Court File and Parties
COURT FILE NO.: 175/19 and 01/18 DATE: 2020 03 09 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – H.A.
Counsel: Amy Stevenson, for the Crown Ariel Herscovitch, for H.A.
HEARD: March 9, 2020
REASONS FOR DECISION ON SENTENCING
Conlan J.
I. Introduction
The Convictions
[1] After a trial, judge-alone, H.A. was found guilty of seven criminal offences:
count 1 – January 12, 2017, at Burlington, possession of stolen property (a licence plate) under $5000.00, contrary to section 354(1)(a) CCC;
count 7 – January 7, 2017, at Brampton, disguise with intent, contrary to section 351(2) CCC;
count 8 – January 7, 2017, at Brampton, attempted robbery with an imitation firearm, contrary to section 343(d) CCC;
count 9 – January 7, 2017, at Mississauga, disguise with intent, contrary to section 351(2) CCC;
count 10 – January 7, 2017, at Mississauga, robbery with an imitation firearm, contrary to section 343(d) CCC;
count 11 – January 7, 2017, at Mississauga, disguise with intent, contrary to section 351(2) CCC; and
count 12 – January 7, 2017, at Mississauga, robbery with an imitation firearm, contrary to section 343(d) CCC.
[2] In addition to the above charges that were tried in Milton, H.A. pleaded guilty to two charges that were transferred to this jurisdiction from Sarnia: (i) July 28, 2019, at Sarnia, robbery with an imitation firearm, contrary to section 343(d) CCC, and (ii) on the same date, at the same place, disguise with intent, contrary to section 351(2) CCC.
A Brief Sketch of the Facts
[3] H.A. was a passenger in a Mazda Protégé car that travelled to a plaza in Burlington on January 12, 2017. That car had a stolen licence plate attached to it. Hence, count 1.
[4] Counts 7 and 8 relate to an attempted robbery at a Mac’s Mart convenience store in Brampton on January 7, 2017. H.A. was one of two masked robbers. One of the robbers (not H.A.) used and pointed what appeared to be a firearm. Nothing was actually stolen.
[5] Counts 9 and 10 relate to a robbery at a Mac’s Mart convenience store in Mississauga on January 7, 2017. Once again, H.A. was one of two masked robbers. One of the robbers (not H.A.) displayed what appeared to be a gun inside his coat or jacket. Money and cigars were stolen.
[6] Counts 11 and 12 relate to a robbery at a 7-Eleven convenience store in Mississauga on January 7, 2017. Similarly, H.A. was one of two masked robbers. One of the robbers (not H.A.) used and pointed what appeared to be a firearm. Money and cigars were stolen.
[7] All of the above facts relate to the charges that were tried in Milton.
[8] Regarding the Sarnia charges, the facts are that, in the middle of the afternoon, H.A. and another male, both disguised, robbed a TD Canada Trust bank in Sarnia. Several employees and more than a dozen customers were present at the time, including two young children. The co-accused was armed with a pistol, which later turned out to be .177 calibre BB gun. Approximately $1000.00 was stolen from the bank, collected and deposited into a bag by H.A. while inside the building.
The Legal Parameters on Sentencing
[9] There is no minimum mandatory sentence on any of the offences that H.A. has been found guilty of.
[10] The maximum sentence of imprisonment on the robbery offence is life, and the maximum sentence on the other offences is ten years in custody.
The Positions of the Parties on Sentencing
[11] The Crown asks for the following global sentence: five (5) to seven (7) years’ imprisonment (2 to 3 years on the charges that were tried in Milton, plus 3 to 4 years on the Sarnia convictions, consecutive), less presentence custody.
[12] The Defence requests the following sentence in totality: three (3) years’ imprisonment, minus presentence custody.
II. Analysis
The Offender
[13] From the presentence report, we know the following about H.A. He is, today, 21 years old, single, without dependants, with siblings, and with no previous criminal record (though the Sarnia offences were committed while he was on bail on the matters that were tried in Milton).
[14] At the time of the convenience store robberies, H.A. was just 18 years old. He was 21 years of age when he robbed the bank in Sarnia.
[15] The offender’s younger brother has been diagnosed with schizophrenia.
[16] H.A. was bullied at school, was suspended many times and never completed anything beyond grade 10. He has just a few grade 11 credits achieved.
[17] The offender has a serious drug problem. In fact, he used illegal narcotics while out on bail on the charges that were tried in Milton. Beginning around 2017, at the height of his drug use, H.A. was consuming oxycontin and fentanyl twice per day.
[18] Undoubtedly, the drug use was a contributing factor to the commission of these offences.
[19] In addition to the presentence report, this Court has the benefit of some character reference letters filed on behalf of H.A. A former restaurant employer describes the offender as “hardworking, good-tempered, and a kind-hearted human being”; H.A.’s mother describes seeing positive change in her son since he has been in custody; and that sentiment is concurred in by H.A.’s siblings who state that the offender has showed true remorse for his actions. Other letters describe H.A. as being an empathetic young man with a strong character and a deep commitment to his family and to his community at large.
[20] It is obvious from the said letters, as a whole, that H.A. is capable of much good. His level of articulation and intelligence was clearly evident when he addressed the Court today as part of the sentencing hearing.
The Principles of Sentencing
[21] Sentencing is highly individualized exercise, and the goal is to craft a penalty that is proportionate to the gravity of the offences and the degree of responsibility of the offender.
[22] Here, in my view, the paramount sentencing principles are individual deterrence and rehabilitation. Secondary to those, but still important here, are denunciation and general deterrence.
[23] The paramountcy of individual deterrence and rehabilitation in this case is supported by repeated authorities of the Court of Appeal for Ontario, including R. v. Priest (1996), 30 O.R. (3d) 538, R. v. Thurairajah (2008), 89 O.R. (3d) 99, and R. v. Brown, 126 O.R. (3d) 797.
[24] Succinctly put, this Court should impose on H.A. the shortest period of imprisonment possible that is commensurate with the gravity of the crimes committed and the degree of the offender’s responsibility.
The Impact on the Victims
[25] This Court has the benefit of three victim impact statements regarding the bank robbery in Sarnia.
[26] Consistent themes among those statements are feelings of shock, fear and insecurity, paranoia, nervousness (especially in the face of loud noises or aggressive behaviour), edginess and sleeplessness.
[27] Not surprisingly, the experience of getting robbed at your workplace by two masked intruders, one armed, is a very frightening experience that lingers for a long time.
The Aggravating and Mitigating Factors
[28] A very substantial aggravating factor is that H.A. robbed the bank in Sarnia while out on bail on the Halton and Peel Region offences and just one month after this Court’s Reasons for Judgment were delivered. That amounts to what can only be described as being a brazen flouting of the law.
[29] Other aggravating factors include (i) that the robberies involved some degree of planning and premeditation (disguises, very real-looking imitation firearms, a getaway car, and so on), (ii) the confinement on the floor of the Sarnia bank robbery victims, both employees and customers, and (iii) that there were three convenience stores that were robbed.
[30] There is considerable authority to support the aggravating feature of robbing vulnerable convenience stores and their employees, including the decision of the Court of Appeal for Ontario in R. v. Lewis, [2009] O.J. No. 4681, at paragraph 3.
[31] The chief mitigating factors are (i) the very early guilty pleas on the Sarnia offences, (ii) the very youthful age of the offender when the offences were committed (18 and 21 years), (iii) the lack of any prior criminal record, and (iv) the relatively positive character reference letters submitted by the Defence. I have also considered that H.A. appears to have committed these offences, at least in part, because of his substance abuse difficulties.
The Ancillary Orders
[32] The conviction for possession of stolen property over $5000.00 and the convictions for disguise with intent attract a secondary DNA Order, and that Order is made.
[33] The convictions for robbery with an imitation firearm attract a primary compulsory DNA Order, and that Order is made. Those convictions also attract a mandatory Order for forfeiture of the offensive weapon involved, under section 491 CCC, and that Order is made. Finally, the robbery convictions invoke section 109 CCC, a firearms and weapons prohibition Order. Under subsection 2(b), the Order is automatically for life for the items listed therein. Under subsection 2(a), the Order must end not earlier than ten years after the offender’s release from imprisonment. For H.A., I impose that portion of the Order, also, for life. There are plenty of law-abiding gun owners in this country; given the number of armed attacks that H.A. was involved in, he has forfeited his right to ever be among them.
[34] The victim fine surcharges are all waived.
[35] There is a non-communication while in custody Order made, pursuant to section 743.21 CCC, with the victims of the robberies of the three convenience stores and with the 18 named persons sought by the Crown Attorney’s Office in Sarnia.
The Presentence Custody
[36] Correctional facility records reveal that H.A. has spent 322 actual days in custody on these charges, and it is agreed that he be credited for 483 days at the rate of 1 to 1.5.
[37] It is also agreed that he was on a form of house arrest bail for a period of 13 months, between April 2017 and May 2018. That was followed by bail terms that included a nightly curfew for a period of about 15 months.
[38] During his time at Maplehurst, there were 40 full or partial lockdowns.
[39] Counsel for H.A. requests that the offender be credited 45 extra days on account of the lockdowns. That submission is not accepted by this Court. This case is very different than what confronted Justice Schreck in R. v. Persad, 2020 ONSC 188, [2020] O.J. No. 95 (S.C.J.). Mr. Persad provided cogent and unchallenged sworn evidence about the terrible conditions of his presentence custody. None of that evidence exists here. Further, the “deliberate state misconduct” and truly disgusting, inhumane, conditions at the Toronto correctional facility described by Justice Schreck bear no resemblance to what is before this Court.
[40] Counsel for H.A. requests that the offender be credited 6.5 extra months on account of his bail conditions. That submission is not accepted by this Court, though a reduced credit I will accede to.
[41] For the 13 months on “house arrest” (which was certainly not the strictest form of home confinement that exists), I will exercise my discretion and credit to H.A. an additional 90 days of presentence custody. There will be no credit for the 15 months of bail which included a curfew.
[42] Thus, the total presentence custody amounts to 573 days (483 plus 90).
A Fit Global Sentence for H.A.
[43] Both sides agree, and I do as well, that there is a wide range of available sentences that could reasonably be imposed in circumstances similar to ours.
[44] In the end, I agree with counsel for H.A. that the decision of Justice MacDonnell in R. v. Itil, [2019] O.J. No. 5795 (S.C.J.) is particularly instructive.
[45] In that case, the offender pleaded guilty to robbing four different convenience stores over a nine-day period. In addition to the four robbery convictions, the offender also pleaded guilty to two counts of breaching his probation. The offender was 24 years old at the time of the offences, had a childhood of extreme poverty, and had significant mental health and substance abuse problems. He had a fairly extensive prior criminal record. He was homeless at the time that he committed the offences. Weapons were involved in the robberies but not a firearm or imitation firearm.
[46] Before considering presentence custody, Justice MacDonnell concluded that a global sentence of 40 months was appropriate for that offender.
[47] In my view, H.A., even though a first offender and a few years younger than Mr. Itil, must receive something harsher than what was imposed against Mr. Itil. A greater number of convictions in our case. One set of crimes committed by H.A. while on judicial interim release. Not nearly the same degree of unfortunate background and life circumstances for H.A. as those that confronted Mr. Itil. A relatively greater degree of sophistication on our facts. No disguise ever used by Mr. Itil. No gun, fake or real, involved in Mr. Itil’s crimes. And H.A. did not plead guilty to all of the charges that he is being sentenced for.
[48] I agree with Ms. Stevenson that guilty pleas to multiple robberies, and the remorse and acceptance of responsibility that go along with those pleas, is a significant mitigating factor that is not present in our case.
[49] The shortest possible but still proportionate global sentence of imprisonment that I can agree to for H.A. is 4.5 years.
[50] Because of the credit for presentence custody, I will convert that to days, 1642 days. Minus 573 days, that equals a sentence of 1069 days’ imprisonment from today (a little less than three years).
III. Conclusion
[51] For the aforementioned reasons, H.A. is sentenced as follows.
Charges Tried in Milton
Count 1 – January 12, 2017, at Burlington, possession of stolen property (a licence plate) under $5000.00, contrary to section 354(1)(a) CCC – 30 days in jail, concurrent with the sentence on count 8;
count 7 – January 7, 2017, at Brampton, disguise with intent, contrary to section 351(2) CCC – 730 days in jail, concurrent with the sentence on count 8;
count 8 – January 7, 2017, at Brampton, attempted robbery with an imitation firearm, contrary to section 343(d) CCC – 730 days in jail;
count 9 – January 7, 2017, at Mississauga, disguise with intent, contrary to section 351(2) CCC – 730 days in jail, concurrent with the sentence on count 8;
count 10 – January 7, 2017, at Mississauga, robbery with an imitation firearm, contrary to section 343(d) CCC – 730 days in jail, concurrent with the sentence on count 8;
count 11 – January 7, 2017, at Mississauga, disguise with intent, contrary to section 351(2) CCC – 730 days in jail, concurrent with the sentence on count 8; and
count 12 – January 7, 2017, at Mississauga, robbery with an imitation firearm, contrary to section 343(d) CCC – 730 days in jail, concurrent with the sentence on count 8.
Charges out of Sarnia
July 28, 2019, robbery with an imitation firearm, contrary to section 343(d) CCC – 912 days in jail, less credit of 573 days for presentence custody, equalling 339 days in jail, consecutive; and
July 28, 2019, disguise with intent, contrary to section 351(2) CCC – 339 days in jail, concurrent with the sentence imposed for the Sarnia robbery.
[52] To reiterate, that is a global effective sentence of 1642 days, less 573 days for presentence custody, which equals a custodial sentence of 1069 days from today.
Conlan J.