R. v. Smith, 2017 ONCJ 308

CITATION: R. v. Smith , 2017 ONCJ 308 DATE: April 21, 2017 Information Nos. 17-0223-01 & 17-0208 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. LINDSAY SMITH R E A S O N S F O R S E N T E N C E BEFORE THE HONOURABLE JUSTICE M. HORNBLOWER on April 21, 2017 at SARNIA, Ontario

APPEARANCES: K. Leszczynski Counsel for the Crown T. Brandon Counsel for Lindsay Smith ONTARIO COURT OF JUSTICE T A B L E O F C O N T E N T S REASONS FOR SENTENCE 1

Transcript Ordered: April 25, 2017 Transcript Completed: Ordering Party Notified: FRIDAY, APRIL 21, 2017 MS. BRANDON: Lindsay Smith before the court. Thank you very much. THE COURT: You can have a seat, Ms. Smith, if you like. Thank you. R E A S O N S F O R S E N T E N C E HORNBLOWER, J. (Orally): Lindsay Smith is before the court having plead guilty to a charge of robbery. On February 1st of this year, Ms. Smith, wearing a hoodie and a skeleton face, entered the CIBC and produced a note to the teller demanding money and warning the teller not to call the police, that she had a gun and would shoot.

The teller handed over a package of money to Ms. Smith, who then demanded more money, which was handed to her. Thereafter, Ms. Smith left. Within a matter of hours, Ms. Smith was arrested and when questioned by police readily admitted her role in the offence. There is before the court a joint submission for a sentence of imprisonment of two and a half years. Counsel have provided case briefs in support of their positions. If nothing else, those cases show a wide range of sentences from conditional sentences when they were available to penitentiary sentences approaching the double digit range.

After considering those cases and the principles enunciated in them, I am satisfied the joint submission is within the appropriate range. Robbery is an offence of violence punishable by a term of imprisonment for life. As a starting point, consideration has to be given to the imposition of a penitentiary sentence in the area of two years with sentences moving up or down from there depending upon the circumstances of the offence, circumstances of the offender and the presence of aggravating and mitigating circumstances.

Such a starting point reflects the seriousness of the nature of the offence while respecting that sentencing remains an individual process. Ms. Smith was arrested shortly after the offence occurred. She readily admitted her role, was desirous of entering a guilty plea and did so at an early opportunity. She appears to recognize the impact of her actions on the bank employees who were, to put it succinctly, traumatized by the event and continue to be apprehensive. Ms. Smith, by her plea, has allowed those persons to avoid the additional stress a trial would likely cause them.

She needs to be given credit for those things. They are mitigating factors. While there was no gratuitous violence used by Ms. Smith, there was a threat to cause harm. No gun was present, but there was a threat to use one. These are both aggravating circumstances. The teller would have no way of knowing that Ms. Smith did not have a gun, nor would she have any reason to disbelieve the threat to use the gun. Significant emotional trauma was caused to the victim. The existence of a record for violence is also an aggravating factor. Ms.

Smith suffers from some unspecified mental health issues, but not to the extent they raise concerns regarding fitness or criminal responsibility. While she is said to suffer from delusions, there’s no suggestion nor is there any evidence that they played any

part in the

offence or played any role in the commission of the offence. The mental health issues are not a significant factor in the determination of a proper sentence, although they are available for consideration. Using a starting point of two years and taking into account the aggravating, mitigating factors, I’m satisfied the joint submission strikes a fair balance between those factors as well as taking into account the circumstances of the offence and the offender. It falls within the appropriate range which I believe to be between two and a half and three years.

Accordingly, there will be a period of incarceration of two and a half years less the time served. I believe that now to be 80 days enhanced by 40 days which becomes 120 days to be taken into account. The two and a half year sentence is the equivalent of 912 days, at least that’s what I was told by counsel, I’m prepared to accept that, less the 120 days leaves the balance to served, that to be served in an institution most adequately able to deal with Ms. Smith and the mental health issues that are apparent.

With respect to the breach of probation charge, the joint submission for a period of incarceration of 30 days concurrent is also appropriate so that will be imposed. With respect to the surcharges that are applicable, I’m not going to impose them. It would be unfair to do so in these circumstances. With respect to the robbery charge, it is a primary DNA offence for which a DNA order will be made. With respect to a firearms prohibition, in light of the record and the circumstances surrounding this offence, there will be a lifetime ban under

Section 109 of the Criminal Code prohibiting you from having in your possession firearms, ammunition, restricted weapons, prohibited weapons and devices. I believe those were the only other ancillary orders the Crown was seeking? MS. LEXZCZYNSKI: Yes, Your Honour. THE COURT: All right. Thank you. As I said, the joint submission was within the appropriate range. The case book provided was extremely helpful and I appreciate the effort that went into providing that. MS. BRANDON: You’re welcome, Your Honour.

And in terms of - just - I don’t know that I caught it or heard you fully, the recommendation on treatment while she’s serving her sentence focuses on mental health? THE COURT: Mental health. MS. BRANDON: Okay. Thank you. THE COURT: Is there anything else it should focus on? The pre-sentence report was a stand down report, so I’m simply going on one of the issues that was reflected there. MS. BRANDON: The only other issue might be that of violence recognizing the record and the crime before the court... THE COURT: Okay. I.... MS. BRANDON: ...but really it is mental health.

THE COURT: ...suspect that will speak for itself. MS. BRANDON: Thank you, Your Honour. THE COURT: Remaining charges are to be withdrawn? MS. LESZCZYNSKI: Yes, Your Honour. THE COURT: Thank you. MS. LESZCZYNSKI: Thank you. MS. BRANDON: Thank you, Your Honour.