r v. VELASQUES, 2017 QCCQ 11576

R. c. Velasques 2017 QCCQ 11576 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL CITY OF MONTRÉAL « Criminal and Penal division » N os : 500-01-140400-166 500-01-140395-168 DATE: September 27, 2017 _________________________________________________________________________ BEFORE THE HONOURABLE JUSTICE GUYLAINE RIVEST, J.C.Q. THE QUEEN Prosecutor v. VELASQUES, Sean Accused ______________________________________________________________________ SENTENCING ______________________________________________________________________ [ 1 ] Mr.

Velasques acknowledges having committed a robbery in a jewelry store, having conspired to commit this offense and having had in his possession ammunition contrary to an order [1] . [ 2 ] Considering, in particular, the accused's criminal record, the prosecution suggests a sentence of 42 to 48 months of imprisonment for robbery and 6 months to be served consecutively for the breach of an order, thus a total sentence between 48 and 54 months. [ 3 ] On the other hand, the defense proposes, for the robbery, a prison sentence of 32 months commensurate with the sentence imposed on the co-accused. [ 4 ] Both parties agree to subtract 15 months of pre-trial detention from the total sentence on a ratio of 1.5 days for each day spent in custody (22.5 months in total). [ 5 ] In addition, the defense suggests that a period of 7.5 months be subtracted from this calculation as a reduction in sentence because of the accused’s difficult detention conditions. [ 6 ] Lastly, the defense suggests a sentence of 6 months of imprisonment concurrent for the breach of the order.

ISSUE [ 7 ] What is the just and appropriate sentence to be imposed in this case? CONTEXT [ 8 ] On June 28 th , 2016, at about 11 am, Mr. Chery and the accused went to a jewelry store on Plaza St-Hubert, with a bag containing a sledgehammer and Cayenne pepper. Mr. Chery broke the window with the sledgehammer and the two individuals filled their bag with jewelry. [ 9 ] The owner, as well as employees of the jewelry store, went outside to intercept the thieves. Passers-by also intervened. [ 10 ] Realizing he was cornered, Mr.

Velasques took out his Cayenne pepper and sprayed five bystanders in order to flee by car with his accomplice. They then parked the getaway car and changed vehicles in order to create a diversion at which point the police lost sight of them. [ 11 ] In the abandoned vehicle, the police found documents that led them to the accused’s address where they arrested him on June 29 th , 2016. Stolen jewelry was found on him.

[ 12 ] Subsequently, the police obtained a search warrant for his residence where they found much of the stolen jewelry as well as 2 ammunitions of a 3.08 caliber. Almost all of the stolen jewelry was recovered and returned to the owner, for an approximate value of $5,900. ACCUSED’S TESTIMONY [ 13 ] Mr. Velasques is a 30-year-old man with little schooling, having only completed his 9th grade. He does not have a job and is on welfare. Before his current incarceration, he lived with his sister.

Upon leaving prison, he wishes to continue the steps previously taken with Emploi Québec to complete a program to become a welder. [ 14 ] Although his mother lives in Florida, she maintains that she cares about her son's interests and encourages him to move towards the right path.

The same goes for the other members of his family. [ 15 ] In addition, the accused explains that his conditions of pre-trial detention were difficult, providing examples, from the Rivière- des-Prairies, Montreal (Bordeaux) and St-Jérôme detention facilities: • unjustified maximum security level; • no access to educational programs, except mathematics classes and meetings for alcoholics anonymous; • small portions of food; • insufficiently cooked food and brown water that made him ill; • at the beginning of his stay, he was placed in isolation 20 hours a day in the maximum security wing due to a measure taken by the authorities in connection with a riot that preceded his arrival; gradual easing to 18 hours a day and 16 hours a day thereafter; • narrowness of his cell, 4 feet x 4 feet for two inmates, without air conditioning; • no access to a gym for exercise; • presence of rats, mice and cockroaches; • washing his clothes in his sink for one week due the broken washing machines; • prohibition to use his radio and wear his cap; [ 16 ] Thus, the defense is asking the Court to grant a further reduction in sentence, in addition to the usual ratio of 1.5 per day.

However, the Court is unaware how the defense came to suggest the precise reduction of 7.5 months. APPLICABLE PRINCIPLES ON SENTENCING [ 17 ]

Section 718 of the Criminal Code states that the essential purpose of sentencing is: “ […] to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives : • to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; • t o deter the offender and other persons from committing offences; • to separate the offender from society, where necessary; • to assist in rehabilitating the offender; • to provide reparations for harm done to victims or to the community; • to promote a sense of responsibility in offender, and acknowledgment of the harm done to victims or to the community. “ [ 18 ] In order to arrive at a just sanction, the Court must strike a balance between the seriousness of the offense and the degree of responsibility of the offender [2] . [ 19 ] In order to do so, the Court must analyze the aggravating and mitigating circumstances related to the commission of the offense or the offender’s situation [3] .

ANALYSIS [ 20 ] The Court notes that the serious objective gravity of robbery is reflected in the maximum penalty of a life sentence provided by the legislator. The objectives of denunciation and deterrence are predominant for this offense. [ 21 ] In the Morin [4] decision, the Court analyzed caselaw demonstrating the wide range of sentences that differ, depending on the facts and situations specific to offenders:

[28] Selon une revue jurisprudentielle canadienne effectuée par le Tribunal, pour l’infraction de vol qualifié, les peines oscillent entre 15 mois et 5 ans d’emprisonnement , dans certains cas, pour des contrevenants ayant des antécédents judiciaires.

Le degré de violence utilisé, l’état de vulnérabilité de la victime et l’existence de séquelles permanentes justifient l’imposition de peines plus sévères. [5] (emphasis added) [ 22 ] In the present case, having regard to all the evidence, the Court takes account of the following factors: Mitigating factors [ 23 ] The guilty plea : Although it is a mitigating factor, the Court notes that the plea was entered belatedly on the first day scheduled for trial. Furthermore, the evidence is overwhelming. The guilty plea must therefore be given relative importance.

Nevertheless, by acknowledging the facts, the accused has avoided a trial, which is beneficial to the victims who did not have to relive the events by testifying. [ 24 ] Regrets : The accused explained that he has thought about his actions and wishes to apologize to the victims. He explains his behavior by the fact that he was stressed and frustrated, having nothing to eat in his refrigerator. So, he “gave in”. Aggravating factors [ 25 ] Criminal record: Mr. Velasques has several prior convictions, which began in 2007 when he was only 20 years old.

He was then sentenced for criminal harassment and several omissions to comply with court conditions. In 2008, he was found guilty, among other things, of committing an armed assault and assaulting a peace officer. [ 26 ] In 2009, he received a total sentence of 24 months of imprisonment for robbery and possession of a false firearm (a pellet gun). [ 27 ] In 2014, he was found guilty, among other things, of driving while impaired, fleeing the police, possessing a prohibited weapon (a "taser gun").

He received a 36 month sentence for these offenses in addition to a sentence of 6.5 months of imprisonment consecutive for failing to comply with an order prohibiting the possession of a firearm. [ 28 ] In 2015, he was found guilty of arson and received a 6 month sentence. [ 29 ] Premeditation : The robbery did not occur spontaneously, but was clearly planned with Mr. Chery. Mr. Velasques not only thought to bring Cayenne pepper, but also used it to enable his escape after the robbery.

He also used a second vehicle to create a diversion during their flight. [ 30 ] Recidivism : This crime is committed less than 6 months after completing a 36 month sentence on January 7, 2016 – a lengthy sentence which seemingly had little deterrent affect on Mr. Velasques. The number and variety of his criminal convictions demonstrate that he has a life-style rooted in crime. [ 31 ] There is no pre-sentence report addressing the possible rehabilitation of Mr. Velasques.

Despite his stated good intentions, it seems risky to conclude, at this stage, that he will resume the right path upon his release from prison, in view of his criminal record. [ 32 ] Number of victims and the impact of the crime on their lives : A total of 5 victims were involved in this event, two of whom wrote a letter explaining the upheavals in their lives as a result of this robbery. [ 33 ] Nevertheless, the emphasis on the principles of denunciation and deterrence should not obscure the principles of individualization and harmonization of sentences, nor the principle of rehabilitation.

Sentence reduction [ 34 ] The accused contends that he is entitled to a 7.5 month sentence reduction because of the difficult conditions he faced. [ 35 ] According to section 719 (3.1) Cr.c. and as explained by the Supreme Court of Canada in R. v. Summers [6] , a 1.5 credit for each day spent in pre-trial detention is justified because this period is not factored into when calculating an offender's eligibility for parole. In addition, the conditions of detention during this period are usually more difficult, and few programs are available.

However, as underscored by the Supreme Court of Canada, the 1.5 for 1 ratio of section 719 (3.1) Cr.

C. is a maximum [7] . [ 36 ] Nevertheless , there may be situations where conditions of detention are particularly egregious, allowing for the court to consider a reduction in the sentence [8] . [ 37 ] As stated by the Supreme Court of Canada in Nasogaluak [9] , a Court that is imposing a sentence: [55] […] may take into account police violence or other state misconduct while crafting a fit and proportionate sentence, without requiring the offender to prove that the incidents complained of amount to a Charter breach.

Provided the interests at stake can properly be considered by the court while acting within the sentencing regime in the Criminal Code […] “ (emphasis added) [ 38 ] Before contemplating such a remedy here, the Court must evaluate the seriousness of the alleged “state misconduct’’, which, in this case, is based only on the testimony of the accused. However, the Court does not believe his overall testimony for the following reasons:

[ 39 ] First, from the outset, he says he does not recall that he has already been convicted of robbery in 2009. Yet, he explains the sentence he received in relation to that offense and the use of the false firearm during the robbery. [ 40 ] Second, he says he pleaded guilty to impaired driving even though he was not impaired, and had only drunk a single beer. In fact, he claims that he pleaded guilty merely to get it over with. Similarly, although he pleaded guilty to evading lawful custody, he, in fact, did not flee the police who, in any event, had no reason to intercept him. Mr.

Velasques so minimizes his involvement in these prior offenses that one wonders how he could validly have registered guilty pleas without any acknowledgment of responsibility? [ 41 ] Third, he states that he has no anger management problem, which in itself is surprising given that he admits to having participated in a program for anger management (although he cannot say when). Moreover, in light of the numerous disciplinary reports he received since June 2016, it appears that he is often overwhelmed by his frustrations, which result in violent behavior on his part. Mr.

Velasques claims that he is not the instigator of fights, but only defends himself against his attackers. He also claims that it is ‘normal’ to fight in prison. He seems to have a simple explanation for every incident of bad behaviour, putting the blame on others, while portraying himself as the victim. [ 42 ] Fourth, when questioned as to whether alcohol consumption in prison is illegal, he replies that he does not know. This is unlikely, especially since he admits to having being "caught" drinking alcohol and to having been reprimanded for it. [ 43 ] In addition, Mr.

Velasques’ numerous complaints about his conditions of detention are often related to penalties incurred due to his poor choices, as he is involved in fights and is arrogant towards the staff. [ 44 ] All this affects his credibility and leads the Court to question the reliability of his testimony regarding the horrible conditions in jail, particularly in light of the contradictory testimony of two witnesses, in charge of prison conditions in Montreal and Rivière-des- Prairies detention Centre.

Indeed, they have given credible testimony, supported by abundant documentary evidence and have been able to justify the sanctions imposed on the accused which in no way appeared to be exaggerated. [ 45 ] Thus, the Court disagrees with the defense's contention that a 7.5 months reduction in sentence is justified in this case. [ 46 ] In

summary, in view of the evidence presented, this is certainly not a case where a sentence reduction would be appropriate based on egregious conditions of detention. [ 47 ] According to the defense, the Court should impose the same penalty for Mr. Velasques as that received by his co-accused, Mr. Chery, namely 32 months of imprisonment. According to

section 718.2b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [ 48 ] As this Court pointed out in Hurtubise c. La Reine [10] : « Quant au principe de l’harmonisation des peines, il ne signifie pas qu’il doit y avoir identité de peines entre des complices ni entre des délinquants similaires. Il n’y a ni automatisme ni règle préétablie. L’existence de circonstances atténuantes ou aggravantes dans un dossier peut conduite à une peine dans le bas de la fourchette dans un cas, et dans le haut de la fourchette dans un autre.

La peine maximale n’est pas exclue de l’analyse. » (emphasis added) [ 49 ] Moreover, in all cases the imposition of the appropriate sentence remains a highly individualized process [11] . In the end, similarity remains a matter of degree and a disparity is possible but must be justified [12] as the Court of Appeal in the Moreau [13] decision reiterates [14] . [ 50 ] In this case, several factors dictate that Mr. Velasques must receive a more severe sentence than Mr. Chery. [ 51 ] First, while Mr. Chery pleaded guilty quickly, in October 2016, Mr.

Velasques pleaded guilty 8 months later on the first day scheduled for trial. [ 52 ] Second, although Mr. Chery has a criminal record, his prior sentences were not as severe as those imposed on Mr. Velasques. Mr. Chery’s record begins with offenses related primarily to the possession and trafficking of narcotics. He is subsequently sentenced to 11 months of imprisonment for a robbery committed in 2010 which is the most significant sentence he received prior to the June 28 th , 2016 event. [ 53 ] Third, in Mr.

Velasques case, the sentence must reflect that this crime is committed less than six months after his release from prison, whereas Mr. Chery's last prior conviction dated back nearly two years. [ 54 ] These distinctions mandate a more severe sentence in the case of Mr. Velasques. CONCLUSION [ 55 ] On the robbery and conspiracy charges, considering the mitigating and aggravating factors canvassed above, the range of sentences [15] for this type of offence and the specific situation of Mr.

Velasques, a sentence of 42 months is appropriate. [ 56 ] On the charge of possession of ammunition contrary to a court order, considering his prior conviction for breach, and the recommendation of both parties, a 6 month sentence is appropriate. Applying the proper principles, this sentence must be served consecutively, as it is a completely separate event unrelated to the robbery and conspiracy charges. FOR THESE REASONS, THE COURT

IMPOSES a sentence of 42 months of imprisonment in file 500-01-140400-166 on the counts of robbery and conspiracy, concurrently with each other. The period of pre-trial detention calculated at 22.5 months is to be subtracted, leaving a balance of 19.5 months to be served as of today; IMPOSES a sentence of 6 months of imprisonment in file 500-01-140395-168, on the charge of possession of ammunition in breach of an order , consecutive to the sentence imposed in the previous file; ORDERS , pursuant to

section 109 of the Criminal Code , on the count of robbery, that the accused be prohibited from possessing all the weapons mentioned in that section, in perpetuity; AUTHORIZES, on the count of robbery, the sampling of bodily substances from the accused, for the purpose of genetic testing, as required by

section 487.051(1) of the Criminal Code . __________________________________ Guylaine Rivest J.C.Q. Me Juliette Lucas Crown prosecutor Me Vicky Powell Defense attorney Dates of hearings : June 26-29, 2017 August 22, 2017