R. v. T.(N.), 2011 ONCJ 283

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 Identity of offender not to be published.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 Identity of victim or witness not to be published.—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(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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. T.(N.) , 2011 ONCJ 283 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 — N . T . , a young person Before Justice M. Bloomenfeld Heard on February 25, 2011 and April 20, 2011 ORAL REASONS FOR SENTENCE Reasons for Judgment released on May 3,2011 [1] B. Jones .............................................................................................................. for the Crown D.

Goodman ............................................................................. counsel for the accused N.T. BLOOMENFELD, J.: [ 1 ] On February 25, 2011, Mr. T. pleaded guilty to three counts of robbery. He also admitted to committing a fourth robbery and an allegation of threatening death. A concise agreed statement of fact was read into the record and entered as an exhibit on the plea. Sentencing submissions were made on April 20, 2011 and the matter was adjourned to May 3, 2011 for sentencing.

CIRCUMSTANCES OF THE OFFENCES [ 2 ] Mr. T. admitted the following allegations: On October 8, 2010 , at approximately 1 p.m., Mr. T. entered the Bank of Nova Scotia at 31 Tapscott Road in Toronto. He approached the first available teller and gave her a note reading, “I have a gun. I’m not afraid to use it. I’m not going to show it unless I’m going to use it. I want $4000 cash. Thank you for your cooperation. The teller, Senthan Thiyagarajah, complied by placing $300 into an envelope and handing it to Mr. T. Mr. T. took the money and fled.

The following week on October 15, 2010 , Kayena Siranjan, one of his grade 10 classmates at West Hill Collegiate accidentally touched Mr. T. while she was moving her chair in drama class. She apologized, but Mr. T. jumped to his feet and yelled “What the fuck? I’ll fucking kill you! Don’t ever touch me!” Then he pushed her back into her chair with two hands. The teacher, Ms. Lissie Kurtz, saw what happened and called an officer for help. Mr. T. yelled, “You put that phone down nigger! I’ll shoot you! I will shot you!” Ms. Kurtz backed away from the phone and Mr.

T. again yelled “I will shoot you nigger!” Then he fled the school. Just over a month later, on November 13, 2010 at about 8:35 p.m., Mr. T. robbed two taxi drivers, Sivasampu Gunaratnam (63 years old) and Rashid Choudary (36 years old). Both of the taxi drivers were responding to calls at 69 Fawcett Trail in Toronto. Mr. Choudary arrived first. Mr. T., who had been waiting on the driveway, got into the back seat of Mr. Choudary’s cab, grabbed a large knife and demanded money. Mr. Choudary gave him $45 and Mr. T. left the cab. Mr. Gunaratnam arrived while Mr. Choudary was being robbed.

He got out of his cab and was approached by Mr. T. and two other males. They took his glasses case and $30.00 and during the robbery pushed him to the ground. Mr. Gunaratnam suffered a minor scratch to his left knee. On the afternoon of November 19, 2010, a few days after the taxi driver robberies, Mr. T. went to the TD Canada Trust bank at 49 Lapsley Avenue, Toronto. He approached the first available teller and produced a note saying, “I have a gun. I’m not afraid to use it. I’m not going to show it unless I’m going to use it.

I want 4000 cash or I will blow your head off.” The bank teller, Virginia Altarejos, gave Mr. T. $200 cash in an envelope and Mr. T. fled. Police later identified Mr. T.’s fingerprints on the robbery note. [ 3 ] The Crown was not able to obtain any victim impact information. CIRCUMSTANCES OF MR. T. [ 4 ] Mr. T.’s personal circumstances were described in the submissions of counsel, the pre-sentence report and the s. 34 report. He is 15 years old and has no prior record.

He lives with his mother and does not know his biological father. [ 5 ] In speaking with the probation officer who wrote the pre-sentence report as well as the assessors for the s. 34 report, Mr. T.’s mother observed that she began to notice a change in Mr. T.’s behaviour when his grandfather died about 6 months before these offences. He became withdrawn and aggressive and began dressing differently. His mother also noticed that things started disappearing from the house. She mother told the author of the s. 34 report that she took away Mr. T.’s school sports because his grades were slipping, but Mr.

T. advised the probation officer that he had quit on his own. [ 6 ] Mr. T. confirmed that he had been close to his grandfather and had become quite depressed for a while after his grandfather passed away in late 2009. He had watched his grandfather slowly die of renal disease over the course of several months and afterwards gotten a tattoo reading “R.I.P. Austin Mr. T.,” meaning rest in peace. [ 7 ] Mr. T. received some counselling and then was placed on a waiting list for more that never materialized. [ 8 ] Despite the absence of a criminal record, Mr.

T. gave information to the probation officer and the s. 34 report assessors that he had used marijuana, drunk alcohol and committed various crimes. He told the probation officer that he first tried marijuana when he was 14 years old after he quit track and field. After that he started using it every day, with the amount varying according to how much money he felt like spending. He admitted to drinking some alcohol, beginning about 1 ½ years ago, and liking vodka. The most he had drunk was approximately 10 shots of vodka, which had made him sick. The s. 34 report indicated that Mr.

T. does not drink frequently but when he does use alcohol it is problematic. [ 9 ] Mr. T. was more elaborate in his description of antisocial conduct with the s. 34 assessors, advising that, since the age of 12 he had: • Sold marijuana (from grade 9 onward); • Stolen from stores countless times; and • Participated in two break and enters and about 20 robberies When asked about carrying a weapon, he initially stated that he “prefers a gun … when needed” and then denied having said this, worrying that the judge would think he was a menace to society.

In relation to the robbery charges for which he is being sentenced, Mr. T. stated, “it’s a way of life … way to get money.” [ 10 ] Regarding the impact on the victims, Mr. T.stated, “What about it … never thought about it.” He indicated that he had no regrets, but that he was willing to serve the consequences, even though he did not want to be in jail.

[ 11 ] It is important in interpreting Mr. T.’s comments to the probation officer, s. 34 assessors and others to keep in mind that his own self-perception may not be accurate. There was a common thread of bravado and braggadocio throughout the reports. One specific caveat advanced in s. 34 report concerning any evaluation of Mr. T.’s own insight into his conduct was that testing revealed that, “he may have narcissistic tendencies and may be lacking in insight into his own problems, resulting in an overly positive self presentation during the assessment.

As such, some caution should be used in interpreting N.T.’s own reports of his behaviour as they may not be an entirely accurate representation of his thoughts and behaviours.” [ 12 ] Mr. T. had no current depression, anxiety or psychosis but he did admit to antisocial behaviour and had a fatalistic attitude about life. [ 13 ] The reports also documented a troubled history in school with poor grades, many absences and conflicts with other students. Mr. T. had been diagnosed with ADHD in grade 4 and briefly tried Ritalin but stopped because he didn’t like feeling doped up.

In talking to the s. 34 report assessors, Mr. T. seemed to disagree with the ADHD diagnosis. He achieved 6/8 high school credits in grade 9 but then was absent so often that he was transferred to another school. He was expelled from that school as a result of the threatening allegation charge to which admitted as an aggravating factor on sentence for these robbery charges. He returned to his prior school for about a month before his arrest on the remaining offences but accumulated no other credits. [ 14 ] During his pre-sentence detention, Mr.

T. did well in academics and was described by teachers as demonstrating a positive attitude. The Youth Services Manager at the detention facility told the probation officer that Mr. T. was very capable and had the ability to succeed if he separated himself from negative influences. His behaviour away from the other youth in custody was excellent but his need to fit in led him to assume a “tough guy” appearance around others and could get him into trouble.

There was concern that he was gravitating towards older gang-members from his neighbourhood who were in custody for very serious charges. [ 15 ] When talking with the probation officer, Mr. T. denied any gang involvement. He also maintained that he had tried to stay out of the gang life when he was in the community. He provided slightly more detailed information to the s. 34 assessors, indicating that less than half of his friends have criminal records but that most of his friends are gang members. He had several enemies in different blocks due to a fight that he had gotten into. [ 16 ] Mr.

T.’s attributed becoming involved in fights in detention and at school to things like losing his temper for no specific reason, not liking someone or losing patience when someone is stupid. He advised that for two years he had not been in any fights because people knew their place and did not say anything, since he had earned a reputation in grade 4 not to be messed with. [ 17 ] Mr. T. lost two friends to gun violence but generally described the effect of all of these losses making him stronger. [ 18 ] Mr. T. had made some progress in detention, achieving Level 4 out of a possible 5 in his general conduct.

He told the s. 34 report assessors that Level 5 required that he write a daily report that he thought was “stupid” and did not wish to do. He also said that he had taken some anger management courses that he had found unhelpful and described his addiction counselling as seeing “someone and watching movies.” [ 19 ] Mr. T.’s future plans are to serve his sentence and then go out west to live with his brother and hopefully work in construction. It is unclear how viable that plan is. [ 20 ] On the question of risk of future general re-offending, the s. 34 report concluded that Mr. T. was at high risk.

His criminogenic risks and needs included: • family circumstances (his mother’s difficulty in supervising and controlling his behaviour and the lack of any relationship with his father); • antisocial peer relations; • aack of pro-social activities; • marijuana use; and • personality variables, such as inflated self-worth, history of verbal and physical aggression, low frustration tolerance, inadequate guilt, poor victim empathy and antisocial attitudes. [ 21 ] The s. 34 report also identified strengths, i.e.: • good behaviour in custody; • a good report from his summer job; and • his mother’s interest in pursuing family counselling. [ 22 ] Both the s. 34 report and the pre-sentence report made numerous, specific recommendations for various kinds of counselling and programming to address Mr.

T.’s criminogenic needs and facilitate his rehabilitation and reintegration. Based on Mr.

T.’s good behaviour in secure custody, the s. 34 report also supported the option of any further custody being served in an open setting. POSITIONS OF COUNSEL [ 23 ] Crown counsel, Mr. Jones, seeks a total sentence of 18 to 24 months custody and supervision to be followed by 1 year probation. He submits that Mr. T. should receive 1:5 to 1 credit for pre-sentence custody that should be deducted from the custody and supervision portion of the sentence and does not oppose any further custodial time being served in open custody. Mr.

Jones further recommends a five-year s. 51(1) weapons prohibition and the forfeiture and destruction of the knife used in the taxi driver robbery. Finally, the robberies are are primary designated offences, Mr. Jones has asked for a DNA order. [ 24 ] Mr. T.’s lawyer, Mr. Goodman, proposes a custody and supervision sentence totalling 14 months custody and supervision minus credit for pre-sentence custody. He supports open rather than closed custody and also agrees that a year of probation is appropriate.

SENTENCING ANALYSIS [ 25 ] The sentencing principles of the YCJA are well-known and complex and I do not propose to recite them here. Ultimately, I must impose a sentence that holds Mr. T. accountable for the offences through the imposition of just sanctions that have meaningful consequences for him and that promote his rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.

In order to achieve this objective I must take into account the sentencing principles and factors enumerated in s. 38 and s. 39 of the YCJA. [ 26 ] I have given deep and anxious consideration to all of the applicable principles. It is essential that the sentence be proportionate to the seriousness of the offences and the degree of Mr. T.’s responsibility for them. It is equally important to recognize and apply the principle of restraint.

To that end, I must devise the least restrictive sentence capable of achieving the purpose of youth sentencing and the one that is most likely to promote a sense of responsibility, acknowledge the harm done to victims, and further Mr. T.’s rehabilitation and reintegration. [ 27 ] Custody is an available sentence because some of these offences are patently violent within the meaning of s. 39(1)(a). Nevertheless, I must still consider reasonable alternatives to custody raised at the sentencing hearing.

In this case, both counsel agree that further custody is necessary to hold the young person accountable for these offences. I concur with that assessment. [ 28 ] I must also take into account the time that Mr. T. has spent in detention. By my calculation, he has spent 161 days in pre- sentence custody since November 24, 2010. I credit him for that time, as suggested by counsel and in accordance with general practice under the YCJA , at a ratio 1:5 to 1 for that period of time.

Accordingly, I credit him for approximately 240 days of custody, equivalent to 8 months. [ 29 ] In reaching that conclusion and determining the amount of further custody necessary and the appropriate global sentence, I have taken into account: • the entirety of the circumstances of the offences, • Mr.

T.’s personal circumstances; • the submissions of counsel; and • the jurisprudence that was submitted delineating the range of sentence generally imposed for these type of offences in the region. [ 30 ] Determining a proportionate sentence requires an assessment of all of these factors as well as close scrutiny of the aggravating and mitigating factors in this case.

Aggravating Factors [ 31 ] The aggravating factors are as follows: • The offences themselves took place over a very brief, concentrated period of time. • Most of these offences were extremely serious. • When committed by adults, bank robberies generally and appropriately attract lengthy penitentiary sentences in recognition of the vulnerability of bank tellers and the need to protect public and publicly accessible financial institutions from violent crime and theft. • Similarly, taxi-cab robberies generally require substantial sentences to address the unique vulnerability of taxi-cab drivers. • In the first taxi driver robbery Mr.

T. used a knife and in the second he resorted to actual physical force, pushing the victim to the ground.

• By their very nature, these kinds of robberies are focused on instilling fear and intimidating the victims. • The threatening death that Mr. T. admitted to demonstrated utter indifference and disrespect for authority and the emotions of others. • Generally, this series of offences showed callousness, anger, violence and a profound lack of empathy. [ 32 ] I have taken into account the lack of any evidence of lasting injuries or trauma to the victims and the clear absence of any sophistication in the bank robberies. Nevertheless, these were grave crimes.

Mitigating Factors [ 33 ] There are also several mitigating factors, including the following: • Mr. T. has clearly and tangibly demonstrated his remorse and acknowledged responsibility for these crimes. • Not only did he plead guilty and spare the victims the trauma of testifying and reliving what he did to them, Mr. T. also articulated his remorse both immediately after his apprehension and more fully in court. He gave an early letter of apology to the police dated November 23, 2010 that stated, “I’m sorry for what I did. It was wrong. I guess I did it because I was hurting from the passing of my grandfather.

My grandpa played a big roll [sic] as my dad so now that he’s gone it just isn’t the same anymore. I’m also sorry for making the environment unsafe with all the robberies I have done.” • Mr. T. also wrote and read an extremely eloquent letter expressing his insight and remorse that he read in court on the last occasion. The letter has been made part of the record and demonstrates very clearly that Mr. T. is capable of insight, empathy and rehabilitation. • It is also obvious that Mr. T.’s criminal conduct was in part a reaction to the painful and tragic loss of his grandfather.

This is not an excuse but it provides insight into his confusion and acting out. • Mr. T. is still very young, only 15 years old. • Mr. T. has made genuine progress while in secure custody. His efforts to further his education and rehabilitation are impressive and bode well for the future.

SENTENCE [ 34 ] In my view, taking all of the applicable principles and factors into account, the appropriate global sentence is 20 months custody and supervision plus 1 year probation. [2] I deduct credit for 8 months pre-sentence custody, leaving 12 months custody and supervision, consisting of 8 months will be served in open custody and 4 months community supervision. This sentence is concurrent on all charges. [ 35 ] There will also be an order pursuant to s. 51(1) for 5 years, a forfeiture and destruction order in relation to the knife used in the robbery and a DNA order.

Released: Oral reasons delivered on May 3, 2011, written version of oral reasons released on May 5, 2011 Signed: “Justice M. Bloomenfeld”