Her Majesty the Queen ) ) Chris Vanderhooft v. Breanne James,, 2021 MBPC 12

Citation: 2021 MBPC 12 THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) ) Chris Vanderhooft and Breanne James, ) ) for the Crown - and – ) ) ) Rakesh Rakesh, Accused ) ) ) Martin Glazer, James Lowry and Dinoo Gamage (Student), for the Accused ) ) ) Sentencing Decision delivered: ) March 4, 2021 Mary Kate Harvie, P.J. INTRODUCTION [ 1 ] What is the appropriate sentence for a 43 year old male with no previous criminal record who, while in the grips of a gambling addiction, robs five separate banks over a 15 month period? That is the question for the Court in these proceedings.

Crown counsel suggests a global disposition of 20 years, reduced pursuant to the principle of totality to nine years, less credit for time in custody. Defence counsel suggests a global disposition of four years, less credit for time in custody. Depending upon the length of the sentence imposed, probation may be a factor for the Court’s consideration. THE FACTS [ 2 ] The offences to which the accused has entered guilty pleas span a period from March 2016 to June 2017. The targets were all financial institutions and the offences were committed at different locations throughout the city.

The accused’s behaviour ended when he was arrested in June 2017 after a lengthy police investigation. [ 3 ] On March 4, 2016 the accused attended to the Royal Bank of Canada at 1845 Main Street where he handed a note to the bank teller indicating he had a bomb and a gun, and demanded $10,000.00 in cash. During the interaction, he reached into his backpack and showed the teller what looked like a bomb. He was given $10,000.00 in currency and exited the bank leaving behind the toque and gloves he was wearing.

These items were collected by the police and, like other items recovered in subsequent robberies, were sent for DNA analysis. [ 4 ] On May 11, 2016 the accused attended to the Royal Bank of Canada at 130-1395 Ellice Avenue in Winnipeg. He was wearing a fake beard, a black beret, big sunglasses and gloves. He approached the bank teller and presented a note which contained comments that he was with ISIS, and had a bomb, demanding $20,000.00 within three minutes.

The accused was given approximately $300.00 after which he fled on foot. [ 5 ] On March 9, 2017, the accused attended to the Royal Bank of Canada at 1550 St. Mary’s Road in Winnipeg. He was wearing a fake beard, a turban and a black jacket. He produced a note to the bank teller demanding $30,000.00 in cash. Beneath his jacket was a device with straps and wires which he showed to the employee. His note indicated that if the employee did not comply within seven minutes of his request, he would detonate. While dealing with the teller, he was speaking a different language in a whisper into his shoulder.

The teller provided the accused the equivalent of $3,871.68 in Canadian and American currency. Along with the money was a die pack which discharged red smoke as he was leaving. While leaving, he took off the turban, jacket and fake beard. He fled the location in an SUV. [ 6 ] On March 27, 2017 the accused attended to the Assiniboine Credit Union at 694 St. James Street in Winnipeg wearing an

Impact Security shirt, a fake mustache and a wig, and was carrying a backpack. He produced a note advising that he was armed with a gun and a bomb and would kill if he was not given money. He requested $10,000.00 Canadian and $1,000.00 in U.S. currency. During the 15 minutes it took to collect the money, the accused was threatening to detonate what he described as a bomb. He was given a total of $11,500.00 in Canadian and American currency. He fled in a nearby SUV. The license plate of the vehicle was recorded.

Police traced this vehicle which was registered to the accused. [ 7 ] Following the March 27 th robbery, the accused became a suspect in the robberies. Police applied for and obtained a series of warrants, including a tracking warrant which authorized a tracking device to be installed on the accused’s vehicle. Unfortunately, that tracking device fell off the vehicle. Police continued their investigation of the accused. [ 8 ] On June 26, 2017, the accused attended to the Bank of Montreal at 1565 Regent Avenue West in Winnipeg wearing a wig, beard and hat.

He produced a note to staff indicating he was a terrorist from Syria and demanded $12,000.00 in Canadian currency and $24,000.00 in U.S. currency. The note also indicated that employees were not to call the police as he had a bomb and guns. He brandished what appeared to be a gun. When the clerk produced $1,000.00 in currency, the accused demanded further cash requiring the Manager to obtain cash from the vault. He was ultimately provided $12,000.00 in cash, after which he left.

Police then obtained a search warrant on the accused’s residence at which time police located and seized $12,060.00 in Canadian currency and $1,000.00 in U.S. currency. The accused was arrested. Police obtained a DNA profile from various items of clothing that were discarded after the individual robberies. The DNA obtained matched that of the offender’s.

SCHEDULE OF PROCEEDINGS AND JUDICIAL INTERIM RELEASE [ 9 ] The Accused appeared in Provincial Court where his application for Judicial Interim Release was denied. At the time, the accused was assisted by counsel other than Mr. Glazer, and the matter was set down for hearing. The accused changed counsel several times, ultimately retaining Mr. Glazer.

A number of Case Management Conferences were held with various counsel and the matter was again scheduled for hearing, with dates for various motions discussed. [ 10 ] While in custody, the accused participated in a variety of counselling and programming sessions, which will be discussed in greater detail later. In July 2019, he appeared in the Court of Queen’s Bench for a bail review. The programming and counselling he received during the nearly two years in custody was sufficient to establish a basis for his judicial interim release which was granted on July 12, 2019.

The accused was released on his own recognizance with a significant surety posted by his father-in-law. He was bound over by a very strict bail order which included, at the outset, an absolute curfew and participation in the electronic monitoring program with an ankle bracelet supplied by the Recovery Science Corporation. [ 11 ] On November 14, 2019, the bail was varied by consent to require the accused to be at home between the hours of 6:00 P.M. and 7:00 a.m. daily, thus allowing him to participate in counselling and to obtain employment.

The remaining bail conditions continued. [ 12 ] After extensive discussions between Crown counsel and Mr. Glazer, the matter was resolved and guilty pleas were entered to the five counts as noted in November, 2019 well in advance of the trial dates. Submissions as to sentence were originally scheduled for April, 2020, but were postponed to October 15, 2020 due to the COVID-19 closures. The date for sentencing was also postponed due to the autumn COVID-19 closures.

THE RELEVANT CASE LAW [ 13 ] As indicated, Crown counsel is seeking a total sentence of 20 years with a reduction for totality to 9 years, less credit for time in custody. With respect to the totality principle, Crown counsel very fairly concedes that if the Court deems it appropriate, some concurrent sentences may be imposed to reach the final sentence. Defence counsel seeks a global sentence of 4 years, less credit for time in custody. [ 14 ] Both counsel have provided helpful Books of Authority. Not surprisingly, they differ as to their

interpretation of many of these cases. There is little debate that the sentencing principles of denunciation, deterrence and proportionality play a paramount role in a sentencing of this nature. Mr. Glazer argues they are not the exclusive principles, submitting that rehabilitation plays an important role in the crafting of this sentence. [ 15 ] Crown counsel urges the adoption of a “starting point” approach for the sentencing of a robbery of a financial institution as being between four and five years, relying on the comments of the Alberta Court of Appeal: see R. v. Hung et al. , 1990 ABCA 347 ; R. v.

Brennan 2003 ABCA 330 . In Manitoba, a “starting point” has been recommended with respect to other offences and can provide a sentencing Judge with a useful guideline. It is clear, however, that any sentence for any offence must be tailored to recognize the circumstances of the offender, the Criminal Code sentencing principles, and the principle of totality.

For example, it is interesting to note that in Brennan , while affirming four years as “an appropriate starting point sentence”, the Court went on to uphold an effective sentence of four years for three bank robberies, two of which were committed while the accused was on judicial interim release for the first robbery.

This simply demonstrates that regardless of whether a formal “starting point” is established for any offence, the sentencing of an accused requires the balancing of a range of factors. [ 16 ] Both Crown and defence counsel provided the Court with cases which support the sentencing principles they wish to emphasize. The case which bears the closest factual resemblance to this one is R. v. Vogelsang, 2019 ABPC 254 , which dealt with the sentencing of an offender who committed a total of six bank robberies, four in Saskatchewan and two in Alberta.

For the first four robberies, the Court accepted the joint recommendation of counsel and imposed a sentence of five years. For the remaining two robberies, the Court imposed a concurrent sentence of 18 months. In most of the robberies, the offender handed over a note which demanded cash, but did not make any overt threats. He wore sunglasses but did not wear a mask.

Although no reasons were released with respect to the Saskatchewan offences, I am told that in at least one of the robberies the accused acted as though he had a “device” such as a bomb, and in others he held his hand inside a shopping bag giving the impression that he was holding a weapon. [ 17 ] As indicated, all authorities provided by counsel confirm that denunciation and deterrence, specifically general deterrence, are

the significant sentencing factors. It is clear, however, that rehabilitation must be factored in to the individualized sentencing for theseoffences. Such was the case in Vogelsang, where the sentencing judge both acknowledged that the principles of denunciation anddeterrence as being paramount, while accepting that the prospects for the rehabilitation of the accused as being high. Like this accused,Mr. Vogelsang had no previous record and had “fallen on hard times”.

Unlike this offender, Vogelsang was described as being at thebeginning of addressing his depression and other personal difficulties, with collaterals expressing concern that his “narcissistictendencies” may hinder his “ability to integrate properly into society when released”. [18] The Court must also consider whether the sentenced imposed should be tailored to allow for the imposition of a probationorder, which would have the effect of monitoring the accused in the community for up to three years.

While it would be unacceptable toreduce what would otherwise be an appropriate sentence to such a degree as to take it outside the acceptable range, a reasonablemodification to allow for a probationary period can be contemplated. In R. v. Knott, 2012 SCC 42, [2012] 2 SCR 470, Fish J. noted thefollowing (at para. 45 and referencing R. v. Shoker, 2006 SCC 44 CanLII) [45] Not infrequently, the offender and society will both benefit from a probation order that comes into force followingimprisonment for an aggregate period of more than two years (Mathieu, at para. 20).

The offender has the benefit of a shorter sentence ofimprisonment, and society benefits from constraints aimed at facilitating rehabilitation and protecting society (Shoker, at para. 10). [19] Defence counsel has not argued that the circumstances of the accused amount to “exceptional circumstances” so as to warrant adeparture from what might otherwise be a recognized sentencing range, acknowledging that a further custodial period is required.

I ammindful that it is open to a sentencing Judge, where appropriate, to conclude that even where “exceptional circumstances” may not bepresent, the totality of the factors may allow for a sentence outside a “sentencing range”. To this end, in R. v. Burnett 2017 MBCA 122 Mainella JA made the following comments: The role played by the principle of exceptional circumstances is separate and apart from a sentencing judge’s general discretion todepart downward or upward from a starting point or sentencing range to impose an individualized sentence based on the circumstances ofthe particular case.

As LeBel J noted in R v Nasogaluak, 2010 SCC 6, “[a] judge can order a sentence outside that range as long as it isin accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriatesentences is not necessarily unfit” (at para 44). See also Lacasse at paras 57-61. [20] Finally, I must acknowledge the role of the COVID-19 pandemic on the sentencing of this accused. It was originally intendedthat these matters be dealt with approximately 11 months ago, but like all out of custody matters, the pandemic has repeatedlynecessitated its adjournment.

While this accused did not suffer the hardships that those in custody have had to endure, it does mean thathe has had to live under stringent bail conditions for an extended period of time while having the sentencing and the inevitable custodysentence “hanging over his head.” THE POSITION OF THE PARTIES [21] Crown counsel points to a number of aggravating factors in supporting the sentence sought, and I agree that a number of thosefactors are present.

I note that the incidents were not spontaneous and reflect a significant degree of planning and premeditation,although I am mindful that the execution of the offences also demonstrated a lack of sophistication on the part of the accused. By this Ireference the use of his own vehicle and the discarding of the disguises at or near the vicinity of the robberies, thus making DNAcollection possible. [22] I also agree that the number of incidents are extremely concerning and I am mindful that the accused offending behaviour onlyended with his arrest.

As is often the case with financial institutions, the accused was able to obtain significant sums of money as aresult of some of these robberies. As such, Courts have noted that banking institutions are particularly vulnerable to these type ofoffences, making general deterrence an important sentencing principle. [23] Crown counsel argues that the behaviour of the accused was “escalating”.

While this is not necessarily borne out by the facts, Ido note that each of the individual robberies were committed in a fashion which was both frightening and designed to maximize hischances to obtain the large sums of money he was demanding. [24] Crown counsel acknowledges that these offences share a number of similarities, such as the use of a note, showing a gun,threats, reference to terrorist organizations, and the use of disguises. Nevertheless, they argue that these offences are not part of a spreebut rather part of an escalating pattern of criminal behaviour which call for consecutive sentences.

I agree with Crown counsel that giventhe period of time over which they were committed, these offences do not meet the classified of a “spree” as articulated by the ManitobaCourt of Appeal. [25] While Crown counsel acknowledges that desperation from his gambling addiction may have lead him to rob banks, the factthat this criminal behaviour continued for more than a year is extremely aggravating.

As such, Crown counsel argues that the sentencingprinciples of denunciation and deterrence are paramount and a sentence of four years on each count of robbery is appropriate, with areduction in the overall sentence for totality. [26] Defence counsel argues that there are significant mitigating factors which should result in a sentence far less than thatrecommended by Crown counsel. He points to the guilty pleas entered by the accused and takes issues with the Crown’scharacterization that this was a “strong” case for the prosecution.

Challenges to the various warrants, the search of the accused’sresidence and a severance application are some of the “triable” issues that would have been before the Court had this matter proceeded. Despite the apparent strength of the Crown’s case, I am satisfied that the accused should receive some credit for his guilty pleas,recognizing the significant amount of court time that would have been dedicated to this matter. [27] At 43 years of age, the accused is a permanent resident of Canada.

His guilty pleas may result in immigration consequences.The sentencing hearing was adjourned to allow counsel to determine the impact of these proceedings on his immigration status. While

the ultimate impact is unclear at this time, what is clear is that given that both counsel are recommending a sentence of more than sixmonths, the immigration procedures will be triggered regardless of the sentence imposed. [28] The accused has no previous criminal record and indicates through counsel that he has never been in trouble before. He ismarried with one child. He continues to enjoy the support of his family.

He has been gainfully employed for many years prior to hisarrest, and has recently obtained employment while on bail. [29] The most significant factor motivating the accused’s participation in these events was his gambling addiction. Policeinvestigation confirms that the accused had accumulated significant gambling debts during this period of time, verified by recordsobtained by investigators from Winnipeg Casinos. Defence counsel advises that the accused began to experience some personaldifficulties in 2015, when he turned to gambling and became addicted.

He agrees with the records produced by Crown counsel whichshow that the accused lost over $100,000.00 at the casinos, an amount far greater than what he obtained from the banks. From apractical perspective this amounted to the loss of his home and any other personal savings. [30] What is significant from a rehabilitative perspective are the steps the accused has taken since his arrest for these offences.Defence counsel provided the Court with a package of material which includes letters and progress reports from various programs theaccused participated in while in custody.

These include the completion of the Winding River Therapeutic Community Program, as wellas a Culturally Appropriate Program, the Triple P Parenting Program, the Thinking Awareness Program, as well as others. Defencecounsel advises that the accused essentially participated in any and all counselling and programming available to him while in custody. [31] In support of the July 2019 application for judicial interim release, defence counsel provided a letter from Captain BrianBobolo, Chaplain Salvation Army Correctional and Justice Services, Winnipeg.

Captain Bobolo confirmed that he and the accused hadbeen meeting one on one since the summer of 2018 at Headingley Correctional Centre. In that letter the Captain stated, “I have come to believe that Mr. Rakesh is a decent, modest individual, notwithstanding his past actions. He recognizes the negativeimpact his actions have had on his family and many others in the community. I believe Mr. Rakesh has grown emotionally andspiritually over the past year, and will continue to work on his growth post release as a result of his experience at Winding River.

He iseager to move on and have the opportunity to make amends by leading a good life and contributing positively to the larger community.” [32] Prior to the submissions on sentence, Captain Bobolo authored a letter dated October 7, 2020 which confirmed his ongoingwork with Mr. Rakesh who he says “recognizes the negative impact his actions have had on his family and many others in thecommunity.

He has repeatedly expressed deep remorse during our visits for his actions in the past.” More recently, in correspondencedated February 24, 2021, he confirmed that he continues to meet with and support the accused, noting as follows: On a number of occasions, Mr. Rakesh has voiced recognition of the harmful impact of his past actions on others in thecommunity. Our session together continually involve addressing feelings of regret and finding ways to make things right again, even if ittakes a lifetime of action. [33] Most significant is the steps the accused has taken to address his gambling addiction.

Correspondence from The AddictionsFoundation of Manitoba confirms that the accused has maintained contact and support commencing December 18, 2019. The materialsalso include letters from Mr. Rakesh’s Betters Anonymous sponsor who confirms Mr. Rakesh began attending group meetings inDecember of 2019 and that the sponsor began one on one work with him in June of 2020. The letter indicates that Mr. Rakesh hascompleted the 12 steps of recovery but that his need to address his gambling addiction, like any other addiction, will be a lifelongchallenge. The letters penned by family members and filed confirm Mr.

Rakesh’s ongoing dedication to addressing his addiction andreturning to being a productive member of society. Finally, correspondence from “ContactPoint360” dated February 25, 2021 confirmsMr. Rakesh’s full time employment. [34] There is no indication of any breaches or missteps during the 21 months that Mr. Rakesh has been on a strict bail order. In fact,as noted earlier, some months after his release Crown counsel consented to a variation allowing the accused to obtain employment.

A FIT AND APPROPRIATE SENTENCE [35] In reaching a conclusion as to the appropriate sentence in this case, I am mindful of the caution expressed by Court in R. v.Hamilton (2004), (ON CA), 72 O.R. (3d) 1 (Ont.C.A.), that “factors which may accentuate the gravity of the crimecannot blind the trial judge to the factors mitigating personal responsibility.

Equally, factors mitigating personal responsibility cannotjustify a disposition that unduly minimizes the seriousness of the crime committed” (at para.93). [36] The aggravation and mitigating factors in this case have already been touched on, as has the important role of sentencingprinciples of denunciation, deterrence and proportionality. The offences involved a degree of planning and deliberation, were carried outover a signficiant period of time, and only ended with the arrest of the accused. The reference to bombs and a terrorist organization nodoubt added to the fright caused by any robbery.

It is well recognized that the robbery of a financial institution requires a sentence whichaddresses their potential vulnerability and the potential for considerable financial gain by a culprit.

Indeed, in this case, the accused wasable on three occasions to obtain amounts in excess of $10,000, although I also note that the money from the last robbery was recovered.I am also satisfied that the sentence in this matter must take into account all sentencing principles, including proportionality andrehabilitation. [37] I am not satisfied that the range suggested by the Crown, even recognizing the proposed reduction, adequately takes intoaccount all sentencing principles, and would amount to a sentence that would be crushing in length. [38] Defence counsel argues strenuously for a sentence of four years, less time in custody, which would have the dual effect ofallowing the accused to serve his sentence in a provincial institution and would allow for the imposition of a period of probation.

Inconsidering this recommendation, the Court must be cautious not to allow the amount to time served in pre-sentence custody to act as toomuch of a driving force in the sentencing process. Having said that, practical realities mandate that I consider the impact of the pre-sentence custody on the overall sentence, particularly in a case where a probationary period may play a significant role in the

rehabilitation of the accused and may extend the justice system’s supervision of accused over a signficiant period of time. [ 39 ] Taking into account the mitigating factors already articulated, including the guilty plea, the expression of remorse, the community support available to the accused, his compliance with his release conditions while on release, and most significantly his efforts to address his gambling addiction while on release, I am satisfied that his sentences should be as follows: • March 4, 2016- Royal Bank robbery- 18 months; • May 11, 2016- Royal Bank robbery- 2 years consecutive • May 9, 2017- Royal Bank robbery- 2 years consecutive; • March 27, 2017- Assiniboine Credit Union robbery- 2.5 years • June 26, 2017- Bank of Montreal robbery- 2.5 years [ 40 ] Applying the principle of totality and taking a “last look” at the overall sentence, I am satisfied that the sentences of two and a half years for the offences of March 27 and June 26, 2017 should be served concurrently.

I am also satisfied that the sentence for the May 11, 2016 robbery should be reduced to 18 months. [ 41 ] The total sentence is one of 5 years, or 1825 days. The accused will be given credit for time spent in pre-sentence custody of 747 days at 1.5 to 1= 1121 days, or approximately 3 years and one month. This means the accused will be required to serve a further 704 days in custody, or approximately 23 months on a “go forward” basis. [ 42 ] This will be followed by 3 years of supervised probation on the following conditions:

a) The statutory conditions including keep the peace and be of good behaviour;

b) Report to probation services immediately upon his release from custody and thereafter as directed to do so by probation services;

c) Attend, participate and complete any assessments, counselling or programming as directed to do so by probation services;

d) Not to attend any premises the primary purpose of which is gaming, included but not limited to any race tracks or casinos;

e) Not to own, possess or carry any weapons except any items that may be used in the course of employment or education [ 43 ] The accused offered to pay restitution. I am mindful of the length of this sentence and the challenges he will face as part of his reintegration into society. Therefore, I am satisfied that a stand alone restitution order in the sum of $24,071.16 is appropriate. [ 44 ] Pursuant to Criminal Code s. 109 , the accused will be the subject of a 10 year weapons prohibition. [ 45 ] As this is a primary designated offence, the accused will provide a sample suitable for DNA analysis.

No timeline will be attached as the sample will be taken while the accused is in custody. [ 46 ] There are no costs or surcharge. “Original signed by” Mary Kate Harvie, P.J.