Court File No. CR-18-00000127-0000
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
THOMAS NICHOLSON
REASONS FOR SENTENCE
BEFORE THE HONOURABLE JUSTICE M. FUERST
On April 26, 2019, at BARRIE, Ontario
APPEARANCES:
C. Cross Counsel for the Crown
D. Gendron Counsel for Thomas Nicholson
SUPERIOR COURT OF JUSTICE
TABLE OF CONTENTS
Reasons for Sentence Page 1
Transcript Ordered: May 1, 2019
Transcript Completed: August 8, 2019
Ordering Party Notified: August 8, 2019
FRIDAY, APRIL 26, 2019
R E A S O N S F O R S E N T E N C E
FUERST, J. (Orally):
Introduction
Thomas Nicholson pleaded guilty to robbery and to use of an imitation firearm in the commission of the robbery.
Although Crown and defence counsel differ as to its length, they agree that the offences attract a significant jail term.
The Circumstances of the Offences
At approximately three o’clock a.m. on December 15th, 2017, Mr. Nicholson went into a Circle K convenience store in Barrie for the purpose of robbing it. His face was covered, and he wore sunglasses.
The events were captured on video recording. Mr. Nicholson pointed what looked like a Glock handgun at the clerk, a 17 year old college student who was a recent immigrant to Canada. Mr. Nicholson demanded money and cigarettes. The clerk handed over cash and 12 to 15 packages of cigarettes.
Once Mr. Nicholson left the store, the clerk called 911. Police officers arrived and viewed the video recording.
Unknown to Mr. Nicholson, the cigarette packages contained a GPS tracker. It was activated and Circle K security was notified. Security was able to provide the police with live time information about the location of the cigarettes.
As a result, the police went to an apartment in Barrie. There they found Mr. Nicholson. He was dressed in clothing that was different from that shown on the video recording. He was holding what appeared to be a handgun, which he tried to conceal in some clothing on a mattress. The weapon was, in fact, an inoperable BB gun.
The police arrested Mr. Nicholson. They searched him and found loonies in his pocket. There were five-dollar bills on the floor.
The police also found a black T-shirt and a black toque on a couch, and a black North Face vest and a pair of jeans on the floor. A pair of wet black shoes were underneath the couch. This represented the clothing Mr. Nicholson wore when he robbed the convenience store, as depicted in the video recording.
Elsewhere in the apartment, the police found a bag containing the stolen cigarettes.
The convenience store clerk declined to provide a victim impact statement.
The Circumstances of Mr. Nicholson
Mr. Nicholson is 33 years old. His childhood, as it was described by defence counsel, was chaotic. He did not meet his biological father until he was seven years old. At some point after that, he witnessed his mother stab his father. He went into foster care when he was about 11 years old. He ran away from the group home where he was living when he was 13 or 14 years old, and went to live with a man who sexually abused him.
He resumed contact with his father when he was 15 or 16 years old. His father introduced him to crack cocaine, and schooled him to commit crimes to get drugs. Mr. Nicholson became a drug addict.
Not surprisingly, given this background, Mr. Nicholson has a lengthy criminal record that began in 1997 when he was a youth. It carried on virtually unbroken until, in 2013, he was recommitted to the penitentiary as a statutory release violator in respect of a sentence for robbery.
In keeping with his substance abuse problem, a great many of the convictions are for property offences and breaches of court orders.
In addition to drug addiction, Mr. Nicholson suffers from anxiety and post-traumatic stress disorder.
While in the penitentiary serving the sentence for robbery, he completed the credits necessary to get his high school diploma.
Defence counsel advised that Mr. Nicholson committed the instant offence after his common-law spouse suffered a miscarriage.
Mr. Nicholson’s mother provided me with a letter in which she expressed her view that her son needs treatment for drug addiction. She is willing to assist him in connecting with treatment on his release from jail. Defence counsel told me that Mr. Nicholson now recognizes that he needs treatment for substance abuse.
Mr. Nicholson’s common-law spouse remains supportive of him.
The Positions of the Parties
On behalf of the Crown, Ms. Shirreffs seeks a sentence of four years' imprisonment for the robbery, plus one year consecutive for the use of an imitation firearm, less pretrial custody of 433 days credited at one and a half to one as 650 days. She submits that the sentence should be consecutive to a sentence Mr. Nicholson is currently serving. She also seeks a DNA order and a s. 109 order. She emphasises the many aggravating factors in this case, including that the robbery was planned, involved the use of an imitation handgun, and was committed against a vulnerable individual working alone at night. A lengthy penitentiary sentence is necessary to achieve general deterrence and denunciation, and also to specifically deter Mr. Nicholson, given his lengthy criminal record.
On behalf of Mr. Nicholson, Ms. Gendron seeks a sentence of three years' imprisonment for the robbery, plus one year consecutive for the use of an imitation firearm, less credit of 650 days. She agrees that the sentence can be consecutive to the sentence being served. She does not oppose the ancillary orders. She acknowledges the aggravating factors, but emphasises that there are significant mitigating factors, most particularly, Mr. Nicholson’s traumatic childhood, his guilty pleas, and the support available to him on his release from jail from his mother and his common-law wife.
The Principles of Sentencing
The objectives of sentencing long recognized at common-law, have been codified in s. 718 of the Criminal Code. They are the denunciation of unlawful conduct, deterrence, both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to the victims or the community, and promotion of a sense of responsibility in offenders and acknowledgment of the harm done to victims or the community.
Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating or mitigating circumstances. It also requires that a sentence be similar to those imposed on similar offenders in similar circumstances, that the combined duration of consecutive sentences not be unduly long, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other that imprisonment that are reasonable in the circumstances be considered.
Analysis
The principles of denunciation and deterrence, both general and specific, are the paramount considerations in determining the appropriate sentence for offences of robbery. The Ontario Court of Appeal has repeatedly recognized the seriousness of the offence, and that those who work at establishments such as convenience stores and gas bars are particularly vulnerable targets who need to be protected by the courts. See, for example, R. v. Boyle, [1985] O.J. No. 33; R. v. Drisdelle, 2002 CanLII 41547 (ON CA), [2002] O.J. No. 3901.
Sentences for an individual robbery can range from 12 months to 4 years in jail, even for a first offender. Where a real firearm is used, the Criminal Code mandates a minimum sentence of 4 years in jail.
Mr. Nicholson’s offences reflect a host of significant aggravating factors. While the robbery was not a sophisticated one, it involved a measure of planning. Mr. Nicholson chose to disguise his face in an effort to avoid detection. He armed himself with a weapon that, while not a firearm, resembled a handgun. He used it in a threatening and intimidating manner when he pointed it at the store clerk. The victim, who was working alone at a convenience store at three o’clock in the morning, was particularly vulnerable. No victim impact statement is necessary to appreciate the terror that that young 17 year old would have experienced. The robbery was successful in that Mr. Nicholson obtained both money and cigarettes.
Mr. Nicholson is not a naïve youth. He has a previous criminal record for dozens of offences. It is particularly aggravating that he previously was convicted and sentenced to a penitentiary term for robbery. That sentence apparently had no deterrent effect on him.
There are mitigating factors that I take into account. Mr. Nicholson pleaded guilty. Although his guilty plea was not an early one, it is a sign of remorse and acceptance of responsibility for his actions. He expressed remorse to me in court. He did not have the benefit of a stable childhood or adolescence, and this no doubt started him down the path to drugs and crime. It is to his credit that he finished his high school diploma while serving a previous sentence. He will have the support of his common-law spouse and his mother when he is released back to the community from jail, which should assist in his reintegration into society.
I accept that Mr. Nicholson has a measure of appreciation of his need for treatment for substance abuse. However, the mitigating effect of this is attenuated because he has yet to take even basic steps to get help. Regrettably, unless he does so, there is a real risk that he will continue to commit crimes when not in jail, including crimes of violence or threatened violence like robbery.
Notwithstanding the mitigating factors, the seriousness of this robbery warrants a substantial penitentiary sentence. I bear the totality principle in mind.
Mr. Nicholson, please stand. On count 1, the robbery, I sentence you to 42 months in jail less pretrial custody that I credit at one and a half to one as 21 and a half months. That leaves a sentence to be served of 20 months and 15 days.
On count 4, the use of an imitation firearm, I sentence you to one year in jail to be served, as the Criminal Code requires, consecutively to the sentence for robbery.
The total sentence is 32 months and 15 days in jail. It is to be served consecutively to the sentence you are presently serving.
I make a DNA order and a s. 109 order for life on both counts 1 and 4. You may be seated.
FORM 2
Certificate of Transcript
Evidence Act, subsection 5(2)
I, Helena Tsapoitis-Barbesin, certify that this document is a true and accurate transcript of the recording of R. v. Thomas Nicholson, in the Superior Court of Justice, held at 75 Mulcaster Street, Barrie, Ontario, taken from Recording No. 3811_01_20190426_083626_10_FUERSTM.dcr, dated April 26, 2019 which has been certified in Form 1 by Simone Wray.
August 8, 2019
Date (Authorized Transcriptionist)
Helena Tsapoitis-Barbesin
ACT ID# 2372561617
416-889-6054