered by other members of the conspiracy.
[44] In R. v. Crawford, 2014 BCCA 175, Willcock J.A., delivering the judgment of the British Columbia Court of Appeal, noted, at para. 23, that crimes of kidnapping “do not fall into distinct categories” but that “the jurisprudence identifies multiple criteria that are indicative of the gravity of the offence on a spectrum,” listing a number of factors. Considering those listed factors in the circumstances of this case leaves no doubt that this case serves as a very serious example of the crime of kidnapping for ransom, as many aggravating factors are present. More particularly: (1) the kidnapping was carried out for ransom money – at least $500,000; (2) the crime was a sophisticated one that involved significant “planning and premeditation;” (3) the victim was violently abducted from a public place, and kept captive in different secret locations, bound and blindfolded for approximately a week; (4) during his confinement, the victim was tortured, and suffered serious physical injuries; (5) no third parties where personally threatened but, as part of the kidnapping for ransom offence, the victim’s family and friends were told that, if the demanded ransom monies were not paid, the victim would be killed, and if they did not pay the money quickly, his fingers would be removed; (6) no guns were used in the offence; (7) there was no “gang involvement” in the offence; (8) the kidnapping did not take place during the commission of another offence; and (9) the kidnapping only ended when the accused was arrested, emergency wiretaps were arranged, and the victim was rescued by the police as he was being transported from one secret location to another.
[45] Moreover, as I outlined in my reasons for judgment at the conclusion of this case (see R. v. Powell, at paras. 31-40), the accused “knowingly and intentionally played a critical role in the kidnapping offence” against the complainant.
[46] Once an agreement was reached as to how the ransom money would be passed along to the abductors, it was the accused who appeared at the designated location to collect the money. When he did so, he was driving his rented white minivan and he was in the company of at least one other offender. At the time, the accused was, in some way, in communication with at least one of the other offenders, as he knew exactly where to look for the ransom money. He exited the driver’s seat of the rented van, walked directly over to the open trunk of the vehicle where the police had indicated the $500,000 in ransom money would be found, and he looked inside. The accused was, quite obviously, looking to collect the ransom money. However, when the accused realized that the bag in the trunk was empty, he kept walking.
[47] Further, the collection of text messages lawfully found on the accused’s BlackBerry reveal a significant depth of knowledge on the part of the accused of the circumstances surrounding the kidnapping and confinement of the complainant, as well as a significant level of personal participation by the accused in the offences. For example, some text messages suggest that the accused was, at some point, personally involved in supervising the continued unlawful confinement of the complainant. They also show that the accused knew about the “Silent Circle” application that was being used by the abductors for communications purposes, and seemed to be able to find out who had the “Silent Circle” application and who did not. These text messages also reveal that the accused had a very close and personal relationship with an unknown male, who possessed a phone with the number ending in 7401. The emergency wiretap of this phone number ultimately led to the rescue of the victim.
[48] In addition to the sheer gravity of these offences, and the significant participation of the accused in those offences, the accused’s criminal record reveals that this is not the first time that he has committed very serious criminal offences. More specifically, this criminal records shows, as I have mentioned, that in September of 2004, his commission of robbery and firearms offences led to the imposition of a nine-year penitentiary term of imprisonment, after the accused was given credit for having already served the equivalent of two years in pre-sentence custody. Mr. Powell must be made to realize that if he continues to engage in serious criminal conduct, he will continue to spend long periods of time in prison.
[49] This sentence also properly takes into account the mitigating circumstances of this case, the personal circumstances of the accused, and his positive prospects for rehabilitation. Indeed, based upon the available sentencing jurisprudence, this sentence seems to be, if anything, a somewhat lenient sentence.
[50] As the Crown fairly conceded, and as I have already mentioned, the accused was not involved in the initial abduction of the victim from the mall parking lot, nor was the accused the individual who tortured the victim while he was unlawfully confined. Further, the accused was not one of the original members of the conspiracy.
[51] While the accused did not, in fact, “plead guilty” (as defence counsel suggested), it is fair to observe that the litigation of the contested issues between the parties was conducted very responsibly and efficiently and in a way that did not require the victim to testify. This too is a mitigating circumstance that must be considered.
[52] In addition, as I have already mentioned, the accused continues to enjoy very considerable family support. The letters that have been drafted as testimonials to the good character of the accused reveal that, from the perspective of his family members, the accused is possessed of many fine qualities. Their strong continuing support for the accused was also evident from their presence in the courtroom during the sentencing hearing, and earlier in the trial proceedings. They will, no doubt, provide important support to the accused once he has been released from custody, so that he can continue his rehabilitative efforts in the community.
[53] Finally, in his own comments on the issue of sentence, the accused acknowledged the seriousness of his offences, while emphasizing that he had no idea that the victim was being tortured. Indeed, he indicated that he is “not a violent person,” and he was “mortified” when he first saw the photographs depicting the serious physical injuries suffered by the victim from the torture he received at the hands of another. Ultimately, the accused expressed his regret and remorse for what happened to the victim, and all that he and his family were put through as a result of this crime. I also consider these remarks in mitigation of sentence.
H. The Sentences Imposed upon the Co-Accused
[54] In advancing his position that the accused should, effectively, be given a “time served” disposition, defence counsel relied upon the sentencing disposition, imposed on January 13, 2017, on a co-accused, Patrick Sweeney.
[55] Mr. Sweeney pled guilty to one count of forcible confinement for his role in this offence. Importantly, the parties agreed that his liability was premised only on the fact that, as he was travelling together with Mr. Robert Zaya and the victim, in the taxi cab, in the early morning hours of January 13, 2015, he became aware that “something was amiss,” in that he then realized that the victim was “being held against his will” and Mr. Sweeney then “facilitated the continued forcible confinement” of the victim. Mr. Sweeney had been called a couple of hours earlier by Mr. Zaya, who had been involved in the abduction and confinement of the victim, and asked Mr. Sweeney if he could help him “find a place for him and a friend” to “stay for a while.” Mr. Sweeney had found a place for them to stay, and was guiding them to this location in the taxi cab when he learned that the “friend,” the victim of the kidnapping, was being held against his will. It was clear that the plea of guilty by Mr. Sweeney was made, and accepted by the Crown, on the basis that: (1) he had no knowledge that the victim had been abducted; (2) he had no knowledge of any physical harm that had been inflicted upon the victim; (3) he had no knowledge of any ransom that had been requested of the victim’s family; and (4) there was no admission of any physical contact between the accused and the victim. In short, Mr. Sweeney admitted only that he knowingly facilitated the movement of the victim to the new residence while he was in the taxi cab.
[56] Given this minor role that was played by Mr. Sweeney, for a short period of time at the conclusion of the offence, the trial judge accepted the joint submission of the parties, which was that the accused should receive an effective three year penitentiary term of imprisonment. Given that Mr. Sweeney had already served exactly two years in pre-sentence custody and was entitled to receive the maximum enhanced credit for that custody, which resulted in a credit of three years imprisonment, the trial judge sentenced Mr. Sweeney to one day imprisonment – effectively a “time served” disposition.
[57] In these circumstances, in my view the sentence imposed upon Mr. Sweeney is of little assistance in determining the sentence that should be imposed upon Mr. Powell. Their respective roles in these offences are quite different. In my view, the role played by Mr. Powell was closer to the role of Mr. Zaya, who pled guilty to his significant involvement in the kidnapping and forcible confinement offences, and who received a penitentiary sentence of seven and one-half years imprisonment, even though he had no criminal record of significance.
I. Ancillary Sentencing Orders
[58] In addition, in my view the following ancillary sentencing orders are appropriate in the circumstances of this case.
[59] First, pursuant to s. 487.051(1) of the Criminal Code, I make an order requiring that samples of bodily substances be taken from the accused for purposes of forensic DNA analysis. The kidnapping offence committed by the accused is a “primary designated offence” as defined in s. 487.04(a) of the Criminal Code and, accordingly, such an order is statutorily mandated in the circumstances.
[60] Second, pursuant to ss. 109(1)(a) and 109(3) of the Criminal Code, there shall be an order prohibiting the accused from the possession of any firearm, crossbow, restricted weapon, ammunition and explosive substance for life. Given the earlier 2004 prohibition order, made under s. 109 of the Criminal Code, this life-time prohibition order is mandatory.
[61] Third, I order that the accused pay a victim surcharge in the total amount of $400 pursuant to s. 737(2)(b)(ii) of the Criminal Code (i.e. $200 for each offence for which he has been convicted).
J. Conclusion
[62] In the result, the accused is now sentenced to a two year and two and one-half month penitentiary term of imprisonment, concurrent, on counts one and five of the indictment. The accused is also subject to the various ancillary sentencing orders that have been made as part of the sentencing process.
______________________________
Kenneth L. Campbell J.
Released: December 13, 2017
CITATION: R. v. Powell, 2017 ONSC 7437
COURT FILE NO.: CR-17-5/709
DATE: 20171213
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
- and -
DEWAYNE POWELL
REASONS FOR SENTENCE
K.L. Campbell J.
Released: December 13, 2017