Court File and Parties
COURT FILE NO.: CR-17-503-00 DATE: 2018 10 19 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN A. Berg, for the Crown
- and -
SAAD FOUAD S. Tejpal, for the Defence
HEARD: March 5-8, 2018 at Brampton
Reasons for Sentencing
L. SHAW J.
Introduction
[1] Following a trial conducted between March 5-8, 2018, I found Mr. Fouad guilty of robbery contrary to section 343(a) of the Criminal Code and not guilty of use of an imitation firearm under section 85(2)(a) of the Criminal Code.
[2] I delivered my judgment on July 18, 2018, and heard sentencing submissions on September 18, 2018. These are my sentencing reasons.
Circumstance of the offence
[3] On November 13, 2016, the victim, Sanjeev Gogna saw an advertisement on Kijiji for an iPhone 6 that was for sale. He contacted the posted phone number, which was a phone number linked to a cell phone owned by Mr. Fouad, to inquire about buying the phone. Mr. Fouad told Mr. Gogna to meet him that evening at 39 Bruce Bear Drive in Brampton, Ontario, between 6:30 and 6:45 p.m. There were some further exchange of text messages as Mr. Fouad changed the meeting time.
[4] After going to the bank to withdraw $400 to pay for the phone, Mr. Gogna drove to the address and arrived at approximately 7:20 pm. His two teenaged children, Megha and Akash, were with him.
[5] At approximately 7:30 pm, Mr. Fouad approached the vehicle and asked Mr. Gogna to go with him to the rear of the house so he could show him how the phone worked. Mr. Gogna and his two children got out of the vehicle to follow Mr. Fouad.
[6] As they walked into the yard behind the house, Sanjeev and Megha testified that they saw a second man who they both thought was holding a gun. On cross-examination, they testified that they were not certain that this second man was holding a gun but they thought he was. Mr. Gogna took a step back and Mr. Fouad, who was standing behind him, put his hands on his sides and gently pushed Mr. Gogna forward.
[7] Mr. Gogna testified that he was panicked when he saw the second man. His daughter began to scream. Megha Gogna testified that her father appeared scared and she began to plead with Mr. Fouad to let him go. Mr. Fouad told Mr. Gogna to give him the money and that he was not going to do anything. Mr. Gogna testified that he handed him the $400 and Mr. Fouad then ran from the house.
[8] In a statement Mr. Fouad gave to the police, which I ruled was given voluntarily and was therefore admissible, Mr. Fouad admitted that he told Mr. Gogna to meet him at the house and that he walked to the back of the house and took his money. He described Mr. Gogna as being really scared. He admitted that he told Mr. Gogna to give him his money and then he could go and he told his two children to step away. Mr. Fouad denied that there was a second male at the back of the house.
The circumstances of the offender
[9] Mr. Fouad was 18 years of age at the time of offence. He was a first-time offender, although, according to the Pre-Sentence Report, he was subsequently convicted of possession over $5,000 on May 4, 2018, and received a suspended sentence and one year probation. On July 3, 2018, he was convicted of attempted break-and-enter of a dwelling and failure to comply with a recognizance. He received an intermittent sentence of 28 days and 18 months of probation.
[10] Mr. Fouad is the eldest of two children. His father works as a truck driver and his mother is an accountant. His mother filed a letter in support for this hearing.
[11] Mr. Fouad’s parents emigrated from Rwanda. He lived with his family until age 17, when he moved out on his own as a result of a dispute regarding his school courses. He relied on social assistance for support. At the time of his arrest, he told the officers that he had no money to buy food.
[12] Mr. Fouad graduated from high school in 2016. While in high school, he played basketball and volleyball. He was accepted to a mechanical engineering program at a community college in January 2018. He withdrew from the program and was accepted into another college program, which was to commence in September 2018. As a result of his involvement with the criminal justice system, he did not attend that program.
[13] He had worked in high school as a lifeguard. He also has been involved in community based programs such as the Toronto-Rwandese Muslim group and Umurage Heritage. He has worked with children and has helped raise money through different fundraising events. Since 2016 he has been employed through a temporary help agency.
[14] According to the letter from Mr. Fouad’s mother, Felicite Ndayizewe, Mr. Fouad has admitted his wrong-doing, regrets his action and has spoken to her often about feeling bad for Mr. Gogna and his two children.
[15] A letter from Reachout, a voluntary-non-profit community-based organization in Mississauga, dated September 17, 2018, was filed as evidence. It offers counselling in an anti-theft and robbery program. Mr. Fouad recently contacted the organization and plans to schedule a meeting. In the letter from Ms. Angela Thorpe, the Executive Director of the organization, she stated that Mr. Fouad is still at an age where, if he received the proper help through counselling that deals directly with the issues he is facing, he would be able to become a law-abiding citizen.
[16] A Pre-Sentence Report was also filed that did not provide much assistance to the court. Mr. Fouad told the author of the report that he feels embarrassed by his action and feels sorry for the victim. It was reported that he had a stable upbringing. The author stated that Mr. Fouad is lacking problem-solving and self-management skills.
Position of the parties
[17] Both the Crown and defence counsel acknowledge that there is a significant range in sentencing for this type of offence and the sentencing is factually dependent. Sentences that involve longer penitentiary terms often involve the use of firearms or imitation firearms, of which Mr. Fouad has been found not guilty. At the other end of the range are the unplanned, spur-of-the moment robberies that might result in non-custodial sentences.
[18] The Crown’s position is that based on the facts of this case, the range of sentence is 3 to 15 months. The Crown recommends a sentence of 9 months followed by 12 months’ probation.
[19] Defence counsel submits that a sentence of two months followed by a period of two years’ probation is a fit and appropriate sentence.
[20] Crown and defence counsel agreed on the ancillary orders.
Sentencing principles
[21] The principles of sentencing are set out in sections 718, 718.1 and 718.2 of the Criminal Code. These principles were discussed in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089. In that case the court found that proportionality is a guiding principle in sentencing. The sentence must reflect the gravity of the offence and the degree of responsibility of the offender. Also of importance is the principle of parity, meaning that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
Case law
[22] The Crown filed a number of cases with a wide range of sentences highlighting that the range for a robbery conviction can be from a non-custodial sentence to a more lengthy penitentiary term.
[23] In R. v. Panchan, 2013 ONSC 5567, [2013] O.J. No. 4022, Code J. found as an aggravating factor the fact that the offence involved some degree of planning and premeditation. In that case the victim was lured to a parking lot at night. There were three people involved with the offence. The victim was punched by one of the offenders and another man struck him with a baton. The victim sustained physical injuries.
[24] One of the accused was a 20-year-old first-time offender. Code J. found that to be a mitigating factor. He also noted that the accused had strong family support and was working full-time and had made good use of her time on bail. He found that both offenders had good prospects for rehabilitation.
[25] At para. 32 in his decision Code J. commented that the principles of sentencing pull in opposite directions. He noted that both accused were young first-time offenders with good rehabilitative prospects, who posed little or no risk of reoffending. He found that rehabilitation and specific deterrence are generally the primary sentencing values in such a case. In such cases either a period of probation or a “short sharp custodial sentence followed by probation are the appropriate kind of sentences”. On the other hand he noted that robbery and aggravated assault are serious crimes, and that the aggravated assault involved considerable violence. In those types of circumstances, denunciation and general deterrence are generally the primary sentencing values and involve more significant custodial sentences even for first-time offenders. At para. 33, he found that while the offence of robbery is serious, a short sharp sentence of two to three months in jail followed by probation can be appropriate in the case of a young first-time offender with good rehabilitation prospects, where no real violence is involved. However, different considerations apply in more serious cases of violence, particularly where careful planning is evident. In those types of robberies, sentences of 15 months to two years less a day are more appropriate even for a first-time offender.
[26] Code J. sentenced one of the offenders to 90 days imprisonment, because she was involved in the robbery where the victim was punched in the head but sustained no physical injuries. Further, she had strong rehabilitative prospects and was a first offender. For the second offender, because he played a more significant role and was also convicted of aggravated assault, he was sentenced to 12 months imprisonment. Both sentences were reduced for the mitigating effect of the three-year delay in the case.
[27] In R. v. Gregorchuk, 2007 ONSC 5000, [2007] O.J. No. 4197, D.C. Shaw J. sentenced the offender to two years and four months. In that case the offender was 27 years of age. He robbed a pizza delivery man while using a knife. The pizza delivery person was not injured.
[28] The offender was not a first-time offender and the pre-sentence report was noted as being largely negative. Shaw J. found that the protection of the public was a paramount consideration and that deterrence was therefore an important objective. The court noted that the accused had a history of drug addiction but also had a sincere appreciation of the consequences of his action, which was reflected in his guilty plea and the remorse he expressed. He was sentenced to two years and four months followed by three years of probation.
[29] In R. v. Brookes, 2011 ONCJ 447, [2011] O.J. No. 4127, the offender arranged to meet the victims at a mall. One of the victims had posted an online ad offering his computer for sale, and the offender had responded to the ad. Once there, the offender and his accomplice persuaded the victims to drive them to a more isolated location. The offender then grabbed the victim by the neck and held him in a head-lock while the accomplice took the computer. The offender was 21 years of age at the time of the offence. No weapons were used. The offender pleaded guilty. The court found that there was some degree of planning and that innocent victims were lured to a position of vulnerability and then physically assaulted. The offender repeated this same offence four months later. The court found that the appropriate range having regard to the aggravated and mitigating circumstances was between six and nine months of incarceration.
[30] In R. v. Hatimy, 2014 ONSC 1586, [2014] O.J. No. 1154, the offender was convicted of robbery. He had arranged a meeting with the victim in a parking lot to buy marijuana. The offender was 21 years of age at the time of the offence and had no prior record. He had been employed for five years and had a supportive family. The court found that one of the aggravating factors was that it was a planned robbery. The case also involved use of physical violence and an imitation firearm. The mitigating factors were that the offender was a youthful first-time offender and had expressed remorse and had a promising future.
[31] Campbell J. commented that there were conflicting sentencing principles to balance and reconcile. Campbell J. noted that the offender’s involvement in robbery seemed out of character. The author of the pre-sentence report concluded that the offender posed no imminent or ongoing threat to the community. Given these circumstances, rehabilitation and individual deterrence are generally considered to be the main sentencing considerations and usually shorter terms of imprisonment are imposed followed by probation assistance.
[32] At the same time, the offender had been found guilty of participating in a planned and deliberate robbery that involved violence and an imitation firearm. Campbell J. found that the sheer gravity of such crimes require sentences that denounce this kind of criminal conduct and deters others from committing similar offences. Those types of crimes involve the imposition of lengthier custodial sentences, even in the case of first offenders. The court sentenced the offender to 12 months.
[33] In R. v. Tcherezov, 2014 ONSC 3661, [2014] O.J. No. 2881, the offender was convicted of robbery and assault with a weapon. The offender and an accomplice threatened the victim with a knife in the underground garage of her home, demanded her car keys, and then left with the vehicle. The offender was 20 years of age at the time and was a first-time offender. Following the offence he was diagnosed with schizophrenia. The court found that there was no evidence to support a finding that the offender posed a continuing danger to the public. Speyer J. noted that it was troubling that the offender would be convicted on two occasions for comparatively minor offences after the robbery, but that those offences occurred at a time when he was in and out of hospital dealing with his illness. The court sentenced the offender to 15 months in custody.
Aggravating factors
[34] Although this was not a well-planned robbery, it was nonetheless planned. The planning started when Mr. Fouad received the phone call from Mr. Gogna. Mr. Fouad arranged for the victim to meet him at a house, after dark. There was a subsequent exchange of text messages to change the meeting time. At the house, Mr. Fouad asked Mr. Gogna to leave his car, a place of safety, and walk to the rear of the house where another man was waiting. In his statement to police, Mr. Fouad admitted that he did not plan on selling Mr. Gogna the phone but planned on taking the money from him. This was not, therefore, a spur of the moment robbery. It was premeditated. That is an aggravating factor for this court to consider.
[35] The victims did not file victim impact statements but based on their evidence at trial, both Sanjeev and Megha Gogna described being scared and it was that fear that led Mr. Gogna to give Mr. Fouad his money.
[36] In a number of the cases filed by the Crown, the robbery was accompanied with the use of a weapon or with some act of violence. The only physical act in this instance was when Mr. Gogna stepped backward and Mr. Fouad put his hands on his side and, according to Megha Gogna, gently pushed him forward. Mr. Fouad did not physically harm or verbally threaten to harm the victims.
[37] Sanjeev and Megha Gogna believe that Mr. Fouad’s accomplice was holding what they thought was gun. Their evidence at trial was not clear with respect to exactly what they saw. They gave different descriptions of what he was holding and both conceded that it might not have been a gun. Nonetheless, they were fearful when they saw this second man.
Mitigating factors
[38] The most important mitigating factor is that Mr. Fouad was a young first-time offender at the time of this offence. He also cooperated with the police when he gave his statement, and admitted to taking Mr. Gogna’s money. However, he did not fully cooperate, as he denied the presence of an accomplice. He has also expressed remorse to his mother, and I have considered this a mitigating factor.
[39] Somewhat troubling is that since being charged, Mr. Fouad has been convicted of two more offences. However, he has recently contacted a community based organization and is interested in counselling. He also has support from his family. He has twice been accepted into community college programs, which suggests that he has some interest and ability to pursue his education but thus far has not been successful due to his involvement in the criminal justice system.
Conclusion
[40] Mr. Fouad appears to be at a turning point where his life could take one of two trajectories. He may take this opportunity to make positive choices, seek out counselling and pursue his education. Given his subsequent convictions since this offence, he may follow another trajectory where his prospects for rehabilitation are not as positive.
[41] The principles of sentencing need to be balanced. Mr. Fouad was involved in a premeditated crime, which must be denounced and deterred. Given his age and the fact that he was at the time a first-time offender, the court must also be concerned with the principle of rehabilitation. Although there is some tension between these principles, rehabilitation and specific deterrence are the primary sentencing objectives in this case.
[42] Considering the principles of sentencing and the mitigating and aggravated factors, I sentence Mr. Fouad to six months imprisonment, followed by two years of probation. Upon completion of his custodial sentence, Mr. Fouad will abide by the following conditions during the period of his probation:
- Report forthwith to a probation officer within two (2) business days upon your release from custody and thereafter as required;
- Live at a place approved by the probation officer and not change that address without obtaining the consent of the probation officer;
- To actively participate in counselling or other programs, including appropriate programs recommended by your probation officer; and to show proof of your participation in such counselling or programs to the satisfaction of your probation officer;
- Do not contact or communicate in any way directly or indirectly, or by any physical, electronic, or other means with: Sanjeev Gogna, Megha Gogna, and Akash Gogna; and not attend their known places of residence or work;
[43] With respect to ancillary orders, I order that pursuant to s. 109(1), Mr. Fouad is prohibited from owning, possessing or applying for any firearm, crossbow, restricted ammunition and explosive substances for a term of ten years.
[44] Mr. Fouad is to provide a sample of his DNA for forensic analysis pursuant to s. 487.051(1) of the Criminal Code.
L. Shaw J.
Date: October 19, 2018
Addendum to Reasons for Sentencing
L. SHAW J.
[1] Para 43 is amended to include credit for 26 days of pre-trial custody. Using 1.5:1 credit this is 39 days of pre-trial custody for which he will receive credit.
L. Shaw J.