2017 QCCQ 7435, 2017 QCCQ 7435

R. c.

Vandendool 2017 QCCQ 7435 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Criminal Division No: 500-01-134361-168; 500-01-131963-164 DATE: July 6 th 2017 ______________________________________________________________________ PRESIDING: THE HONOURABLE NATHALIE FAFARD J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor vs Mark Steven VANDENDOOL Accused ______________________________________________________________________ JUDGEMENT ON SENTENCE ______________________________________________________________________ JF1000 JF1000 JF1000 JF1000 [ 1 ] The accused pleaded guilty to twelve counts of bank-robbery and disguise with intent, committed over a period of 6 months in Longueuil and in Montreal.

The court now has to determine the appropriate sentence. [ 2 ] Each event is very similar. The accused walked in to the banks wearing a beard, hat and sunglasses. He presented a note to the cashier in which he asked for money, mentioned that he has a gun and that the cashier should not ring the alarm. He stole approximately $33 385 in this way. [ 3 ] The last incident took place on March 1 st , 2016. The accused was inside the bank when the police arrived. He ran outside still disguised and was arrested.

He has been in custody since that time. [ 4 ] The Prosecutor seeks a term of imprisonment for a period of 12 years, as well as the specific orders related to the offences. On the other side, the defence submits that a 5 year jail term would be appropriate in the circumstances. Both parties invite the court to take into account the time spent in custody at a rate of time and a half. Context [ 5 ] The accused is 35 years old, he has a girlfriend and a supportive family. Ten years ago, he was convicted of two similar offences in Ontario, for which he served 3 years of imprisonment.

He doesn’t have any drug or alcohol problems. [ 6 ] These prior convictions are linked in some fashion to those before the court today. The reasons for offending are explained in the psychological report prepared for the court. [ 7 ] According to the report, at the time of the offences committed 10 years ago, the accused wanted to go to McGill University without asking his parents for money. He and a friend decided to buy drugs thinking they could make money by trafficking it.

To do so, they borrowed money from a shylock. [ 8 ] Unfortunately for the accused, someone broke into their apartment and stole the drugs, leaving the accused with his debt. After being threatened to reimburse the money with high interest, the only solution the accused found at the time was to commit robbery.

[ 9 ] When he got out of jail, he was finally accepted to the music program at McGill, and his mother moved in with him. He completed his guitar studies and invented a teaching method with great success. He then started a company with his father and some investors. [ 10 ] During the summer of 2015, the accused was found by those who had lent him the money in the past, and they were now asking for $30 000 within a delay of two weeks. At the end of September, they came back.

The accused was abducted in a car and was threatened and beaten. [ 11 ] The same idea then arose in his mind and he decided to commit robbery to pay back his debt, thinking this time he was wise enough not to be caught. He did pay back a part of it, and then he was arrested. In detention, the accused was bullied and his father paid a last $1000 by wire to unknown persons. [ 12 ] This odd version of the incidents was never reported to the authorities. Therefore it is neither challenged, nor confirmed.

Analysis [ 13 ] Imposing a sentence is a difficult part of the judicial process and courts must be guided by the purpose and principles of

section 718 of the Criminal Code . These principles include one or more of the following objectives: to denounce unlawful conduct and the harm done to the victim or society; to deter the offender or other persons from committing offences; to separate offenders from society where necessary; to assist in rehabilitating offenders; to provide reparation for harm done to victims or to the community; to promote a sense of responsibility in offenders, and acknowledgment of the harm done to the victim or community. [ 14 ] In accordance with

section 718.1 C.cr . the sentence also needs to be proportionate to the gravity of the offence and the degree of responsibility of the offender. To do so, the court must take into consideration the aggravating and mitigating circumstances related to the offence and the offender. [ 15 ] As the Supreme Court said in Nasogaluak [1] , a sentence must be equivalent to the moral culpability of the offender, not greater than it, and punish the offender no more than is necessary. [ 16 ] The objective gravity of the offence of robbery is very high in that is punishable by a maximum term of imprisonment for life.

In our case, there is no use of firearms in the commission of the offences. As for the disguise, the offence is liable to imprisonment for a term not exceeding 10 years. [ 17 ] As Professor Hugues Parent writes in “ Traité de droit criminel” [2] , for robberies with no specific violence other than that which is inherent to the offence, but presenting both mitigating and aggravating factors, courts usually impose sentences between 12 and 48 months.

There is no starting point or minimum term or imprisonment to serve. [ 18 ] The attorney for the accused submitted numerous decisions [3] where courts had imposed various sentences between 3 years for the ones committed with a note presented to cashiers, and 12 years for the ones committed with firearms and to the benefit of a criminal organization. [ 19 ] The Court takes into consideration the following mitigating factors: the guilty plea, the low level of violence, that the accused was an active member of society, he doesn’t have a personality disorder, he is open to therapy, he has a supportive family, he takes full responsibility, he shows remorse even though he seemed more ashamed towards his parents than empathetic to the victims. [ 20 ] As for the aggravating factors, the Court considers: the prior conviction for the same offence, numerous victims and the premeditation by using a disguise. [ 21 ] The evidence is silent on the consequences for the victims, as no victim impact statements were provided by the Crown, and none of them testified either. [ 22 ] This being said, the accused is not a first offender.

This time he cannot plead a youthful mistake. As a fact, the first sentence he received ten years ago seemed not to have had an effect sufficient to deter him from reoffending. [ 23 ] Unfortunately, he is not facing one charge of robbery but twelve, and it could have been much more if the police hadn’t stopped him. His misconduct lasted over a period of 6 months, it is not one offence committed on the spur of the moment. He had time to think and to plan. [ 24 ] It is true, the accused is not a violent offender, and he was not carrying a weapon.

But the victims didn’t know it and the note he presented to them was to the effect that he was actually armed. However, the sentence to be imposed cannot be in the range of a robbery where a firearm is used. [ 25 ] The psychologist who prepared to the evaluation presented by the defence said the accused has an immature vision of the world and has problems dealing with relationships. He has had a hard time becoming an adult. He seems to minimise and underestimate his problems. After his first incarceration, he has been followed by a psychologist for attention disorder. Now he is ready to attend therapy.

If he solves his psychological problems, which is highly recommended by the psychologist, the accused would present a low level of risk to reoffend. [ 26 ] It is hard to understand why an individual like the accused, who is a scholar, great musician, well surrounded by his family, has a good life, is successful in work, and has no addiction problem, chose to commit such crimes to pay a debt, even to a criminal organisation.

Most importantly, it is difficult to comprehend why he didn’t find another solution to his current problems and deliberately reoffended. [ 27 ] Today the accused is back to square one and the key to his future is now in his hands. This is not a case where the accused

addressed his problems and tried to solve them after his first sentence. Even though he is willing to start therapy, he is at the very first step of his rehabilitation. [ 28 ] Therefore, considering the gravity of the offences and the responsibility of the accused, specific and general deterrence and denunciation should prevail. [ 29 ] Following the Court of Appeal in Guerrero Silva [4] , because the offences do not arise out of the same event or series of events, the Court should impose a sentence of at least 2 years on each count of robbery, to be served consecutively.

As for the disguise, those offences are related to the same events. [ 30 ] However, in order to respect the principles of proportionality and totality, such a sentence would be inappropriate. In the circumstances, the Court believes that a total sentence of 8 years is fit, minus the equivalent of 24 months of previous custody. Consequently, the accused will serve 6 years from today.

FOR THOSE REASONS, THE COURT IMPOSES: In file 500-01-134361-168: Count 1, robbery, 2 years of imprisonment; Count 3, robbery, 2 years of imprisonment to be served consecutively; Count 5, robbery, 2 years of imprisonment to be served consecutively; Count 7 , robbery, 2 years of imprisonment to be served consecutively; Count 2, 4, 6, 11, 13, 15, 17, 20, 22 and 24 , wearing a disguise, 1 year of imprisonment to be served concurrently; Count 12, 14, 16, 18, 21 and 23 , robbery, 2 years of imprisonment to be served concurrently; In file 500-01-131963-164: Count 1 and 3 , robbery, 2 years of imprisonment to be served concurrently; Count 2 and 5 , wearing a disguise, 1 year of imprisonment to be served concurrently. [ 31 ] In both files, pursuant to

section 109, I am making an order prohibiting the accused from possessing any firearms for life; I am also ordering that DNA samples be provided on the robbery counts. __________________________________ NATHALIE FAFARD, J.C.Q. M e Marie-France Drolet Attorney for the Crown M e Pierre Poupart Attorney for the defence Date of hearing: April 13 th and May 26 th 2017