[REDACTED] v. [REDACTED]

Ontario Court of Justice
Judge: [REDACTED].
Heard: June 23, 2010.
Judgment: June 23, 2010.

Counsel:

[REDACTED]: for the Crown.
[REDACTED]: for the accused [REDACTED]

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1. Judge: [REDACTED].:— [REDACTED] had a preliminary inquiry on thirty-six offences relating to seven armed bank robberies. On June 2, 2010 I committed [REDACTED] to stand trial in the Superior Court on ten of those offences in relation to two of the armed bank robberies. The two robberies involved the Scotiabank at 199 Advance Blvd in Brampton on February 3, 2009 and the Scotiabank at 8575 Hwy 27, Vaughan on March 20, 2009.
2. At the conclusion of the preliminary hearing counsel requested that I conduct an exit judicial pre-trial, which I did. I conducted two additional pre-trials and the matter was adjourned to today's date when [REDACTED] entered guilty pleas to the remaining two armed robbery charges that he faces. The two charges of robbery involved the use of an imitation weapon, the Crown was unable to call any evidence during the preliminary hearing that the weapons used during the robberies were in fact "firearms" as defined by the Criminal Code.
3. I have set out in detail the facts pertaining to these charges in my earlier judgment (paragraphs 7-58) dated June 2, 2010 and will not repeat them here other than to indicate that these were bank robberies where two young black men entered the banks with their faces masked and ordered the bank employees and customers to get to the floor. One of the perpetrators would jump over the tellers' counter and obtain the money and the other, who was carrying what appeared to be a gun remained in the general area of the bank to control the employees and customers who were now lying on the floor.
4. The robbers were in the bank for only a minute or two before exiting. Those individuals who were in the bank described being terrified and traumatized by the experience; many believed they were going to be shot by the perpetrators. For many of the employees, the experience will have a continuing effect on their ability to do their job. These victims were particularly vulnerable by virtue of their employment. For the customers, it has meant that they are now fearful to enter their bank to conduct their business.

Position of the Parties

5. The Crown and defence have placed a joint submission before me as to the appropriate sentence I should impose having regard to the aggravating and mitigating circumstances present in this case. That sentence is one of five years in the penitentiary less time served in pre-trial custody.

[REDACTED]'s Background

6. [REDACTED] is currently 23 years of age. Although he is a youthful offender, he is not a first offender. [REDACTED] has a criminal and youth court record which involves convictions for similar offences. His last sentence for armed robbery in December 2007 was the equivalent of a two year sentence, although he only served 8 months & 15 days as a result of the credit he received for pre-trial custody. He also received a one year sentence in March 2006 for possession of a prohibited or restricted firearm. He also has convictions for robbery and possession of property obtained by crime as a young person for which he received sentences of incarceration.
7. [REDACTED] has 1 child that I am advised was born while he was in custody. He was in a common law relationship with [REDACTED] prior to his arrest on March 20, 2009. I have been advised that [REDACTED] was unemployed at the time of the commission of these offences and that he was receiving social assistance.
8. I do take into account [REDACTED]'s pleas of guilty to the two robberies as an indication of his acceptance of responsibility for his criminal conduct. As well, his plea has saved the time and expense of what would have been a lengthy jury trial. His plea has also obviated the necessity of the victims of the robberies testifying at his trial. I note that the manner in which he instructed his counsel, [REDACTED], to conduct his preliminary inquiry, also saved the victims from having to testify. All of these matters are considered by me as going to mitigate [REDACTED]'s sentence.
9. There is little that can be said by way of mitigation on behalf of [REDACTED] He was not committing these offences as a result of an addiction to narcotics, nor was he committing these robberies as a result of financial need. It would appear that his motivation was one of greed.

Analysis

10. The determination of a proper sentence in this case calls for a consideration and balancing of the principles of sentencing which are set out in ss. 718 to 718.2 of the Criminal Code, as well as the aggravating and mitigating factors which exist. I have set out above the various mitigating factors which I must consider in determining an appropriate sentence.
11. Bank robberies are serious offences which require sentences that reflect the principles of deterrence and denunciation. Sentencing is highly individualized and must be proportionate to the gravity of the offence and the degree of responsibility of the offender. It is to be increased or reduced to account for any aggravating or mitigating circumstances. It should strive to be similar in relation to other sentences imposed on similar offenders in similar circumstances. Importantly, where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh.
12. Sentencing authorities for multiple bank robberies carry a wide disposition range with the individual facts of each case being determinative. The jurisprudence that I am aware of indicates a range of sentence for bank robberies from fifteen months to ten years, relating to note passing to take down robberies involving the use of imitation weapons or firearms. It is clear that any sentence must focus on the protection of the public by the imposition of a significant penalty that denounces this conduct and separates the offender from the law-abiding community. At the same time, the sentence must be individualized, as well as reflect and encourage as much as possible any apparent rehabilitative prospects.
13. The maximum sentence for offences of this nature is life, indicating Parliament's view of their gravity. In this case, the aggravating features discussed by the Crown and apparent in the facts require, in my view, an emphasis on protection of the public by means of its attendant principles, including deterrence, denunciation and separation. Consequently, a significant penitentiary sentence is necessary and warranted.
14. I was advised by the Crown that although the victims were advised they could provide victim impact statements they have not done so because over a year after the robberies they are still fearful of [REDACTED] and his accomplice. In my view, the long term effect of [REDACTED]'s conduct, to his victims, is an aggravating circumstance.
15. Although the Crown was unable to provide any evidence to establish that the weapons brandished by the perpetrators were firearms, it is the potential for violence and the threat of violence that is a key consideration in this type of charge, whether or not violence actually takes place. There were threats made to the victims to ensure their cooperation and to control their actions. In my view, the manner in which these bank robberies were committed is an aggravating factor to be considered on sentence. In addition, these robberies were well-planned and involved the use of disguises which are also aggravating factors.
16. As indicated above, [REDACTED] has a fairly extensive criminal record, involving similar offences as a young person and as an adult, which is an aggravating factor on sentence.
17. As I have already indicated, I am of the view that the sentencing principles of deterrence, both general and specific, and denunciation must take precedence. I am going to simply put what I consider to be the appropriate total sentence on the first count and make the robbery concurrent. Having regard to the aggravating and mitigating circumstances present in this case, it is my view that a sentence of five years less pre-trial custody properly addresses these principles.
18. The Crown and defence are agreed that the pre-trial custody should be determined on a two for one basis and this pre-trial custody should be reflected on the information. By my count, [REDACTED] has been in custody since his arrest for 460 days and I therefore credit him 920 days. This leaves a sentence of two years and 175 days in the penitentiary.
19. It is my opinion that this sentence will bring home to [REDACTED] and other like minded individuals that the court will impose significant penitentiary sentences for offences involving bank robbery. Such a sentence also reflects the community's denunciation of this type of violent criminal conduct.
20. I am also making a mandatory weapon's prohibition order pursuant to s. 109 of the Criminal Code for life. In addition, a DNA sample will be taken from [REDACTED] unless one has already been provided.
21. [REDACTED], you have an opportunity to advance your education and thereby further increase your success in becoming a productive law-abiding member of society. This is what [REDACTED] has told me is your plan during your time in custody. You have good reason to follow through with this plan, in terms of your child and continued relationship with [REDACTED]