REASONS FOR SENTENCING

Overview and Positions of the Parties

[1] Mr. Gharibzada entered guilty pleas on November 3, 2021 to two counts of armed robbery and one count of fraud over $5,000. On December 14, 2021, I heard submissions on sentencing and reserved my decision on sentencing until today.

[2] The Crown submits that a global sentence of 10 years’ imprisonment should be imposed on Mr. Gharibzada for the two armed robberies before credit for presentence custody and strict bail. Counsel for Mr. Gharibzada submits that I should impose a sentence of six years’ imprisonment for the robberies before credit for pre-sentence custody and strict bail.

[3] Crown and defence agree that a sentence of three months concurrent should be imposed on Mr. Gharibzada for the charge of fraud over $5,000.00.

[4] The parties are also agreed that Mr. Gharibzada should receive enhanced credit for the time he spent at the Toronto South Detention Centre before he was released on bail. The statutory credit for the 11 months of custody is 16.5 months. The Crown’s position is that a further 14.9 months’ credit should be given for Mr. Gharibzada’s time in custody, taking into account the harsh conditions and the fact that Mr. Gharibzada was detained during the pandemic. Counsel for Mr. Gharibzada agrees that credit in this range is appropriate but would calculate the time s 15.2 months.

[5] The parties differ on the amount of credit that I should give on sentencing to recognize the period of time spent by Mr. Gharibzada on stringent bail conditions. Mr. Gharibzada has spent 19 months and 29 days on a strict bail. The Crown position is that a further five months’ credit is appropriate. The position of counsel for Mr. Gharibzada is that nine months’ credit should be given.

Circumstances of the Offences

[6] The charge of fraud arises from Mr. Gharibzada and another individual arranging a staged accident. The cars involved were towed by the towing service owned by Mr. Gharibzada. The person who staged the accident made an insurance claim and received $18,984.00. Intercepted communications show that Mr. Gharibzada advised the other person to give him “two bands” when he received the insurance payout.

[7] With respect to the robbery charges, Mr. Gharibzada admits that he participated in two armed robberies that occurred on April 8, 2019 and on May 8, 2019 respectively. An Agreed Statement of Facts was filed at the sentencing. In addition, video clips and transcripts of intercepted communications are relied upon by the Crown to support the Crown position that Mr. Gharibzada played a leadership role in the robberies.

[8] On April 8, 2019, a store in Markham, Ontario, known as LaDifference Time Centre (the “Rolex Store”), was robbed. A distraction shooting occurred about six kilometers from the Rolex Store. York Regional police responded to that shooting. Twenty minutes later, a stolen tow truck reversed into the front of the Rolex Store and then drove away. After the front of the store was breached, four suspects left a nearby vehicle. One suspect had a large bag, one had a long gun and one had a handgun. The masked suspects took jewelry from the store of a value of approximately $510,000.00.

[9] On May 8, 2019, the Roop Mahal Jewelry Store in Peel Region was robbed in similar circumstances. A stolen tow truck reversed into the front of the store five minutes after a shooting at a business about 54 kilometers from the jewelry store. After the tow truck breached the front of the store, four masked suspects entered the store, smashed the display cases and stole merchandise of a value of approximately $276,000.00. One of the suspects had a firearm.

[10] Mr. Gharibzada was captured on intercepted communications with other participants in the robberies. He was involved in communicating with one participant, Mr. Richards-Coleman, about a meeting before the first robbery and confirming that Mr. Richards-Coleman had a phone, SIM card and headset. Mr. Gharibzada confirmed with Mr. Richards-Coleman that Mr. Richards-Coleman had a bag for the robbery and he told Mr. Richards-Coleman that he had received a call from “boy” who wanted to know the size of the bag. On the day of the robbery, Mr. Gharibzada communicated with other participants in the robbery. His phone was near the scene of the robbery. He communicated with others immediately after the robbery to confirm that the robbers had escaped. He met with other participants after the robbery. He communicated with Mr. Richards-Coleman about the “bag” and the proceeds of the robbery, assuring Mr. Richards-Coleman that the person with the bag would not sell anything unless Mr. Gharibzada agreed.

[11] With respect to the second robbery, Mr. Gharibzada met with other participants before the robbery. He was heard on the intercepted communications saying that he would get phones for the participants and arranging meetings. On the day of the robbery, he was heard arranging to get gloves. At the time of the second robbery, Mr. Gharibzada was near the robbery. After the robbery, he met with the other participants.

[12] While the facts with respect to the robberies are admitted and the contents of the intercepts are also admitted, the parties diverge on one aspect of the interpretation of the facts and the intercepts. The Crown submits that the facts and the intercepts support the conclusion that Mr. Gharibzada was an ‘overseer’ or ‘commander in chief’. Counsel for Mr. Gharibzada submits that there is no support for that conclusion. Counsel for Mr. Gharibzada argues that Mr. Gharibzada was not the leader or directing mind of the robberies but was a conduit or communications hub.

[13] The intercepts support the conclusion that Mr. Gharibzada at times conveyed directions from someone else when he referred to questions and directions from ‘boy’. The intercepts also support the conclusion that Mr. Gharibzada ensured that those who were to execute the robberies had the necessary equipment. However, other than the call after the first robbery in which Mr. Gharibzada indicated that the person with the bag would not sell items unless Mr. Gharibzada agreed, the calls do not show that Mr. Gharibzada was directing any other participant.

[14] The intercepts considered in conjunction with the admitted facts support the conclusion that Mr. Gharibzada was involved in all stages of the robberies and that he played a central role in both robberies. However, I cannot make a finding that a hierarchy existed or that Mr. Gharibzada was in a leadership role or directed the other participants.

Circumstances of Mr. Gharibzada

[15] Mr. Gharibzada is 28 years-old. He was 26 years-old at the time of the offences. He is a Canadian citizen. He was born in Afghanistan and came to Canada when he was two years-old. He is one of seven children. Although his family struggled economically through Mr. Gharibzada’s childhood, his family is close and supportive.

[16] Mr. Gharibzada has a record as a young person for robbery and conspiracy to commit robbery in 2011. These offences related to a home invasion robbery in which Mr. Gharibzada and four adult offenders robbed a couple at knifepoint. In 2012, Mr. Gharibzada was convicted as an adult of two further robberies on two separate jewelry stores. His role in those robberies was to secure access to the stores and then to smash display cases. Mr. Gharibzada was sentenced on the two robberies in October 2013 to 11 months’ imprisonment and 18 months’ probation.

[17] Mr. Gharibzada has a grade 11 education. He has worked as a tow truck operator since 2016. Around 2017/2018 he bought a tow truck company that consisted of four tow trucks. He sold that company in 2020.

[18] Mr. Gharibzada was arrested on these charges on June 27, 2019. He remained in custody until May 27, 2020, when he was released on bail. While in custody, he experienced 192 lockdowns. It is conceded that the conditions of his presentence custody were exceptionally harsh, particularly during the two and a half months he spent in custody during the first wave of the COVID -19 pandemic.

Analysis

(i) The Appropriate Sentence before Credit for Presentence custody and Strict Bail

[19] In considering the appropriate sentence to be imposed on Mr. Gharibzada, I have considered the general purposes, principles and objectives of sentencing, as set out in the Criminal Code, R.S.C., 1985, c. C-46. The fundamental principle of sentencing set out in s. 718.1 of the Code is that the sentence should be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[20] Section 718 of the Criminal Code identifies the objectives of sentencing, including denunciation, specific and general deterrence, separation of the offender from society where necessary, rehabilitation, reparation for harm to victims or the community and promotion of a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community.

[21] There is no question that the objectives of denunciation and deterrence are paramount in cases like this one that involve planned and sophisticated armed robberies of small jewelry stores. As MacDonnell J. held in R. v. Nouri,[^1] “Jewelry stores – usually small operations with limited staff -- tend to be vulnerable to precisely the kind of offence that occurred in this case. In order to protect the persons who work in those stores from the risk of serious violence that their vulnerability entails, it is incumbent on the courts to make it unequivocally clear that those who target those stores can expect to receive significant sentences of imprisonment.”

[22] I recognize however, that rehabilitation is also an objective of sentencing for Mr. Gharibzada. He is a relatively youthful offender. He has a supportive family and he has prospects for rehabilitation. This will be his first penitentiary sentence and it should be as short as possible while still advancing the objectives of denunciation and deterrence.

[23] I have also considered s. 718.2 of the Code which requires that I take into account other principles, including that a sentence may be increased or decreased depending upon the presence of any relevant aggravating or mitigating circumstances relating to the offence or the offender.

[24] There are several aggravating factors in this case.

These were well-planned and sophisticated robberies.
The robberies involved serious violence and risk to the public: there were distraction shootings in each; getaway vehicles from the distraction shootings and from the robberies left at high rates of speed; the robberies both involved risk to the employees from the tow trucks reversing into the stores and from the use of firearms in the robberies, including the discharge of a firearm into a display case.
The victims of the robberies were vulnerable proprietors and employees of jewelry stores. Although no employee was physically harmed, the risk of physical harm was considerable and psychological harm was almost certain.
Mr. Gharibzada has a serious and related criminal record.

[25] There are also mitigating factors.

Mr. Gharibzada is a relatively youthful offender;
There is a gap in his criminal record from 2014 until now;
He has demonstrated remorse with his guilty pleas; and
He has strong community support as demonstrated by the letters of support from his family members and girlfriend filed at sentencing.

[26] In determining the appropriate sentence, I have considered the jump principle. This principle, which is related to the principle of restraint, cautions against imposing a significantly more severe sentence than sentences imposed upon the offender for similar offences in the past. Mr. Gharibzada’s last sentence for two robberies was 11 months’ imprisonment. In R. v. Borde[^2] and in R. v. Mawut,[^3] the Court of Appeal held that the principle has little application where there is a dramatic escalation in the violence and seriousness of the offender’s crimes. In this case, Mr. Gharibzada’s role in the robberies changed from the earlier robberies and the level of violence increased. Notably, these were armed robberies with significant destruction of property, risk to employees and bystanders and the discharge of firearms. I find that the jump principle has some application, but its application is limited.

[27] The principle of restraint and the objective of rehabilitation remain relevant. Mr. Gharibzada has prospects for rehabilitation. He has worked in the past and he has considerable community support. The sentence that I impose should not crush any prospect of rehabilitation.

[28] I have also considered the principle of parity, codified in section 718.2 (b) of the Criminal Code, which directs that a court consider that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Sentencing ranges are a way of reducing the risk of disparity.

[29] The statutory minimum sentence is five years for a first robbery using a prohibited or restricted firearm. The range of sentence for robbery with a firearm is broad.

[30] In R. v. Nouri,[^4] MacDonnell J. imposed a sentence of six years on Ms. Nouri after trial in relation to a well-planned and sophisticated jewelry store robbery. Like Mr. Gharibzada, Ms. Nouri was not present at the actual robbery, but played a central part in the planning and preparation. Her role, however, was as an aider rather than a principal. A co-accused who carried out the robbery and who had a record received a sentence of seven years. The Crown has referred me to several cases at the higher end of the range. In R. v. Moore,[^5] an offender with 30 prior convictions was sentenced to 12 years for a conviction after trial for a jewelry store robbery in which he was one of two masked and armed robbers who rushed through the door of a jewelry store and shot one of the two employees. In R. v. Young,[^6] an offender with a lengthy record who committed an armed robbery of a jewelry store and shot the owner received a total sentence of 15 years, including 10 years for the armed robbery. In R. v. Asif,[^7] the offender, who had a criminal record, received a global sentence of nine years for three armed robberies of commercial establishments.

[31] The principle of parity is particularly applicable where co-accused are sentenced. In this case, a sentence of five years was imposed on Mr. Newman[^8] who entered a guilty plea before me to one count of armed robbery. Mr. Newman was one of the men who entered the Roop Mahal jewelry store. Mr. Newman had a related criminal record. In terms of the roles played by Mr. Newman and Mr. Gharibzada, while Mr. Gharibzada had a more central planning role in the robbery, Mr. Newman’s moral culpability was high in light of the fact that he actually entered the store with other individuals, one of whom was armed.

[32] There were, however, significant mitigating factors with respect to Mr. Newman’s personal circumstances including serious medical issues. More importantly, Mr. Newman was sentenced on only one armed robbery and Mr. Gharibzada is being sentenced on two armed robberies.

[33] Mr. Richards-Coleman’s circumstances were more similar to those of Mr. Gharibzada. Mr. Richards-Coleman entered a guilty plea to conspiracy to commit robbery in relation to the first robbery and robbery with a firearm with respect to the second robbery. Mr. Richards-Coleman admitted to conspiring to commit the first robbery by recruiting other participants and by arranging to obtain a bag. He admitted being involved in the planning of the second robbery and he admitted that in the second robbery he entered the store, masked and armed, and stole merchandise. Mr. Richards-Coleman had a dated record that included firearms convictions. He received a sentence of six and a half years imprisonment concurrent on both charges before credit for pre-sentence custody[^9]. Mr. Richards-Coleman played a more limited role than Mr. Gharibzada with respect to the first robbery but Mr. Richards-Coleman’s role was significant and his moral culpability high with respect to the second robbery.

[34] Having considered the circumstances of Mr. Gharibzada and the objectives and principles of sentencing set out above, I have concluded that a global sentence of seven years is appropriate before credit for presentence custody and strict bail. Mr. Gharibzada’s sentence is higher than the sentence of Mr. Newman who was sentenced on only one armed robbery and slightly higher than that of Mr. Richards-Coleman who had a more dated, and less related, record. It takes into account Mr. Gharibzada’s relative youth and prospects for rehabilitation while denouncing his conduct and deterring Mr. Gharibzada and others.

[35] In determining that this is the appropriate sentence, I have taken into account the fact that Mr. Gharibzada will return to custody to serve his sentence during the COVID-19 pandemic. The conditions of incarceration will be more onerous than the conditions of incarceration pre-pandemic. The pandemic is also a relevant consideration in sentencing when I weigh the mitigation of the guilty plea. Mr. Gharibzada has entered guilty pleas and saved court resources at a critical time when COVID -19 has created a backlog in the criminal courts.

[36] Mr. Gharibzada entered guilty pleas to two robberies committed one month apart. Two separate and distinct offences will ordinarily attract consecutive sentences. In this case however, the offences are related. The two robberies were, in essence, a ‘spree’. Moreover, consecutive sentences would lead to a crushing sentence that would exceed the overall culpability of Mr. Gharibzada. The fact that there were two well-planned and executed robberies can be properly reflected by the imposition of concurrent sentences that take into account the fact that two related robberies were committed.

(ii) The credit that should be given for pre-trial custody

[37] Mr. Gharibzada spent 11 months in pre-sentence custody. The parties agree that Mr. Gharibzada should receive additional credit beyond the statutory credit for his time in custody. The parties are essentially in agreement that he should receive 15 months’ additional credit[^10] for lockdown and harsh conditions, including the exceptionally harsh conditions of COVID. I agree with the position of counsel on the credit for pretrial custody. The conditions endured by Mr. Gharibzada were exceptionally harsh and enhanced credit is appropriate. In R. v.Marshall[^11] the Court of Appeal said that quantification of the credit for harsh conditions was not necessarily inappropriate. In the circumstances of this case, the quantification agreed upon by experienced counsel is appropriate. The 15-month credit for harsh conditions reduces the sentence from seven years to five years and nine months.

(iii) Credit for Strict Bail

[38] The parties disagree on the amount of credit that I should give for time spent on strict bail. Counsel for Mr. Gharibzada seeks nine months’ credit and the Crown takes the position that five months’ credit is appropriate.

[39] The principles governing the court’s approach to credit for pre-trial bail conditions were summarized by Campbell J. in R. v. Peterkin.[^12] In Peterkin, Campbell J. observed that,

The amount of credit to be given for time spent on bail under house arrest is within the discretion of the trial judge and there is no formula that the judge is required to apply.
The amount of credit will depend upon a number of factors including, the length of time spent on bail under house arrest; the stringency of the conditions; the impact on the offender's liberty; the ability of the offender to carry on normal relationships, employment and activity.
Where the offender asks the trial judge to take pre-sentence bail conditions into account, the offender should supply the judge with information as to the impact of the conditions. If there is a dispute as to the impact of the conditions, the onus is on the offender to establish those facts on a balance of probabilities in accordance with s. 724(3) of the Criminal Code.

[40] Mr. Gharibzada spent 20 months on bail and 17 of those months on a strict house arrest bail. Under the terms of his bail, he was initially allowed to leave his house only for medical emergencies or in the presence of his surety and for the prescribed purposes of medical or dental appointments, court appearances or attendance at his lawyer’s office. He was required to wear a GPS ankle monitor and he was prohibited from possessing any electronic device capable of transmission of communication unless he was in the presence of his surety. He was not initially permitted to leave his residence to see his mother who had health issues.

[41] After five months, he was allowed to leave with his surety twice a week during a four-hour window. Fifteen months after his release, he was permitted to leave his residence with a surety to work. His bail was further loosened on November 3, 2021 to permit him to leave his residence with a surety. He spent a further three months on a loosened bail.

[42] Mr. Gharibzada’s affidavit sets out the impact on him of the strict bail. His relationship with his girlfriend and his family suffered. He became depressed and withdrawn.

[43] The conditions of Mr. Gahribzada’s bail were particularly stringent, especially during the first 15 months of his bail. I accept that the terms had a significant impact on his relationships, his ability to work, his opportunity to pursue education and training and on his mental health. In all of the circumstances, I find that he should receive eight months’ credit for his time on strict bail. This further reduces his sentence to five years and one month.

(iv) Statutory or Summers Credit

[44] Pursuant to s.719(3.1) of the Criminal Code and the principles enunciated in R. v. Summers[^13], Mr. Gharibzada is also entitled to 16.5 months credit for the 336 actual days spent in pre-trial custody.

Conclusion

[45] I therefore impose the following sentence:

On Count 1, the armed robbery of La Difference Time Centre: 7 years’ imprisonment before credit for presentence custody and strict bail. Credit for 20 months of strict bail is 8 months. Credit for 336 days of actual presentence custody is 15 months Duncan[^14] credit and 16.5 Summers[^15] credit. There is a total credit of 39.5 months. This leaves 44.5 months to serve.
On Count 2, the armed robbery of the Roop Mahal Jewelry store: 7 years concurrent with the same credit for presentence custody and bail of 39.5 months, resulting in 44.5 months to serve; and
On Count 3, fraud over $5000.00: a sentence of 3 months concurrent.

Ancillary orders

[46] There will be a mandatory prohibition order under s. 109 of the Criminal Code for life.

[47] Robbery is a primary designated offence under the Criminal Code. I therefore make the order that Mr. Gharibzada is required to provide such number of samples of bodily substances that are reasonably required for the purpose of forensic DNA analysis.

M. Forestell J.

Released: January 27, 2022

COURT FILE NO.: CR-21-10000596-0000

DATE: 20220127

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

and -

OMER GHARIBZADA

REASONS FOR SENTENCING

M. Forestell J.

Released: January 27, 2022

[^1]: 2015 ONSC 116 [^2]: 2003 CanLII 4187 (ON CA), [2003] O.J. No. 354 (Ont.C.A.) [^3]: 2017 ONCA 168 [^4]: Nouri, supra [^5]: 2014 ONSC 1788 [^6]: [2007] O.J. No. 311 [^7]: 2020 ONSC 1403 [^8]: Unreported oral decision [^9]: Unreported oral decision [^10]: The Crown calculation for Summers and Duncan credit was 31.4 months’ credit and the defence calculation was 31.7 months’ credit. [^11]: 2021 ONCA 344 at para. 53 [^12]: 2013 ONSC 2116, [2013] O.J. No. 1614 (S.C.J.), at para. 38 [^13]: R. v. Summers, 2013 ONCA 147, 114 O.R. (3d) 641; aff’d 2014 SCC 26, [2014] 1 S.C.R. 575 [^14]: R. v. Duncan, 2016 ONCA 754 [^15]: Summers, supra

R. v. Gharibzada, 2022 ONSC 584

Case Summary

REASONS FOR SENTENCING

Overview and Positions of the Parties

Circumstances of the Offences

Circumstances of Mr. Gharibzada

Analysis

(i) The Appropriate Sentence before Credit for Presentence custody and Strict Bail

(ii) The credit that should be given for pre-trial custody

(iii) Credit for Strict Bail

(iv) Statutory or Summers Credit

Conclusion

Ancillary orders

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 5

Legal Tests 4

Legislation 1