R. v. N.(M.), 2013 ONCJ 320

WARNING The court hearing this matter directs that the following notice should be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. Identity of offender not to be published. —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111. Identity of victim or witness not to be published.—

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. No subsequent disclosure.— No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act , which deals with the consequences of failure to comply with these provisions, states as follows: 138. Offences.—

(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. Citation: R. v. N.(M.) , 2013 ONCJ 320 ONTARIO COURT OF JUSTICE sitting under the provisions of the Youth Criminal Justice Act , S.C. 2002, c. 1 BETWEEN: HER MAJESTY THE QUEEN — AND — M.N. , a young person (or “young persons”) Before Justice Borenstein Heard on March 27 and May 15, 2013 Reasons for Judgment released on June 11, 2013 Mr. B. Jones .............................................................................................................. for the Crown Mr.

A Alawi ........................................................................................................... counsel for M.N. BORENSTEIN J.: [ 1 ] M.N. has pleaded guilty to two counts of robbery and one count of using an imitation firearm while committing an indictable offence of robbery.

[ 2 ] He committed these offences five days before he turned 18. Accordingly, he will be sentenced as a youth. He is now 20 years old. By virtue of

section 89 of the Youth Criminal Justice Act , M.N. will serve any custodial sentence that I impose in an adult custodial facility regardless of whether I would have ordered open or secure custody. Facts of the offence [ 3 ] At 4:30 p.m. on August 30, 2010, M.N. and a male – who remains unidentified to this day – entered a spa. M.N. was holding an imitation handgun. Two victims were in the spa. M.N. pointed the gun at one of the victims. The other fled and called 911. M.N. and the first male struggled to the ground.

M.N. was somewhat injured in the struggle and was bleeding as he fled. [ 4 ] In November 2010, M.N. committed another robbery; however, by this time, he was an adult for criminal law purposes. When he was eventually convicted of this second robbery in 2012, a sample of his DNA was obtained. That DNA was a match with the blood left at the scene of the robbery of the spa.

When the police went to M.N.'s home, they found some of the same clothing and sunglasses captured on the video surveillance of the robbery at the spa. [ 5 ] As a result, he was charged with these offences. [ 6 ] He has pleaded guilty to robbing the two occupants of the spa and using an imitation handgun. [ 7 ] He had no record at the time. [ 8 ] He is now 20. Positions of counsel [ 9 ] The Crown seeks a sentence of 12 to 15 months in custody, less pre-trial custody, plus probation and a five-year weapons prohibition. The Crown seeks a DNA sample as well.

The defence submits that time served is the appropriate sentence. [ 10 ] The Crown and defence disagree as to the amount of pre-trial custody. Credit for Pre-trial custody [ 11 ] M.N. was sentenced to 10 months in custody for the robbery he committed as an adult less pre-trial custody. A few weeks later, he was sentenced to 30 days for a separate assault and failing to comply with a recognizance. [ 12 ] While M.N. has been, and remains in, custody at the present time, for much of that time, he was serving those adult sentences.

He also consented to his detention on the charge for which he is now to be sentenced. [ 13 ] Counsel advise that M.N.'s statutory release date in relation to the adult offences was December 10, 2012. However, in light of the fact that he consented to his detention on the present charge, he did not seek nor was he released on parole. I have been advised that the custodial portion of his adult sentences expired on March 1, 2013. [ 14 ] The Crown submits that M.N. should be credited on a 1 to 1 or 1.5 to 1 basis for the period from March 1, 2013 until today June 11, some 3 ½ months.

The Crown submits that if M.N. were given credit for the pre-trial prior to March 1st, he would be receiving double the credit for the same time spent in custody. [ 15 ] The defence submits that pre-trial credit should be counted commencing December 10, 2012, since that was the date he likely would have been released had he not been charged with these offences and consented to his detention. [ 16 ] It is common for young people to be credited at the rate of 1.5 to 1 for pre-trial custody when being sentenced. [ 17 ] In this case, it is very likely M.N. would have been released on parole on December 10, 2012 had he not been charged and detained on the spa robbery.

However, while he would likely have been released from custody, he would still have been serving his sentence and would have been subject to conditions of parole. He would not be accumulating pre-trial credit for the spa robbery. [ 18 ] In my view, a reasonable resolution to this issue is to credit M.N. on a 1to 1 basis for the period from December 10, 2012 to March 1, 2013 for a total pre-trial credit of 82 days credited as 82 days and on a 1.5 to 1 basis thereafter (101 days credit as 151 days). Accordingly, he has pre-trial custody equivalent of 233 days or 7 ¾ months.

Personal circumstances of M.N. [ 19 ] A pre-sentence report was prepared. M.N. came from a stable home. His family moved from Afghanistan to India and then to Canada in 1986. There was no abuse in his home. It appears as though M.N. was getting into some difficulty in high school. [ 20 ] While in high school, M.N. was expelled for threatening a teacher. Prior to that time, he had been suspended for fighting and for refusing to serve a detention.

With respect to threatening the teacher, he was charged with that offence but acquitted. [ 21 ] The family had M.N. live with his grandparents in Montreal for a short period in 2009 in order to try to effect a change in

his behaviour. M.N. moved back to Toronto. The family then returned to Afghanistan for seven months and then returned to Canada. M.N. found that experience a positive one. [ 22 ] In 2010, however, he committed this offence. [ 23 ] M.N.'s parents believe that he got into criminal behaviour because of his peers. [ 24 ] He is just two credits shy of completing high school yet he has not pursued any courses while in custody though they were available to him. He tells the Court he will change and pursue them when he gets out of custody. That promise rings hollow.

There is no reason he could not have pursued education while in custody. [ 25 ] He intends to work with his father delivering produce. He wants to study international business and open and import- export business. [ 26 ] No victim impact statements were prepared though one can easily imagine how terrifying this crime was for the victims. Aggravating and mitigating factors [ 27 ] The aggravating features of this case are the nature of the offence; it was a violent act that would have terrified the victims and violated their sense of security. It was a violent act that attempted to control another human being.

It showed a complete lack of respect for the rights and dignity of the victims. There was planning involved. This was not impulsive. The victims were targeted. While still a youth, M.N. was just five days away from turning 18. The use of an imitation firearm would have caused greater fear. [ 28 ] By way of mitigation, M.N. has pled guilty, was young and had no criminal record at the time.

Purposes of sentencing under the YCJA [ 29 ] The purpose of sentencing under the Y.C.J.A. is to hold a young person accountable for his or her offence by imposing just sanctions that have meaningful consequences to the young person and promote his rehabilitation and reintegration into society. The focus of sentencing is to protect society through an attempt to rehabilitate and reintegrate the youth back into the community.

The Y.C.J.A. amendments that now allow a court to consider deterrence as a factor on sentencing was not in operation when this offence was committed and will not be considered in this sentence. [ 30 ] The sentence must be the least-restrictive sentence capable of achieving the purpose of sentencing and must be proportionate to the seriousness of the offence and the offender’s degree of responsibility. [ 31 ] To quote the 2009 decision of R. v.

K.L. by our Court of Appeal, “at bottom, [the] sentence must be proportionate to the seriousness of the offence and the degree of [the young person’s] responsibility”. [ 32 ] The Crown provided numerous cases where offenders who committed the offence of robbery with an imitation firearm were sentenced to significant periods of custody. [ 33 ] In R. v. A.G. , [2012] O.J. No. 5836 (O.C.J.) , per Murray J., a 17-year-old youth with a prior criminal record held an imitation firearm during a violent home invasion. That youth participated in the beating of one of the victims.

He was found guilty of robbery, theft, use of an imitation firearm and two counts of failing to comply with house arrest. He was 19 years old at the time of sentencing. He had a prior record for assault, failure to appear, failure to comply with a recognizance, trafficking and possession of a controlled substance, possession of property obtained by crime and a further failure to comply with a recognizance. He was sentenced to 24 months of custody and supervision and probation. [ 34 ] R. v. M.C. , [2011] O,J.

No. 479 per Tuck-Jackson, a youth who was just shy of 16 years old committed three robberies using imitation handguns. The robberies were committed over two days. M.C. was the youth but adults were also committing those offences. Unlike M.N., M.C. had a very troubled family life. The Court found the robberies were motivated by M.C.’s desire for food. The victims were assaulted, though not by M.C. M.C. did not possess the imitation firearm himself though he was a party to these offences.

M.C. had 10.5 months of actual pre-trial custody and was given credit for the equivalent of almost 16 months of pre-trial custody. Again, he was under 16 years at the time. He was sentenced to an additional three months of custody and supervision followed by 17 months’ probation. [ 35 ] The Ontario Court of Appeal decision in R. v. J.S. , [2009] O.J. No. 812 , is instructive. In that case, J.S. and another youth wore masks and robbed a lone storekeeper in a convenience store. J.S. threatened the storekeeper with an imitation handgun. His accomplice was armed with a knife.

The sentencing judge sentenced J.S. to 12 months’ probation and declined to make a DNA Order. On appeal, the Court found the sentence was unfit and failed to recognize the seriousness of the offence and failed to properly address the requirement that J.S. be held accountable for his actions. The Court of Appeal held that, ordinarily, such offences would attract a significant custodial sentence, even for a youth.

However, in light of what the Court of Appeal called J.S’s “exceptional” rehabilitative progress, they imposed a deferred custody and supervision order. [ 36 ] There are similarities and differences between this case and the other cases. Nonetheless, in the case at bar , the victims were sought out. The offence was planned. The victims were vulnerable. I see no evidence of insight or progress made by M.N. since this offence was committed. He has not finished school despite having the opportunity and his claim that he wants to. Clearly, a custodial sentence is available pursuant to section 39(1)(

a) and is warranted. It is a violent offence. In fact, the submissions of both counsel revolve around a custodial sentence. [ 37 ] This sentence must be the least restrictive sentence possible but must also be proportional to the seriousness of the offence and must hold M.N. accountable for his crime.

[ 38 ] In R. v. A.O. , [2007] O.J. No. 47 , the Ontario Court of Appeal held: In our view, for a sentence to hold a young offender accountable in the sense of being meaningful it must reflect, as does a retributive sentence, “the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender’s conduct”.

We see no other rational way for measuring accountability. [ 39 ] Having considered the nature of the crime, M.N.'s background, the pre-trial custody of the equivalent of 233 days, the case law and the above principles, in my view a further period of custody is required. M.N.'s conduct was dangerous and he has shown little insight. He must be held accountable. He will be sentenced to a further period of six months’ custody and supervision. Four months of custody – secure custody if it needs to be said – followed by two months of supervision.

That will be followed by one year probation on the following terms: ♦ He is to report to a probation officer. ♦ He will be subject to the mandatory terms of probation. ♦ In addition, he will reside at an address approved of by his probation officer. ♦ He will take and participate in any counselling that may be recommended to him by his probation officer and sign all releases to enable the probation officer to monitor his compliance with this term. ♦ He will not possess any weapons as defined by the Criminal Code including any imitation firearm or pellet guns. ♦ He will have no contact or communication directly or indirectly with Genei ZHENG, Pei Pei CHEN and Wen Chao ZHO. ♦ He will not attend within 250 metres of anywhere he knows Genei ZHENG, Pei Pei CHEN and Wen Chao ZHO to live, work, or happen to be. ♦ He is not to be within 250 metres of 3330 Pharmacy Avenue in Toronto. ♦ He is to obey a curfew as determined by his probation officer. ♦ He will make reasonable efforts to seek and maintain employment or attend for educational programming or vocational training as approved of by his probation officer and provide proof of such efforts and attendance to his probation officer ♦ He will be subject to a five-year weapons prohibition. ♦ There will be an Order that he provide a sample of his DNA.

Released: June 11, 2013 Signed: “Justice Borenstein”