R. v. Hynes, 2011 ONCJ 71

Sault Ste. Marie COURT FILE No.: 1160 Citation: R. v. Hynes , 2011 ONCJ 71 ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) Dana Peterson, ) for the Crown ) — AND — ) ) ) corey james hynes ) Stacy Tijerina, ) for the accused ) ) ) ) HEARD: June 15, 25, July 6, 7, 8, October 18, 2010 and January 18, 2011 bignell j.: [ 1 ] Corey James Hynes has been found guilty after trial of four offences under

section 344 of the Criminal Code of Canada and four further offences under

section 351 of the Code. [ 2 ] The Crown, Ms. Peterson, is seeking a sentence in the 12 to 15 year range while defence counsel, Mr. Tijerina, has submitted that a six to eight year range would be appropriate. Both counsel agree that some credit for pre-trial custody should be given. However, they differ with regard to whether the credit should be on the basis of two for one or one point five for one. the facts [ 3 ] Between March 26, 2009 and April 8, 2009, Mr. Hynes robbed four Mac’s Mart convenience stores in the east end of Sault Ste. Marie, Ontario.

In the first three robberies, he made off with cash, cigarettes and lottery tickets. In the fourth robbery, he took cash and lottery tickets. In each of the occurrences, he made use of a disguise. In the first, he had what appeared to be a black toque over most of his face. In the second, he wore a dark balaclava which covered much of his face. In the third and fourth robberies, he had a green and white shirt pulled over his head. He carried a knife in the first and fourth robberies. In the second robbery, he told the clerk that he had “a dirty needle”.

He did not mention a weapon in the third robbery although a dirty needle with his DNA on it was located along the path taken by the robber away from the scene. mitigating factors [ 4 ] Mr. Hynes was arrested in April 2009 and has remained in custody since that time. Counsel have calculated that time as approximately 21 months. These occurrences took place before the “ Truth in Sentencing Act ” came into force. Mr.

Hynes is therefore eligible for two for one credit regarding time already spent in custody. [ 5 ] The Crown has urged the court to give credit on a one point five for one basis and has cited the Ontario Court of Appeal case in R. v. Brown [2009] O.J. No. 1758 . On its face, the Brown decision does have similar issues. However, having been the sentencing judge in Brown , I am aware of considerable differences between the two offenders. Although Mr. Hynes does have some offences of violence on his record including four simple assaults and one robbery, Mr.

Brown had numerous serious offences of violence on his record. It is true that both offenders had been repeat statutory release violators. Their performances in the custodial institutions, however, are in stark contrast. Mr. Brown’s performance in any type of rehabilitation and counselling was poor. Meanwhile, Mr. Hynes has made good efforts while incarcerated. During his last term in penitentiary, he attended intensive programs in Cognitive Skills, Substance Abuse, Substance Abuse Pre-release and Anger and Emotions Management. There were apparently many positive comments as to his progress noted in the records.

While awaiting trial for the present occurrences, Mr. Hynes continued to make an effort. He has completed the Criminal Thinking – Connections Program, Anger Management and the Aboriginal Men’s Orientation Program. It is sad that when he had been released from custody, he struggled to abstain from the use of controlled drugs and had great difficulty coping with his life.

Having regard to his generally good effort in custody, I cannot say that he would be unlikely to get parole. [ 6 ] In the result, I am prepared to credit him on a two for one basis for the 21 months he has spent in pre-trial custody. aggravating factors [ 7 ] Robbery is one of the most serious offences in the Criminal Code . It is one of the few offences which could result in life imprisonment. The facts of this case are extremely serious. Over a two week period, Mr. Hynes committed four robberies at Mac’s Mart convenience stores in Sault Ste. Marie. Convenience stores in this city are vulnerable.

There have been numerous such robberies in recent years. The offences appear to have been planned and deliberate. Mr. Hynes resorted to the use of disguises. He has a lengthy criminal record which includes numerous property related offences. He received a penitentiary term in 1998 for armed robbery. He will not be

resentenced for those crimes but it does go to the degree of leniency to be afforded to him. the offender [8] In preparation for this sentence hearing, I have had an opportunity to review the pre-sentence report as well as the verythorough Gladue report. Mr. Hynes is a 38 year old aboriginal offender who is an affiliate of the Garden River First Nation. During hislife, he has experienced many of the systemic background factors referenced in R. v. Gladue (SCC), [1999] 1 S.C.R.688. Attached as Exhibit 1 to this decision is the Gladue report

summary of those factors. Although these factors do not excuse hiscriminal behaviour, they certainly do a great deal to explain how he came to this point in his life facing the difficulties that he now faces. [9] Since April of 1991, Mr. Hynes has spent more than 14 years under the direction of Corrections Canada. During hisperiods of incarceration, he has made efforts to complete his high school credits. As well, he has attended a variety of counsellingprograms. Correction records describe him as “a strong student with a positive attitude and good work ethic”. He has taken

part inadditional programs while on remand. Unfortunately, he does not seem able to cope upon his release from prison. He has describedhimself as having been institutionalized. In his words “it is painfully obvious that I am not capable of making it on my own.” Mrs.Tijerina noted as well in the Gladue report: “Despite his active involvement in prevention programming, he remains unable to effectively cope on life on the outside.” [10] Mr. Hynes suffers from a severe drug addiction problem. After his last release from jail, he was to have attended residentialtreatment.

He failed to follow through with that treatment. [11] Although the Gladue report noted that Mr. Hynes has limited family support, I have noticed that his brother had faithfullyattended most if not all of Mr. Hynes’ court appearances. analysis [12]

Section 718.2(

e) of the Criminal Code states: “A court that imposes a sentence shall also take into consideration the following principles: (

e) all available sanctions other than imprisonment that are reasonable in the circumstances shouldbe considered for all offenders, with particular attention to the circumstances of aboriginal offenders.” [13] In the present case, both Crown and defence have recognized that a non-custodial disposition is not possible for thisaccused person in these circumstances.

The number and seriousness of the offences coupled with the criminal history of this offenderpreclude any disposition short of custody. [14] Author of the pre-sentence report, Tara Crowder, concluded: “Information gathered does not support a community disposition for the offender at this time. Consideration to a possible future releasewill need to be guided by an intensive plan for his support according to information gathered and the offender’s personal observation.

Intandem, the offender’s sincere commitment to positive personal change will be integral to his achievement of expressed goals and futuresuccess.” [15] Mrs. Hollee Tijerina prepared the Gladue report and recommended: “Given the nature of the current charges in balance with the unique circumstances of Mr.

Corey James Hynes, this author recommendsthe following for holistic healing: • A highly structured release plan that includes residency at a transition home; • Full alcohol/drug assessment via Community Alcohol and Drug Assessment Program; • Aboriginal specific mental health counselling combined with traditional healing initiatives.” [16] The Ontario Court of Appeal discussed the issues involved in sentencing an aboriginal offender in R. v. Kakekagamick (ON CA), [2006] O.J. No. 3346. Writing for the court at paragraph 42, Laforme J.A. stated: “To be clear,

section 718.2(

e) does not require, nor is there a general rule, that Aboriginal offenders much be sentenced in a way thatgives the most weight to the principle of restorative justice. It may be that in certain cases the objectives of restorative justice articulatedin

section 718.2(

e) and Gladue will not weigh as favourably as those of separation, denunciation and deterrence. As was noted in Gladue,Aboriginal people also believe in the importance of those latter objectives. Those principles will always be relevant and maypredominate for more serious offenders or where the offence is serious enough that imprisonment is necessary.” [17] Turning to the objectives of sentencing in

section 718, the objective of denunciation is important. Convenience storerobberies in this community are common. Stores and their employees remain extremely vulnerable especially in the early morning hourswhen often a lone employee is on duty. Mr. Hynes’ four robberies all occurred between 1:25 a.m. and 3:35 a.m. This type of offencemust be denounced. [18] Similarly, general deterrence cannot be underestimated. Those who would be tempted to commit such crimes must know

that such serious offences can result in serious jail time. With regard to specific deterrence, I am unsure as to what would deter Mr. Hynes. He was not deterred by the previous penitentiary terms for armed robbery. [ 19 ] At this point, it unfortunately does seem necessary to separate Mr. Hynes from society. There will, in the future, however, be a date of release. It is hoped that at that time Corrections Canada will put in place the intensive support system that Mr. Hynes will obviously need to enable him to cope successfully outside of jail. [ 20 ] With regard to rehabilitation, Mr.

Hynes has made positive efforts while incarcerated in the past. There will no doubt be programs available to him this time and I encourage him to continue his efforts especially regarding his drug addiction. [ 21 ] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The offences here are indeed grave and Mr. Hynes is solely responsible for them. [ 22 ] The Crown seeks a sentence in the 12 to 15 year range. Ms. Peterson submits that each robbery should attract a three to four year sentence consecutive.

Upon reviewing a number of cases involving sentence for robbery. Mr. Tijerina suggests that a sentence in the range of six to eight years is appropriate. [ 23 ] When I consider all of the facts of this case including the unique circumstances of Mr.

Hynes, it is clear that the objectives of restorative justice do not weigh as favourably as the objectives of separation, denunciation and deterrence. [ 24 ] For this offender who has an extensive criminal record including a prior conviction for robbery and who has committed four robberies, the Crown’s suggestion that a sentence of three to four years consecutive for each occurrence is not out of line. However, one cannot ignore the totality principle. When I consider that Mr.

Hynes committed these similar serious offences within a short time period, it is my view that a sentence in the range of ten years would have been appropriate prior to the consideration of pre-trial custody. On a two for one basis, Mr. Hynes’ pre-trial custody is equivalent to 42 months. This would leave a sentence of 78 months left to be served. [ 25 ] In the result, Mr. Hynes will be sentenced to one day time spent on count one and it should be endorsed 18 months of pre- sentence custody. On count three he will be sentenced to 30 months consecutive. It will be endorsed three months of pre-sentence custody.

On each of counts five and seven, he will be sentenced to 24 months consecutive. Each of the counts involving

section 351 will have sentences of three months concurrent. The total sentence from today’s date then will be one of 78 months. dna order [ 26 ] Robbery is a primary offence for the purpose of the DNA Databank scheme. Pursuant to

section 487.051, Mr. Hynes will be ordered to provide such samples of bodily substances as are reasonably required for the purpose of forensic DNA analysis.

section 109 order [ 27 ] These are not first convictions for robbery. That being the case, there must be an order under section 109(3). Mr. Hynes will be prohibited from possessing any firearm, cross-bow, restricted weapon, ammunition and explosive substance for life. victim fine surcharge [ 28 ] Mr. Hynes is not in a position to pay a victim fine surcharge. It will be waived. Released: January 25, 2011 _______________________________________ Justice Kristine Bignell, Ontario Court of Justice