Court File and Parties

Court File No.: CR-21-30000593-0000 Date: 2023-03-07 Ontario Superior Court of Justice

Between: His Majesty The King - and - Charles Okito and Nicholas Pitter

Counsel: Joanne Stuart, for the Crown Anne Marie Morphew, for Mr. Okito

Heard: January 10, 2023 and February 24, 2023

Before: M. Forestell J.

Reasons for Sentence of Charles Okito

Background and Positions

[1] Charles Okito entered guilty pleas on January 10, 2023, to the offences of kidnapping and robbery.

[2] The matter was adjourned for sentencing. The sentencing hearing proceeded before me on February 24, 2023, and I reserved my decision until today.

Circumstances of the Offences

[3] The facts underlying the plea are set out in the Agreed Statement of Fact. In summary, Mr. Okito, with his co-accused Mr. Pitter, held the victim against his will for approximately nine hours, from the evening of March 16, 2021, to the morning of March 17, 2021. They forced the victim to give them his passwords for his bank card and for his phone. They took him to his home and forced him to give them his PS4.

[4] Mr. Okito played an active role in the kidnapping and robbery. He threatened the victim with what appeared to be a firearm but is agreed to have been an imitation firearm.

[5] The victim was not physically injured but was understandably terrified by his ordeal.

Circumstances of the Offender

[6] Mr. Okito is 22 years old. He was born in the Congo and came to Canada with his sister when he was 14 years old.

[7] Mr. Okito is not a Canadian citizen. He will be subject to a removal order as a result of the convictions in this case and he has no right of appeal.

[8] Mr. Okito has no supports available to him in the Congo. As I will set out in more detail, Mr. Okito has cognitive limitations and other vulnerabilities that require that he receive supports in the community. Those supports are available to him in Canada and will continue to be available to assist him at the end of his sentence.

[9] Mr. Okito was assessed in the Fall of 2022 by Dr. Erica Martin, a clinical and forensic psychologist. His personal history is set out in detail in her report.

[10] Mr. Okito was sent to Canada by his mother when he was 14 years old. He lived with an aunt and uncle in Oshawa for one year. After one year, Mr. Okito’s aunt presented him with a plane ticket to return to the Congo. Mr. Okito could not contact family in the Congo. He got off the plane in Montreal. He was taken into a foster home and then placed on a train back to Oshawa. He did not return to Oshawa but left the train in Toronto. He was taken into the care of the Children’s Aid Society (“CAS”) after disclosing that he had been subjected to physical abuse in the home of his aunt and uncle. He was placed in foster care until he was 16 years old. At 16 years of age, he moved to a group home. He was still living in the group home at the time of the offences.

[11] Mr. Okito was exposed to violence regularly while growing up in the Congo. He reported witnessing a stabbing and reported that it was common for people to be beaten and to be burned to death if they stole. Mr. Okito reported being part of a street gang in the Congo.

[12] Dr. Martin reviewed files from the CAS and noted that the CAS Placement Assessment completed when Mr. Okito was 16-years-old reported Mild Intellectual Disability, Post-traumatic Stress Disorder (“PTSD”) and behavioural concerns. The CAS records also noted that Mr. Okito was vulnerable and showed borderline to extremely low conceptive and social adaptive functioning.

[13] Dr. Martin’s testing and assessment revealed similar results. Mr. Okito’s scores for verbal comprehension and non-verbal reasoning fell in the extremely low range. Dr. Martin opined that Mr. Okito has a mild intellectual disability.

[14] The report also outlines Mr. Okito’s recent episode of psychosis in 2021. This may evolve into schizophrenia or a primary psychotic disorder or it may be related to Mr. Okito’s PTSD.

[15] Dr. Martin also assessed Mr. Okito’s risk and concluded that his risk for future violence is moderate in a group residential facility but would be high if he lived independently. She noted his vulnerability to the influence of anti-social peers.

[16] I have the benefit of a letter from Amy Kerr who is Team Lead of Specialized Services for Canopy Support Services. As set out in Ms. Kerr’s letter, she provides ongoing specialized case management support. She has supported Mr. Okito since June 6, 2022 and will continue to support him upon his release.

[17] Courtney Hutson also provided a letter setting out the role played by ‘Community Networks of Specialized Care’ in supporting Mr. Okito. Ms. Hutson works as a Dual Diagnosis Justice Coordinator providing support to individuals with developmental disabilities and high support or complex care needs who find themselves involved with the justice system. Ms. Hutson will work with Ms. Kerr upon Mr. Okito’s release to ensure that Mr. Okito is properly connected to supports in the community.

Positions of the Parties

[18] The Crown takes the position that in light of the mitigating factors in this case and particularly Mr. Okito’s vulnerabilities and mental health issues, a further sentence of two years less a day (or 730 days) would be appropriate after credit for presentence custody (458 days credited at 1.5 to 1 as 687 days). This would amount to a sentence of 1,417 days (or 46 months and 15 days) before credit.

[19] The defence position is that the appropriate sentence is 36 to 42 months before credit for presentence custody. With credit the remaining sentence would be 14 to 20 months.

Analysis

[20] In determining an appropriate sentence, I must consider certain principles and objectives established by the caselaw and by the Criminal Code, R.S.C., 1985, c. C-46.

[21] The fundamental purpose of sentencing as set out in s. 718 of the Criminal Code, is to “contribute …to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; …and (f) to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community”.

[22] In sentencing for the offences of kidnapping and robbery, deterrence and denunciation are generally the predominant sentencing objectives. However, in the case of a youthful first offender such as Mr. Okito, rehabilitation is also a primary objective of sentencing. [1]

[23] In arriving at an appropriate sentence, I must take into account any relevant aggravating and mitigating circumstances. Aggravating factors in this case are the significant impact on the victim, and the use of an imitation firearm. Mitigating factors are Mr. Okito’s youth, the fact that this is his first offence, his guilty plea which is indicative of remorse and Mr. Okito’s very difficult background and mental health challenges.

[24] In addition, as a result of this conviction and sentence, Mr. Okito will face deportation. This is a significant collateral consequence that I have considered.

[25] In the case of R. v. Babin the British Columbia Court of Appeal described the range of sentence for kidnapping:

The classic form of kidnapping, that which attracts penalties in the 10 years to life range, usually involves a carefully planned scheme for ransom with a period of confinement much longer than several hours and where the victim is bound, gagged, and sometimes blindfolded. This case is technically a kidnapping but in my opinion it is more like the second group of cases. It bears a greater resemblance to an extortion or a robbery accompanied by a relatively short period of confinement. I would put the appropriate range at four to six years.

[26] In R. v. Brar, 2014 BCCA 175 at para 23, the British Columbia Court of Appeal rejected a categorical approach to the range but set out factors to be considered in determining the gravity of the offence. Those factors are:

(a) the purpose of the kidnapping, specifically whether it is carried out for ransom or as a means of extorting a payment or repayment from the victim; (b) the extent to which there is planning and premeditation; (c) the length and conditions of the confinement; (d) the extent to which there is violence, torture or significant physical injuries; (e) whether third parties are threatened; (f) whether guns are used; (g) whether there is gang involvement; (h) whether the kidnapping occurs in the course of the commission of another offence; and (i) the circumstances in which the kidnapping ends.

[27] I agree with the submission of both counsel, that the circumstances of these offences and this offender situate the appropriate sentence at the lower end of the range of sentence. The period of confinement was not lengthy, there were no injuries, the victim was released and to the extent that there was planning, it is agreed that Mr. Okito was not the person who planned the kidnapping. As was already noted, there was an imitation firearm used and the offence did occur in the context of a robbery.

[28] Our Court of Appeal in R. v. Baskaran, 2020 ONCA 25, reduced the sentence of a youthful first offender convicted of two counts of robbery that occurred in the context of a kidnapping to a sentence of three years before credit for presentence custody. The offender in that case was involved with others in two separate robberies four months apart. The robberies involved the kidnapping of truck drivers. An imitation firearm was used. There were no serious injuries. This accused was not a ringleader in the robberies.

[29] Having carefully considered the range of sentence described in the caselaw and the unique circumstances of this offender, I find that a sentence of 3.5 years before credit for presentence custody is appropriate in this case. This is Mr. Okito’s first penitentiary sentence and it should be as low as possible, given his youth and his vulnerability.

[30] I therefore impose a sentence of 42 months’ imprisonment before credit for presentence custody, concurrent on both counts. With credit for presentence custody, Mr. Okito must serve a further sentence of 20 months and 15 days.

[31] In addition, kidnapping is a primary designated offence and I make a DNA order. There will be a weapons prohibition for life. There will also be an order that Mr. Okito not communicate with the victim in this case. In light of Mr. Okito’s circumstances and the sentence of imprisonment, the Victim Fine Surcharge is waived.

[32] I would add one further observation.

[33] I believe that Mr. Okito has good prospects for rehabilitation if he is permitted to remain in Canada. Significant supports have been arranged for Mr. Okito. I am concerned that Mr. Okito’s prospects for rehabilitation will be lost if he is deported to the Congo. He has no supports in the Congo. All of his community support is in Canada.

[34] I recommend that he be permitted to remain in Canada in order that he have the opportunity to rehabilitate himself. His rehabilitation will also provide the best protection for the public.

Forestell J. Released: March 7, 2023

Footnotes

[1] R. v. Priest, [1996] O.J. No. 3369 (QL); R. v. Brown, [1991] 2 SCR 518