REASONS FOR SENTENCE

SCHRECK J.:

[1] On the morning of May 8, 2019, Peter Mitsakis disguised himself and went to a plaza in Brampton, where he used a handgun to fire three shots into the ceilings of two businesses and then fled in a van waiting nearby. The reason Mr. Mitsakis did this was to distract the police so that others could rob a nearby jewelry store by backing a tow truck into the front window, entering the store armed with firearms, smashing the display cases and removing their contents. This robbery was carried out as planned and approximately $276,000 worth of jewelry was stolen.

[2] Following a trial, Mr. Mitsakis was convicted of conspiracy to commit robbery (Count 1), robbery (Count 2), conspiracy to commit reckless discharge of a firearm (Count 3), reckless discharge of a firearm (Count 4), having his face masked with intent to commit an indictable offence (Count 5), possession of a loaded restricted firearm without authorization (Count 6), occupying a vehicle with a firearm (Count 7) and possession of a prohibited device (Count 8). These reasons address the sentence that will be imposed for those offences.

[3] Mr. Mitsakis absconded after his trial and did not attend his sentencing hearing. However, he did participate in the creation of a presentence report (“PSR”). He is 32 years old, has a sporadic employment history, and a fairly minor and unrelated criminal record.

[4] For the reasons that follow, Mr. Mitsakis is sentenced to imprisonment for a total of 77.5 months. He is entitled to a credit of 7.5 months for time spent in presentence custody. The sentence that is left to be served is imprisonment for 70 months.

I. FACTS

A. The Offences

[5] The facts of the offences are outlined in my reasons for judgment, reported as R. v. Hadi, 2022 ONSC 2903. Briefly, Mr. Mitsakis discharged a firearm into the ceiling of a business in a plaza in Brampton in order to distract the police as a part of a plan to rob a jewelry store. He then fled in a van driven by his co-accused, Alhaji Bangura. In accordance with the plan, his co-conspirators backed a tow truck they had stolen into the front window of the jewelry store which was in another nearby plaza. They entered the store armed with firearms, smashed the display cases with hammers they had brought with them, removed a quantity of jewelry, and fled. Approximately $276,000 worth of jewelry was taken.

[6] Later the same day, Mr. Mitsakis and his co-conspirators met up at an auto repair shop in Scarborough that they frequented and where they had met the day before the robbery. The police arrived soon after and arrested several of the co-conspirators, although Mr. Mitsakis fled and was not arrested until later. A loaded firearm with an overcapacity magazine was located along the path Mr. Mitsakis took while fleeing.

B. The Offender

[7] A PSR was prepared with Mr. Mitsakis’s cooperation. Mr. Mitsakis is 32 years old. He grew up in Toronto living with his extended family and had a good relationship with them. He did not complete high school and has a sporadic employment history, although he has worked delivering newspapers and for various types of businesses. He attempted to start his own construction company in 2017, but appears to have been unsuccessful. At times, he was financially supported by his family.

[8] Mr. Mitsakis was for a time involved in a long-term relationship with a woman and they have a young child. Mr. Mitsakis lived with her until he absconded following his trial.

[9] According to the PSR, Mr. Mitsakis began using marijuana when he was 16 years old and later became dependent on it. He began to use other drugs as well as alcohol to excess, and for several years engaged in what was described in the PSR as a “lifestyle of partying.” As a result of his substance abuse, he developed Type I Diabetes. By the time the PSR was prepared, Mr. Mitsakis used marijuana occasionally but abstained from using other substances.

[10] Mr. Mitsakis has a criminal record for failing to provide a breath sample and two counts of driving while disqualified from 2016 and 2017. He also has findings of guilt for uttering threats and mischief, but those offences were committed after the offences for which he is being sentenced. His only prison sentence was in 2017 when he received a 45-day intermittent sentencing for driving while disqualified.

II. ANALYSIS

A. Abscondence

(i) Facts

[11] After his arrest, Mr. Mitsakis was released on a recognizance which included a condition that he reside with his surety at a specific address and be subject to electronic monitoring conducted by Recovery Science Corporation (“RSC”).

[12] Mr. Mitsakis was convicted on May 13, 2022. At that time, the Crown unsuccessfully applied to have his bail revoked. The scheduling of Mr. Mitsakis’s sentencing was delayed when he changed counsel, but was then set down for August 25, 2022. Mr. Mitsakis did not appear on that date and his counsel was granted permission to withdraw.

[13] The Court heard evidence that on July 22, 2022, an employee of RSC contacted the police to report that the electronic monitoring equipment was indicating that Mr. Mitsakis was outside of his residence and may have removed his ankle monitoring bracelet. Two police officers attended Mr. Mitsakis’s residence and were advised by his surety and the mother of his child that he was not at the residence and that they did not know where he was. The police found Mr. Mitsakis’s ankle bracelet near the residence. Warrants were later issued for Mr. Mitsakis’s arrest, but he has not been located.

(ii) The Meaning of “Abscond”

[14] While an accused has a right to be present throughout his or her trial, s. 475 of the Criminal Code provides that an accused who has absconded has waived that right. The mere fact that an accused does not appear in court is not, by itself, sufficient to establish that he or she has “absconded” within the meaning of s. 475. Rather, it must be established that “the accused has voluntarily absented himself from his trial for the purpose of impeding or frustrating the trial, or with the intention of avoiding its consequences”: R. v. Garofoli (1988), 41 C.C.C. (3d) 97 (Ont. C.A.), at p. 141(aff’d on this point, [1990] 2 S.C.R. 1421, at p. 1469).

[15] In this case, Mr. Mitsakis’s failure to appear, his absence from his residence in violation of his bail conditions, the fact that his surety did not know where he was, and the fact that his electronic monitoring device was removed and abandoned near his residence all support the conclusion that he has voluntarily absented himself. The fact that he did so after being found guilty and prior to sentence demonstrates that he did so in order to avoid the consequences of his convictions. I am therefore satisfied that Mr. Mitsakis has absconded within the meaning of s. 475.

(iii) Should Mr. Mitsakis Be Sentenced In Absentia?

[16] Section 475 permits but does not require a court to continue the proceedings where an accused has absconded. As explained by Pomerance J. in R. v. Singh, 2015 ONSC 905, the fact that an accused has absconded does not absolve a sentencing court of its responsibility to impose a sentence that achieves the objective of proportionality, which has been referred to as “the sine qua non of a just sanction”: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37.

[17] A sentence must be proportionate to both the gravity of the offence and the moral blameworthiness of the offender: R. v. Friesen, 2020 SCC 9, 391 C.C.C. (3d) 309, at para. 30; Ipeelee, at para. 37. While the gravity of the offence will be apparent even if the accused absconds, his or her moral blameworthiness may not be, particularly where, as in this case, the accused did not testify at trial. As pointed out in Singh, at paras. 11-17, the sentencing court must have sufficient information about the accused and his or her background, experiences and personal circumstances in order to ensure proportionality. It follows that notwithstanding s. 475, unless the court has sufficient information of this nature, it ought not to proceed with a sentencing hearing where an accused has absconded; Singh, at para. 20.

[18] Unlike in Singh, where the only information the court had was the accused’s age and the fact that he had no record, a PSR has been prepared in this case with Mr. Mitsakis’s participation. It outlines his background and personal circumstances. In these circumstances, I am satisfied that I have sufficient information about Mr. Mitsakis to fashion a sentence that achieves the objective of proportionality.

B. General Sentencing Principles

[19] Section 718 of the Criminal Code provides that the “fundamental purpose of sentencing is to protect society and to contribute … to respect for the law and the maintenance of a just, peaceful and safe society….” This is to be accomplished through the imposition of just sanctions that have one or more of several objectives enumerated in s. 718(a) to (f), including denunciation, general and specific deterrence and rehabilitation. These objectives will not necessarily point towards the same disposition and must be blended and prioritized to properly reflect the seriousness of the offence and the responsibility of the offender: R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, at para. 58.

[20] While there will rarely be only one possible fit sentence, s. 718.1 of the Code provides that any sentence that is ultimately imposed “must be proportionate to the gravity of the offence and the degree of responsibility of the offender”: Friesen, at para. 30; Ipeelee, at para. 37.

C. Applicable Sentencing Ranges

(i) Discharge of Firearm

[21] Mr. Mitsakis discharged a firearm at a shopping plaza during business hours when people were reasonably expected to be and were present. I find that he did so with the prohibited firearm that was later seized. While there is no evidence that he attempted to or did fire at any person, the dangerousness of his conduct is obvious.

[22] Section 244.2(3)(a) of the Criminal Code provides that Mr. Mitsakis faces a minimum penalty of imprisonment for five years. Relying on a number of authorities, the Crown submits that a seven-year sentence is appropriate.

[23] The authorities suggest that where an individual discharges a firearm intentionally but does not injure or attempt to injure anyone, the applicable range is five to seven years: R. v. Dhaliwal, 2019 ONCA 398, at paras. 3-4; R. v. Baugh, 2021 ONSC 8408, at paras. 61-62; R. v. Jama, 2021 ONSC 4871, at para. 45; R. v. Haque, 2019 ONCJ 466, at paras. 45-50.

(ii) Robbery of the Jewelry Store

[24] This was a carefully planned and orchestrated armed robbery of a jewelry store. As noted in R. v. Nouri, 2015 ONSC 116, at para. 33, these types of businesses tend to be particularly vulnerable to this type of offence and significant sentences are therefore required to protect them. In that case, an accused with no prior record who was involved in the planning of an armed jewelry store robbery received a sentence of six years.

[25] Some of the sentences imposed on Mr. Mitsakis’s co-accused were outlined in R. v. Gharibzada, 2022 ONSC 584. Omer Gharibzada, who played a “central role” in planning the robbery in this case as well as another robbery executed in a similar manner, received a seven-year sentence after pleading guilty. Deshayne Newman, who actually participated in the robbery and had a related record, received five years after pleading guilty: Gharibzada, at para. 31. Kennedy Richards-Coleman, who was involved in planning the robbery in this case and participated in the other robbery, received six years after pleading guilty: Gharibzada, at para. 33.

[26] Mr. Bangura, who was tried together with Mr. Mitsakis, received a six-year sentence after trial based on a joint submission.

[27] The sentences imposed on the co-accused and other authorities lead me to conclude that the applicable range for the planned armed robbery of a commercial establishment in this case is five to six years: R. v. Noor, 2015 ONCA 550; R. v. Taylor, [2017] O.J. No. 139 (S.C.J.), at paras. 34-36.

D. Aggravating and Mitigating Factors

(i) General Aggravating and Mitigating Factors

[28] Where this case falls within the applicable ranges will depend on the aggravating and mitigating factors.

[29] As noted, the fact that this was a small independent jewelry store is an aggravating factor, as is the fact that these offences were carefully planned. The manner in which the robbery was executed must have been particularly shocking and terrifying for the jewelry store employees who were present at the time. In addition to this, a fairly significant quantity of valuable merchandise was stolen and never recovered.

[30] The fact that Mr. Mitsakis has absconded is not an aggravating factor, although the fact that he did so indicates that certain mitigating factors, such as remorse, an acceptance of responsibility and a potential for rehabilitation, are absent: R. v. Tully, 2022 ONSC 3515, at paras. 41-43; Singh, at para. 19.

[31] There are not many mitigating factors in this case. Although Mr. Mitsakis is not a first offender, although his record is relatively minor and unrelated. While he has a supportive family, which ordinarily indicates a potential for rehabilitation, the mitigating effect of this is largely negated by the fact that he has absconded.

(ii) Punitive Pretrial Incarceration Conditions

[32] Mr. Mitsakis spent 152 days in presentence custody at both the Toronto South Detention Centre (“TSDC”) and the Toronto East Detention Centre (“TEDC”). It is well established that “[p]articularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence”: R. v. Marshall, 2021 ONCA 344, at para. 52. This is often referred to as “Duncan” credit after the decision in R. v. Duncan, 2016 ONCA 754.

[33] The Crown submits that Mr. Mitsakis is not entitled to any “Duncan” credit as he has tendered no evidence respecting the conditions of his pretrial incarceration. I do not agree. The substandard conditions at the TSDC and the TEDC are notorious: R. v. Powell, 2020 ONCA 743, 153 O.R. (3d) 455, at para. 30; R. v. Doyle, 2022 ONSC 2489, at paras. 54-58; R. v. Donison, 2022 ONSC 741, at para. 58; R. v. McLaughlin, 2020 ONCJ 566, at paras. 37-39; R. v. Dusome, 2019 ONCJ 444, at para. 56; R. v. Baugh, 2021 ONSC 8408, at paras. 24, 32; R. v. Smith, 2022 ONSC 3800, at para. 39; R. v. Suppiah, 2021 ONSC 3871, at para. 11; R. v. Gayle, 2020 ONSC 5238, at paras. 13, 44; R. v. Steckley, 2020 ONSC 3410, at paras. 38-42; R. v. Bell, 2020 ONSC 2632, at para. 54. I find it difficult to accept that Mr. Mitsakis was somehow an exception to the depressingly consistent failure on the past of correctional authorities to maintain basic standards of treatment at these institutions.

[34] That said, while everyone incarcerated at the TSDC and the TEDC suffers improper treatment, the extent to which they do so varies. Absent some evidence, I am unable to make specific findings about the conditions of Mr. Mitsakis’s presentence incarceration. As a result, while he is entitled to some mitigation on this basis, the extent of it is limited.

(iii) Restrictive Bail Conditions

[35] Mr. Mitsakis was on bail from July 14, 2021 until he absconded approximately a year later. The conditions of his bail were extremely strict and he was confined to his residence with limited exceptions. Ordinarily, time spent subject to strict bail conditions will have a mitigating effect on sentence: R. v. Downes (2006), 79 O.R. (3d) 321 (Ont. C.A.), at para. 33; R. v. Joseph, 2020 ONCA 733, 153 O.R. (3d) 145, at para. 108. In this case, relying on R. v. Bayani, 2011 ONSC 5808, at para. 55, the Crown submits that because Mr. Mitsakis took advantage of the fact that he was on bail to abscond, he should not be afforded any credit for the time he spent subject to strict conditions.

[36] While I recognize why this reasoning is attractive, the fact remains that Mr. Mitsakis spent a significant amount of time subject to very strict bail conditions, which was an adverse consequence he experienced as a result of having committed these offences. As such, the principles of individualization and parity require that this be taken into account in determining an appropriate sentence: R. v. Suter, 2018 SCC 34, at paras. 46-49.

[37] However, while I accept that the strict bail conditions must have had an effect on Mr. Mitsakis, the nature and extent of that effect is unknown. As a result, the mitigating effect of the strict bail conditions is limited.

E. The Principle of Totality

[38] Mr. Mitsakis is being sentenced on eight different counts. All relate to his role in the distraction shooting that was part of the plan to rob the jewelry store. Where an individual is being sentenced on several different counts, it is important that the total sentence that is imposed “must not be unduly long or harsh in the sense that its impact simply exceeds the gravity of the offences in question or the overall culpability of the offender”: R. v. Johnson, 2012 ONCA 339, 285 C.C.C. (3d) 120, at para. 18. This is known as the principle of totality.

[39] In this case, the Crown accepts that all of the sentences imposed on Mr. Mitsakis should run concurrently. I agree that this ensures that the principle of totality is respected. It is of course an aggravating factor that Mr. Mitsakis discharged a firearm as part of a plan to commit an armed robbery. It is similarly an aggravating factor on the robbery count that the plan included discharging a firearm. By imposing concurrent sentences, these aggravating factors can be recognized without violating the principle of totality.

[40] One way to ensure totality is to first identify the gravamen of the conduct giving rise to all of the offences, determine the appropriate total sentence that is appropriate for that conduct, and then determine the sentences for each count in such as way as to achieve that total: R. v. Jewell (1995), 100 C.C.C. (3d) 270 (Ont. C.A.), at pp. 14-15; R. v. Milani, 2021 ONCA 567, 157 O.R. (3d) 314, at paras. 37-38. In this case, the gravamen of the conduct is that Mr. Mitsakis discharged a firearm in a public place as part of a carefully orchestrated plan to rob a jewelry store.

F. The Appropriate Total Sentence

[41] Having regard to the ranges I have identified earlier and having considered the aggravating and mitigating factors, including the conditions of Mr. Mitsakis’s presentence incarceration and the time he has spent subject to strict bail conditions, I have concluded that the appropriate total sentence in this case is imprisonment for six and a half years. For reasons that will become apparent, I will round this down to six years and five and a half months.

G. Credit for Presentence Custody

[42] Mr. Mitsakis spent 152 days in presentence custody. The Crown accepts that he is entitled to credit for this at the usual rate, which is a total of seven and a half months: R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575.

III. DISPOSITION

A. Sentences Imposed

[43] For the foregoing reasons, Mr. Mitsakis is sentenced as follows:

Count 1: six years

Count 2: six years

Count 3: six years, five and a half months

Count 4: six years, five and a half months

Count 5: one year

Count 6: four years

Count 7: four years

Count 8: one year

All sentences are to be concurrent. The total sentence is therefore 77.5 months. Deducted from this is a credit of 7.5 months for time spent in presentence custody. The remaining sentence to be served is therefore 70 months.

B. Ancillary Orders

[44] Pursuant to s. 109(2) of the Criminal Code, Mr. Mitsakis is prohibited from possessing firearms and other items described in s. 109(2)(a) for a period of 10 years and the items described in s. 109(2)(b) for life.

[45] Pursuant to s. 487.051(1) of the Criminal Code, Mr. Mitsakis is ordered to provide a sample of his DNA for inclusion in the national databank.

Justice P.A. Schreck

Released: September 23, 2022

COURT FILE NO.: CR-22-1-0000-089-0000

DATE: 20220923

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

PETER MITSAKIS

REASONS FOR SENTENCE

P.A. Schreck J.

Released: September 23, 2022

R. v. Mitsakis, 2022 ONSC 5390

Case Summary