COURT FILE NO.: CrimJ(P) 150/21
DATE: 2023 03 03
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
P. Maund for the Crown
– and –
TRESTIN CASSANOVA-ALMAN
K. Sharma for the Accused
HEARD: January 13, 2023
REASONS FOR SENTENCE
F. DAWSON J.
[1] Following a jury trial Trestin Cassanova-Alman was convicted of robbery in relation to the carjacking of a pickup truck owned by Erik Tizie and dangerous operation of a conveyance (dangerous driving) resulting from a subsequent high speed police chase. Mr. Tizie’s eight-year-old daughter was in the truck when it was taken. The accused testified that he was unaware she was in the truck. The jury found the accused not guilty of kidnapping the child.
[2] Immediately before the jury trial the accused pleaded guilty to robbery of the Woodland IDA Pharmasave in Mississauga, to having his face masked with intent to commit an indictable offence in relation to the same incident and to possession of a stolen motor vehicle valued over $5,000, which was used as the getaway car in the pharmacy robbery.
The Facts of the Offences
[3] All of these offences were committed on July 24, 2020 as part of a continuous series of events. Many of the facts are reviewed in my ruling that there was no air of reality to the defence of necessity which the accused sought to advance before the jury. I will not repeat all the facts here. My ruling on that matter can be found at 2023 ONSC 154.
[4] By way of summary, the accused jumped a counter in the pharmacy while masked but unarmed. His co-accused, also masked, demanded cash from the till. There were two pharmacy employees present. The accused directed that the narcotics safe be opened and then filled a gym bag with narcotics and similar medications. No verbal threats were issued but there were implicit threats and intimidation. There was no actual violence. The robbery lasted about two minutes. The accused and his co-accused then fled in a stolen white Nissan Altima to which the police had previously attached a tracking device during a broader investigation.
[5] By means of the tracking device the police followed the stolen vehicle to the underground parking garage of a large condominium complex in central Mississauga. When the stolen vehicle attempted to exit the underground garage its path was blocked by two trucks from the tactical unit. As the accused fled on foot back down the ramp into the garage a tactical officer fired three shots into the front windshield of the still moving Nissan Altima.
[6] As the accused ran back into the underground garage he approached the passenger side window of a black Honda Civic. The police had observed the black Honda parked beside the white Nissan in the parking garage shortly before. As the accused approached the black Honda, security video, which captured all the events in and around the parking garage, shows that the accused was shot by someone firing out through the closed front passenger window of the car. The passenger window of the Honda can be seen exploding outward. Two handguns were later found in the Honda. One had a spent shell casing jammed in its ejection port.
[7] The accused was shot in the cheek and left a blood trail as he fled down a stairwell to lower levels of the parking garage. He was initially pursued by a plainclothes detective who had been in the underground parking observing the white Nissan before it attempted to leave and encountered the tactical team. Later, tactical and K9 officers followed the blood trail searching for the accused.
[8] The accused entered a motor vehicle being driven by a resident of the building on the P5 parking level. He had that person drive him up to the P1 level. The accused testified that he asked that person to help him as the police were trying to kill him. The driver of the vehicle played along. The accused was found not guilty by the jury of unlawfully confining that individual.
[9] Once the accused arrived on P1 of the parking garage he entered a hallway to a street level emergency exit. By that time he had evaded the pursuing tactical and K9 officers. However, several uniformed officers were arriving outside the building to set up a perimeter.
[10] The accused looked out a door onto Burnhamthorpe Road and saw a four-door pickup truck with a Black family inside. He ran and jumped into the rear passenger seat of the truck. When the driver refused to help him, he climbed over the front seat and struggled with the driver, Mr. Tizie, pushing Mr. Tizie out of the truck. At the same time uniformed officers ran towards the truck after hearing screaming from Mr. Tizie’s children. They initially thought Mr. Tizie was the person the tactical officers were looking for and ordered Mr. Tizie to the ground.
[11] The accused took off in the pickup truck at high speed. While other children had gotten out of the truck, Mr. Tizie’s eight-year-old daughter had not. Part way through the police chase the accused briefly stopped the truck and let the young girl out. The jury’s verdict acquitting on the kidnapping charge signals that they were not satisfied the accused knew the girl was in the truck when he took it.
[12] The accused then took off in the truck again and the police pursuit continued. The accused abandoned the truck after the police called off the pursuit for safety reasons. The accused escaped on foot. He surrendered to the police three months later on October 29, 2020. Prior to that the police had identified the accused from video surveillance which showed him removing his mask and some of his outer clothing. They were looking for him. The accused testified that he waited until the gunshot wound to his cheek healed before turning himself in.
[13] I have referred to some of the facts surrounding the accused’s acquittals on the kidnapping and unlawful confinement charges to unfold the narrative, because aspects of the jury’s acquittals may assist the accused in terms of sentencing and because the accused relies on aspects of the acquittals to support his position on an appropriate and proportionate sentence.
The Background of the Offender
[14] Mr. Cassanova-Alman was 19 years of age at the time of the offences. He is currently 21. He was born on March 19, 2001 and will turn 22 in a few weeks.
[15] The accused is Black. He testified at trial that as a young Black male he fears interactions with the police. He maintains that many of his actions in trying to escape from the police following the pharmacy robbery were motivated by that fear.
[16] Following the accused’s conviction there was a discussion about obtaining a social context report, sometimes referred to as a “Morris Report”, but that was not pursued by the accused: R. v. Morris, 2021 ONCA 680. As I will get to, the presentence report (PSR) indicates that the accused was raised in a supportive environment without significant economic disadvantage, although he grew up in a tough neighbourhood that is highly policed.
[17] Significantly, the accused has a youth record for two robberies. The first robbery conviction in December 2018 resulted in probation for 18 months. The accused spent six months in pretrial custody. The second robbery conviction on June 3, 2019 resulted in a four-month custody order plus two months of supervision in the community, followed by 22 months of probation. The accused spent 216 days in presentence custody in relation to that offence. At the same time a concurrent sentence was imposed for possession of property obtained by crime over $5,000 and breach of a Youth Court disposition.
[18] The PSR is generally positive. It is difficult to understand from it alone why the accused has gotten himself into so much difficulty. The accused is described as charming and likeable. He was cooperative and spoke openly to the presentence reporter. He is very close to his mother and close to his older sister. The main things that stand out in the PSR is that he has no relationship with his father and that he did not respond well to probation in the past.
[19] The PSR indicates that the accused experienced a positive upbringing. His family was not well off, but all his basic needs were met. While his parents separated periodically, there was no domestic violence in the home. Indications are that the accused could do well in school when he applied himself. His mother reports that his formative years were great. Some problems began to emerge in high school. The accused was suspended on occasion for fighting and being disrespectful.
[20] Counsel for the accused has provided some further information which is not in the PSR. I am advised that the accused was very involved in competitive soccer from age eight to 16. The PSR confirms that he volunteered at a soccer facility for youth, through the Terry Fox Foundation. He also worked as a soccer referee on occasion. His counsel described him as an elite level soccer player. However, I am also advised that his father would remove his ability to play soccer as a form of discipline. Counsel advises that frustrated the accused, leading him to turn his attention “to the street”.
[21] Counsel also advised me that the accused was wrongly accused of stealing from a locker at school. For various reasons he ended up in an alternative school where his counsel says he met the “wrong crowd”. I am advised he tried to return to his regular high school, but the principal would not allow it.
[22] The PSR indicates the accused does not have substance abuse issues, although he uses marijuana regularly. He is not currently in a romantic relationship but has had a steady girlfriend in the past. She has supported him throughout the trial. His mother and sister also continue to support him and have often attended court. His mother would like the accused to live with her again but says she would have to move out of her co-op residence before that could happen, due to all the police activity that took place there concerning these matters.
[23] The accused has a grade 11 education. He is eight or nine credits short of graduation. I am advised he tried to pursue high school credits while in custody but that was disrupted by the pandemic. His goal is to work in construction.
[24] The PSR confirms that the accused is remorseful and does not wish to continue going to jail. He demonstrated remorse in court and apologized to Mr. Tizie and his family.
The Position of the Crown
[25] Crown counsel submits that I should impose a sentence which totals two years less a day remaining to be served after deduction for presentence custody and any other allowances for difficult presentence custodial conditions associated with the pandemic or otherwise.
[26] Crown counsel submits this should be achieved by imposing a one-year sentence for the offences of robbery of the pharmacy, having his face masked with intent and possession of a stolen motor vehicle. These should be concurrent to one another.
[27] Crown counsel submits that by some means the carjacking robbery and dangerous driving charges should result in sentences totalling four and a half years, which should be consecutive to the one year on the other charges, for a total appropriate sentence of five and a half years.
[28] From this, presentence custody should be deducted, credited at 1.5 days for each day of pretrial custody. If the calculation leaves a penitentiary sentence, it should be reduced to the maximum reformatory sentence of two years less a day.
[29] Crown counsel also seeks three years probation, a DNA order, a s. 109 firearm and weapons prohibition order for life and a five-year driving prohibition.
The Position of the Defence
[30] Defence counsel submits that the accused, who still has other outstanding charges, should effectively receive a time served sentence. Counsel submits this should be achieved by imposing eight to 12 months in total for the three offences the accused pleaded guilty to and another year for the carjacking robbery and dangerous driving. Counsel submits I should give a generous allowance as “Duncan credit”: R. v. Duncan, 2016 ONCA 754. Defence counsel submits I should then utilize as much presentence custody as necessary, credited at 1.5 days for each day of presentence custody, to bring the time remaining to be served to zero.
[31] Defence counsel submits that one to two years of probation is enough and that the driving prohibition should be limited to two years. The s. 109 order should be for 10 years. No issue is taken regarding a DNA order.
Presentence Custody and Jail Conditions
[32] The accused has been in custody since October 29, 2020. By my calculation, to the date of sentencing he has spent two years four months and four days in presentence custody. Crown counsel concedes that there is no reason the accused should not receive the usual credit of 1.5 days for each day of presentence custody. Therefore, the accused should be credited with three years six months and six days if all his presentence custody is applied.
[33] In terms of jail conditions, as recognized in Duncan at paras. 6-7, credit over the 1.5 maximum referred to in s. 719(3.1) of the Criminal Code may be granted when particularly harsh presentence incarceration has had an impact on the accused. Evidence will generally be required. In R. v. Marshall, 2021 ONCA 344, at paras. 50-53, the Court of Appeal clarified that Duncan credit is not a deduction from the otherwise appropriate sentence. Rather, unusually harsh jail conditions are a potentially mitigating factor to be considered with other mitigating and aggravating factors in arriving at an appropriate sentence. In Marshall the court also affirmed that hardships associated with the COVID-19 pandemic are an example of what may qualify for consideration under Duncan.
[34] The accused has spent all his presentence custody at the Maplehurst Correctional Complex. He has provided documentation from Maplehurst confirming that, as of January 13, 2023, he was under a full lockdown on 390 days and a partial lockdown on 45 days. A full lockdown means the inmate is always confined when they would normally be out of their cell.
[35] Mr. Cassanova-Alman has also provided the court with a detailed affidavit setting out how lockdowns have impacted him in terms of his confinement, lack of exercise, lack of showers, lack of visits, interference with his access to counsel and lack of access to a telephone. The affidavit covers the impact of the pandemic on daily life within the institution. The accused explains in some detail how and why all these things have made his presentence incarceration particularly harsh. The accused explains that most of his time at Maplehurst has been spent under pandemic conditions.
[36] This evidence, which is not challenged or contradicted, paints a bleak picture of harsh conditions going well beyond what reasonable and informed members of the community would think to be appropriate. This is a significant factor which I will weigh together with other mitigating and aggravating factors in determining a proper and proportionate sentence. In considering this factor I keep in mind that the 1.5 credit already accounts for many of the undesirable aspects and disadvantages of presentence custody.
[37] I also observe that documents filed by the defence confirm that the accused has completed several rehabilitation courses while incarcerated.
The Applicable Legal Principles
[38] Section 718 of the Criminal Code describes the purpose of sentencing. Amongst other things, the purpose is to denounce unlawful conduct and harm done, to deter the offender and others from offending again, to separate offenders from society where necessary and to assist in the rehabilitation of the offender.
[39] Section 718.1 codifies the fundamental principles of sentencing: “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” Section 718.2 describes other principles of sentencing and provides that a sentence should be increased or reduced to take relevant mitigating and aggravating circumstances into account. Some aggravating circumstances are listed, but the list is not closed. The section provides that similar sentences should be imposed for similar offenders who commit similar offences and that, where consecutive sentences are imposed, care must be taken so that the total sentence does not become unduly harsh. Restraint is also warranted in imposing a custodial sentence. I bear in mind that this will be the accused’s first sentence of imprisonment as an adult.
Analysis
[40] I propose to treat the offences in two groups. First, I will deal with the three offences the accused pleaded guilty to. Then I will deal with the convictions from the jury trial. In each case I will consider the seriousness of the offences, the degree of responsibility of the offender and the aggravating and mitigating circumstances.
[41] The first group of offences are related. Both counsel submit that concurrent sentences are appropriate. I agree. The pharmacy robbery was what might be called the principal offence in this group. The masking of the face and possession of the stolen car were in aid of the robbery. These offences are contextually and temporally linked.
[42] Crown counsel submits that the pharmacy robbery is akin to a variety store robbery. I think it is more serious than that having regard to the fact that dangerous narcotics and other similar drugs were the object of the robbery. The purpose here, as came out in the accused’s testimony, was to sell the drugs to others within the criminal element. No doubt those drugs would have eventually been sold on the street where they could lead to overdoses or other criminal activity. This is not to say that there are not some similarities to variety store robberies.
[43] The accused and his co-accused were not armed and no one was hurt in the robbery. However, intimidation was obviously intended and achieved. The accused wore a mask and gloves with the hood of a jacket pulled up around his face. There was an implicit threat of violence. I have no victim impact statements to assist me in determining the seriousness of this robbery. I am advised the store employees did not respond to requests to provide them.
[44] The masking and the use of a stolen vehicle as a getaway car shows that the pharmacy robbery was planned. This is an aggravating feature. It is also an aggravating feature that the accused has a youth record for similar offences. The seriousness of the offence of robbery must have been well understood by the accused when he decided to commit this crime.
[45] It is also apparent from the accused’s trial testimony that he and his co-accused had already arranged to sell the narcotics. That is why they went directly to the condominium parking lot and met with the two men in the black Honda Civic. This shows a commercial aspect to the crime and a degree of professionalism which are also aggravating.
[46] In terms of mitigating factors, the accused pleaded guilty to these offences. I take that into account to some degree. However, I observe that the guilty plea came at the last minute, after he had already been arraigned before the jury panel. It only came after his co-accused pleaded guilty and acknowledged that the accused was also involved, and after it was apparent the co-accused would be called as a Crown witness.
[47] I further observe that the Crown had a fairly strong case even without the co-accused’s testimony. The pharmacy robbery is recorded on security video. The accused is also captured on security video from several cameras in the condominium parking lot. He is seen running from the stolen car when confronted by the tactical unit. While he was still masked at that time, he is seen dropping the gym bag full of stolen narcotics while running and leaving a blood trail. DNA analysis of the blood trail and of blood found on his discarded clothing further identifies him. Security video in the parking garage shows his face and he had been identified from that video during the police investigation. The guilty plea remains mitigating but to a diminished extent. I also consider as mitigating that he eventually turned himself in.
[48] Mr. Cassanova-Alman’s co-accused received a sentence of five months followed by two years of probation. The co-accused pleaded guilty at a slightly earlier stage. He acknowledged the accused’s involvement. Unlike the accused, the co-accused had no criminal record. I am advised that at sentencing Durno J. found that the co-accused’s involvement in the offences was out of character. I keep the parity principle in mind, but find it has a more limited role to play in this case than it might in other circumstances.
[49] I turn now to the convictions by the jury for the carjacking robbery and dangerous driving. These are serious offences. Although I accept as implicit in the jury’s verdict acquitting the accused that he was unaware that Mr. Tizie’s daughter was in the truck, she was there and her life and safety were put in peril by the accused’s actions. I also accept that the accused is genuinely remorseful and that his apology to Mr. Tizie and his family is sincere. Those factors are mitigating, but the fact that the young girl was in the truck remains as an aggravating circumstance that heightens the gravity of both offences.
[50] Focusing on the carjacking, I have been referred to two helpful decisions of Clarke J. where he undertook a review of sentencing cases related to carjacking robberies. See R. v. Noor [2007] O.J. No. 4092 (S.C.J.) and R. v. Enotie, [2013] O.J. No. 6246 (S.C.J.). At para. 22 of Noor, Clarke J. noted that carjacking is a particularly serious form of robbery given that people expect to be able to travel in safety and privacy in their own motor vehicles. In Enotie, at paras. 31-40, Clarke J. reviewed ten cases to determine a range of sentence. The sentences imposed in the cases considered ranged from two years to 16 years. The facts in the case at the very high end were extreme and involved other serious offences. I agree with Crown counsel’s submissions that typically sentences for carjacking are from about three and a half to five years in length. I point out that weapons are often involved in carjacking cases.
[51] Turning to the degree of responsibility of the offender, counsel for the accused submits that I should proceed on the basis that the accused was motivated by his fear of the police as opposed to by his desire to evade arrest and prosecution. Counsel submits the jury must have made such a finding in reaching their not guilty verdict on the kidnapping charge.
[52] I do not accept this submission. The accused testified that he was not aware that Mr. Tizie’s daughter was in the truck when he took it. He testified that he thought she got out of the truck when the other children did and said he did not see her until he turned and looked behind him during the police pursuit. He then saw her hiding behind the seat. It is apparent the jury must either have accepted this evidence or that it raised a reasonable doubt in their mind. While the accused testified that he took the truck out of fear the police would kill him or seriously harm him, necessity was not left with the jury. Therefore, the jury could conviction have found the accused not guilty on this basis. I observe that s. 724(2) of the Criminal Code does not apply to this situation because that subsection deals with express or implied facts essential to a jury’s finding of guilt, not an acquittal. An acquittal will often be based on an absence of proof or on evidence which raises only a reasonable doubt.
[53] The Crown submits that the accused’s motive for the carjacking and dangerous driving was to avoid apprehension and prosecution for the pharmacy robbery and related crimes and that this is an aggravating feature. Counsel for the accused correctly observes that this is a matter of disputed fact and because it is an aggravating factor, it must be proven beyond a reasonable doubt.
[54] Neither the Crown nor the defence asked to call further evidence on this point. That, no doubt, is because the suggestion that the accused thought the tactical officer who fired at the Nissan Altima shot him and that he was running from the police to save his life, was a focus of the trial. The accused cross-examined prosecution witnesses to that end and the accused testified to that effect and was cross-examined about that. No one suggested there was any further evidence to be considered on that point during the sentencing hearing.
[55] In these circumstances I must make the required factual finding based on the evidence at trial. I find beyond a reasonable doubt that the accused’s main motivation for taking Mr. Tizie’s truck and driving dangerously thereafter was to escape apprehension and prosecution for the pharmacy robbery. I also reject as not credible the accused’s testimony that he thought the tactical officer was responsible for the gunshot wound to his left cheek. I find that the accused was shot in the left cheek as he approached the black Honda Civic, after the police fired at the Nissan Altima, and that he was aware of that. I make these findings beyond a reasonable doubt based on the evidence heard by the jury.
[56] All the events in the parking garage, including on the exit ramp, were captured on high quality video by the security camera system in the parking garage. That video was played over and over during the trial and during counsel’s closing submissions. I am satisfied that when the tactical officer fired at the windshield of the moving Nissan Altima, both the accused and his co-accused had already exited the vehicle and were running at full speed back down the ramp. The accused exited the passenger door of the Nissan and was running down the left side of the ramp as viewed from the top of the ramp. His left cheek was close to the left wall. The officer fired his rifle to the right, not to the left. The bullets can be seen hitting the windshield where the driver would have been. By then the co-accused, who was the driver, had run off. The tactical officer who fired did not see that and could not see through the Nissan’s windshield due to glare. He thought someone was still driving the car forward at the police and a civilian who was walking through the area at the time.
[57] In these circumstances it is unlikely in the extreme that the accused thought he was shot at that time. The location on his body where he was shot was away from the car and next to the wall. The officer was firing the other way.
[58] On the other hand, video clearly shows the passenger window of the black Honda Civic blowing out as the accused approached and looked in from just a few feet away. Watched repeatedly, the video clearly shows what looks like a gunshot. A photo of the Honda Civic window taken later shows a half-round hole in the remains of the window. The video shows window glass exploding outward towards the accused. A firearm, which had fired a shot, was found in the Honda. Based on the video, the accused was looking into the Honda from a short distance away when the window was blown outwards. The blood trail starts close to where the Honda was.
[59] The accused testified that earlier he had a bad feeling about the men in the Honda and that’s why he and his co-accused got out of the Honda and tried to leave the garage in the Nissan Altima, leading to the confrontation with the tactical officers.
[60] I find the accused was shot as he approached the Honda and that he knew that. I do not believe the accused’s evidence that all his subsequent actions were motivated by the thought that the police were out to kill or seriously harm him by using excessive unlawful force against him.
[61] The accused testified that when he entered Mr. Tizie’s truck he initially asked for help. However, when it was clear that Mr. Tizie was not going to help him and that the police were being attracted by Mr. Tizie’s screaming children, the accused took the truck by force. That is implicit in the jury’s verdict of guilt. I find from the evidence that the accused’s motivation was to evade the police to escape prosecution, something which is not implicit in the jury’s verdict. I agree with Crown counsel that this is an aggravating factor.
[62] The dangerous driving was also the result of the accused’s determination to escape apprehension and prosecution for the crimes he committed earlier that day. Again, this is aggravating. The accused was not charged separately with failing to stop for the police. The driving engaged in was extremely dangerous although the duration of the chase was short, lasting two minutes or less. The accused covered a considerable distance in that period due to the high speeds he attained.
[63] The accused testified that he had never driven a pickup truck before. The truck was a large heavy four door vehicle. The potential for death, injury and significant property damage was heightened by the size of the truck and the accused’s inexperience. The vehicle was driven at speeds of 100 to 120 kph on busy thoroughfares in downtown Mississauga on a Friday evening when there were many others using the roadways. Businesses were open and there were pedestrians in some of the areas. The accused drove the truck through red lights, down the wrong side of the road and maneuvered around other vehicles. He took several corners at dangerously high speeds. All this occurred while he was pursued by numerous police vehicles with emergency equipment activated. The urgency of the pursuit was fueled by the police knowledge that Mr. Tizie’s young daughter was in the truck. While I accept that the accused was not aware of that, from an objective viewpoint this enhances the danger and the seriousness of the offence.
[64] It is mitigating that as soon as the accused discovered the child’s presence he stopped and let her out onto a sidewalk where it was relatively safe. I have already said that the chase was brief. I also note that no damage was done to Mr. Tizie’s vehicle or other vehicles and no one was physically injured.
[65] Mr. Tizie declined to provide a victim impact statement. I am advised he was upset by the acquittal on the kidnapping charge. Therefore, I do not have any direct evidence of the psychological impact on Mr. Tizie, his daughter or other members of his family. However, common sense and the evidence of the police officer who stopped to assist the child suggest she was very upset by what occurred. Mr. Tizie was very emotional when he gave his trial evidence. It is apparent these events have had a lasting impact on him, as one would expect. Balanced against this is the accused’s sincere apology after the fact. Unfortunately, it cannot erase the trauma endured by the members of the Tizie family.
[66] Deterrence and denunciation must be given considerable weight in determining an appropriate sentence in these circumstances. That is particularly so for the two robberies and the dangerous driving.
[67] However, there is also the accused’s youth to be considered. He was only 19 at the time of these offences. While he has a related record, which tempers the degree to which leniency should be extended, both his relative youth and reasonably good prospects for rehabilitation must be given weight. The accused has the continuing support of his mother and sister, both of whom he respects. He has exhibited remorse. He is at a crossroad in his life. He has had a very considerable exposure to presentence detention in an adult facility. The conditions have been particularly harsh due in part to the pandemic and due to ongoing staffing and administrative problems within the correctional system that seem to be rising to an ever-increasing level. This is also a factor to which I give significant weight.
[68] I am of the view that, while the sentences for the carjacking robbery and the dangerous driving should be concurrent to each other, they should be consecutive to the sentences for the pharmacy robbery and related offences. I rely upon two cases provided to me by Crown counsel. In R. v. Jarvis, 2022 ONCA 7, at para. 5 and R. v. Sturge, [2001] O.J. No. 3923 (C.A.), at paras. 5-6, the Court of Appeal indicated that if sentences for dangerous behaviour related to flight from the police are not deterred by consecutive sentences “flight from the police might seem well worth the risk”: Jarvis, at para. 5.
[69] Given my determination that consecutive sentences are appropriate, I must keep the totality principle in mind. The overall sentence must not be crushing. I conclude that must be determined having regard to the accused’s youthfulness and reasonable prospects for rehabilitation.
[70] As is so often the case, the various factors pull in different directions. The serious nature of these offences and the need for denunciation and deterrence warrant significant sentences cumulatively reaching well into the penitentiary range. The accused’s youthfulness, remorse and prospects for rehabilitation pull downwards on the sentence. The guilty pleas entered to some offences have a mildly moderating effect in the circumstances. The existence of the record tempers the extension of leniency. The accused must not be penalized in any way for having a trial on some charges. The total sentence must not be excessive. The time spent in custody must be deducted and unusually harsh conditions during presentence custody, which I have found are present here, are a mitigating factor. It is significant that no weapon was used in the carjacking robbery.
[71] Balancing all factors, I conclude the following sentences are appropriate before deducting credit for presentence custody. On the pharmacy robbery and related offences (counts 1, 2 and 6), I have decided that one year on each count, concurrent, would be appropriate. I would have concluded 18 months was appropriate, but I have moderated my views based on the totality principle, the fact the co-accused received only a five-month sentence, the Crown’s submissions and the harsh jail conditions the accused has endured. In my view, one year for robbery of a pharmacy where a large amount of narcotics were stolen and the accused has a previous conviction for robbery is a lenient sentence only justified by these other considerations.
[72] On the carjacking robbery (count 3) and dangerous driving (count 5) I conclude that a total sentence of three years is appropriate before credit for presentence custody. It is difficult to assign separate periods to be served for these two offences because they are almost completely overlapping. Both were committed for the purpose of escaping the police. The truck was taken as a getaway vehicle and the police pursuit was almost inevitable. The danger to the public flowed from both offences. The driving was highly dangerous even though short lived, but it flowed from the taking of the truck.
[73] In terms of the truck robbery, I note that no weapon was used. It may well be that the accused hoped when he entered the truck that the occupants would help him, but his subsequent actions show that he was prepared to use force if that did not work out. This moderates the seriousness of the robbery although the purpose, escape from the police, and the result, highly dangerous driving, enhances its seriousness.
[74] I find appropriate sentences to be three years concurrent for the carjacking robbery (count 3) and for the dangerous driving (count 5). I would make these two concurrent sentences consecutive to the sentences imposed on counts 1, 2, and 6. I would add that, had I decided to impose consecutive rather than concurrent sentences for these two offences, I would have imposed terms totaling three years consecutive to the other counts. Therefore, the total appropriate sentence before deducting presentence custody is four years. I have placed weight on the accused’s youthfulness and prospects for rehabilitation as well as on the need for denunciation and deterrence. The harsh conditions during presentence custody are also a factor.
[75] As previously calculated, there must be a deduction of three years, six months and six days for presentence custody credited at 1.5 to 1. For ease of calculation, I will deduct that from the total appropriate sentence of four years, leaving five months and 24 days to be served. I would apportion that reduction between the offences as follows. On counts 1, 2, and 6, the sentence will be one month on each count concurrent. On counts 3 and 5, the sentence will be four months and 24 days concurrent as between counts 3 and 5 but consecutive to counts 1, 2 and 6. My intention is that the accused shall serve a further five months and 24 days. It must be remembered that, having regard to presentence custody, this is the equivalent of a four-year sentence for a 19 year old receiving his first adult sentence.
[76] Upon his release from the custodial portion of his sentence the accused will be subject to a probation order for a period of three years. The terms of probation are the statutory terms plus the terms recommended at p. 9 of the PSR, which is Exhibit 2, with the exception that there will be no community service hours. Given the accused’s youth and prior criminal history, three years is a period well suited to assisting with his rehabilitation.
[77] The accused is ordered to provide a sample of his DNA for inclusion in the convicted offender’s data bank.
[78] There will be a weapons, firearms and explosives prohibition order under s. 109 of the Criminal Code for life. Although no weapons were involved in the offences before the court, the accused now has four convictions for robbery and a ban for life is appropriate.
[79] Pursuant to s. 320.24(4) of the Criminal Code the accused is also prohibited from operating a motor vehicle anywhere in Canada for a period of two years following his release from custody. This is a significant period. I am concerned that imposing a longer driving prohibition will interfere with the accused’s rehabilitation by making it more difficult for him to seek and maintain employment.
[80] I want to thank counsel for their careful submissions.
Justice F. Dawson
Released: March 3, 2023.
COURT FILE NO.: CrimJ(P) 150/21
DATE: 2023 03 03
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
- and –
TRESTIN CASSANOVA-ALMAN
REASONS FOR SENTENCE
F. Dawson J.
Released: March 3, 2023