Case Name:

R. v. [REDACTED]

Between

Her Majesty the Queen, and

[REDACTED]

[REDACTED]

Information No. [REDACTED]

Ontario Court of Justice

Brampton, Ontario

Judge: [REDACTED]

Oral judgment: [REDACTED].

(53 paras.)

Criminal law -- Offences -- Property offences -- Robbery -- Sentencing -- Considerations -- Age of Accused -- Denunciation -- Mitigating factors -- Guilty plea -- Presentence report -- Rehabilitation -- Particular sanctions -- Compensation orders -- Imprisonment -- Intermittent.

Sentencing hearing following [REDACTED]'s guilty pleas to three armed robberies. On all three occasions [REDACTED] and three co-accused ordered fast-food and lay in wait for the delivery person to arrive. They confronted the delivery people, pointed an imitation firearm and required the delivery people to surrender food and money. [REDACTED] repeatedly took the food as opposed to the money. He carried the imitation firearm and pointed it. [REDACTED] was approximately 18 years of age at the time of the offences. His pre-sentence report was favourable and his conduct in this case was described as out of character. [REDACTED] had no previous record.

HELD: [REDACTED] was sentenced to 60-days imprisonment to be served intermittently, followed 2 years of probation. A longer term of real custody would not preserve the considerable rehabilitative value that [REDACTED] still had. The sentence imposed allowed [REDACTED] to continue his positive progress in schooling and his counselling relationships. He was to surrender Friday evenings at 9 p.m. During the course of his intermittent sentence and for nine months following that sentence, [REDACTED] was bound by a curfew. A firearms prohibition was imposed and was not permitted to associate with any co-accused. Finally, he was ordered to make restitution in the amount of $130.

Charges: Robbery x3

Counsel:

[REDACTED] Counsel for the Crown

[REDACTED] Counsel for [REDACTED]

REASONS FOR SENTENCE

1 Judge: [REDACTED] (orally):-- I have before me [REDACTED]who has entered pleas of guilt to three armed robberies, which involved himself and three others, roughly over the period of about a week. In committing these offences against employees of fast food outlets, two pizza stores were involved and one Kentucky Fried Chicken. Essentially, all the offences are similar in that in all occasions a delivery was procured and the people involved in the offences laid in wait and upon the delivery arriving, the four individuals involved, all disguised to some degree, confronted the delivery people, who were alone and vulnerable, by pointing an imitation firearm and threatening them with it and requiring them to surrender food and money.

2 [REDACTED]'s role was one involving him, it would appear, repeatedly taking the food as opposed to money or carrying the firearm or actually personally pointing it. He was approximately 18 years of age at the time of these offences. At least some of the co-accused appear to have been adults at the time that this occurred. One, I'm advised, a [REDACTED], who had a previous criminal record of some significance, received a penitentiary term of two years. One of the other co-accused who was a young person, the details of his background are not before me, received a ten month secure sentence.

3 These offences are extremely serious offences and there's not only one of them but there's three of them. They involved, as I indicated, the use of an imitation firearm, which not only is a terrifying incident to somebody who is alone, at night and confronted by a number of people, but once that kind of incident comes to the attention of the authorities they respond to those kinds of incidents in an extremely serious way, which itself poses dangers to other members of the community. The offences were planned and deliberate. They were the result of phone calls.

4 There were disguises to some extent involved and the accused was clearly an active participant. This isn't somebody who realizes that they're going to get involved in a single incident involving a robbery and somebody unexpectedly produces an imitation firearm. This is a person who participated once, fully seeing that course of conduct occurring and then chose to repeat that involvement on two more subsequent occasions. And the offenders were sophisticated enough to call different fast food outlets on the three occasions involved. So there are many serious features to this matter before me.

5 The accused is now approximately 20 years of age. I've seen the presentence report and it is, in general terms, favourable. He is described by some of the people around him as being a person who this conduct appears to be out of character for, and I accept that that's true to some degree, although that notion is undercut by his repeated involvement in this activity. He has no previous record whatsoever. He has, at points, had difficulty in school but he's currently enrolled and making reasonable progress, and he has embarked on his own program of counselling and making progress on that front as well. I am fully satisfied, having had the benefit of hearing him read a statement to the Court, that he is genuinely regretful at this point in time for his conduct, and he hopes to turn himself around and to be a useful member of this community and I'm confident that he can achieve that goal.

6 The Defence seeks a conditional sentence. I'm satisfied that, in general terms, the prerequisites for that sentence are made out in this case. The real question is whether or not, in the circumstances of this particular case, given this young person and the circumstances of this offence, a conditional sentence would adequately reflect the proper sentencing principle, including notions of general deterrence and denunciation, as well as reflect societal values in terms of the seriousness of this kind of conduct. On reflection I am not satisfied that the imposition of a conditional sentence would, given all the circumstances of this matter, be an appropriate reflection of sentencing principle.

7 [REDACTED], in a very thorough series of submissions to me in which he said everything that could be said to convince a court to impose a conditional sentence in this case, has taken me through a number of authorities. Having examined them further over the break, I remain unsatisfied that they support the notion that when a court is dealing with multiple robberies involving the use of an imitation firearm against vulnerable victims such as delivery people in this setting, that it is, in general terms, consistent with general sentencing principle to impose a conditional sentence. There's no hard and fast rule. The Court has to look at all the circumstances of each particular case and each particular offender, but I am not satisfied, notwithstanding the submissions of [REDACTED] in this case.

8 On the other hand the Crown seeks a sentence here of 14 months real custody. I view that sentence as completely crushing to this young, adult offender. It would do nothing to preserve the considerable rehabilitative value that he still has. He's a first offender. He's only 20 years of age. He was not the prime mover in the sense that he personally possessed this imitation firearm. It would be completely wrong, in my view, for me to impose a sentence of that nature here.

9 It is true that a co-accused young person received ten months secure. I don't know anything about his personal circumstances and background. I don't have the benefit of the presentence report that was before the court there. I don't know anything about his record, but I am not going to be chained by that sentence in imposing what I think is the right sentence vis-à-vis this young person and the circumstances of this case.

10 Given his age, given his plea of guilt, given his co-operation with the authorities, given the strong family support he has, I think this period of custody should be imposed in a way that preserves as much of the rehabilitative potential that I can. It should be as short as I possibly can make it and it should be imposed in a way that permits him to continue the progress he's made in schooling and continue his counselling relationships. And although it is a very lenient sentence, in my view it's appropriate, given all the circumstances of this case and I'm going to impose a 60 day intermittent sentence.

11 He will surrender today and be processed on that sentence and released. He will, in turn, commence surrendering, and this is what I'm thinking, [REDACTED], if you want to address me further on it. I'm thinking of having him surrender Friday evenings at 9:00 p.m. That'll give him some time to do some school work after classes Friday, having him released Sunday at noon. The other thing I was also thinking about doing, and I'll be guided by you because in a sense it will lengthen the period he's doing intermittent sentence, is imposing it requiring him to surrender every other weekend; again, which gives him some weekend time to work on projects or whatever else he needs to do at school. On the other hand, I could make it every weekend. This period of custody will be followed by two years probation on certain terms and I might as well deal with those now.

12 The terms of probation will require him to - can I have an adult-probation order, Madam Clerk? Thank you. Will require him to keep the peace and be of good behaviour and appear before the court when required to do so. He'll notify the court or probation in advance of any change in his name or address and he'll promptly notify the court or probation of any change of his employment or occupation. He'll report forthwith to probation and thereafter as directed by them. He will reside with his parents or other address as is approved of by the probation officer. These terms of probation, Madam Clerk, will bind him, not only while he is serving his intermittent sentence and at large in the community, but also for a period of two years after that point in time.

13 While he is serving his intermittent sentence and for the first nine months after his intermittent sentence has expired, he will be bound by a curfew which requires him to be in his residence Sunday evening through to Thursday evening by 8:00 p.m. He may be out the next morning at 6:00 a.m. On Fridays and Saturdays he may be out until 11:00 p.m. and then he may be back out at 6:00 a.m. An exception to the curfew is for purposes of employment, when in the company of one of his parents, or when in possession of a written approval from one of his parents that he be out in the company of another individual. That written permission will be carried on his person and displayed to any police officer who asks to see it, and he may also be out of his residence outside curfew hours for the purposes of surrendering to any custodial facility.

14 He will not be in possession of any drug as defined by the Controlled Drugs and Substances Act or the Food and Drug Act, except in accordance with a medical prescription. He will not own, possess or carry any weapon as defined by the Criminal Code.

15 He will abstain from acquiring and possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device ammunition, prohibited ammunition or explosive substance.

16 He will also perform - no, he won't. I was thinking of imposing some period of community service but I would rather him focusing on his counselling, to be frank, given that I've imposed an adult custodial period with respect to this case. He will not associate or communicate directly or indirectly with any co-accused in this case, and we'll get the names of those individuals from the Crown ...

17 [REDACTED]: Yes.

18 THE COURT: ... nor any of the complainants in this case and the Crown will supply those names.

19 He will attend school and all classes. Any absences will be justified by a note from his parents or a letter from a medical practitioner, or he will make reasonable efforts to seek and maintain gainful employment. He will make restitution, a separate restitution order, in the amounts suggested by [REDACTED], which were ...

20 [REDACTED]: The total is $129.72, but broken down it's $30, $65 and $39.72.

21 THE COURT: In favour of the appropriate complainants, whose names will be supplied by counsel, with respect to this matter. It will also be a term of his probation that he will make those restitution payments within six months of the beginning of the restitution order?

22 [REDACTED]: Yes, that's agreeable.

23 THE COURT: Sorry, within six months of - he'll make it within six months of today's date, okay? In light of that I'm going to waive the victim fine surcharge. There will also be an order pursuant to Section 109?

24 [REDACTED]: It's 109, yes.

25 THE COURT: 109 of the Criminal Code in this case, which prohibits him from possessing any firearm, other than a prohibited firearm, or restricted firearm, or any crossbow, restricted weapon, ammunition or explosive substance for a period beginning today and ending ten years after his release from any imprisonment. In addition he will not possess any prohibited firearm, restricted firearm, prohibited weapon, prohibited device or prohibited ammunition for the period of his life. In addition there will be a DNA order. Given that this has been a custodial disposition that sample will be provided in the courthouse today before he is released. Is there anything else from the Crown?

26 [REDACTED]: I don't believe so, sir, thank you. Has a draft DNA order been provided on an earlier occasion? Is there one attached to ...

27 THE COURT: I don't think so.

28 [REDACTED]: I'll - I'll - I'll see to that immediately then.

29 COURTROOM CLERK: Your Honour, I just want to make sure that the no drugs, no firearms that are part of the probation, that it's part of the information.

30 THE COURT: Both. Both. I imposed a counselling term or not?

31 COURTROOM CLERK: No.

32 THE COURT: He will attend for any counselling, assessment as is directed by probation. He will provide proof to probation that he's completed any program that he's directed to take. He will sign any releases necessary to permit probation to monitor his progress and I recommend that the probation officer have recourse to the presentence report and the material filed on sentence before me, to determine whether or not any additional counselling to the program he's undertaken is appropriate. Anything else now from you, [REDACTED]?

33 [REDACTED]: I'm just inquiring about the weekend or every ...

34 THE COURT: Okay.

35 [REDACTED]: ... Other weekend. He's indicating every other weekend ...

36 THE COURT: Okay.

37 [REDACTED]: ... would be his preference.

38 THE COURT: He will commence this sentence - he'll surrender today. He'll be released. He will commence serving this sentence by surrendering next Friday, which is the 18th?

39 [REDACTED]: Yes, sir, it's the 18th.

40 THE COURT: The 18th of February at 9:00 p.m. He'll be released on Sundays at noon. He will continue to serve his sentence that way by surrendering every other Friday thereafter until his sentence is completed. Is there anything else from anybody?

41 [REDACTED]: No, thank you, sir.

42 THE COURT: Okay. Would you stand up for a minute, sir? Do you understand the terms of probation?

43 [REDACTED]: Yes, sir.

44 THE COURT: Any breach of those terms is a new offence and can bring you back before the court. I have gone a long way, notwithstanding the seriousness of this whole pattern of behaviour on your part, to try to draw on the best parts of you and I think there's lots of them, and you have a lot of support from your family. You talk to me about being committed to turning yourself around and to never being back in this situation again. I think you mean it. It's not always easy, but you know what? It sounds to me like if you approach this situation correctly, you may have avoided much more serious difficulty for yourself in the future by going through this experience. So all the best, okay? Thank you, sir.

45 [REDACTED]: Thank you. The other charges?

46 [REDACTED]: Yes, the other remaining counts will be marked withdrawn, please.

47 THE COURT: The sentence is concurrent on all counts. Okay?

48 [REDACTED]: Okay, thank you very much, sir.

49 THE COURT: You'll have to ...

50 [REDACTED]: Yes, yes.

51 THE COURT: ... go with the officer now, sir. Okay, thank you all.

52 [REDACTED]: Thank you, sir.

53 THE COURT: Thank you, [REDACTED].


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