R. v. Kewell, 2012 ONCJ 228

Citation: R. v. Kewell , 2012 ONCJ 228 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — WILLIAM TYLER KEWELL Before Justice Borenstein Heard on October 29, 2011 February 9, 2012, and April 10, 2012 Reasons for Judgment released on April 19, 2012 D. Tsagaris ................................................................................................................ for the Crown U.

Kancharla ............................................................................................. for William Tyler Kewell BORENSTEIN J.: [ 1 ] 20-year-old William Tyler Kewell pleaded guilty to robbery, possession of a weapon, wearing a disguise and failing to comply with probation. [ 2 ] On September 6, 2011, at 10:30 at night, Mr. Kewell walked into a convenience store armed with a knife. His face was masked and his hoodie was pulled down low. The store owner was alone in the store at the time. Mr. Kewell walked behind the counter up to the owner. The owner tried to push Mr. Kewell away. Mr.

Kewell grabbed him by the neck and pushed him to the floor. During this exchange, the owner suffered small cuts to his hands. Mr. Kewell took $445.00 from the cash and fled to a nearby high rise apartment building. He was caught on video and the police immediately went to his apartment. They found Mr. Kewell as well as the knife and the money that had been stolen. Mr. Kewell was arrested and confessed. He has been in custody for seven months. [ 3 ] The owner suffered minor cuts to his hands and a sore neck. The victim impact statement shows he suffered quite a lot more than that. He is scared to work at night.

He is scared when people approach him in the store. He is scared when his wife works in the store alone at night. [ 4 ] The Crown seeks a sentence of four years in jail, less pre-sentence custody. The defence seeks a reformatory sentence. [ 5 ] Mr. Kewell has six prior robbery convictions and many breaches of Court orders on his record. Each of those robberies was a separate incident and most were robberies of convenience stores. He was bound by numerous probation orders and on a weapons prohibition at the time he committed this robbery. PERSONAL CIRCUMSTANCES OF MR. KEWELL.

Sources of information [ 6 ] I have received extensive material concerning Mr. Kewell. [ 7 ] A pre-sentence report dated December 12, 2011, was prepared for this sentencing. The author of the report spoke with Mr. Kewell, his aunt, sister, grandfather, girlfriend, his long-standing C.A.S. worker, and the officer in charge of this case. The author reviewed records pertaining to Mr. Kewell from the Ministry of Community Safety and Correctional Services as well as the Ministry of Children and Youth Services. In January 2011, another P.S.R. was prepared in relation to Mr.

Kewell in relation to his last robbery conviction. I have reviewed that report as well. [ 8 ] The defence retained Dr. Julian Gojer, a Forensic Psychiatrist, who met with Mr. Kewell for an hour and reviewed a

summary of Mr. Kewell’s C.A.S. records. Dr. Gojer prepared a report dated February 9, 2012. In that report, Dr. Gojer expressed his suspicion that Mr. Kewell likely had an underlying cognitive deficit such as fetal alcohol syndrome or the lesser version of that disorder, fetal alcohol effects. Dr. Gojer also expressed the opinion that Mr. Kewell was suffering from “borderline mental retardation”. [ 9 ] The case was adjourned and extensive reports were prepared. Dr. Gojer’s associate, Dr. Monik Kalia, a forensic and clinical

psychologist, met with Mr. Kewell for 11 hours and administered numerous tests. He prepared a report which was made an exhibit. Dr. Gojer reviewed Dr. Kalia’s report and again met with Mr. Kewell and prepared a more comprehensive report. In that second report, Dr. Gojer was no longer of the opinion that Mr. Kewell was borderline mentally retarded. Rather, Mr. Kewell’s intellectual functioning is toward the lower end of the range. Upon receiving these additional reports, Crown counsel submitted nine written questions to Drs. Gojer and Kalia seeking clarification of their reports.

The doctors responded in writing, thus generating a further report. I have reviewed all of those reports. In addition, the defence submitted a letter from Mr. Kewell’s 17-year-old girlfriend who is pregnant with his child as well as an offer of employment from Premiere Fitness. The defence submitted a report from the Toronto East Detention Centre showing that Mr. Kewell was housed three to a cell on 25 of the 182 days he was incarcerated at the detention centre. [ 10 ] Mr. Kewell was 20 when he committed this robbery. He is about to turn 21.

To say he has had an extremely sad and hard life is an understatement that does not capture the disadvantages Mr. Kewell has suffered. He never knew his father. His mother was addicted to drugs and alcohol. While Mr. Kewell does not suffer the observable manifestations of Fetal Alcohol Spectrum Disorder, Dr. Gojer suspects that Mr. Kewell suffers from Fetal Alcohol Effects, which is a lesser version of the disorder. Dr. Gojer suspects this, as a result of Mr. Kewell’s behaviour. [ 11 ] At the age of four, Mr. Kewell went to live with his half-sister’s grandmother, Ms. Sampson.

He developed a close relationship with Ms. Sampson, whom he considered his grandmother. Eventually, Ms. Sampson could no longer continue to care for Mr. Kewell so he was placed in the care of C.A.S. at the age of 10. He has been a Crown ward living in numerous group and foster homes since the age of 12. He continued to be the care of C.A.S. until age 21 which occurs this April. [ 12 ] Mr. Kewell’s mother passed away in 2007 when Mr. Kewell was 16 years old. Ms. Sampson passed away last year. [ 13 ] As already noted, Mr.

Kewell has a terrible criminal record for such a young man. [ 14 ] As a youth, in February 2009, he was convicted of robbery and possessing a weapon. He was sentenced to two years’ probation and a mandatory weapons prohibition. In April 2009, he was convicted of possessing break-in instruments, possession of stolen property and failing to comply with a recognizance. After 10 days of pre-trial custody, he was sentenced as a youth to a discharge with conditions for twelve months.

In June 2009, he was then convicted of mischief under times two; failing to comply with an undertaking times two; failing to appear times two; break and enter; possession of break-in instruments times two; theft over; theft under; and failing to attend court times two.

He was sentenced to 23 months’ probation on each charge and placed on a weapons prohibition. [ 15 ] In July 2009, while still a young person, he was convicted of four separate convenience store robberies, as well as wearing a disguise, possession of a weapon for a purpose dangerous, dangerous driving, flight from police and failing to comply with a Youth Criminal Justice Act disposition.

After 138 days of pre-sentence custody, he was placed on probation for two years and prohibited from driving. [ 16 ] In June 2010, as an adult, he was convicted of theft under, failing to comply with a recognizance, times two, and failing to appear. After five months of pre-sentence custody, he was sentenced to one day in jail and two years’ probation. [ 17 ] In July 2010, he was convicted of mischief under, failing to comply with probation and was sentenced to the equivalent of 26 days in custody followed by two years’ probation. [ 18 ] On January 31, 2011, Mr.

Kewell was convicted of robbery, failing to comply with probation and recognizance and was sentenced to 9 ½ months in jail followed by two years’ probation. I have been advised that that robbery was a group swarming of a victim and the taking of his cell phone. All of the other robberies were robberies of convenience stores. [ 19 ] Mr. Kewell got out of jail in April 2011 and committed this offence in September. [ 20 ] Mr. Kewell has a girlfriend who is pregnant with their child. [ 21 ] Mr. Kewell spent much of his high school taking classes while in youth detention centres.

When in high school outside of youth detention centres, he would get suspended for fighting. He advised the author of the P.S.R. that he has obtained 20 credits toward his high school certificate. [ 22 ] His family members told the author of the P.S.R. that Mr. Kewell is a “smart guy” who wants to be good. An uncle advised that he is “intelligent enough to shine if he wants to”. [ 23 ] Mr. Kewell received $900.00 a month through C.A.S. That funding ended in April. He will be eligible for C.A.S. bursaries if he pursues post-secondary education. [ 24 ] Mr.

Kewell’s long-serving C.A.S. worker, Kathy Rowe, is quite supportive of Mr. Kewell. In the January 2011 P.S.R., she advised the author that Mr. Kewell has had “a hell of a life” but that he could “do alright in life and just needs to smarten up (i.e., stop committing criminal offences)”. [ 25 ] In the December 2011 P.S.R., Ms. Rowe told the author that Mr. Kewell is a “lost soul” who needs to smarten up and start making better choices. She thought a psychological assessment would be helpful. We now have those assessments. [ 26 ] When Mr.

Kewell got out of jail in April 2011, his aunt and grandfather would not allow Mr. Kewell to live with them. According to them, he would not abide by house rules and would steal from them. Family members told the author of the P.S.R. that he was still welcome to visit for meals, or to shower, or to do laundry. They would provide him with linens and phone cards and support. They believed Mr. Kewell does not accept their guidance about changing his behaviour. [ 27 ] Mr. Kewell’s sister indicated that she used to be close with her brother but found him increasingly demanding. Mr.

Kewell expects support from his family but then portrays himself as a victim when his needs are not met. She described her brother as

manipulative. The family has tried to help him but they have since fallen out. [ 28 ] As a result, Mr. Kewell lived with friends since his release in April. He did not pursue any counselling upon his release. He was using alcohol, marijuana and ecstasy regularly. A month before this September robbery, he rented his own room. [ 29 ] With respect to this offence, Mr. Kewell told the author of the P.S.R. that he committed this offence due to the fact that he had no money or support from family members. He told the author that he knew the consequences of his actions but decided to take the risk.

As for the victim’s injuries, he told the author that “it was not my fault” and that the victim should not have confronted him. He had no intention of harming the victim. EXPERT REPORTS [ 30 ] In Dr. Gojer’s first report, he was of the opinion that Mr. Kewell had a serious alcohol dependence. He strong suspected that Mr. Kewell suffered cognitive deficits indicative of Fetal Alcohol Syndrome or the lesser version of that disorder, namely Fetal Alcohol Effects. He also opined in that first report that Mr. Kewell was suffering from borderline mental retardation. Dr.

Gojer stated that a reformatory sentence with a recommendation that it be served at the St. Lawrence Valley Correctional and Treatment Centre would be of significant value to Mr. Kewell. [ 31 ] I turn to the additional reports of doctors Gojer and Kalia, as amplified by their written responses to the Crown. [ 32 ] Dr. Kalia administered numerous cognitive and personality-related psychometric tests upon Mr. Kewell. Dr. Kalia cautioned that his results should be considered tentative until confirmed by subsequent clinical data or background information. [ 33 ] Dr. Kalia concluded that Mr.

Kewell does not suffer any neuropsychological deficits but that his intelligence lies in the lower end of intellectual functioning. He suffers depression and has a significant problem with anger. Mr. Kewell fulfills the criteria for a conduct disorder evolving into an antisocial personality disorder. Dr. Kalia was of the opinion that Mr. Kewell attempted to exaggerate psychological and emotional trauma. Dr. Kalia had the impression that this was a cry for help. [ 34 ] According to Dr. Kalia, Mr.

Kewell needs to be in a nurturing, therapeutic environment with therapists who understand his needs and can tolerate his ambivalent coping mechanism and his occasional manipulation. Long term intervention is required with the goal of reinforcing pro-social behaviour. [ 35 ] Dr. Gojer reviewed Dr. Kalia’s report and met with Mr. Kewell again. In Dr. Gojer’s second report, he notes that Mr. Kewell had counselling as a youth but never as an adult. Dr. Gojer was of the opinion that Mr. Kewell is “showing all the indications of developing an antisocial personality disorder”.

His low intellectual functioning and emotional maturity leave him ill-equipped to transition into adulthood. He has developed a serious alcohol dependence. While he does not have the external manifestations of fetal alcohol syndrome, his behavioural problems suggest fetal alcohol effects. [ 36 ] Dr. Gojer no longer believes Mr. Kewell suffers from borderline mental retardation. [ 37 ] Dr. Gojer believes Mr. Kewell requires considerable rehabilitation and counselling in a stable environment. He continues to believe that the St.

Lawrence Valley Correctional and Treatment Centre will be of considerable benefit to Mr. Kewell. [ 38 ] However, Dr. Gojer, is of the view that Mr. Kewell may not fit the admission criteria for St. Lawrence Valley but may gain admission as an exceptional case. He also believes probation following incarceration would be of benefit to Mr. Kewell. [ 39 ] Dr. Kalia explained that both the reformatory and penitentiary systems have programs that could benefit Mr. Kewell. However, other than St. Lawrence Valley, there are fewer programs that would benefit Mr. Kewell in the reformatory system. Mr.

Kewell has no intellectual limitations that would prevent him from availing himself of conventionally delivered treatment. [ 40 ] The doctors clarified that, without appropriate treatment, Mr. Kewell’s conduct disorder, together with his anger and substance abuse issues leave him at a high risk to re-offend. They were concerned that Mr. Kewell’s negative attributes and his naivety might lead others to take advantage of him in the penitentiary system resulting in Mr. Kewell coming out worse. [ 41 ] The doctors would like to see as much control over Mr.

Kewell as possible, meaning a two-year or two-year-less-a-day sentence followed by the maximum three-year probationary term. [ 42 ] Mr. Kewell’s girlfriend presented a letter to the court. She stated that she was 25 weeks’ pregnant with his child. They had been dating for seven months. I do note that Mr. Kewell has been in custody for the last seven months so their relationship was very new when he was incarcerated. However, they have maintained contact since that time. She writes that her parents do not approve of her situation but she is trying to show them that he is not as bad as they think.

She will continue to support him no matter what happens. She loves Mr. Kewell and believes that being a father will keep him out of trouble. [ 43 ] At the conclusion of submissions, Mr. Kewell addressed the court. He said that, in the past, he did not care about going to jail as it provided him with food and shelter but now that he has a child on the way, he wants more from life. SUBMISSIONS [ 44 ] The Crown submits that, taking into account Mr.

Kewell’s unfortunate upbringing, his record and the fact that he has not made any effort to stop committing robberies or take counselling, a fit sentence would be three to four years in jail less the seven months’ pre-sentence custody. She points out that, while Mr. Kewell pleaded guilty, he blames the victim for the victim’s injuries.

[ 45 ] The defence submits that the pre-sentence report is not negative but neutral. She emphasized Dr. Gojer’s suspicions that Mr. Kewell has Fetal Alcohol Effects. Sending him to jail, the defence submits, is futile as he does not appreciate cause and effect. The essence of the defence submission is that deterrence ought not play a role in this case because Mr. Kewell does not appreciate cause and effect. [ 46 ] However, in all of the reports prepared by the defence for the purposes of sentencing, not one makes that claim. In fact, in the P.S.R., Mr.

Kewell told the author that he was aware of the risks but did it anyway. In Mr. Kewell’s comments to the Court, he said that in the past, he did not care about going to jail as there was nothing better for him on the outside, but things have changed. Further, his exaggeration to Drs. Kalia and Gojer, even if a cry for help, still suggests he is aware of the effects of his decisions. [ 47 ] That all being said, it is without doubt that Mr. Kewell has not had any of the advantages of a stable upbringing to which every child is entitled.

He is very much a product of his personality, intellectual functioning, and his upbringing. While protection of the public is paramount, he is deserving of sympathy. He is only 20 years old and has had a very rough life. [ 48 ] The case law submitted provides some guidance. The facts of each case are obviously different but the case law emphasizes the importance of protecting vulnerable store keepers from robbery.

They also stress the importance of rehabilitation for youthful offenders. [ 49 ] In 1985, the Ontario Court of Appeal reduced a 14-year sentence imposed on a 23 year old who pleaded guilty to two robberies of two convenience stores while armed with a knife. The knife was not used and no one was hurt. That accused had an unfortunate background but also had a related record including a three-year prior penitentiary sentence for eight counts of robbery.

On appeal, Justice Martin for the Court of Appeal reduced the 14-year-sentence imposed on the 23 year old for the two counts of robbery to a sentence of eight years, specifically noting the attempts at rehabilitation that were being made: see R. v. Boyle , [1985] O.J. No. 33 (C.A.) . In imposing the eight-year sentence, the Court of Appeal commented upon the vulnerable nature of store keepers. [ 50 ] The principles of sentencing are well known. The Court must consider the need for deterrence, denunciation and rehabilitation. It must assess whether the offender’s separation from the general public is necessary.

How those factors are weighted will differ in each case depending on all the circumstances of each offence and offender. Use of incarceration must always be as restrained as possible. The ultimate goal of a just sentence is to protect the public. [ 51 ] With those principles in mind, let me turn to the aggravating and mitigating factors in this case. [ 52 ] There are many aggravating features in this case. The very nature of the crime is aggravating. Mr. Kewell concealed his face, armed himself with a knife and walked into a convenience store and robbed the owner who was working alone.

The owner was pushed and cut. The impact of being robbed is apparent from the victim impact statement. [ 53 ] Mr. Kewell’s prior record and the fact that he was on various court orders is also aggravating in this case. Mr. Kewell has been convicted of robbing store owners and others over the last several years. He was just released from jail several months prior to this offence. Yet, completely undeterred by previous sentences or court orders, he committed this robbery. That is aggravating. Despite being placed on probation and offered counselling, he never sought counselling as an adult.

He continued to use drugs. I reject the submission that he does not appreciate the consequences of his actions. There is nothing in the reports which support that submission. Previous court orders have done nothing to deter him even though he was aware of the consequences and now says he wants to change so as to not suffer these consequences.

These are some of the aggravating factors. [ 54 ] There are some mitigating factors in this case: his age, his confession to the police and his plea of guilty, his extremely unfortunate upbringing, and his intellectual limitations. [ 55 ] His lengthiest sentence prior to this one was 9 ½ months in jail. As already noted, he got out of jail in April. [ 56 ] Deterrence is the most important factor in this sentencing: specific and general deterrence. Mr. Kewell can understand the consequences of his actions and he must get the message that if he commits robberies, he will go to jail for a long time.

The public needs to be protected from this type of offence. Store owners are particularly vulnerable, working long hours, often alone, with money on the premises and allowing strangers to enter their place of business. Mr. Kewell also needs to learn that Court orders cannot be ignored and treated as meaningless. However, he is also a young man with some limitations. [ 57 ] There is a legitimate concern, expressed by Dr. Gojer, that he will come out hardened. But he has already committed six robberies.

Public safety is more important in this sentencing. [ 58 ] In view of cases such as Boyer and others, a sentence of four years less pre-sentence custody is a fit sentence. It is a restrained sentence. It balances protection of the public with the fact that Mr. Kewell is still young and gives him the opportunity to choose to take advantage of the counselling and other programming available to him in the penitentiary. Whether he does so remains to be seen.

However, I am not prepared to sentence him to a reformatory sentence on the remote possibility that he would be admitted as an exception to the admission criteria at St. Lawrence Valley Correctional and Treatment Centre. Prior Court orders have meant nothing to Mr. Kewell. [ 59 ] Mr. Kewell has spent seven and a half months in pre-sentence custody since his plea in October. On twenty five of those nights, he slept three to a cell. Bearing that in mind, as well as the fact that this case had to be adjourned subsequent to his guilty plea in order for the defence to prepare materials, I will credit Mr.

Kewell with the equivalent of eight months pre-trial custody. [ 60 ] Accordingly, Mr. Kewell will be sentenced to an addition three years and four months in jail. He will also will be ordered to provide a sample of his DNA and be subject to another weapons probation, this time, for life. Released: April 19, 2012

Signed: “Justice Borenstein”