R. v. Fizli, 2016 NSPC 23

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Fizli , 2016 NSPC 23 Date: 2016-04-20 Docket: 2928009, 2947750, 2965401, 2965402, 2965403 Registry: Pictou Between: Her Majesty the Queen v. Daniel Peter Alexander Fizli SENTENCING DECISION Judge: The Honourable Judge Del W. Atwood Heard: April 20, 2016, in Pictou, Nova Scotia Charge:

Section 733.1 Criminal Code of Canada x 3 Para. 344(1) (

b) Criminal Code of Canada Sub-Section 334(1) Criminal Code of Canada Counsel: Jody McNeill for Nova Scotia Public Prosecution Service Rob Sutherland for Daniel Peter Alexander Fizli By the Court: [ 1 ] I will order and direct that information #729303 be endorsed to record that Mr. Fizli was invited to speak to sentence in accordance with s. 726 of the Criminal Code , and did so through his counsel. [ 2 ] Daniel Fizli is before the court today to be sentenced in relation to a

summary count of breach of probation from 31 October 2015 (case 2928009); a

summary count of breach of probation from 27 December 2015 (case 2947750); and, finally, three (3) indictable counts from 10 March 2016: one of robbery (case 2965401), another of possession of property obtained by crime (case 2965402), and, last of all, breach of probation (case 2965403). Mr. Fizli elected trial in this court on the robbery count, and pleaded guilty to all charges. [ 3 ] The facts that were put before the court by the prosecution in accordance with ss. 723 and 724 of the Code, and acknowledged correct by defence counsel, informed me that Mr.

Fizli was at all times subject to the terms of a probation order made 30 April 2013 which required him to keep the peace, abstain from alcohol, and abide by a curfew. [ 4 ] Mr. Fizli was found by police under the influence of alcohol the early morning hours of 31 October 2015, after police had received a complaint of a fight in the vicinity of the Roseland Cabaret. Based on the description of Mr. Fizli’s physical condition when he was found by police all banged up, it is clear to the court that Mr. Fizli had been on the receiving end of significant physical violence.

[5] Similarly, on 27 December 2015, Mr. Fizli was found outside the Acro Lounge under the influence of alcohol. He had injuredhis hand as a result of a fight. It was a replay of October. [6] On 10 March 2015, Mr. Fizli and two (2) accomplices were involved in a robbery of the Needs Store on East River Road,New Glasgow. Mr. Fizli and one accomplice entered the Needs Store wearing hoodies with the hoods pulled up. They were wearinggloves. I do not believe that Mr. Fizli was trying to disguise himself by drawing up his hoodie; the weather on that date was inclement. Mr. Fizli spoke briefly with the store clerk. Mr.

Fizli then jumped over the counter, and attacked the clerk. There is no evidence beforethe court that either Mr. Fizli or the accomplice was armed with any sort of offensive weapon. Mr. Fizli demanded of the clerk thewhereabouts of cash and cigarettes. Mr. Fizli bagged a quantity of cash and a quantity of cigarettes. The store owner reported to policeafterwards that she tallied the stolen cash at $125; she reckoned there were sixty-three packs of stolen cigarettes. Mr. Fizli and hisaccomplices were located by police very shortly thereafter. They were arrested. They were found in possession of the stolen tobacco.

That led the police to obtain a search warrant where, I gather, most of the tobacco wound up being recovered. The court was notpresented with evidence regarding recovery of the stolen cash. [7] Mr. Fizli informed the police that it was his idea. “I planned it and brought Aaron into it.” [8] Sentencing is a highly individualized process: R. v. Ipeelee, 2012 SCC 13 at para. 38. [9] In determining a fit sentence, a sentencing court ought to take into account any relevant aggravating or mitigatingcircumstances; that is prescribed by para. 718.2(

a) of the Criminal Code. The court must consider also objective and subjective factorsrelated to the offender’s personal circumstances and the facts pertaining to the particular case: R. v. Pham, 2013 SCC 15 at para. 8. [10] In assessing an offender’s moral culpability, the court must take into account the fact that a sentence must be proportionate tothe gravity of the offence and the degree of responsibility of the offender. That fundamental principle is set out in

Section 718.1 of theCriminal Code. [11] At para. 37 of Ipeelee, the Supreme Court of Canada noted that the proportionality is tied closely to the objective ofdenunciation. Proportionality promotes justice for victims, and it seeks to ensure public confidence in the justice system. [12] In the recent decision of R. v. Lacasse, 2015 SCC 64, the Supreme Court of Canada confirmed that proportionality is a primaryprinciple in considering the fitness of a sentence. The severity of the sentence depends upon the seriousness of the consequences ofcrime and the moral blameworthiness of the individual offender.

The Court recognized at para. 12 that determining proportionality is adelicate exercise, because both overly lenient and overly harsh sentences imposed upon an offender might have the effect of underminingpublic confidence in the administration of penal justice. [13] In many respects the Lacasse decision comes close to constitutionalizing the principle of proportionality in the imposition ofjust and fair sentences. [14] In determining an appropriate sentence, the court is required to consider, pursuant to para. 718.2(

b) of the Criminal Code, that asentence should be similar to sentences imposed upon similar offenders for similar offences committed in similar circumstances. This isthe principle of sentencing parity. The court must apply the principle that an offender not be deprived of liberty if less restrictivesanctions might be appropriate in the circumstances; furthermore, the court must consider all available sanctions other thanimprisonment that are reasonable in the circumstances. [15] In considering the principle of sentencing parity, the court considers the decision of R. v. Bratzer 2001 NSCA 166. Mr.

Bratzerwas an 18-year-old offender who had robbed three gas stations, brandishing weapons to facilitate taking money in the early morninghours from the solitary employees on duty at each gas station that got targeted. He had a record for minor offences; however, the trialjudge found that he had made significant progress while awaiting trial: he had completed his grade 12 equivalency; he had performedvolunteer work and had undergone counselling.

Considering those positive steps and the offender’s youth, the trial judge sentenced Mr.Bratzer to a conditional sentence of two (2) years less a day on each offence, to be served concurrently. The prosecution appealed. Theappeal was allowed in part. However, the Court of Appeal did not disturb the conditional sentence. The Court of Appeal stated that theconditional sentence was not demonstrably unfit, nor, did it reflect any error in principle.

I would note that, since the rendering of theBratzer decision, the Criminal Code of Canada has been amended so that a conditional sentence is now no longer permissible for arobbery offence, in virtue of para. 742.1(

c) of the Code. [16] In R. v. Johnson, 2007 NSCA 104, the Court of Appeal reaffirmed that the usual starting point for the offence of robbery isthree years. [17] In R. v. Longaphy, 2000 NSCA 136, the Court of Appeal noted that the court has emphasized consistently that the primaryconsideration be given in cases of robbery must be protection of the public. [18] In R. v. Leet (1989), (NS CA), 88 N.S.R. (2d) 161, Chipman J.A. stated: Robbery is a very serious offence, carrying a maximum punishment of imprisonment for life.

The sentencing court is thus left with a verywide discretion as to the penalty in any given case. Rarely is a sentence of less than two years seen for a first offence and terms rangingup to six years are commonly imposed. In the more serious robberies, including those committed in financial institutions and privatedwellings, the range has generally been from six to ten years. [19] In R. v. Izzard (B.W.) (1999), 1999 NSCA 52 , 175 N.S.R (2d) 288, Glube C.J.N.S. stated: For many years, this court has consistently viewed robbery with violence and armed robbery as cases requiring strongly deterrentsentences.

The cases referred to a minimum benchmark sentence of three years and occasionally going as low as two years. [20] In the recent decision of R. v. Weatherbee, 2015 NSSC 245, Coughlan J. sentenced an offender who had pleaded guilty to

robbery, disguise with intent and unlawful possession of a dangerous weapon. The court imposed a penitentiary term of 54-months’incarceration for robbery; two years concurrent for disguise with intent; two years concurrent for possession of a weapon for a purposedangerous to the public peace, less credit for remand time. The court found as an aggravating fact that a lethal weapon had been used inthe course of the robbery. [21] In the case of R. v.

Rhyno, 2013 NSSC 217, Pickup J. imposed sentences of three-and-a-half years’ imprisonment upon each oftwo offenders who had been charged with robbery; one was a first-time offender, the second of the two, I believe, had a very minor priorrecord. [22] In this particular case, the mitigating factors are Mr. Fizli’s guilty plea and youth: he is 22 years of age. The general rule is thatfor most youthful offenders, rehabilitation should receive greater weight than general deterrence: see R. v. Turner (1970), (ON CA), 1 C.C.C. (2d) 293 (Ont. C.A.). [23] In R. v.

Demeter and Whitmore (1976), (ON CA), 32 C.C.C. (2d) 379, the Ontario Court of Appeal statedthat, in considering an appropriate sentence for the very young, the paramount consideration must be immediate rehabilitation. Speedyrehabilitation, arrest, public trial and a criminal record with its consequences, may be the best deterrent for those young persons whomight be tempted to reoffend. [24] Mr. Fizli is 22 years of age. He has struggled with substance use, but has made efforts to overcome his dependency. Mr. Fizli’sfamily history is tragic in many respects. Mr.

Fizli was diagnosed at one point with attention-deficit- hyperactivity disorder. Mr. Fizlihas been prescribed a number of medications for the purposes of mood-stabilization and dealing with attention deficit hyperactivity; itappears from the pre-sentence report that Mr. Fizli is well motivated to go along with programming and mental-health counselling. Iregard those all as very positive factors. [25] Mr. Fizli clearly has the support of his mother, whose comments are contained in the report. She informed the author of thereport that Mr.

Fizli was diagnosed with schizophrenia, although she disagrees with that diagnosis. She observes that when Mr. Fizlidrinks, his ability to control his conduct is very limited. [26] Mr. Fizli is partly of First-Nation ancestry but does not self-identify as aboriginal, and declined the preparation of a Gladuereport. As a result, the parties agree that Mr. Fizli not be sentenced as an aboriginal offender.

This has nothing to do with the somewhatperplexing blood-purity argument made by defence counsel; rather, it recognizes important principles of autonomy and agency: see R. v.Powley, 2003 SCC 43. [27] There is a joint-recommendation before the court for a sentence in the range of five years, less credit for remand time. In myview the joint-recommendation, while substantial, is reasonable. The Nova Scotia Court of Appeal in R. v.

MacIvor, 2003 NSCA 60held that joint recommendations that follow serious and meaningful negotiations between prosecution and defence ought to be departedfrom by sentencing courts only if the court were to be satisfied that the joint recommendation would bring the administration of justiceinto disrepute or would be contrary to the public interest. [28] The joint recommendation takes into account the many significant aggravating factors: the robbery offence involved a moderatedegree of violence being inflicted upon the cashier. [29] Significantly, Mr.

Fizli’s motivation for this robbery was the perceived success that he had achieved in committing an earlierrobbery that had resulted in him receiving a 15-month prison sentence in April 2013. After his arrest, Mr. Fizli told police that he robbedthe Needs store because “the Esso had $300”. The “Esso” was a service station Mr. Fizli had robbed in January of 2013; it was thatrobbery that got Mr. Fizli his April 2013 prison sentence. In my view, that factor—gain from an earlier robbery as a motivator for a laterone—elevates the degree of Mr.

Fizli’s responsibility and the seriousness of the offence, and solidifies the need for a sentence that willwork as a strong and specific deterrent. [30] Accordingly, the sentence of the court in adopting the joint recommendation will be as follows: • In relation to case #2928009, the

summary offence breach of probation, there will be a two (2)-month prison sentence. That is the starting point sentence. There will also be a $10 fine and a $3 victim-surcharge amount with six (6) years to pay thosecombined amounts. • In relation to case #2947750, the second charge of breach of probation, prosecuted summarily, there will be a sentence oftwo (2)- months’ imprisonment to be served consecutively to the first sentence.

There will be a $10 fine, a $3 victim surcharge amount,six (6) years to pay those combined amounts. • In relation to the robbery charge, case #2965401, a straight indictable offence, there will be a four and a half year sentencein relation to that charge, less 63-days’-time-and-a-half credit for remand time in accordance with the principles set out in R. v. Carvery,2014 SCC 27. This is to be served consecutively to the previous sentences. • The court will order that the warrant of committal be endorsed in accordance with the Truth in Sentencing Act to reflectthat, but for the remand time, the sentence for the

Section 344 offence would have been an additional 63 days. There will be a primary-designated-offence DNA -collection order in relation to that charge. • There will be a

Section 109 order in relation to that charge that will prohibit Mr. Fizli from possessing any firearm, otherthan a prohibited firearm or restricted firearm and any cross-bow, restricted weapon, ammunition and explosive substance. That orderbegins today’s date and expires ten (10) years after the expiration of Mr. Fizli’s term of imprisonment, and Mr. Fizli will also be orderedprohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunitionfor life. • There will be a

Section 743.21 endorsement on the warrant of committal. While in custody, Mr. Fizli is to have no contact

or communication with Paul Fahie, Aaron Rice or Jeremy Thompson. • There will be a $10 fine in relation to that charge.

A mandatory $3 victim surcharge amount and six (6) years to pay. • In relation to case #2965402, the companion charge of possession of property obtained by crime, there will be a sentence of six months but to be served concurrently; a $10 fine and a $3 victim surcharge amount, six (6) years to pay. • And finally, in relation to case #2965403, the final charge of indictable breach of probation, there will be a period of imprisonment two (2) months to be served consecutively to the previous sentences; a $10 fine, $3 victim surcharge amount and six (6) years to pay. [ 31 ] Thank you very much.

Anything further, counsel, in relation to Mr. Fizli? [ 32 ] Mr. McNeill : Not from the crown, Your Honour. [ 33 ] Mr. Sutherland : No, thank you, Your Honour. [ 34 ] The Court : Mr. Fizli, I’ll have you go with the sheriffs, please, sir. Thank you very much. JPC