R. v. Streete, 2014 ONCJ 429

Citation: R. v. Streete , 2014 ONCJ 429 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — TYRONE STREETE Before Justice H. Borenstein Heard on October 22, 2013, December 11, 2013, January 8 and 30, 2014, February 24, March 7 and 25, May 25, 2014 Reasons for Judgment released on August 19, 2014 Ms. Karen Erlich ....................................................................................................... for the Crown Ms.

Alison Craig ................................................................................ for the accused Tyrone Streete BORENSTEIN J.: [ 1 ] Tyrone Streete pled guilty to one count of attempted robbery of a bank. [ 2 ] He has been in custody for eleven and a half months since his arrest. [ 3 ] He is 55 years old. His criminal record includes convictions for twelve prior bank robberies. Four times previously, he was sentenced to the penitentiary for bank robbery.

This is the first time he has been convicted of attempted robbery. [ 4 ] He has already received sentences totaling 32 years. [ 5 ] The Crown seeks a sentence of 8 to 10 years in jail less pre-trial custody. [ 6 ] The defence seeks a sentence of 18 months in jail followed by 3 years’ probation in addition to the pre-trial custody. The defence characterizes its position as “low”. [ 7 ] While Mr. Streete’s criminal record is certainly remarkable, the facts of this attempted robbery are relatively minor. FACTS OF THE OFFENCE [ 8 ] At approximately 11:00 am on August 23, 2013, Mr.

Streete walked into a Bank of Montreal branch and approached a teller while pretending to be talking on his cell phone. [ 9 ] As he approached the teller, he said: “this is a robbery. You have ten seconds”. The teller hesitated and said: “what”. Mr. Streete repeated his comment. The teller again hesitated and called out to another employee. Streete then said: “forget it” and left. [ 10 ] He made no attempt to conceal his identity. He was on parole at the time.

The entire event was captured on the bank’s camera system. [ 11 ] He was not armed. [ 12 ] He did not make any explicit threats. [ 13 ] He did not use any violence. [ 14 ] He was arrested on September 3, 2013, and gave a complete videotaped confession to the police. When asked to identify himself, he replied that he was the “perpetrator”. [ 15 ] He told the officer that he was advised not to speak to the police but would speak anyway and did not want to “use any mitigating factors”. He had no reason to rob the bank. He did not need the money.

He started thinking about the robbery that morning and worked up the nerve to do it. He said that he did not think he deserved to be happy. [ 16 ] The teller did not want to provide a victim impact statement. PERSONAL CIRCUMSTANCES

[ 17 ] I have reviewed the pre-sentence report, the correctional records as well as a report from Dr. Gojer obtained by the defence and amplified by the Crown’s written questions to Dr. Gojer. I agree with the Crown that Dr. Gojer’s opinion ought to be given somewhat less weight for four reasons: (1) he spent only four hours with Mr. Streete; (2) his focus primarily was on whether Mr. Streete was not criminally responsible; (3) he did not conduct an extensive risk assessment; (4) he did not consult the significant counseling and other materials generated during Mr. Streete’s extensive incarceration.

That said, Dr. Gojer did speak with Mr. Streete and numerous members of his support community. [ 18 ] I have also reviewed the character references provided on Mr. Streete’s behalf and have seen members of his support group in court on many occasions. [ 19 ] Most of the background information about Mr. Streete contained in the pre-sentence report and in Dr. Gojer’s report was provided by Mr. Streete himself although his sister did confirm much of that information. [ 20 ] Mr.

Streete’s criminal record is as follows: March 14, 1978 B & E and theft s/s -18 months’ probation Oct 11, 1978 Theft under $200, mischief to property 30 days, s/s – 1 year probation May 14, 1979 Breach of probation times 3 5 months on each, concurrent Sept 9, 1979 Armed robbery times 2 12 months 3 months consecutive Oct 6, 1980 Theft under $200 $200 fine April 30, 1981 Released on mandatory supervision Sept 12, 1986 Robbery Use of firearm during indictable offence 7 years 1 year consecutive 5 year firearm prohibition May 7, 1987 Robbery times 5 10 years concurrent each count Dec 23, 1998 Robbery times 2 5 years each charge concurrent June 29, 2005 Robbery times 2 8 years each count concurrent in addition to 216 days’ pre- trial custody [ 21 ] It bears repeating that Mr.

Streete has been convicted of robbery on twelve occasions. He has been sentenced to a total of 32 years in jail. Early Life [ 22 ] Mr. Streete was born in 1959. He has a younger sister. He is single. His father died in 1997. Mr. Streete told the author of the pre-sentence report that his mother has Alzheimer’s disease and was living in a long term care facility in Holland. He had not spoken to her in 23 years. Mr. Streete’s sister told the author that their mother died three months earlier. [ 23 ] Mr. Streete’s father physically abused him and his mother. He told Dr.

Gojer that his father had a volatile temper and broke his arm once while hitting him with a baseball bat. His mother was an alcoholic and suffered depression. She would be out of the house for long periods of time, sometimes in the hospital. [ 24 ] When Mr. Streete was 14, his parents separated. He and his sister were sent to live with their grandmother in Nova Scotia. After 14 months, Mr. Streete was sent back to Toronto alone apparently due to his behavioural issues. He was found guilty of a break and enter and arson at that time and was placed in a group home at age 15.

At 16, he tried to live with his father and his father’s new girlfriend but, after a month and a half, was asked to leave. He lived on the street, or with friends. Once, he lived in a laundry room of an apartment building for one month. He has lived on his own since that time. He had completed Grade 8 but eventually completed high school while incarcerated. [ 25 ] Mr. Streete’s sister confirmed much of Mr. Streete’s information. She advised the author that she used to be a drug addict and had been sentenced to the penitentiary herself but turned her life around when she became a Christian. [ 26 ] She believes Mr.

Streete suffers post-traumatic stress disorder and has serious mental health issues. She says he adapts well in highly structured environments but suffers anxiety and panic when out of custody.

Mental Health Issues [ 27 ] Mr. Streete has seen by mental health professionals while incarcerated or on parole. He was diagnosed, or in some cases, misdiagnosed with schizophrenia and bi-polar disorder. He suffers from depression, anxiety, attention deficit/hyperactivity disorder and post-traumatic stress disorder. His anxiety increases when living on his own. [ 28 ] He told the author of the pre-sentence report that his desire to rob banks is like a compulsion which reduces his anxiety.

He could not promise that he would never again re-offend. [ 29 ] The correctional records filed reveal a long-standing yearning by Mr. Streete for mental health assistance, significant efforts by Corrections Canada to connect Mr. Streete with mental health services and continuous complaints from Mr. Streete about the services offered. [ 30 ] There is one thing everyone agrees upon: Mr. Streete is in need of significant mental health counseling. Release from Prison in 2010 [ 31 ] Mr.

Streete was released from custody in October 2010, almost three years before this offence. [ 32 ] He worked occasionally at odd jobs. He found an excellent support group through the church. He engaged in some counseling but discontinued. [ 33 ] He was determined to enrol in courses at George Brown College and did so. He took courses over four semesters. He spoke about criminal justice issues at his church and to a university class. He volunteered.

In his confession to the police, he told the officer he did not want the press release to mention that he was a George Brown student as he did not want his arrest to harm their reputation. [ 34 ] He told the author of the pre-sentence report that he has not used drugs in a while and drug use has no role in this case. [ 35 ] He was living in a halfway house until June 2013, two months before the attempted robbery. [ 36 ] He was turning his life around. Character References [ 37 ] Numerous members of the “Compassionate Justice Group”, which operates out of a church, became Mr. Streete’s bedrock of support.

Members of that group have attended court many times. They spoke to Dr. Gojer as well as to the author of the pre- sentence report. Several submitted letters to the court on Mr. Streete’s behalf. They all describe Mr. Streete as sensitive and intelligent and believe he has mental health issues. [ 38 ] James Black met Mr. Streete four years ago at a dinner hosted by his church, which brings together offenders and volunteers. For the last two years, Mr. Black has acted as mentor to Mr. Streete. They meet weekly, usually for dinner. Mr. Black writes that he and Mr.

Streete speak extensively and openly and theirs is a close bond based on friendship and mutual respect. It is clear Mr. Black cares for Mr. Streete and that care is mutual. Mr. Black writes that: “Tyrone suffers from a persistent set of dark and debilitating emotions that have on repeated occasions skewed his decision making and his behaviour” and continues: “He is a spectacularly gifted individual who has a lot to offer society. ….I have read and edited his short stories, many of them about individuals with conflicted identities and severe episodes of depression. They are worthy of publication.

As a former university professor and current book publisher, I trust my judgment and confidence in Tyrone in both these domains. His erudition and insights carry over into more personal affairs. He is constantly revisiting his own issues and behaviours. He is seeking strategies that will enable him to escape from the urge to rob banks. But he needs therapeutic help. With it, I am confident he will turn to more socially acceptable and life affirming pursuits.

His objective is to take the Community Services Program at George Brown College and to work in the after care sector helping ex-offenders re-integrate into society and find peaceful lives”. [ 39 ] Robin Pacific, another member of the Compassionate Justice Group, wrote that Mr. Streete is an “extremely sensitive and creative person” who volunteers tirelessly and is compassionate. She described him as going from “strength to strength” and as an exceptional human being.

When she learned of his recent arrest, she wrote that the compassion he feels for others is difficult for him to summon up for himself. [ 40 ] Don Lang, co-chair of the Group, wrote a similar letter stating: As has been attested to by others, I will simply state that Tyrone is a very fine individual at many levels. Those of us who have attempted to assist him do so not simply as angels of mercy but more compellingly as individuals who see the exemplary qualities of this individual and fervently wish for him to get on an effective rehabilitative path”. [ 41 ] Ms.

Barret wrote a letter expressing her support for Mr. Streete. [ 42 ] Finally, Edward Greenspan submitted a letter on Mr. Streete’s behalf. Mr. Streete delivered a lecture to Mr. Greenspan’s class at Brock University on the topic of politics and criminal justice. Mr. Greenspan described it as one of his best classes of the semester Mr. Greenspan was so impressed with Mr. Streete that he offered to contribute financially to Mr. Streete’s education. [ 43 ] Mr. Streete addressed the Court following submissions of the difficulties he has faced. He said he agreed with most of

what the Crown and defence said about him. He thanked his support group for being there and said he stood naked before them. Hespoke of his depression and his attempt to quell that by committing this offence. He spoke of his desire for help. He expressed empathyfor the teller. He was eloquent, remorseful and sincere. [44] This sentencing hearing has taken almost a year due to delays in obtaining some of the reports prepared. As a result, Mr.Streete has been before the Court many times. I have seen his support group many times. He was left in the prisoner’s box when a courtofficial suffered an asthma attack.

Everyone in the court rushed to her aid. He, like everyone else, was concerned primarily for herhealth. The Crown, Ms. Erlich, while seeking a significant sentence, clearly has compassion for Mr. Streete as evidenced by herthoughtful and eloquent submissions. We have seen a lot more of Mr. Steete than just someone brought up from the cells to plead guiltyin guilty plea court to be sentenced. He is an individual with a past that has led him to the present.

SENTENCING POSITIONS OF COUNSEL Defence [45] The defence submits that, in light of the eleven and a half months of pre-trial custody, a further 18 month sentencefollowed by probation would be appropriate. She submits that a new and creative approach to sentencing Mr. Streete is needed. Shepoints out that he was making substantial improvements in his life when he was released from custody and should be given theopportunity to continue to make those gains. Crown [46] The Crown began by acknowledging that this was a very sad case. Mr.

Streete is 55, intelligent, articulate and has come along way since his release in 2010. He had been upgrading his education, was working, was not using drugs, had a circle of support andyet committed this offence. [47] The Crown points out that Mr. Streete has been convicted of 12 prior bank robberies. While this is his first conviction forattempted robbery, he is close to the worst offender. He has been to the penitentiary four times for bank robberies.

Given his record, theCrown asked what message it would send to the accused and others if he tries to rob a bank again and receives a significantly lessersentence than before. [48] The Crown point out that trends emerge in Mr. Streete’s past. He says he wants treatment but discontinues treatment. Hecommits bank robberies and then feels remorseful. PRINCIPLES OF SENTENCING [49] Deterrence weighs heavily in this case but so does rehabilitation. Mr. Streete and others need to be deterred and societyneeds to be protected. Rehabilitation of Mr. Streete would offer the best protection.

Mitigating and Aggravating factors [50] The primary aggravating factor in this case is Mr. Streete’s criminal record which is lengthy and related. While robbery isa serious offence, this attempted robbery is at the low end of the spectrum. He went into the bank intending to commit a robbery and, asthings developed, he changed his mind and left. [51] By way of mitigation, there is Mr. Streete’s plea of guilty, his confession to the police and his genuine remorse. The factthat he changed his mind is also a factor. [52] Mr.

Streete’s deep and genuine connection to his support group is a hopeful development for his future. Moreover, hisdetermined efforts and success in his education since his release are factors in his favour. So is his desire to teach and share hisexperiences with others by lecturing. These measures are sincere and substantive. It is in the interest of Mr. Streete and to the public longterm not to have this development crushed by too lengthy a sentence but rather through the imposition of sentence that seeks to balancethese factors. [53] Mr.

Streete’s insight into how his depression, anxiety and thrill-seeking relate to this offence are factors in this case thatcut both ways. The thrill-seeking motivation, used to quell his anxiety, is perplexing in this case. Mr. Streete did not conceal his identityand must have believed on some level he would be caught. His plan was feeble and he changed his mind.

I suspect that, having spent somuch of his adult life incarcerated, that is where he is most comfortable and where he was trying to return. [54] His insight into why he committed this offence coupled with his genuine remorse and desire to change provide a basis tobelieve he can control his behaviour. [55] In considering the appropriate sentence in this case, I adopt the following from the British Columbia Court of Appeal inR. v.

Mitchell (1990), (BC CA), 54 C.C.C. (3d) 132, which eloquently expresses my view in this case: It appears self-evident to us that in any population there will be some disadvantaged members who, for many reasons, are likely to fall, ormore likely drift, into a life of idleness and crime.

Society must be protected from them as best it can, but in some cases it is unrealistic tothink that some of these unfortunate persons can be rehabilitated once the cycle starts, by successive and increased periods ofimprisonment, especially when, upon release, they are returned to the same environment, lifestyle, frustrations and temptations which

contributed to their misfortune in the first place. …. Some of these persons are able to overcome their disadvantages, some may be able to benefit from the disciplines which society imposes by imprisonment or otherwise, (although I suspect their number is small if not minuscule), but many, of which I suspect the accused is typical, are not capable of reforming themselves.

For them, each sentence, including those of increasing severity, are only stages of the cycle that, if allowed to continue, will probably become permanent, so that a life, which is always precious, becomes wasted. [ 56 ] T he only qualification I would make to that statement is that, like those who submitted letters in this case, I too think the evidence supports the inference that Mr. Street is capable of change. [ 57 ] Weighing all of the factors in this case, and recognizing that Mr.

Streete needs intensive assistance once in the community, bearing in mind his record but also the nature of this offence, and the need for proportionality to not only the offender but the offence, I believe a sentence of one further year in jail followed by 3 years’ probation is appropriate. Given the pre-trial custody credited at 1.5 to 1, that would be the equivalent of five and a half years of a sanction for that conduct in the bank that day. [ 58 ] I believe Mr. Streete needs three years’ probation on strict terms. He is 55. He has a lot to offer. He wants to improve. He has not been on probation since 1979.

There are vast resources available to him through probation. [ 59 ] Accordingly, in light of the 11 ½ months pf pre-trial custody, credited at 1.5 to one, Mr. Streete will be sentenced to a further year in jail followed by three years’ probation on the following terms. • Report to a probation officer within 72 hours of your release from custody.

You will be subject to the mandatory terms of probation. • You are not to possess any weapons as defined by the Criminal Code and you are not to enter the Bank of Montreal Branch located at 1502 Dupont Street, Toronto, Ontario. • There will be a s. 109 order for life and an order that you provide a sample of your DNA. • The only additional terms of probation are that you will take and actively and fully participate in all assessments and counselling that your probation officer recommends and sign all releases so that your probation officer can monitor your compliance with this term. • You will also appear before me for a status report every six months while on you are on probation.

Released: August 19, 2014 Signed: “Justice Borenstein”