Court File and Parties
Oshawa Court File No.: YC-18-14815 Date: 20190814 Ontario Superior Court of Justice
Between: Her Majesty the Queen – and – R.D.
Counsel: Jin Won Kim and Ken Polley, for the Crown David Barrison, for R.D.
Heard: February 8 and July 12, 2019
Sentencing
Bird J.:
Introduction
[1] R.D. entered pleas of guilty to 10 counts on an indictment arising out of his participation in the robberies of three jewellery stores and the attempted robbery of a fourth that took place between March 3, 2017 and March 14, 2017.
[2] R.D. was 16 years old at the time, having been born on December 31, 2000. Pursuant to Section 64(1) of the Youth Criminal Justice Act, S.C. 2002, c. 1 (YCJA), the Crown has applied to have R.D. sentenced as an adult.
[3] It is the Crown’s position that the presumption of diminished moral blameworthiness or culpability has been rebutted and that a youth sentence would not be sufficiently long to hold R.D. accountable for his offending behaviour. The Crown seeks a global sentence of eight years imprisonment less credit for pre-sentence custody.
[4] In contrast, the defence submits that the maximum youth sentence of three years would satisfy the principles of sentencing and hold R.D. accountable, particularly in light of his pre-sentence custody. R.D. has been in custody since his arrest on March 14, 2017. He has been detained at the Brookside Youth Centre since March 15, 2017.
[5] A pre-sentence report was prepared as required by Section 72(3) of the YCJA. In addition, a Section 34 report was jointly authored by Dr. Szanto, a registered psychologist and Mr. Watson who is a clinical assessor. Dr. Szanto provided viva voce evidence at the sentencing hearing. Further, Dr. Wynd, a child and family psychiatrist, provided a letter summarizing her assessment of R.D.
Factual Background of the Offences
[6] On March 3, 2017 R.D. and two other males robbed Evangelos Jewellery in Stouffville. It was a well-planned and executed robbery that began with one of the males gaining entry to the store by being buzzed in by an employee. Once inside, he pulled a covering over his face and held the door open for his two accomplices who also had their faces disguised. The first male had a handgun which was pointed at various times during the robbery at two of the employees.
[7] R.D. and his accomplices smashed the glass display cases and removed the jewellery from them. All three assailants were wearing gloves and carrying backpacks which they put the jewellery into. One of the males attempted to get an employee to go to the back of the store to open the safe but was not successful in doing so. The males were in the store for just under four minutes during which time they ransacked it.
[8] Responding police officers found blood on several locations where the display case glass had been broken. This blood was ultimately compared with R.D.’s and was found to be a match.
[9] Ten days later, on March 13, 2017, R.D. went to Graziella Fine Jewellery in Ajax with four other men for the purpose of robbing it. All five males had their faces masked. R.D. was carrying a gym bag. Their attempt to enter the store was not successful because the door was locked and the employees did not buzz them in.
[10] Approximately half an hour later, R.D. and his accomplices attended Ron Galbraith’s Jewellers in Ajax. They got to the location in a Nissan Versa motor vehicle that had been rented by Mr. Ratnam. The men were equipped with two handgun-style pellet guns and a hammer. They had their faces disguised. R.D. entered the store with three of his accomplices. One person remained in the car. There were two employees and two customers in the store at the time of the robbery. Upon entering the store, R.D. pulled out his pellet gun and pointed it at one of the employees. He forcefully pulled her to the back of the store and demanded that she open the safe. When she fumbled with the code, R.D. put the gun to her head and told her that he wasn’t fooling. The gun was pointed at the employee for a significant period of time. R.D. also took her cellular phone from her hand. While this was happening, one of the assailants used the hammer to smash the display cases while another scooped jewellery into a backpack. R.D. later assisted in smashing cases and gathering up jewellery.
[11] During the robbery, the second employee had a gun pointed at her head while she was on the ground. One of the customers had a gun pointed at her back. While it was there, she heard two clicks. The second customer was directed to the back of the store where he stood with his hands in the air for the duration of the robbery. Surveillance photos from the store’s security camera show R.D. brandishing a pellet gun during the robbery. R.D. and his accomplices took a large quantity of jewellery, $4,000 in cash and the cellular phones of the two employees. When they were finished in the store, the four men ran back to the Nissan vehicle and fled the scene. R.D. and his accomplices were only in the store for two minutes and 50 seconds. This was a well-planned and well-executed robbery that must have been absolutely terrifying for the four victims.
[12] The final robbery occurred the following day at Valdi’s Jewellery Shop and it was the most violent. R.D. and his accomplices arrived at the store in the same Nissan motor vehicle they had used the day before. R.D. entered the store with three other men. The fifth man waited in the car. The four men were wearing gloves and disguises and two, including R.D. were armed with pellet guns. R.D. and two others were carrying backpacks and one assailant had a hammer that was used to smash display cases.
[13] Marian Matusik was working alone in the store. He was in the back of the store when the assailants burst in. R.D. and one other man went to the back of the store. The video shows R.D. following Mr. Matusik towards the front of the store and repeatedly striking him in the head with the pellet gun. When Mr. Matusik fell to the ground after being hit, R.D. pointed the gun at his head while his accomplices fled the store.
[14] Mr. Matusik was taken to hospital where he was treated for injuries including large cuts to his head that required staples. Photographs of Mr. Matusik’s injuries were entered as exhibits and depict extensive bleeding and cuts to his head and face. Mr. Matusik was alone in the store and was therefore outnumbered four to one during this robbery. He was significantly older than R.D. and the other assailants. The violence inflicted upon him was completely unnecessary and extremely troubling. R.D. and the others were only in Valdi’s Jewellery for 37 seconds which once again demonstrates the planned nature of this robbery.
[15] Approximately two and a half hours after the robbery, police stopped the Nissan Versa as it was driving westbound on Highway 401. R.D. was in the rear passenger seat of the car. A search of the vehicle recovered a hammer, the gloves worn by R.D. during the robbery of Valdi’s Jewellery, property from Galbraith’s Jewellery and a backpack that contained jewellery stolen from Valdi’s Jewellery. In addition, the revolver style pellet gun brandished by R.D. during the robberies of Galbraith’s Jewellery and Valdi’s Jewellery was located on the rear passenger seat of the car. That weapon was subsequently sent for forensic testing and was found to have Mr. Matusik’s DNA on it. Both pellet guns were also tested by a firearms examiner and were found to meet the definition of firearms. Pictures of both guns were entered as exhibits and they look like functioning firearms. The victims of the robberies would have had no way of knowing that they were pellet guns.
[16] At the time of all four offences, R.D. was on a recognizance of bail as a result of firearms charges he was facing in Toronto. He was arrested on February 12, 2017 and subsequently released on bail with several conditions including one of house arrest with limited exceptions, none of which permitted him to be in the company of his accomplices committing robberies and another prohibiting him from possessing weapons.
[17] As required by Section 722 of the Criminal Code, all of the victims were given the opportunity to provide Victim Impact Statements. Only two did: Ron Galbraith and Carolyn Capizzo. Ms. Capizzo was the Galbraith’s employee whose head R.D. put the pellet gun to. Her Victim Impact Statement speaks of the serious and thus far permanent effects the incident has had on her. She has been diagnosed with anxiety and Post Traumatic Stress Disorder for which she has been seeing a psychologist on a weekly basis. Pre-existing health conditions have become worse. When she closes her eyes to go to sleep at night she sees R.D. coming towards her with a weapon. Ms. Capizzo has been unable to return to work and is reliant on WSIB. She avoids going out in public alone and generally lives with a constant fear. The impact of the robbery on Ms. Capizzo is profound.
[18] Mr. Galbraith was the owner of the jewellery store. He was not present at the time of the robbery and feels a sense of guilt about that, knowing what his staff endured. The store had been in the same location for 53 years. It was his family’s business. Within months of the robbery, Mr. Galbraith closed the store and moved away. Most of his employees resigned after the robbery and he sustained a large financial loss that was not fully covered by his insurance.
[19] While none of the other victims elected to provide Victim Impact Statements, there is no question that the robberies were traumatic for all involved. Being confronted by masked men, armed with weapons who ransacked the stores could not be anything other than shocking and terrifying. Mr. Matusik sustained serious injuries that required treatment at a hospital. The only reasonable conclusion to draw is that all victims were negatively impacted in some way by these offences.
Background of R.D.
[20] R.D.’s background is set out in both the Section 34 and the pre-sentence report. He is the oldest of three children and was born in the United States. Unfortunately, neither of R.D.’s parents participated in the preparation of either report. R.D.’s father lives in Florida. For reasons known only to her, R.D.’s mother has refused to engage in the process. She did not return any of the phone calls that were made to her to request her input. Prior to his arrest, R.D. was living with his mother on Driftwood Avenue in Toronto which is known to be a high crime area. While R.D. was growing up, his mother struggled to provide financially for the family.
[21] There is not a great deal of information available about R.D.’s childhood because neither of his parents spoke to anyone involved with the preparation of the reports. It appears that his upbringing lacked stability and structure to some extent. R.D. and his siblings were placed in foster care briefly when he was quite young and he attended five different elementary schools. His father was living in the United States. While R.D. reports having a positive relationship with him, it is difficult for a parent to provide much guidance from a distance.
[22] When R.D. was released on bail on the Toronto firearms charges, his mother was his surety and therefore responsible for ensuring that he complied with the conditions. Clearly, she failed to do so because R.D. was out with his friends on several occasions in contravention of the house arrest provision. The fact that he was able to disregard his bail repeatedly demonstrates that his mother was not exercising appropriate supervision over him. It may be that she was unable to do so because she was required to work. Of course, R.D. was responsible for complying with his bail and has acknowledged through his guilty plea to failing to comply with a recognizance that he did not do so. However, the lack of supervision while on release is consistent with R.D. generally not having the optimal level of guidance prior to these offences.
[23] Growing up in poverty is not an excuse for the very serious and violent offences R.D. committed. However, his circumstances provide some context for it. His mother did not have any extra money to give him to spend on things teenagers typically enjoy. R.D. did not have a health card or a Social Insurance Number. He is an American citizen. He therefore did not believe he was able to obtain lawful employment. The motivation for R.D. to commit these offences was financial. He wanted money and viewed the robberies as being a way to get some. Clearly this was a horrendously bad choice and the use of weapons and gratuitous violence can never be justified. R.D.’s background and circumstances do, nevertheless, shed some light on why he engaged in the offending behaviour.
[24] R.D. reported having some acquaintances who were members of a street gang although he denied membership himself. He admitted to regular use of marijuana prior to his arrest beginning sometime between the ages of 12 and 14. However, R.D. did not view his substance use as being problematic. Further, he was not under the influence of any substances at the time of the robberies.
[25] At the time of his arrest, R.D. was attending high school. His Ontario School Records did not disclose any significant concerns. He did not have a history of being suspended or expelled. At the time of his arrest, R.D. had completed 18 high school credits. Between the date of his arrest and August of 2018, he earned an additional 14 credits and obtained his O.S.S.D. His grades in the high school courses he completed in custody are generally very good and demonstrate a strong academic ability. Two of the courses R.D. took were dual credit courses meaning that he got both high school and college credits. After finishing his O.S.S.D., R.D. participated in a further online learning program for several months. According to the Section 34 report, R.D.’s grades in this program were “exceptional” and he demonstrated full participation and commitment. R.D. wants to pursue post-secondary education in the field of auto mechanics. Based on his academic achievement while in custody, he clearly has the ability to do so.
[26] In addition to the high school and college classes he completed, R.D. has participated in many group programs related to employment, gang involvement, substance use and pro-social thinking. He has obtained certificates in WHMIS, first aid and forklift operation. R.D. has regularly engaged in Brookside’s Spiritual Care Program. At the time the pre-sentence report was written, R.D. had committed to working with a psychometrist for at least six individual sessions to examine the attitudes that led him to offend. The unit manager at Brookside told the author of the pre-sentence report that she meets with R.D. on a weekly basis and is of the opinion that he has made “huge strides” in how he approaches things. In her view, R.D. has become a leader who has demonstrated an increased ability to resolve conflict in a mature and respectful manner.
[27] However, it cannot be said that R.D.’s time at Brookside has been without incident. On five occasions between August 1, 2017 and July 23, 2018 R.D. assaulted other youths and staff. On four other occasions, R.D. was found in possession of contraband items which included marijuana. During a number of these incidents, R.D. was described as using abusive language and defying staff requests. The most recent incident report is dated January 22, 2019 and involved verbal aggression by R.D. towards another youth. A questionnaire completed by one of R.D.’s teachers stated that while participating in the school program he engaged in behaviour that was threatening, bullying and also broke the rules at times.
[28] R.D. has never been diagnosed with nor treated for any mental health illness. Psychological testing revealed that R.D. has a learning disability in the area of math. The overall conclusion of the psychological testing was that R.D. functions well within the average range intellectually. Consequently, there is no underlying mental health or cognitive deficit that contributed to R.D.’s offending behaviour.
[29] At the time of the robberies, R.D. did not have a criminal or youth court record. When he was 13 years of age he was charged twice with theft under $5,000 and completed a diversion program each time. On February 12, 2017 R.D. was charged with various offences in relation to his possession of a loaded .40 caliber handgun. On that date, R.D. and another young man were in a housing complex on Driftwood Avenue in Toronto. A witness reported that R.D. and the other young man were chasing a third male. Surveillance video showed R.D. passing a handgun to the second male who continued to chase the third male while brandishing the gun.
[30] Police responded to the call and found R.D. coming from a nearby ravine. When he was searched the police found a .40 caliber handgun tucked into his waist. The gun was loaded with 9 rounds of ammunition including one in the chamber. R.D. had two additional bullets in a sunglasses case. R.D. initially refused to identify himself to the police. It wasn’t until he was at the police station for approximately one hour that he provided his name.
[31] R.D. was sentenced for possessing a loaded firearm and assault with a weapon on November 21, 2017. He was given credit for time spent in custody between March 14, 2017 when he was arrested for the robbery offences and November 21, 2017. At 1.5 to 1 for this pre-sentence custody, R.D. was credited with having served 380 days imprisonment and was sentenced to time served and probation for 18 months. As a result, counsel agreed that his credit for pre-sentence custody on the robbery charges began to run on November 22, 2017. They further agree that he should be given 1.5 to 1 credit for this time. As of today, R.D. has served 632 days of pre-sentence custody in relation to these offences. With the enhanced credit, this equates to 948 days or 31.6 months of pre-sentence custody.
[32] After the submissions of counsel were complete, R.D. read a letter he had prepared when given the opportunity to speak on his own behalf. He expressed his remorse for having committed the offences. R.D. stated that he feels a great deal of guilt and understands that the victims did not deserve the trauma they experienced. He described himself as being impulsive and immature at the time. R.D. stated that the person who committed the offences is “long gone” having been replaced by someone who is committed to bettering himself by pursuing further education and lawful employment. R.D. appears to be sincere in his statements and this bodes well for his rehabilitation.
Pre-Sentence and Section 34 Reports
[33] The pre-sentence report can generally be characterized as very positive. The author spoke with several people who have worked with R.D. while he has been in custody at Brookside including his probation officer. She described R.D. as being polite, respectful and highly responsive to the services and supports within the institution. With respect to areas of need, his probation officer is of the view that R.D. can be heavily influenced by his peers.
[34] R.D. spoke to the author of the pre-sentence report about the offences and said that he was only thinking about himself and his need for money at the time. He is now able to appreciate to some extent the impact the robberies had on the victims. The report notes that at a recent case management plan meeting R.D. was found to have several strengths which include being academically capable, compliant, having strong vocational interests and following directions well. In terms of areas of need, those include concerns about contact with gangs and negative peers. The report outlines several supports that would be available to R.D. in the community upon his release from custody.
[35] Dr. Szanto prepared the Section 34 report and testified at the sentencing hearing, primarily on the issue of R.D.’s risk of reoffending. She had access to a variety of documents including a Section 34 report prepared for the sentencing on the firearms offences. The author of that report, Dr. Vinik, concluded that R.D. was at low risk for continued antisocial behaviour. Dr. Szanto testified that in her opinion, R.D. presents a moderately high risk. She said that with ongoing treatment, that risk can be lowered. Dr. Szanto testified that if she had done the initial Section 34 report she would have concluded that R.D. was an extremely high risk to reoffend. Dr. Vinik did not have access to the same information as Dr. Szanto did, including in relation to the robberies. Dr. Szanto bases her opinion of R.D.’s current level of risk on the facts underlying the robbery charges, his gang affiliation and the lack of support from his family. She was unable to use most of the standardized risk assessment tools because collateral information is required and was not available.
[36] Dr. Szanto testified that in her view, R.D. is not ready at this point to safely re-enter the community. She made a number of recommendations for ongoing intervention in her report and believes that if those are followed, R.D.’s risk to re-offend will decrease. However, Dr. Szanto could not express an opinion about how long it will take for that to happen. It is important for R.D. to engage in offence-based counselling and to deal with his past gang affiliation.
[37] Dr. Szanto described R.D. as being responsive and respectful during interviews. She did have some concern that he was attempting to paint an overly positive picture to place himself in a better light. For example, R.D.’s self-report about anger management was somewhat inconsistent with the information contained in the incident reports from Brookside. However, Dr. Szanto noted that R.D.’s commitment to positive change is evident in his high level of participation in programs at Brookside.
[38] Attached as an appendix to the Section 34 report was a letter from Dr. Wynd, a child and family psychiatrist. Dr. Wynd reviewed some background information about R.D. and met with him at Brookside. Dr. Wynd described R.D. as a “relatively mature young man” whose intellect was consistent with his level of education. Dr. Wynd found no evidence of mental illness and no need for medication. Based on R.D.’s criminality, she found that he met the criteria for a conduct disorder. She also characterized him as having a dependant personality style with antisocial traits. In her view, R.D.’s prognosis is “guarded” but no explanation was provided for this opinion. Dr. Wynd’s report was quite brief and doesn’t add to the information already contained in the pre-sentence report and Section 34 report.
The Presumption of Diminished Moral Blameworthiness
[39] Section 72(1)(a) of the YCJA creates a presumption of diminished moral blameworthiness or culpability that the Crown must rebut before an adult sentence can be imposed on a young person. In R. v. S.B. (appeal by M.W. and T.F.) 2017 ONCA 22, [2017] O.J. No. 162 (C.A.), the Court stated that in order to rebut the presumption the evidence must support a finding that the young person demonstrated the level of maturity, moral sophistication and capacity for independent judgment of an adult (at paragraph 98).
[40] In assessing R.D.’s level of maturity at the time of the offences I take into account the following factors:
(a) he was three months past his 16th birthday;
(b) while he has a mild learning disability, R.D. is of at least average intelligence. The fact that he has completed so many courses while in custody attests to his academic abilities;
(c) R.D. does not suffer from any mental illnesses that could have impacted his judgment and decision making;
(d) R.D. was not under the influence of any substances when he committed the offences;
(e) although his accomplices were all young adults, R.D. told Dr. Szanto that he did not blame them for his involvement in the offences as he felt they each made their own decision. R.D. decided to participate in the robberies because he wanted money; and
(f) the offences provide compelling evidence of R.D.’s level of maturity at the time. These were not impulsive or unsophisticated offences. To the contrary, the evidence establishes that they were very well planned and executed. Based on the videos, the participants were fully prepared to carry out the robberies and they each seemed to have roles that were understood. R.D. and his accomplices were armed with weapons, gloves, masks and bags. They ransacked each store in a fairly brief period of time which is evidence of a high level of preparation and sophistication. The fact that the robberies occurred on three different days is further evidence that R.D.’s involvement in them was considered and not spontaneous. Each day he had to meet up with his accomplices and drive to the stores. He needed to arm himself and make sure he had the necessary tools to commit the offences. Each day, R.D. made a deliberate choice to engage in a terrifying take-over style robbery of a targeted location. These offences are the antithesis of impulsivity and immaturity.
[41] I am mindful of the fact that R.D. has made tremendous progress while he has been in custody. He is to be commended for the efforts he has made towards his rehabilitation. In S.B., the court viewed the offender’s progress in custody as evidence of his evolving maturity and his lack of maturity at the time of the offence. There is no doubt that R.D. has matured in the past two and a half years. That is to be expected given his age.
[42] However, I do not find that the improvement in R.D.’s behaviour, however impressive it may be, means that he had a diminished level of moral blameworthiness or culpability when he committed the offences. At that time, he was living in a far less structured environment and was exposed to the gang subculture. His circumstances were challenging and undoubtedly made it difficult to achieve academic success and otherwise engage in pro-social behaviour. In contrast, Brookside has provided a great deal of stability and support for R.D. As Dr. Szanto testified, good behaviour is expected in a custodial environment. Taking into account all of the evidence, I am satisfied that the Crown has rebutted the presumption of immaturity notwithstanding R.D.’s age at the time and his progress in custody.
Can A Youth Sentence Hold R.D. Accountable?
[43] An adult sentence must be imposed if I am satisfied that a youth sentence would not be sufficient to hold R.D. accountable for his offending behaviour. As noted in R. v. A.O. 2007 ONCA 144, [2007] O.J. No. 800 (C.A.), the decision to impose an adult sentence is a very serious one and should only occur after a careful consideration of all of the relevant factors. The Court explained that accountability is achieved through the imposition of meaningful consequences for the offender and sanctions that promote his rehabilitation and reintegration into the community. As with all sentences, the principle of proportionality applies. Any sentence imposed must be proportionate to the seriousness of the offences and the degree of responsibility of the offender.
[44] In considering the meaning of accountability, the Court in A.O. found it to be equivalent to the principle of retribution. Therefore, in order to hold a young person accountable, a sentence must reflect the moral culpability of the offender having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender and the normative character of the offender’s conduct (at paragraphs 46 and 47). General deterrence and denunciation are not appropriate considerations. The rehabilitation of the offender is one of several important factors to be considered. What is required for a youth sentence to be sufficient is that it has meaningful consequences for the young person and it promotes his rehabilitation and reintegration into society (at paragraph 58).
[45] R.D. acknowledges that the offences he committed are extremely serious and require a lengthy sentence of imprisonment. However, it is his position that the maximum youth sentence of three years (two years to be served in custody and one year to be served under supervision in the community) is sufficient to hold him accountable particularly in light of his pre-sentence custody. R.D. asks that I take his pre-sentence custody into account but not deduct it from the three year maximum youth sentence. I have the discretion to do this based on authorities such as S.B. (at paragraph 78) and R. v. M.B. 2016 ONCA 760.
[46] In contrast, the Crown submits that the offences R.D. committed are so serious that only an adult sentence can hold him accountable. With respect to R.D.’s pre-sentence custody, the Crown relies on R. v. K.O. 2017 ONCA 122 [2017] O.J. No. 1222 (C.A.) in which the Court stated that the sentencing judge concluded that a sentence of 6 ½ years and not three years was necessary. After deducting credit for pre-sentence custody from the adult sentence, a period of three years remained to be served. The defence submitted that since the net result would be the same whether the maximum youth sentence or an adult sentence less credit for pre-sentence custody was imposed, the judge should have imposed a youth sentence. The Court of Appeal disagreed and found that a sentence of three years would not have properly reflected the appellant’s moral culpability.
[47] In determining whether a youth sentence of three years is sufficient to hold R.D. accountable, I take the following factors into account:
(a) R.D. did not have a youth record at the time of these offences. As noted earlier, he was on bail for very serious firearms offences which he ultimately pled guilty to. R.D. was supposed to be abiding by a house arrest condition at the time of the robberies. The fact that he disregarded his bail conditions and committed further offences involving violence and weapons within weeks of being released from custody is highly aggravating;
(b) the nature of the offences is such that only a lengthy period of imprisonment will amount to a meaningful consequence for R.D. The robberies were well-planned, well-executed and must have been terrifying for the employees and customers in the stores. All three robberies involved the use of weapons. In two of them, R.D. pointed a pellet gun at an employee’s head. The violence he inflicted upon Mr. Matusik was extreme;
(c) R.D. was as involved in the robberies as his adult accomplices were. He did not play a secondary role in the offences but rather was a full participant. In fact, he was the person responsible for the infliction of the greatest physical harm to a victim;
(d) the harm to the victims was intentional and would have been apparent to R.D. and his accomplices. It is clear from the videos that the victims were shocked and terrified. During the robbery of Galbraith’s Jewellers, the customer who had the gun put to her back while she was lying on the floor was so scared that she lost control of her bladder. Notwithstanding this, R.D. and his accomplices committed the robbery of Valdi’s the following day and caused serious injury to Mr. Matusik; and
(e) R.D. has excellent prospects for rehabilitation. He has made very positive progress while in custody and appears to be committed to continuing on this path. His goals for the future are both admirable and attainable. Dr. Szanto is of the view that he is currently a moderately high risk to re-offend but feels this risk can be lowered with ongoing treatment and support. If R.D. completes offence based counselling and addresses his gang affiliations, his risk of re-offending will be lowered significantly. Dr. Szanto feels this can likely be achieved within two years. However, it is not necessary for the Crown to prove that R.D. cannot be rehabilitated by a youth sentence before an adult sentence can be imposed (A.O. at paragraphs 53–54). The rehabilitation of a young person is one of several factors that must be considered on the issue of accountability.
[48] Having considered all of the relevant factors, I am of the view that the maximum youth sentence, even taking into account R.D.’s pre-sentence custody, is not sufficient to hold him accountable for his offending behaviour. As a result, he will be sentenced as an adult.
The Appropriate Sentence
[49] Arriving at a just and appropriate sentence for R.D. requires the balancing of several competing interests. The gravity of the offence, the offender’s degree of responsibility, the specific circumstances of the case and the circumstances of the offender all must be considered – see R. v. Lacasse 2015 SCC 64, [2015] S.C.J. no. 64. Section 718.1 of the Criminal Code requires that any sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. In this case, as I have already stated, the offences are very serious and R.D.’s level of moral blameworthiness is high.
[50] In determining what an appropriate sentence is, I must balance the aggravating and mitigating factors and take into consideration the principles of sentencing set out in Section 718 of the Criminal Code. R.D. must be given credit for his pleas of guilty which spared the victims from reliving the trauma of the robberies by having to testify at trial. I accept as genuine his expression of remorse and his commitment to change. He now appears to have some insight into how traumatic the robberies were for the victims. Further, his youth and excellent prospects for rehabilitation are significant mitigating factors.
[51] Aggravating factors include the degree of planning and sophistication involved in the robberies, the use of disguises and weapons, the harm done to the victims, the violence inflicted on Mr. Matusik and the fact that R.D. was on release for firearms offences at the time of the robberies and was in violation of his bail conditions.
[52] I have taken into account the principles of sentencing as outlined in Sections 718, 718.1 and 718.2 of the Criminal Code. I have attempted to strike the appropriate balance between the mitigating and aggravating factors that are present in this case paying particular attention to the fact that R.D. was a youth at the time of the offences.
[53] R.D. is sentenced as follows:
Count 1: 5 years imprisonment less credit for pre-sentence custody which is the equivalent of 948 days. Count 2: 1 year imprisonment concurrent. Count 4: 2 years imprisonment concurrent. Count 5: 1 year imprisonment concurrent. Count 6: 5 years imprisonment less credit for pre-sentence custody which is the equivalent of 948 days concurrent. Count 7: 1 year imprisonment concurrent. Count 9: 5 years imprisonment less credit for pre-sentence custody which is the equivalent of 948 days concurrent. Count 10: 2 years imprisonment consecutive. Count 11: 1 year imprisonment concurrent. Count 13: 6 months imprisonment concurrent.
[54] This represents a global sentence of 7 years less credit for pre-sentence custody. R.D. is ordered to provide a sample of his DNA that is suitable for analysis and will be the subject of a Section 109 order for life.
[55] Pursuant to Section 76 of the YCJA, a placement hearing will be held to determine where R.D. will serve his term of imprisonment. A report shall be prepared for the purpose of assisting me in making that determination.
Justice L. Bird Released: August 14, 2019