R. v. Ross, 2011 ONCJ 182

Sault Ste. Marie COURT FILE No.: 2078, 3123 Citation: R. v. Ross , 2011 ONCJ 182 ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) Kelly Weeks, ) for the Crown ) — AND — ) ) ) allan david ross ) Ross Romano, ) for the accused ) ) ) ) HEARD: February 28, 2011 bignell j.: [ 1 ] Allan David Ross has been found guilty of offences under sections 344 (b), 351(2) and 354(1) (

a) of the Criminal Code of Canada . He entered pleas of guilt to the first two charges on November 15, 2010. Both a presentence report and a Gladue report were ordered and the matters were adjourned to January 25, 2011 for sentence. At the request of defence, there was a further adjournment to February 28, 2011 when a plea of guilt was entered to the third count and submissions were made. [ 2 ] The Crown, Ms. Weeks, has submitted that a penitentiary term in the range of five to six years is warranted for this very serious offence. Mr. Romano, on behalf of Mr.

Ross, has argued that a further jail term in the range of eleven months is required. He has suggested that if any further jail beyond the eleven months is required that it should be served on the basis of a conditional sentence of imprisonment. the facts [ 3 ] On August 4, 2010 at approximately 11 p.m., Mr. Ross entered the Petro Can at 713 Trunk Road in Sault Ste. Marie. His face was masked with a blue bandana. He wore a ball cap backwards on his head. He pulled a screwdriver out of his pocket and yelled at the clerk, telling him that he wanted all of the money. Mr.

Ross told the clerk that if he did anything, he (Mr. Ross) would hurt him. Entered as exhibits are a number of still photographs developed from the store’s security tapes. It is possible to clearly see Mr. Ross with a screw driver in his hand very near to the clerk whose hands were raised in a defensive position. The clerk opened the till. Mr. Ross grabbed the money and fled. The clerk noticed that Mr. Ross had an odour of alcohol on his breath. Upon viewing the store security tape, officers of the Sault Ste. Marie Police Service were able to pick out a number of distinguishing tattoos on the robber.

They were able to identify the culprit as Mr. Ross. In the meantime, police had received reports of a stolen white Dodge Caravan. Investigation revealed Mr. Ross to be linked as well to the stolen van. On August 6, 2010, Sudbury police located Mr. Ross as well as two other individuals in possession of the van. Inside the van were found the screwdriver, blue bandana and the cap worn at the time of the robbery. mitigating factors [ 4 ] In mitigation, Mr. Ross has entered pleas of guilt to these charges. He has been in presentence custody since August 6, 2010, a total of 235 days. At his sentencing hearing, Mr.

Ross spoke to the court and expressed what appeared to be sincere remorse for his actions. He appeared to realize how terribly frightening this incident must have been for the Petro Can clerk. aggravating factors [ 5 ] Robbery is an indictable offence which could result in a sentence of life imprisonment. This took place in the late evening when the lone clerk was in a most vulnerable position. The photographs entered as exhibits clearly show the fear on the part of the clerk. The robbery appears to have been planned and deliberate. Mr. Ross entered the premises with both a weapon and a disguise. Mr.

Ross has a lengthy criminal record beginning in youth court in 1985. He has three prior convictions for armed robbery for which he received a penitentiary term in 1994. He was granted statutory release in 1997 but unfortunately violated that release and was recommitted to jail in 1998. Since that time, he has run afoul of the law on two occasions. These involve findings of guilt for simple assault in 2001 as well as fraud, theft and fail to appear in 2008. He received suspended sentences and probation for all of those offences.

There is, therefore, a significant gap in his criminal record during the past decade. [ 6 ] It should be noted that recently the City of Sault Ste. Marie has been plagued with late night robberies of convenience stores and gas bars.

the offender [7] This 41 year old man whose mother is Ojibway is a registered status Indian who maintains band membership with theWikwemikong Unceded Indian Reserve although he spent his youth in the City of Sault Ste. Marie. He has limited knowledge of theteachings, customs and practices of the Ojibway but has started to take steps to learn more about his culture. Mr. Ross’ biological parentswere alcoholics. As a child, Mr. Ross was subjected to abuse, poverty and racism.

He began using alcohol and drugs when he wasapproximately nine years old and along with his older brother developed a criminal lifestyle which led to a penitentiary term in 1994. Theauthor of the Gladue report has noted that Mr. Ross has been diagnosed with obsessive compulsive disorder, learning disorder, chronicdepression, post-traumatic stress disorder and anxiety disorder. Mr. Ross was very much affected by his brother’s death in 2004.Although Mr. Ross violated his federal parole, he successfully completed his last term of probation and is considered a good candidatefor future supervision. Mr.

Ross realizes that he has a number of unresolved issues in his life including his substance abuse problems. Hehas requested a court referral to the “Turning Full Circle” program at the Thunder Bay Correctional Centre which is an intensiveculturally sensitive Anishnaabe treatment program. [8] The author of the pre-sentence report, Mr. Dennis Stortini, is one of this city’s most experienced probation officers.

Hewrote: “In view of the information gathered in the preparation of this report and in consideration of his long standing criminal record albeit withsignificant gaps stand alone community supervision would be a negligible deterrence in curtailing his repeated criminal acting outbehaviours. He needs to address his serious unresolved drug addictions and his underlying core issues that trigger his relapses andsubsequent criminality. Allan Ross pledges full compliance to any disposition the Court imposes.

He accepts responsibility and expressesshame and remorse for his recidivist conduct.” [9] Further: “From information gathered it is assessed that it is imperative that this recidivist offender attend a structured treatment setting to dealwith his serious addiction problem and address his core emotional health problems, preferably in a long term residential treatmentsetting.

The body of this report outlined the offender’s troubled, turbulent, chaotic social history.” [10] He concluded his report with recommendations: “The offender appears to be quite willing to avail himself of partaking in maximum provincial custodial treatment programmes shouldthe Court be most generous in considering and recommending the same as a disposition. Should a period of community supervision bedeemed appropriate, in or as part of the pending disposition, the offender asserts his amenability.” analysis [11] Pursuant to

section 718.2(

e) of the Criminal Code, the court must consider all available sanctions other than imprisonmentthat are reasonable in the circumstances for all offenders with particular attention to the circumstances of aboriginal offenders. During hislife, Mr. Ross has experienced many of the systemic background factors set out in R. v. Gladue (SCC), [1999] 1 S.C.R.688. They explain to some extent how he has come to be in his present situation. Mr. Ross has recognized his serious substance abuseissues and is requesting referral for treatment. Both Crown and defence have submitted that a custodial sentence is required.

However,they differ greatly as to length of sentence. [12] These very serious offences must be denounced by the court. Small businesses in this city have been subject to manyrobberies over the past several years. Mr. Ross must be deterred from committing further such offences. Others who would contemplatesuch offences must also be deterred. The Ontario Court of Appeal has repeatedly held that such robberies will attract heavy sentences. Atpresent, Mr. Ross must be separated from society. This will help to protect the community but will also allow him to address the issuesthat he is facing.

If he can come to terms with and deal with those issues, he may yet become a productive member of our community.Although sentences for robbery tend to emphasize the principles of denunciation and deterrence, the principle of rehabilitation cannot beignored. In his comments to the court, Mr. Ross acknowledged the harm that he has done. He appeared to sincerely express his remorseand his understanding of the effects his actions had on the victim.

He has not attempted to minimize his actions or to deflect the blame onanyone other than himself. [13] When I consider all the facts of this case in light of the sentencing principles as set out in the Criminal Code and Mr. Ross’unique personal circumstances, I find that the best possible sentence would be maximum reformatory time followed by a maximumperiod of probation. Of course, the offence of robbery would in many cases result in a penitentiary term. However, when the time alreadyspent in jail by Mr.

Ross is added to the present sentence, it is the equivalent of a penitentiary term although at the low end of the range.A correctional term makes possible the imposition of a lengthy period of probation. Mr. Ross wants to rehabilitate himself. He has in thepast sought help through a residential treatment program. Mr. Ross and probation officer, Mr. Stortini both appear to have recognizedthat Mr. Ross requires structure and a long term residential treatment setting. If Mr. Ross can learn to deal with his longstanding issues, itwill bode well both for him and for the community.

A three year probationary term in addition to the correctional term will afford Mr.Ross the structure and support that he needs over the greatest period of time while still supporting his rehabilitative efforts. [14] The defence has suggested that a conditional sentence may be appropriate for some of the charges in this case. I agree withthe Crown that a conditional sentence pursuant to

section 742.1 is not available for the offence of robbery. With regard to that offence, itis my view that the sentence of two years less one day is the least possible sentence that would be appropriate, especially considering Mr.Ross’ record for like offences. [15] In the result, the sentence on count one of information 2078 will be two years less one day. That count should be endorsed235 days of pre-sentence custody. The sentence on count two of that same information will be six months concurrent and the sentence on

court one of information 3123 will be six months concurrent. The lead count of robbery will be followed by three years probation. In addition to the normal statutory conditions, Mr. Ross must abide by the following conditions:

(1) He is to report to a probation officer within two working days of the completion of his jail sentence and thereafter at times and places as directed by his probation officer;

(2) He will attend for such assessment, treatment and counselling as may be recommended by his probation officer and which may include referral to a residential treatment program;

(3) He is to abstain absolutely from the purchase, possession or consumption of alcohol or controlled drugs not prescribed for his use; and

(4) He is to remain away from the Petro Can, Trunk Road in Sault Ste. Marie. [ 16 ] There will be a recommendation that in custody Mr. Ross will be allowed to attend all possible treatment programs and which should include, if possible, attendance at the Turning Full Circle Program at the Thunder Bay Correctional Centre. dna order [ 17 ] Robbery is a primary offence for the purpose of the DNA Databank scheme. Pursuant to

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

section 109 order [ 18 ] Mr. Ross has been found guilty in the past of three counts of robbery. There was a weapons prohibition imposed at that time. In the result, there should be a further order under section 109(3) of the Code . Mr. Ross will be prohibited from possessing any firearm, cross-bow, restricted weapon, ammunition and explosive substance for life. victim fine surcharge [ 19 ] As Mr. Ross will be spending further time in jail, he will not be able to pay a victim fine surcharge. That will be waived. Released: March 28, 2011 _______________________________________ Justice Kristine Bignell, Ontario Court of Justice