COURT FILE NO.: 23-11401985

DATE: 2023/10/10

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

Thato Tobo

Accused

Malcolm Savage, for the Crown

Accused, Self-Represented

Michael Davies, Amicus Curiae

HEARD: Oral decision given September 29, 2023

REASONS FOR SENTENCE

SOMJI J

Introduction

[1] This decision addresses the sentencing of Mr. Tobo on a guilty plea to one count of theft under $5,000 and one count of breach of probation on Indictment No. 23-11401985-A. In pleading guilty, Mr. Tobo has admitted that on March 4, 2023, he entered a Circle K convenience store located at 333 Rideau Street in Ottawa and stole cartons of cigarettes. At that time, he was on a court order with a term not to attend that store.

[2] The matter has come before this Court for sentencing because Mr. Tobo was on a 7-count indictment which included a straight indictable offence of robbery. Following further discussions with the Crown, Mr. Tobo agreed to plead to a lesser and included offence of theft and proceed to sentencing in this Court.

[3] The primary aggravating factor in sentencing is Mr. Tobo’s prior criminal record which includes over 100 convictions largely for property related offences spanning a 20-year period.

[4] The Crown seeks a custodial sentence of one year. The Crown indicates that Mr. Tobo has spent 210 days in jail and at 1.5 credit, he has served 315 days of pre-trial custody. Therefore, the Crown seeks an additional 50 days of custody to reflect a total sentence of 365 days. The Crown submits a further probation order is not necessary because, as reflected in the pre-sentence report filed, Mr. Tobo has had multiple opportunities to access treatment and programming while on probation and has not succeeded. Partly for this reason, probation services indicates in the pre-sentence report that Mr. Tobo is not a suitable candidate for community supervision. According to the Crown, a further probation order simply sets Mr. Tobo up for further breach charges should he continue to engage in this same criminal activity. The Crown takes the position that if Mr. Tobo is motivated to take treatment as he claims, he can avail himself of the outpatient community programs identified in the pre-sentence report.

[5] Mr. Tobo seeks a sentence of time served of 110 days. Notwithstanding that he has spent by his count 219 days of actual pre-trial custody, Mr. Tobo argues that 110 days of custody is a fit sentence and that is what should be reflected on his criminal record. This sentence would be an appropriate step up from his past sentences for similar offences and consistent with the principle of proportionality.

[6] The issue to be decided is what is a fair and reasonable sentence in the circumstances of this offence and the particular circumstances of this offender.

The history of this sentencing proceeding

[7] Before addressing the principles of sentencing and their application to this case, it is important to make a few comments about the history of this sentencing proceeding.

[8] The guilty plea and sentencing commenced and took place over June 20 and 21, 2023. At that time, the Crown filed a number of exhibits including: one, an audio recording of the theft (Exhibits 1a and 1b); two, audios of court sentencing hearings the purpose of which was to confirm the accuracy of Mr. Tobo’s criminal record (Exhibits 1c and 3); three, a copy of Mr. Tobo’s CPIC criminal record as well as annotated criminal record of corrections to his CPIC entries for the period May 1, 2020 to January 16, 2023 (Exhibit 4 and 4a).

[9] Mr. Tobo does not deny his drug addiction. He maintains that he is motivated and interested in obtaining drug addiction treatment and programming. During the initial sentencing hearing, a number of issues arose with respect to Mr. Tobo’s past attempts and frustration at accessing treatment both while in hospital between 2007 and 2015 (Mr. Tobo states he was in hospital for a longer period than this) or through the Drug Treatment and Mental Health Courts in the Ontario Court of Justice. Upon hearing submissions from the Crown, Mr. Tobo, and amicus curiae counsel Mr. Davies, I found that in order to craft a fit and appropriate sentence that takes into account the principle of rehabilitation, a pre-sentence report was necessary.

[10] Consequently, I ordered a pre-sentence report and also requested the author of such report to address specific questions regarding Mr. Tobo’s past attempts at treatment as well as what programming, if any, might be available for Mr. Tobo in the community and the conditions for accessing such programs: see Endorsement R v Tobo, 2023 ONSC 3742.

[11] In addition, Mr. Davies kindly agreed to contact Dr. Wood, a forensic psychiatrist who Mr. Tobo has been seeing while at OCDC over the years, to see if he could also provide additional information on Mr. Tobo’s mental health, medications and prospects for rehabilitation. Despite several inquiries, a psychiatric report was not prepared in time for today’s sentencing hearing. However, as part of the sentencing proceeding, I did have available a 26-page Forensic Psychiatry Assessment prepared by Dr. Neil de LaPlante of the Royal Ottawa Hospital dated December 15, 2021, for the Ontario Court of Justice. Furthermore, while Mr. Tobo does not agree with all the diagnoses made by the doctor, he did not take issue with the report being shared with the probation officer for the preparation of the pre-sentence report. Dr. de LaPlante’s report is helpful for chronicling Mr. Tobo’s past treatment because it includes a review of records dating back to 2007.

Principles of sentence and aggravating and mitigating factors

[12] Section 718 sets out the fundamental purpose and objectives of sentencing. The provision states as follows:

718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, 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 and the harm done to victims or to the community that is caused by 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;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[13] Denunciation requires that a sentence express society’s condemnation of the offence that was committed: R v Bissonnette, 2022 SCC 23, 469 DLR (4th) 387 at para. 46. Deterrence has two forms. Specific deterrence is meant to discourage the offender from reoffending whereas general deterrence is intended to discourage members of the public who might be tempted to engage in the criminal activity for which the offender is convicted: Bissonnette at para. 47.

[14] In this case, the Crown argues that given Mr. Tobo’s extensive criminal record for property offences and his continued targeting of the same Circle K to commit theft of cigarettes, the court must craft a sentence that emphasizes specific deterrence so as to discourage Mr. Tobo from re-offending and in this same manner.

[15] In imposing sentence, I must also consider the proportionality principle which is that the sentence must reflect the gravity of the offence and the responsibility of the offender: s. 718.1. Proportionality also has a restraining function and serves to guarantee that a sentence is individualized, just and appropriate: Bissonnette at para 51.

[16] In addition, s. 718.2 sets out other principles which must be taken into consideration in imposing a sentence. Section 718.2(a) states that the court shall consider increasing or reducing the sentence to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender and lists factors which are deemed to be aggravating.

[17] The aggravating factors in this case are first, Mr. Tobo’s lengthy criminal record. As already noted, Mr. Tobo has a prior criminal record which includes over a 100 convictions largely for property related offences spanning a 20-year period. Mr. Tobo’s criminal record commences in December 2003 and runs up to January 16, 2023. Of these convictions, it appears that there are at least 88 convictions for theft and 36 convictions for breaches. There was a gap in his criminal record between 2007 to 2015 at which time Mr. Tobo was in a forensic hospital as a result of an NCR designation.

[18] More recently, between May 2020 and January 16, 2023, Mr. Tobo received several custodial sentences for convictions for theft. These custodial sentences in the last three years range from 15 days to 225 days of jail.

[19] A second aggravating factor is the repeated targeting of the same store. In the last two years alone, Mr. Tobo has accumulated 10 similar theft charges from the same Circle K store in Ottawa. During these periods, he has been on probation with conditions not to attend the store. While there is no evidence that Mr. Tobo has been violent during these thefts, the court must consider the fear and impact on employees who work at the store.

[20] In imposing sentence, I must also consider the mitigating factors. In this regard, I have considered first, that Mr. Tobo pled guilty to the offence. Second, Mr. Tobo admits he is crack cocaine addict and that the thefts are for the sole purpose of financing his addiction. In committing these thefts, Mr. Tobo is neither violent nor do I have any evidence before me that he threatens the employees with any violence.

[21] Section 718.2(b) to (e) requires a sentencing judge to also consider the following:

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

Circumstances of the offence and offender

[22] In arriving at a fit sentence, I must consider both the circumstances of the offence and the offender. In this case, the offence is one of theft of a convenience store. I have watched the video of the theft and the facts are relatively straight forward. On March 4, 2023, Mr. Tobo walked into the Circle K Convenience store in the evening. The employee watched him enter and maintained his distance. Mr. Tobo went to the back of the store and took the cigarettes from the shelf and then exited the store. The employee then called the police. Mr. Tobo was located and arrested at the Shepherds of Good Hope carrying a bag with 14 packages of Belmont cigarettes. At the time, he was on a probation order entered dated January 26, 2022, prohibiting from attending Circle K.

[23] The personal circumstances of Mr. Tobo are set out in the pre-sentence report dated August 9, 2023 prepared by probation officer Rebecca Durocher. Ms. Durocher relied principally on an interview she conducted with Mr. Tobo. Mr. Tobo did not provide her with any contact information to make further verifications. Ms. Durocher also relied on Dr. de Laplante’s report, the police occurrence report, and “file information” held with the Ministry of the Solicitor General, the latter of which is not clear.

[24] Ms. Durocher reports that Mr. Tobo came to Canada around the age of 6 and has resided in Ottawa since that time. Ms. Durocher reviewed Mr. Tobo’s childhood with his mother, stepfather, and siblings. Mr. Tobo left home around 17. He later obtained his high school diploma. He was initially involved with his church, but that ended at the age of 19. He has had various jobs, but has not really worked since 2017. He relies on social assistance of about $300/month.

[25] Mr. Tobo is presently 45 years of age. He does not have a fixed home and relies on shelters for residency. He is not presently partnered, but does have a 20-year old daughter from an earlier relationship. Mr. Tobo reports that the mother has not allowed him to have regular access to his daughter, but he was in touch with her several months ago and wishes to build that relationship.

[26] Mr. Tobo reported that he started using drugs at the age of 19 and by age 28, drugs became more problematic for him. He has a lengthy history of drug abuse with crack cocaine being his drug of choice. Between 2007 to 2015, Mr. Durocher was in forensic hospitals. He also spent time at an Independent Living Program and was further admitted for a Residential Treatment Program for Concurrent Disorders from January 8 to March 30, 2015. Ms. Durocher reports that Mr. Tobo has never utilized outpatient addiction supports while in the community. Ms. Durocher also reviews the findings of Dr. de LaPlante with respect to Mr Tobo’s mental health.

[27] Ms. Durocher concludes that Mr. Tobo isn’t suitable for community supervision because he has not complied with reporting clauses, has been charged with probation breaches, is not in the community long enough to commit to any rehabilitative measures, and does not appear motivated to maintain his sobriety. Mr. Tobo indicated to me in court that he disagrees with these findings. While he has had breaches, they were not because he failed to report. Furthermore, contrary to Ms. Durocher’s remarks, he is motivated to get treatment, but feels his past efforts have been stymied by others who have denied him admissibility into programs.

[28] At the conclusion of her report, Ms. Durocher identifies the community services that Mr. Tobo could avail himself of to address his drug addiction. In addition, Ms. Durocher recommends that Mr. Tobo secure additional housing support through either CMHA or John Howard Society.

[29] During the course of the sentencing hearing, Mr. Tobo commented on various inaccuracies, corrections, and clarifications he wished to make to the PSR. I have taken those into consideration in determining sentence. I had considered summarizing those corrections within my decision, but for reasons of accuracy, I find it would be preferable to rely on the transcript of what Mr. Tobo said. A transcript can be ordered should Mr. Tobo wish to have an accurate record of those corrections. In addition, Mr. Tobo filed a handwritten document indicating the corrections he wished to address to the presentence report (Exhibits 6 and 76).

Conclusion

[30] The maximum sentence for theft under 5,000 where the Crown proceed by indictment is two years jail. Here, the Crown is seeking a one year jail sentence which does not approach the maximum sentence available but is certainly more custody than one commonly views for thefts at convenience stores.

[31] As the Crown explains, the range of sentencing for thefts under $5,000 is extremely wide. First time offenders with no prior criminal record might be diverted and charges not laid. Where charges are laid, first time offenders are often given a discharge or community based disposition under a probation order before a custodial sentence is imposed. Custodial depositions can range from a sentence of days to many months.

[32] There are no real parallels for this situation given the particular circumstances of this offender. However, I agree with the Crown that where a person comes before the court with over a 100 convictions, of which at least 88 are theft convictions, specific deterrence must be carefully considered. Mr. Tobo needs to understand that these continued thefts, as minor as they may seem to him and notwithstanding that they are fueled by his drug addiction, will result in significant custodial time given his lengthy criminal record. In November 2020, Mr. Tobo received a custodial sentence of 225 days for four theft convictions, and this did not deter him. Similarly, on June 17, 2022, Mr. Tobo received 168 days for two convictions for theft which also did not deter him.

[33] Upon consideration of the aggravating factors including the accused’s prior conviction for property offences, the principles of sentencing including denunciation and deterrence, I find that a fit and appropriate sentence would be a custodial sentence of 250 days inclusive of pre-trial custody. I find that a sentence of 250 days is an appropriate step up and constitutes a proportionate sentence that adequately reflects the gravity of the offence and the responsibility of this offender.

[34] There will be a concurrent term of 45 days custody for the breach of probation.

[35] Mr. Tobo has been in custody since March 4, 2023, and states that by his count, he has served 219 days. If that is multiplied by 1.5 days, Mr. Tobo has effectively served 328 days which exceeds the disposition I impose of 250 days. Consequently, he has served his time and should be released from custody today. His criminal record should reflect a sentence of 1 day jail deem served plus pre-trial custody of 249 days to reflect a total custodial sentence of 250 days.

[36] During the course of the hearing, Mr. Tobo has repeatedly focused on the fact that he has been denied access to treatment or when he was supposed to be receiving treatment while in a hospital setting, he was not provided treatment or the treatment he was provided was not to industry standards. These grievances cannot be resolved at this sentencing hearing.

[37] However, the principle of rehabilitation is a vital component of sentencing. Considerable time and effort has been taken over the course of these sentencing proceedings to determine what Mr. Tobo’s interests are in addressing his addiction and what resources are available in the community to assist him in getting the help he needs to deal with his addiction.

[38] Upon review of the pre-sentence report, Dr. de Laplante’s report, the transcripts and audio hearings of past sentencing decisions where similar issues of treatment were addressed by the court, the Crown, amicus curiae, and Mr. Tobo’s own submissions, I do not find that a further probation order is necessary or appropriate in the case for the following reasons.

[39] First, the pre-sentence report sets out the outpatient programs available to Mr. Tobo should he wish to address his drug addiction. Mr. Tobo himself indicated that while he is open to residential treatment, his preference is to find an outpatient program. The probation officer identified several agencies in the PSR. Mr. Davies took it upon himself to have someone contact these agencies to determine the admissions criteria. It appears that Mr. Tobo’s criminal record is not a bar to his entry into any of these programs. He simply has to contact the organization and fill out the necessary application form. While there may be a waiting list, such is the case for many resources in our community.

[40] Second, Mr. Tobo indicates he is interested in attending the Smart Recovery Program at Sandy Hill Community Centre. While this program was not listed in the PSR, nothing prevents Mr. Tobo from taking steps to see if he can access this program as an outpatient.

[41] Third, Mr. Tobo is already on a probation order imposed on January 26, 2022, by Justice Hoffman. This probation order is to run for a period of two years which would take us to October 2024. While the probation order does not require him to attend programming, it does provide him with access to probation services. Nothing prevents Mr. Tobo from making contact with the probation officer upon his release today and obtaining the assistance he needs to access outpatient programs that might help him with his addiction issues or for housing.

[42] The victim fine surcharge is waived.

[43] Should there be any discrepancy between the oral and written decision, the written decision shall prevail.

Somji J.

Released: October 10, 2023

COURT FILE NO.: 23-11401985

DATE: 2023/10/10

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

Thato Tobo

Accused

REASONS FOR SENTENCE

Somji J.

Released: October 10, 2023