R. v. Brown, 2013 ONSC 7910

CITATION : R. v. Brown, 2013 ONSC 7910 COURT FILE NO.: 13-10000598-0000 DATE: 20131220 SUPERIOR COURT OF JUSTICE - ONTARIO RE: R. v. ITHEMAR BROWN, ABEDNEGO WYNN and NATHAN ELVIE BEFORE: Justice Spies COUNSEL: Danielle Carbonneau , for the Crown Taro Inoue , for the Defendant, Ithemar Brown Marco Sciarra , for the Defendant, Abednego Wynn Hans Cedro , for the Defendant, Nathan Elvie HEARD: December 2 and December 12, 2013 rEASONS FOR decision ON Sentencing Introduction [ 1 ] On October 31, 2013, following a trial before me with a jury, the defendants were each convicted of two counts of robbery. Mr.

Brown was also convicted of simple possession of cocaine and failure to comply with a term of a probation order imposed on March 30, 2009 namely not to possess drugs prohibited by the Controlled Drugs and Substances Ac t. The defendants are now before me for sentencing. Mr. Brown and Mr. Wynn are step-brothers; Mr. Elvie is related to Meshach and Shadrach Brown who are defendants in another proceeding related to the same robbery. [ 2 ] The jury did not make a finding that a firearm had been used as they could have reached their findings of guilt on the two robbery charges by one of three possible ways.

Before hearing sentencing submissions, I determined that the Crown had not proven beyond a reasonable doubt that Mr. Wynn produced a firearm during the course of the robbery as alleged by the two complainants. [1] Accordingly the defendants will be sentenced on the basis that a robbery of the complainants occurred during which the man in white (alleged to be Meshach Brown) made a threat of violence. The Facts (

a) Circumstances of the Offences [ 3 ] In light of the jury’s findings, I accept as a fact that at about 5:15 a.m. on the morning of July 30, 2011, Mr. Drakes and Mr. Pemberton were robbed by six to eight men in their hotel room at the Delta Chelsea in Toronto. The jury must have found that Ithemar Brown, Abednego Wynn and Nathan Elvie were part of that group. It was alleged by the complainants that the man in all white; Meshach Brown, uttered threats to harm them and that Mr. Wynn was the gunman.

This was the start of Caribana weekend and the complainants and two of their friends had been out on Yonge Street when they ran into four young women; one of whom was alleged to be Tamara Brown; originally a defendant in this proceeding. I determined that she should be acquitted of all charges following an application for a directed verdict. [2] The group of women also included Farisha Besley, who was called as a Crown witness. She identified Tamara Brown as one of the three women she was with.

The four women were invited to the complainants’ hotel room. [ 4 ] The complainants testified that after they returned to their hotel room with the four young women, that one or more of the women were seen on the balcony on their phones. Although Mr. Drakes was not consistent in his evidence as to how the robbers entered the room and his evidence was at odds with the evidence of Mr. Pemberton on this point, it seems that six to eight men including the

defendants were let into the room and that the young women and the complainants’ two friends left the room at the same time. [ 5 ] It was alleged that the robbery then took place behind the closed door to the complainants’ hotel room. The jury would not have needed to make any findings of fact as to the lead up to the robbery but I presume that they found it occurred behind a closed door as I was careful in my charge to distinguish between what was needed to prove a robbery versus a theft.

The theory of the Defence was that the complainants were hosting a party in their hotel room, that it was crashed, that matters got out of control and that a number of people took items belonging to the complainants in the chaos that ensued. That theory must have been rejected by the jury. [ 6 ] At trial, according to Mr. Drakes, the guy in all white was doing all the talking and he was the one who told them to be quiet and said that if they did not want to get hurt they would do what they were told. Mr.

Drakes also testified that the guy in white was pretty much the last to leave and he told them that if they went to the authorities he would come back and kill them. He had Mr. Pemberton's passport in his hand and therefore knew where he lived. On a prior occasion Mr. Drakes testified that it was the gunman who made the threat but he did not adopt that evidence at trial. I accept for the purpose of sentencing, since I was not satisfied that a firearm was used in the robbery, that there was a threat of violence made by Meshach Brown as testified to by Mr.

Drakes at trial. [ 7 ] At the initial sentencing hearing Ms. Carbonneau argued for the first time that violence was used in the commission of this robbery in that Mr. Pemberton testified that the man in white forced his way into the room. I pointed out to her that she did not take this position during the pre-charge conference or in her closing before the jury nor was this option put to the jury. In any event, I would not be prepared to make such a finding on the evidence the jury heard.

I deal to some extent with the different versions of how the robbers got into the complainants’ room that were testified to by Mr. Drakes and how his evidence differed from Mr. Pemberton’s at paragraph 14 of my first decision on sentencing. On Mr. Drakes’ version of events either the young woman with the blonde hair or the man in white let the robbers in. No force was used. On Mr. Pemberton’s version of events the men “bum rushed” the door after it was opened as he was trying to keep it closed. There was no violence; he spoke only of a verbal argument that he had with the man in white.

I therefore find that violence was not used in the commission of this robbery. [ 8 ] Ms. Carbonneau also argued that the robbery had been pre-planned at least once the women were in the hotel room. She essentially re-argued her submissions as to why I should not grant Tamara Brown’s application for a directed verdict. She submitted again that Tamara Brown or one of the others called one of the defendants to set it up and that the jury could have made such a finding.

She conceded that the jury would not have needed to make such a finding in order to reach the conclusions that they did. [ 9 ] Although I considered this argument only from the perspective of Tamara Brown, I granted her motion for a directed verdict. [3] For the reasons set out in that decision, I find that there is insufficient evidence to find beyond a reasonable doubt that she or any of the other three women called any of the defendants for the purpose of setting up this robbery. The only evidence of a call came from Ms.

Besley, a Crown witness, and that was simply to tell her boyfriend, Meshach Brown, where she was. It was never suggested to Ms. Besley that her call was part of a plan to commit a robbery or that she was even aware of the fact that a robbery occurred after she left the hotel room. As for the defendants and the others they were with, they came into the hotel together, based on the hotel surveillance, but there is no evidence that they did so in order to commit this robbery. They are all related or friends and were seen out on Yonge Street together before the robbery.

They could have come to the hotel because of Ms. Besley’s call to Meshach Brown or for a party somewhere in the hotel. Furthermore there is no evidence of what happened once they got to the floor where the complainants’ room was. In fact, there is a significant gap in time (the period between 5:15 a.m. and 5:25 a.m.) where it is unknown what took place in the hotel immediately prior to the robbery. If there was any planning, I could only find that it happened on the spur of the moment once they got there.

I therefore am not prepared to find that this was a planned robbery as opposed to a spur of the moment event. [ 10 ] As for what was taken from the complainants, Mr. Drakes said that he was ordered to remove two chains, two earrings and two bracelets. He also testified that his polo bag with six pairs of sneakers (two pairs were designer shoes) and two pairs of recreation boots were taken. Mr. Drakes also testified that one pair of his jeans, six to seven baseball caps, his BlackBerry, about $400 U.S. and several bottles of the liquor they had in their room was taken. Mr.

Pemberton testified that the robbers took a gold chain with a pendant; about $300 in U.S. cash from his wallet, about seven baseball hats, some clothing, his U.S. passport, and house keys. No value was put on these items in evidence and the jury did not have to make any factual findings as to exactly what was taken and by whom. For the purpose of sentencing despite concerns I have about the credibility and reliability of the complainants’ evidence I accept that generally speaking these items were taken. Their evidence is corroborated to some extent by the YouTube video and what was found during the search of Ms.

Besley’s home. What is not clear, however, is what the role of the defendants before me was. Mr. Brown is not seen leaving with any property belonging to the complainants and Mr. Wynn is not seen leaving at all. Only Mr. Elvie is seen leaving with a bag and the evidence of Mr. Drakes is that it contained shoes. [ 11 ] As for the drug conviction for Mr. Brown, when he was arrested on September 22, 2011 he was found in possession of 4.47 grams of crack cocaine. He pleaded guilty to this offence as an included offence at the start of the trial.

The evidence before the jury, which I accept, was that this amount of cocaine would last a heavy user just two days and a light user, a week. (

b) Impact of the Robbery on the Complainants (

i) Victim Impact Statement - Pemberton [ 12 ] Mr. Pemberton provided a Victim Impact Statement dated November 12, 2013. Mr. Sciarra submitted that Mr. Pemberton should be available for cross-examination but since he lived in the United States he did not anticipate the Crown would call him.

The issue was not really pressed as he also argued that I should not consider the statement to be true given my concerns about the credibility and reliability of the complainants’ evidence. [ 13 ] Pursuant to Section 722(1) of the Criminal Code , I must consider the statement as it has been prepared in accordance with Section 722(2) . The onus is on the Crown to prove any disputed facts and so I will proceed on that basis. It was Ms. Carbonneau’s position that the contents of the statement were not disputed facts and that it was unreasonable to expect him to return for cross- examination.

I appreciate that but as I have already stated, the Defence did not accept the contents as true.

[ 14 ] In Mr. Pemberton’s statement, he says that the robbery has placed a psychological impact upon his social life and created safety concerns stemming from the fact his passport was stolen and not returned until several weeks later. He says since the robbery his safety concerns have prevented him from vacationing, travelling domestically and especially internationally. It is not clear why he is fearful of travel as his concerns stem from the loss of his passport not travel per se but presumably he means that he fears if he travels internationally he might be robbed of his passport again. Mr.

Pemberton also complains that he suffered hardship in respect of his job performance and work ethic. He fell behind in his work because the “tragic events constantly replaying in my head” and he lost a lot of time off work which he was not paid for because of the court proceedings. At the time he was also a part-time college student and the hearings forced him to take days off from college. He says this resulted in low class grades and pushed back his graduation date by one year. The offence also forced him to replace all of his valuables, jewellery and money.

Although the jury made no specific finding, I accept Mr. Pemberton’s evidence generally that he lost shoes, liquor and jewellery; items of value which were not recovered. [ 15 ] Defence counsel argued that much of Mr. Pemberton’s statement of harm can be attributed to the fact he had to travel to Toronto to testify as he lives in New York. That appears to be so, but given what Meshach Brown stated on the YouTube video, the defendants knew they were from the United States. In my view this factor is a proper consideration of harm to Mr. Pemberton and presumably Mr.

Drakes. [ 16 ] I am satisfied that the robbery has had a psychological impact on Mr. Pemberton. I am also satisfied that it has negatively impacted his job and school. As he and Mr. Drakes live in the United States and given the number of times he has been asked to attend in Toronto to give evidence, this is not surprising. (ii) Victim Impact - Drakes [ 17 ] Mr. Drakes did not provide a Victim Impact Statement although he had ample opportunity to do so. I do not accept the Defence submission that this means he has not been adversely impacted by this offence. Like Mr.

Pemberton he would have lost a lot of time from work or personal time in order to attend court several times in Toronto. In fact the proceeding involving Meshach Brown and two others is still outstanding which will require his evidence again. Although I cannot presume that Mr. Drakes has suffered psychologically, I do accept his evidence generally as to what was taken from him. The stolen jewellery, shoes and BlackBerry were valuable and they were not recovered; in the case of the BlackBerry it was found but became an exhibit at trial. (

c) Circumstances of Ithemar Brown [ 18 ] Mr. Brown was 28 years old at the time of the offence; he is now 30. He has an extensive criminal record with youth court convictions dating back to 1996 when he would have only been 13 years old. His record includes a conviction for armed robbery as a youth in 1999 for which he received probation for two years. The five convictions prior to that conviction are for property offences save for uttering threats in 1997 and a conviction for assault in 1998. It appears at that time Mr.

Brown had served three months in custody and received a sentence of one day plus time served and two years probation. [ 19 ] Since the armed robbery, Mr. Brown has been convicted six times for drug and related offences primarily for trafficking in a

Schedule I substance; cocaine or possession for the purpose of trafficking. As Ms. Carbonneau submitted Mr. Brown’s record reveals that he has been a drug trafficker in cocaine for a considerable period of time. [ 20 ] Mr. Brown was also convicted of other offences between July 2001 and November 2010, including carrying a concealed weapon, obstruct police officer, assault with intent to resist arrest, possession of a prohibited firearm with ammunition and two convictions for failing to comply with the terms of a probation order. As Ms. Carbonneau submitted however, Mr.

Brown has been the subject of seven prior probation orders and Mr. Brown has now been convicted of breaching a term of his probation that he was subject to at the time of these offences. [ 21 ] The conviction for possession of a prohibited firearm in July 2008 is Mr. Brown’s most serious conviction and resulted in the longest sentence he has served. There is clearly an error on the Case Tracking but Ms.

Carbonneau had a certified copy of the Information and advised that the sentence was two years less a day less a credit of eight months for pre-sentence custody in addition to probation. [ 22 ] A letter from Jennifer Craig, Mr. Brown’s girlfriend, was filed on his behalf. She is 31 years old and works as a marketing manager for a software company. She has an eight year old son from an earlier relationship. She met Mr. Brown in April 2011 and Ms. Craig advises that at that time Mr. Brown was unemployed and collecting welfare, having just come out of jail in March 2011. She sets out what she understands from Mr.

Brown about his upbringing and states that Mr. Brown has completed Grade 11 of high school. [ 23 ] Ms. Craig and her son spent the summer with Mr. Brown and his son and they began to live together in August of 2011. She writes that Mr. Brown interacts well with his own son and her son. She is aware of Mr. Brown’s long criminal background but has continued to support him since his arrest in September 2011. She has come to court when she can and visits him in jail. Ms. Craig has also become close to Mr. Brown’s immediate family. She describes Mr.

Brown as a “loving, kind hearted man who is gentle and patient.” [ 24 ] Ms. Craig states that their short-term goal, once Mr. Brown is released, is for Mr. Brown to find a job and start work. Currently Mr. Brown’s son lives with his mother but he would come to live with them a few months after Mr. Brown settled in with Ms. Craig. (

d) Circumstances of Abednego Wynn [ 25 ] Mr. Wynn has provided a great deal of information through his counsel. At the time of the offences, Mr. Wynn was 22 years

old. He had been in a relationship with Yonique Balgrove for nine years and they had two daughters aged six and one and one half. They now have a third daughter who was born in February 2012 and they are engaged to be married. [ 26 ] Mr. Wynn was raised in large part by his grandmother who was heavily involved in her church. His mother was in a difficult relationship with his father whom he says was a crack-cocaine addict. By the time Mr. Wynn turned ten years old, his father had been deported leaving three young sons behind. Mr. Wynn fell right in the middle of his mother’s five children.

Shedrach Brown (7 years his senior) and Meshach Brown (4 years his senior) are defendants in another proceeding still outstanding in this court, concerning the same robbery. [ 27 ] Mr. Wynn completed Grade 11 when he was 16 and his first daughter was born. At that time, he left school to work odd jobs to support his newborn child. He found various production line jobs and other general labour jobs through an agency. After the birth of their second daughter, Mr. Wynn and Ms. Balgrove qualified for the Ontario Works program which sustained them until and after Mr. Wynn was incarcerated. [ 28 ] Mr.

Wynn collaborated with a younger brother to create several songs under the music label of Black Warriors Entertainment also known as BW ENT. Mr. Wynn’s proficiency as a lyricist and front-man for BW ENT created modest success where he was featured at the Legends of the Fame performance sponsored by HipHopCanada.com. As a result of those performances in early 2011, BW ENT worked alongside a well-known disc jockey and director on the Canadian music scene, Fred E Fame, in order to further its presence in the hip hop scene in the Greater Toronto Area. By the late summer of 2012, Mr.

Wynn had begun to supplement his income with revenues from his small concert performances and promotional parties as well as the BW ENT clothing lines which he developed. BW ENT was beginning to hold performances at various nightclubs and bars in Toronto and Peel Region. [ 29 ] At the time of these offences Mr. Wynn had no criminal record. He was arrested on September 5, 2012 in Montreal, Quebec and charged with various offences including possession of a loaded firearm and various drugs as a result of a warrant executed on a home registered to him in Montreal. On April 9, 2013, Mr.

Wynn pled guilty to possession of a firearm and various drugs for which he was sentenced to several concurrent sentences, the cumulative effect of which is four years’ incarceration (the “Montreal Convictions”). At the time when Mr. Wynn was transported to Toronto to face the charges before this Court, he was still in the Regional Reception Centre where he was undergoing a security classification. At this time, Mr. Wynn has yet to be classified. Because Mr. Wynn has been in custody serving this sentence he is not entitled to any credit for pre-sentence custody in this case. [ 30 ] Ms.

Carbonneau submitted that at the time of these offences Mr. Wynn was on bail or had given an undertaking to the court in connection with drug charges in Peel Region. This however was disputed by Mr. Sciarra and he argued that the conditions as articulated by Ms. Carbonneau were not breached and that in any event Mr. Wynn was not charged with failure to comply with the terms of this recognizance. Ms. Carbonneau stated that this is because the charges were withdrawn because Mr. Wynn had gone to Montreal.

Since the issue is disputed and there was no conviction for the alleged breach, I have not considered this as an aggravating factor. [ 31 ] I am advised that Mr. Wynn intends to complete his high school education while incarcerated. Mr. Sciarra advised that if he is classified as a low to medium risk offender he will be able to do so. Mr. Wynn further intends to pursue courses in business administration in order to develop skills to learn how to properly manage a small business.

Together with his fiancé, he aspires to design urban clothing lines for internet sales and ultimately open a retail shop in the Greater Toronto Area. Mr. Wynn took the opportunity to address me briefly and he advised that he intended to be law abiding as all he wants once he is released is to be a father for his three young daughters, all of whom will grow significantly by the time of his release, and provide for his family with the business he wants to pursue. [ 32 ] Ms. Balgrove provided a letter of support. She confirms much of the information I have already stated. She adds that she and Mr.

Wynn have registered a business called Urban Fashion Designs and want to open a retail store. Ms. Balgrove intends to attend Humber College for fashion arts in January 2014 in order to assist in this business. [ 33 ] Ms. Balgrove also advises that Mr. Wynn was an active participant in the Stop the Violence Program where his group BW ENT would perform at events and help with the program by volunteering their time. Mr. Collins Walter has provided a letter purportedly on behalf of this organization. Mr. Sciarra advised that he is aware of Mr. Wynn’s situation. He states that Mr.

Wynn is a wonderful person who does a lot of volunteer work for their organization and that he would like to get the chance to continue working with him. (

e) Circumstances of Nathan Elvie [ 34 ] Mr. Elvie has provided the following information through his counsel. He is 26 years old and was 24 at the time of this offence. He is the father of two daughters aged four and two. Mr. Elvie has one previous conviction. In August 2009 he was convicted of unauthorized possession of a firearm in a motor vehicle and given a nine month conditional sentence in addition to six months pre- sentence custody. He completed that sentence successfully. [ 35 ] Mr.

Elvie was released on these charges on September 12, 2011 on a recognizance which included house arrest, save for going to school or being in the presence of one of his three sureties. This condition was varied by a consent bail variation in July 2012 to allow Mr. Elvie to go to court, medical appointments and counsel’s offices. One of the reasons provided for the Crown’s consent was that he had been on house arrest for one year without incident. However Ms. Carbonneau advised that while on bail Mr.

Elvie was charged in December 2012 with further offences in Brampton; namely dangerous operation of a motor vehicle, flight from a Peace Officer and failing to comply with conditions of his recognizance. There has been no finding on these charges and so I have not taken them into account. [ 36 ] Mr. Elvie is the middle child in a family of two older sisters and two younger brothers. He has stepsiblings as well from his father’s previous relationship. All of his siblings are employed. Mr. Elvie’s father was a tool and die maker but was an abusive alcoholic towards his mother and the children.

His parents separated when he was 17 and he has not had a relationship with his father since then. Mr. Elvie has a strong relationship with his mother who has a municipal government job but feels that he did not have a male role model because his father was rarely around and when he was, he was drinking.

[ 37 ] Mr. Elvie did not finish high school but in September 2011, before he was arrested on these charges, he attended an Adult Learning Centre (the “Centre”) to start his G.E.D. courses. He continued his courses after he was arrested and he acquired a G.E.D. diploma in March 2012. He did very well in this program obtaining scores of 80% save for two subjects which he nevertheless passed. He has also assisted at the Centre as a volunteer in-class tutor for mathematics when requested. [ 38 ] Mr. Elvie’s family receives social assistance from Ontario Works.

Since these charges he has essentially been a stay at home father. His spouse has worked a few jobs. He prepares the children for school and daycare and waits for them at home when they arrive back. Mr. Elvie also spends time with his children helping with spelling and reading and with their youngest, toilet training. [ 39 ] Until 2011 Mr. Elvie maintained fairly steady work at several factory and warehouse jobs. He has a certification for several warehouse vehicles including the “cherry picker” and “reach” truck.

His last job was with Millard Refrigerated Services where he worked for two years as a “reach” truck operator until he was laid off in mid-2010. [ 40 ] Mr. Elvie advises that he wants to go back to work full-time as a reach truck operator for at least a year or more to regain some financial stability and save money for college. He would then like to go back to school to take some college courses in Business Marketing and Fashion Design. His goal after finishing college is to start a clothing line. [ 41 ] Mr. Elvie’s mother and two older sisters provided letters of support.

His mother states that she was worried about her son’s choice of friends. She writes that the legal situation Mr. Elvie has found himself in has taught him some serious lessons in life especially as a father who really loves his family and wants to be there for them. Mr. Elvie’s sister Lindsay also speaks of his poor choice of friends but states that since the birth of his first child there has been a huge change in him, although I note that that would have been before he committed these offences. [ 42 ] A letter from Mr. Andy Walton, the math instructor at the Centre, was also filed. It is not clear whether Mr.

Walton is aware of Mr. Elvie’s legal difficulties but the letter is quite positive and confirms Mr. Elvie’s successful completion of his G.E.D. and his volunteering at the Centre. Mr. Walton states that overall Mr. Elvie has a wonderful character, is a pleasure to be around and has the ability to positively contribute to society. Legal Parameters [ 43 ] For each of these offenders the maximum sentence for these robbery convictions is imprisonment for life. There is no minimum sentence. Positions of Crown and Defence (

a) The Crown [ 44 ] With respect to Mr. Brown, Ms. Carbonneau submitted that a fit sentence for the robbery convictions would be thirty months; less time served on a one for one basis since September 8, 2011 and that he should receive a six month consecutive sentence for each of the other two convictions, each to run concurrently to the other, plus three years’ probation. This would mean an overall sentence of three years less the deduction for pre-sentence custody of 27 months, leaving nine months to be served. [ 45 ] With respect to Mr. Wynn, Ms.

Carbonneau submitted that he should be sentenced to two years in the penitentiary plus three years’ probation and that this sentence be consecutive to the four year sentence that Mr. Wynn is currently serving. [ 46 ] As for Mr. Elvie, Ms. Carbonneau submitted that he should also be sentenced to two years plus three years’ probation. She took the position that a conditional sentence was not available to any of the defendants on the basis that the use of violence was threatened. [ 47 ] Ms. Carbonneau also requested DNA orders for each defendant pursuant to

section 487.051(1) of the Criminal Code and weapons prohibitions pursuant to

section 109 of the Code for varying lengths. No objection was made to any of the ancillary orders requested. (

b) Mr. Brown [ 48 ] Mr. Inoue agreed that an appropriate sentence for Mr. Brown’s conviction for possession of cocaine would be six months to run consecutively to the sentence for the two robbery convictions. However, he submitted that a sentence of one month to run concurrently was appropriate for the fail to comply conviction. Mr. Inoue also submitted that Mr. Brown should be sentenced to six months for each of the robberies, concurrent to each other, resulting in an overall sentence of one year. He asked that Mr.

Brown be sentenced to time served and that only one year be allocated as pre-sentence custody; to be consistent with the sentence imposed. Although it makes no practical difference to Mr. Brown at this time if the sentence I impose is less than 27 months, I realize that Mr. Inoue might want the sentence to be less than time served to avoid a precedent for the future. Hopefully, however, there will be no future convictions for Mr. Brown. (

c) Mr. Wynn [ 49 ] Mr. Sciarra submitted on behalf of Mr. Wynn that in light of his circumstances and the circumstances of this offence, he should receive the minimal possible sentence available. He argued that at the time of this offence Mr. Wynn had no criminal record and that he would have been an ideal candidate for a conditional sentence but for the fact that he is now serving a significant penitentiary sentence. He submitted that accordingly an appropriate sentence would be in the range of 30 to 90 days and that this sentence should run concurrently to the sentence he is currently serving. Mr. Sciarra argued that there would be no point to adding such a short sentence to

this long sentence and that adding such a sentence to the time he is currently serving would detract from his ability to re-integrate into society. (

d) Mr. Elvie [ 50 ] Mr. Cedro submitted that Mr. Elvie should receive a conditional sentence to be served in the community in the range of nine to 18 months, on the premise that a conditional sentence is usually longer than if jail time is imposed and the earlier conditional sentence Mr. Elvie served was nine months. Alternatively, if jail is imposed he submitted that a sentence of two to six months would be appropriate. Mr. Cedro also submitted that a period for probation of 12 to 18 months would be sufficient and that three years would be too long.

Case Law – Range of Sentence [ 51 ] All counsel provided cases to me dealing with sentencing in various robbery cases in support of their respective positions. No case is on all fours with the case before me.

Although the law is clear that each case turns on its own specific facts, a careful review of these cases, to the extent I can find similarities to the case before me, might assist in determining what an appropriate range is for sentence on the robbery convictions. [ 52 ] The cases relied upon by the Crown were primarily from the Court of Appeal but were not very helpful either because there were insufficient facts to consider how they compare to the case at bar or because they involved much more serious robberies which included the use of weapons such as knives or firearms and/or disguises, physical violence, and sometimes physical injury. [ 53 ] For example in R. v.

Barbosa, [4] no facts are known about the case save that the court on appeal reduced the sentence imposed by the trial judge for attempted robbery by two years because the court felt that five years would reflect the seriousness of the offence. The court then deducted one year for time served reducing the sentence for that offence to four years. A weapon must have been involved as the offender was also sentenced for conspiracy and weapons charges. [ 54 ] Cases relied upon by the Crown such as R. v. Richardson [5] and R. v.

Hebert [6] involve sentences of six years upheld by the Court of Appeal but these were robberies with knives. In the case of Richardson there were two separate robberies on the same day; one of a motel and the other of a gas station. In Hebert , the offender had a lengthy record and had approached a 70 year old man from behind, held a 10-12 inch knife to his throat demanding money and credit cards and then walked the victim to an underground parking lot. The Court of Appeal concluded that given these circumstances there was no basis for holding the sentence imposed was “outside the range”. Ms.

Carbonneau also relied on R. v. Lee , [7] where the offender pretended to be armed. He was not in fact armed and no actual violence was used during the robbery. He had a very bad criminal record but had only been in the penitentiary once. The Court of Appeal reduced his sentence for robbery to four years. In addition some of the Crown’s cases involve minimum sentences not applicable here; for example R. v. McDonald [8] where the Court of Appeal gave the offender presentence credit in the amount of twelve months resulting in the minimum four year prison sentence for this offence being reduced to three years.

None of these cases are comparable to the case at bar. [ 55 ] Furthermore, even in cases involving weapons much depends on the circumstances of the offender. For example in R. v. Chan , [9] another case relied upon by the Crown; a sentence of 22 months imposed by the trial judge for robbery of a fast food outlet was upheld. His co-accused had pleaded guilty to armed robbery and forcible confinement and received two years less a day imprisonment plus probation. The trial judge concluded that Mr.

Chan was a danger to the community and that a conditional sentence would undermine community confidence in the justice system. The Court of Appeal upheld this determination and found that the offender had not accepted responsibility for his involvement in what was characterized as a very serious offence. [ 56 ] Not surprisingly, the cases relied upon by defence counsel are ones where much lower sentences were imposed for robbery convictions, even though some cases involved weapons or actual violence. For example in R. v. Whalen , [10] a case relied on by Mr.

Cedro, one offender aged 19 (May) received a sentence of two years less a day and three years’ probation and the other, aged 21 (Whalen), received a sentence of 21 months plus three years’ probation for robbery and extortion. Both had served brief periods of incarceration and had been on strict bail terms for approximately one and a half years. May had entered a home with a variety of weapons and threatened to kill the occupants. Whalen drove the getaway vehicle. May had a lengthy prior record including two prior robbery convictions but had made significant progress during the time on bail.

Whalen had a prior record and had also made significant progress towards rehabilitation. The court upheld the sentence noting that the trial judge had to shape a sentence that maximized the potential to achieve rehabilitation which was a very real prospect in the case and at the same time impose a sufficient penalty to adequately reflect the needs of general deterrence and denunciation. [ 57 ] In another example; R. v. Bissonnette , [11] a case relied on by Mr. Inoue, two accused chased, cornered and beat a 15 year old boy to steal his cell phone.

One was given a twelve month conditional sentence and the other a nine month conditional sentence. Both men had criminal records including previous convictions for break and enter though the records themselves were fairly dated. They also had previous convictions for failure to abide by court orders. The trial judge had not imposed house arrest. This was imposed by the Court of Appeal but the sentence was otherwise upheld although the court noted that it had been mostly served successfully. [ 58 ] In R. v. Siguenza, [12] a case relied upon by Mr. Sciarra, Justice Hill sentenced two offenders for robbery.

Their roles were considered approximately equal. Mr. Siguenza had entered a motel with a pellet pistol and a mask and obtained $250 while his co- accused Mr. Gonzalez acted as a lookout. Mr. Gonzalez had finished high school, was employed full-time and lived with his wife and baby daughter in his parents’ home. He did not have a criminal record. He expressed remorse for his actions and was sentenced to 16 months. Because he was not a continuing danger to the public and in light of his antecedence, Justice Hill determined he could serve his

sentence on a conditional basis. Mr. Siguenza’s criminal record included assault and breach of recognizance and at the time of the robbery he was on probation requiring that he keep the peace and be of good behaviour and that he not possess any weapon. He had also been sentenced 34 days prior to the robbery for breaching a recognizance and had been subject to another bail order at the time of the robbery. Justice Hill concluded that community service was not a reasonable approach considering the offender’s apparent contempt for court orders having been convicted of several breaches of court orders.

As such he was sentenced to 18 months imprisonment to be served by way of incarceration, plus one year probation. [ 59 ] Similarly in R v. Semionov , [13] the defendant was involved in three robberies; one at a gas station and the other two at convenience stores, where his co-accused was armed with a knife. The accused then proceeded to commit the offence of dangerous driving while fleeing from the police. The robberies involved aggravating factors such as the fact that the victims were vulnerable people working in places of isolation and the use of a knife. The Crown sought a penitentiary term of four years.

The sentencing judge imposed a conditional sentence of two years less a day plus three years’ probation. The Court of Appeal upheld the sentence stating that in considering general deterrence and denunciation the trial judge was still of the view that a conditional sentence was appropriate. [ 60 ] Mr. Sciarra also relies on my decision of R. v. Brown , [14] a home invasion case. The offender in that case and his co-accused were convicted of robbery and unlawful confinement. The occupants were home, including two small children. The defendants and two other men pushed their way into the home.

The offender was not armed but the other three produced what appeared to be real guns. The offender’s role in the robbery was to assist with entry to the home and then he stole property belonging to the residents of the home. The fact this was a home invasion, the offences involved planning, the accused knew that someone was home at the time and that in fact young children were present and that the male occupant was injured during the robbery were all considered aggravating factors.

However, the offender was a youthful first offender (23 years old at the time of sentencing); he had not completed high school, had a drug problem and was unemployed at the time of the robbery. He was sentenced to a total of two and one-half years' imprisonment less 22 months for pre-sentence custody and two years’ probation. I found that in the circumstances the offender should not receive a penitentiary sentence. [ 61 ] In R. v. Fawcett , [15] a case cited by Mr. Sciarra but of some assistance to Mr.

Brown, the offender was convicted of three counts of robbery; he had robbed three banks over the span of 11 days. He was 24, had previously pleaded guilty to robbing a pharmacy. He had an abusive childhood and a history of drug abuse. He was sentenced by Warkentin J. to one year imprisonment plus three years’ probation.

The offender’s criminal record was an aggravating factor but he had community support, had demonstrated an ability to leave behind his past, had complied with the terms of his conditional release and had expressed remorse. [ 62 ] A review of these cases and the many others referred to by counsel illustrate that sentencing in robbery cases can be an extremely difficult exercise because the offence allows for different ways of committing the same offence of robbery and the offences typically involve various degrees of severity to be considered.

Certainly in this case counsel have not been able to find any cases that are sufficiently similar to the one at bar to draw precise comparisons, at least insofar as Mr. Brown is concerned. They assist only in determining a broad range of sentences generally available for relatively similar offences. [ 63 ] The situation is different with respect to Mr. Wynn and to some extent Mr. Elvie. Mr. Sciarra drew my attention to R. v. Panchan [16] , a recent decision of Justice Code. The jury convicted Ms. Panchan and her co-accused, Mr. Lopes, of robbery, and Mr. Lopes was also convicted of aggravated assault. Ms.

Panchan lured the victim to the scene of the robbery where she distracted him so that Mr. Lopes and an unknown co-principal could rob him. Mr. Lopes initiated the robbery by punching the victim in his face while the co-principal struck the victim with a metal baton causing serious injury to the victim’s head before stealing the victim’s car and cell phone. Justice Code found that Ms. Panchan was guilty of robbery as a party while Mr.

Lopes was guilty of robbery as a principal and guilty as a party to aggravated assault. [ 64 ] In considering the aggravating and mitigating factors, Justice Code found that although it was a premeditated and violent robbery, both accused had no criminal record, were relatively young, the offence was an isolated incident and they both had support in the community.

Although Code J. did not have to consider the mitigation seen in many of the cases where guilty pleas are entered, he found (at para. 31) that the aggravating features seen in many robberies were not present (such as a home invasion or the use of a real or imitation firearm or the life-threatening use of a knife or the victimization of vulnerable workers in commercial premises where money is kept). [ 65 ] Justice Code observed (at para. 32) that the principles of sentencing pulled in opposite directions.

On the one hand, both accused were young first offenders with good rehabilitative prospects who posed little or no risk of re-offending. As such rehabilitation and specific deterrence would generally be the primary sentencing values. On the other hand, robbery and aggravated assault of that nature are serious offences where denunciation and general deterrence are generally the primary sentencing values and requiring more

significant custody, even for first offenders. [ 66 ] Justice Code outlined the range of sentences for an offence of this nature (at para. 33) as follows: The offence of robbery is serious but a short sharp sentence of two to three months in jail, followed by probation, can be appropriate in the case of a young first offender with good rehabilitative prospects, where no real violence is involved. However, "different considerations apply in serious crimes of violence, particularly where careful planning is evident".

In these latter kinds of robberies, sentences of fifteen months to two years less a day are appropriate even in the case of well-situated first offenders. [ 67 ] Ultimately, Justice Code found that a sentence of 90 days imprisonment for Ms. Panchan and 12 months imprisonment for Mr. Lopes would be appropriate sentences. It does not appear that he was asked to consider conditional sentences, presumably as violence was used to commit the robbery. The actual sentences imposed were less because of the delay in reaching trial. [ 68 ] In reaching his conclusion Justice Code relied on R. v.

Demeter and Whitmore [17] where the Court of Appeal held that ordinarily for very young first offenders, the objectives of individual deterrence and rehabilitation are paramount. It was in this context that Dubin J.A. for the majority held that: “[s]peedy apprehension, arrest, public trial and a criminal record with its consequences, should be the best deterrent for those young persons who may be tempted to commit an offence such as this [robbery of a pizzeria by two youths aged 17 and 16 wearing ski masks and pointing an unloaded pellet gun at the owner]”at para. 10.

To the same effect, the Court of Appeal for Ontario in R. v. Gondis [18] and R. v. Priest , [19] emphasized that the primary objectives in sentencing a first offender are individual deterrence and rehabilitation and that in general young offenders should not be given long sentences of incarceration but where appropriate a short, sharp sentence and a fairly lengthy period of probation should be imposed. [ 69 ] Mr.

Sciarra also argued that except for very serious offences and offences involving violence, this court has held that these objectives are not only paramount but best achieved by either a suspended sentence and probation or a very short term of imprisonment followed by a term of probation relying on R. v. Stein [20] , where Martin J.A. made it clear that in the case of a first offender, the court should explore all other dispositions before imposing a custodial sentence and only impose a custodial sentence where the circumstances are such, or the offence is of such gravity that no other sentence is appropriate.

Case Law – Proportionality and Parity [ 70 ]

Section 718.1 of the Criminal Code , provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. However the circumstances presented by the defendants are different, particularly Mr. Brown because of his criminal record. In R v. Pham , [21] the Supreme Court of Canada stated that in determining an appropriate sentence, the sentencing judge should take into account any relevant aggravating or mitigating circumstances as well as objective and subjective factors related to the offender’s personal circumstances.

The Court acknowledged the principle of parity requires that a sentence be similar to those imposed on similar offenders for similar offences, but emphasizes that if the personal circumstances of the offender are different, different sentences will be justified.

Case Law – Jurisdiction To Impose a Conditional Sentence [ 71 ] A determination of whether or not I have jurisdiction to impose a conditional sentence depends upon whether this offence falls into the category of a “serious personal injury offence” since these offences were committed before March 13, 2012 when the Criminal Code was amended to prevent this possibility. In R v. Bogdanski , [22] Justice Gray considered this issue and he concluded when the offence of robbery is committed through the threat of violence; words which are not included within the definition of “serious personal injury offence” as per

section 752, the offence is not a “serious personal injury offence” (at paras. 12-14). His reasoning has been followed in the decision of R. v. Mohamed , [23] infra , where Justice Pattillo found that the handing of note to a bank teller without the means to carry out the threat does not amount to an attempted use of violence for the purpose of engaging s. 752 of Criminal Code . [ 72 ] I agree with the reasoning of Justice Gray and conclude that I have the jurisdiction to impose a conditional sentence in this case if the usual principles as set out in R. v. Proulx [24] apply.

Principles of Sentencing [ 73 ] The fundamental purpose of sentencing, as set out in s. 718 of the Criminal Code , is to ensure respect for the law and the maintenance of a just, peaceful and safe society. The imposition of just sanctions requires me to consider the sentencing objectives referred to in that section, which the sentence I impose should attempt to achieve.

These are denunciation, deterrence; both specific and general, separation of offenders from society when necessary, rehabilitation, reparation for harm done and the promotion of a sense of responsibility in offenders and acknowledgment of the harm which criminal activity brings to our community. In addition, in imposing sentence I must take into account the principle of proportionality; the fitness of the sentence must reflect the gravity of the offence and the degree of responsibility of the offender and the applicable aggravating and mitigating circumstances relating to the offences as set out in s. 718.2.

Determination of a Fit Sentence [ 74 ] Having found that I am not satisfied that Mr. Wynn was in possession of a firearm, and having concluded that the robbery was

committed by at least six men, it is clear that it was made possible because the robbers seriously outnumbered the complainants and because of the threats made by Meshach Brown. Ms. Carbonneau submitted that Mr. Wynn should be considered as the “second in command” but given that I am not satisfied that he had a firearm, there is no factual basis for this submission. I find that none of the defendants before me could be considered the leader or to have acted in any materially different way from the others. Mr. Elvie is alleged to have made comments about Mr. Drakes’ shoes but they were not threatening.

Although the three defendants before me were present for the first of the two threats made by Meshach Brown, they would not have heard the last one. All three of the defendants were in the “showing off” video. [ 75 ] For the purpose of sentencing I find that the defendants participated in the robbery by either personally removing jewellery that was being worn by the complainants and/or property belonging to the complainants from their room or they aided the others in doing so by their presence. Based on the jury’s findings, Mr. Elvie is seen leaving the hotel with a bag belonging to Mr. Drakes.

All are seen leaving the hotel at the same time except for Mr. Wynn but the jury must have found that he participated in the robbery. [ 76 ] Accordingly, for the purpose of sentencing, I find that the role of each of the defendants was essentially the same as the others before me. Although I will review the personal circumstances of each offender when crafting their individual sentences, I make the following observations as to the common aggravating and mitigating factors that apply generally to all of the defendants. [ 77 ] The common aggravating factors are as follows: 1.

The defendants were part of a larger group and used their sheer number to intimidate the complainants; 2. This robbery has some similarity to a home invasion. Regardless of how the defendants gained access to the complainants’ room, the jury must have found that they were unwelcome and not present because there was a party. This was a hotel room rented by the complainants where they could expect some degree of privacy and security. This would not be to the same extent as one’s home, as others such as cleaning staff have access to a hotel room and the possibility of loss of valuables is more likely.

Nevertheless, there are some similarities to home invasion cases in that the complainants’ sense of privacy and security in their hotel room was violated. 3. The complainants were held against their will in their hotel room while the robbery was taking place. They were also instructed where to sit.

However, they were not physically restrained such as, for example, being tied up. [ 78 ] As for general mitigating factors, what can be said it that the usual aggravating factors were not present, for example I am not satisfied there was a real or imitation firearm, the defendants were not wearing masks or disguises, no actual violence was used, and the complainants were not physically injured. [ 79 ] It was also submitted by Defence counsel that, practically speaking, the defendants could not have pleaded guilty to the robbery charges because of the Crown’s position that there was a real firearm and as such mandatory minimum sentences would have applied.

As was pointed out, the Crown was not successful on this but that was not determined until my decision after the jury’s verdict. It is not possible to delve into the discussions between counsel at the pre-trial conducted before the trial and the one that I arranged during the trial. Although I do believe that there might be some merit to this position in some cases, in this case only Mr. Brown pleaded guilty to the included offence of theft. (

a) Determination of a Fit Sentence for Ithemar Brown [ 80 ] Having considered the common aggravating and mitigating factors, I turn to a determination of what is a fit sentence for Mr. Brown. [ 81 ] The one aggravating factor that distinguishes Mr. Brown from his co-accused is his serious criminal record which includes a prior conviction for armed robbery. That conviction however was as a youth and it was 14 years ago so it is dated.

His record does include a couple of assault convictions but of more serious concern is his more recent trafficking in cocaine and firearm convictions in the timeframe of 2001 to 2010. His convictions also include breaches of probation orders which is a factor to consider. However, based on evidence called on the Defence motion to permit Mr. Brown and Mr. Wynn to sit at counsel table, which I granted, there was no evidence that he has created or participated in any incidents while incarcerated. [ 82 ] As for mitigating factors, Mr.

Brown is not a very young offender; he was 28 years old at the time of the offence; and is the oldest among these three defendants. However, he is still relatively young and his age and the support he has from Ms. Craig both inspire some hope that he will change the direction of his life and find a lawful way of earning an income and supporting his family. He will have to work hard if he is to become a productive member of society. The best thing that has happened to Mr. Brown in recent times is Ms. Craig. From Ms. Craig’s letter it is clear that she has the potential to be a strong positive force in Mr.

Brown’s life. She is raising a child on her own and holding down a management job. She wants to go to school and has a plan for the future that includes Mr. Brown. Hopefully that relationship will continue to grow. [ 83 ] Although Mr. Brown has only completed Grade 11 of high school, there is no evidence that he has attempted to continue his studies while incarcerated. I draw no adverse inference from this, however, as this could well be as a result of the lack of availability of such programs to him. This is very unfortunate as he has spent 27 months in custody. As Mr.

Inoue pointed out this has also meant that he could not begin to take steps towards his rehabilitation of the kind Mr. Elvie, who was not in custody, was able to do. [ 84 ] Mr. Brown cannot be penalized for insisting on his right to a trial, but he does not get the benefit of a reduced sentence because of a guilty plea. This is a neutral factor. [ 85 ] Ms. Carbonneau submitted that Mr. Brown’s behaviour on the YouTube video demonstrated a lack of remorse as he is seen showing off a pendant belonging to Mr. Drakes. In his statement to police Mr.

Brown claimed that he did not steal this pendant and that may be true, but given the jury’s findings I find that he must have known it was taken during the robbery. However, although Mr. Brown chose not to make a statement to me, I will consider, as some mitigation, the fact that he pleaded guilty to the included offence of theft

and admitted to stealing a pair of shoes from just inside the hotel room. Obviously the jury found that he participated in a robbery, but he did voluntarily provide this information to police. He also pleaded guilty to the included offence of simple possession of cocaine which is what he was convicted of. [ 86 ] I turn then to what is an appropriate sentence in the case of Mr. Brown. Clearly because of the nature of the offence and Mr. Brown’s criminal record denunciation and deterrence, both general and specific, are important considerations. However, given Mr. Brown’s recent relationship with Ms.

Craig, which is clearly a serious one, and given his age, I am not prepared to rule out the very real opportunity he now has to turn his life around, notwithstanding his criminal record which dates back to when he was only a boy aged 13. Mr. Brown has not taken advantage of the many opportunities he has been given to rehabilitate himself in the past when he has been put on probation. However, with the help of Ms. Craig, there is an opportunity now for Mr. Brown to change the direction of his life which would not only keep him out of jail but also ensure that he is able to enjoy a relationship with his son and Ms.

Craig. I trust these are tangible gifts that he will value and strive for. [ 87 ] In all of the circumstances, and having regard to the case law that counsel have referred me to, I conclude that a fit sentence for Mr. Brown for the robbery conviction would be in the range of 18 months to two years less a day. This is considerably higher than the conclusion I have come to with respect to the other two defendants but it is driven by Mr. Brown’s criminal record and the need for individual deterrence. I would not impose a penitentiary sentence; in my view the position of the Crown is too harsh.

I was not asked to consider a conditional sentence and would not have made such an order given Mr. Brown’s criminal record. [ 88 ] I accept the position of counsel that Mr. Brown’s sentence for possession of cocaine should be six months. I find that this is also a fit sentence for his breach of a term of probation given that he has been convicted of this offence twice before. These sentences should run concurrent to each other but consecutive to Mr. Brown’s sentences on the robbery convictions as they are totally unrelated. [ 89 ] Mr.

Brown did not seek enhanced credit for the 27 months that he has spent in custody awaiting his trial and sentence. In all of the circumstances, I sentence him to 20 months for the robbery conviction which results in a global sentence for all three convictions of 26 months. In addition because of his criminal record, to ensure he gets on the right path I will impose a period of three years’ probation. I do not agree with Mr. Inoue that 18 months is sufficient. (

b) Determination of a Fit Sentence for Abednego Wynn [ 90 ] Although I have concluded that the role played by each of the defendants in the robbery is similar, the position of Mr. Wynn on sentencing is quite different because at the time he committed this offence, he had no criminal record and the impact of the sentence he is currently serving could not have been realized at the time of this offence. Ms. Carbonneau agreed that Mr. Wynn must be sentenced as a first offender. [ 91 ] Mr. Wynn was also only 22 at the time of these offences; the youngest of the three defendants before me. In addition, although Ms.

Balgrove has been in his life for nine years, her presence and the fact they are now engaged to be married and have three daughters will hopefully be a strong incentive for Mr. Wynn to change direction after he is finally released. That will be up to Mr. Wynn as the fact he has a family including young daughters was obviously not enough to prevent his commission of the Montreal Convictions. I do not know how much longer he will be in custody on the Montreal Convictions but clearly he will be removed from his spouse, and the lives of his young daughters, for a long period of time.

The wedding will have to wait. [ 92 ] Mr. Wynn cannot be penalized for insisting on his right to a trial, but he does not get the benefit of a reduced sentence because of a guilty plea. This is a neutral factor. [ 93 ] Mr. Wynn has only completed Grade 11 of high school because his first daughter was born then. Even without a high school education Mr. Wynn was showing some promise in the music and fashion industry with BW ENT before his arrest. His involvement with the Stop the Violence Program was also no doubt a positive one. Why Mr.

Wynn became involved in the circumstances that led to the Montreal Convictions I do not know but hopefully with the support of Ms. Balgrove and the fact he wants to be a positive role model to his daughters, he can achieve his goal of completing his high school education while incarcerated and then pursue this business upon his release. [ 94 ] It is the position of Mr. Sciarra that but for the fact that Mr. Wynn is currently serving a four year sentence, he would be a candidate for a conditional sentence in the circumstances of this offence. In light of the fact that Mr.

Wynn’s first ever criminal conviction has resulted in a significant period of incarceration any benefit he would receive from a non-custodial sentence in this case would be moot. It is therefore accepted by Mr. Sciarra that the specific circumstances of this offender require that the sentence reflect a period of incarceration. [ 95 ] It is also submitted by Mr. Sciarra that Mr. Wynn’s current lengthy period of incarceration will serve as significant deterrence and denunciation of all criminal activity and will offer him the opportunity to complete the requisite programming necessary to reform him. As such, Mr.

Sciarra submits that any sentence applied to Mr. Wynn should be focused on his rehabilitation and reintegration into society upon his completion of his current sentence. He argues that when considering the principle of totality there is nothing to be gained by society or by Mr. Wynn to have him remain in custody for any further period of incarceration. As a first offender having been already sentenced to 4 years’ incarceration, any further incarceration would not address general or specific deterrence, nor would have any denunciatory effect. [ 96 ] I agree with Mr. Sciarra that the fact Mr.

Wynn is serving a lengthy penitentiary sentence will act as a strong individual deterrent. Although there has been no change in his recent circumstances save for the birth of a third daughter, hopefully the fact that he has been in custody for her whole short life will help ensure that he never again engages in unlawful conduct.

[ 97 ] I turn then to what is an appropriate sentence in this case. I agree with Mr. Sciarra that the sentence for Mr. Wynn should be what Justice Code described in Panchan as a short sharp sentence of two to three months in jail, followed by probation. The circumstances of Mr. Wynn are similar to the offenders that Justice Code was dealing with. Those offenders had no criminal record but the offence they committed was far more serious than the robberies in this case. Like Mr. Wynn, the offenders were young with strong prospects of rehabilitation. The real issue in my view is whether Mr.

Wynn’s sentence should be concurrent to the sentence he is currently serving or consecutive to that sentence. [ 98 ] Ms. Carbonneau argues that the sentence should be consecutive and she relies on R. v. Chisholm , [25] where in the case of an offender who was convicted of four unrelated robberies the court held that the sentences should be consecutive although the court should keep in mind the total term imposed in consecutive sentences.

The court reasoned (at para. 8) that since there was no relationship between any of the four robberies, if sentences were to be concurrent in such cases, that would almost be an inducement to a criminal to not refrain from crimes of the same sort or even of different sorts committed at times closely related to one another. He would reason that, if he were caught on the first one, any sentence that he would get on the others would likely be concurrent and his liberty not further restrained because of his committing these other offences. [ 99 ] I dealt with this issue in another robbery sentencing case; R. v.

Rose, [26] relied upon by Mr. Sciarra. In Rose I relied on a decision of Justice Nordheimer; R. v. Stoddart , [27] which I found to be helpful. Nordheimer J. was sentencing an offender who was serving a five year sentence for a robbery that was a separate and distinct offence committed at a different time. He cited Chisholm and concluded that consecutive sentences would be appropriate, subject to the principle of totality.

As Justice Nordheimer noted, had he acceded to the Crown’s request in that case it would have resulted in a total sentence in the range of 11-13 years, which he considered to be unduly long in light of the various authorities from the Court of Appeal that he had been referred to. Justice Nordheimer considered what would be the totality of the sentences and concluded that a concurrent sentence was appropriate, even in light of the overwhelming aggravating circumstances, to avoid an otherwise harsh result. [ 100 ] I reached the same conclusion in Rose and ordered that the sentence for a robbery committed by Mr.

Rose before robberies that he was already serving time for be concurrent rather than adjusting the total sentence to be imposed as suggested by the Crown. That was also a case where I had to impose a mandatory minimum sentence. [ 101 ] It is the position of Mr. Wynn that the same reasoning must apply when deciding his sentence in light of the principles of proportionality and parity. Mr. Sciarra submits that when considered together, any further incarceration added to Mr.

Wynn’s already lengthy first criminal conviction would be unduly hard or long, would not address any of the principles of sentencing and would be disproportionate to the gravity of the offence. [ 102 ] Given the sentence Mr. Wynn is currently serving is for a very different offence committed at a different time and place, it would normally be the case that his sentence for these offences be ordered to be consecutive to the sentence he is currently serving. I must, however, consider the totality principle. I presume that since a firearm was involved, Mr.

Wynn was subject to the mandatory minimum sentence of three years which was increased to account for the other offences. I do not know enough about the other offences, however, to conclude that the principle of totality would be violated if I were to impose a “short sharp” sentence on Mr. Wynn to be served at the conclusion of his other sentence. This is not the fault of Mr. Sciarra as he was not counsel for Mr.

Wynn in those proceedings. [ 103 ] In any event, since I am of the view that a sentence in the range of 90 days would be appropriate, I am not sure that the totality principle would be breached in this case. For these reasons I find that a consecutive sentence is appropriate. [ 104 ] I had intended that this sentence be served intermittently on weekends once Mr. Wynn’s federal sentence was finished but counsel agreed that for various reasons this would not be possible and that I would have to simply sentence Mr. Wynn to 90 days. [ 105 ] For these reasons I conclude that Mr.

Wynn should be sentenced to 90 days for each of these robbery convictions, to be served consecutive to the sentence he is currently serving but concurrent to each other. It is agreed that he has no credit for pre-sentence custody on these convictions. I do not intend to order a period of probation as Mr. Wynn is serving a penitentiary sentence and will be paroled at some point. (

c) Determination of a Fit Sentence for Nathan Elvie [ 106 ] Mr. Elvie is in a similar position to Mr. Wynn save that he was 24; two years older than Mr. Wynn at the time of this offence; and he has one previous serious conviction, six years ago, for unauthorized possession of a firearm in a motor vehicle. He successfully served the nine month conditional sentence that was imposed for that conviction in addition to six months pre-sentence custody. Mr. Elvie also has a loving family and strong support from his mother and two older sisters and presumably his spouse, although I did not hear from her.

He has already taken a significant step towards his rehabilitation by obtaining his G.E.D. diploma in March 2012, a step he began before he was arrested for these offences. The fact that he did very well in this program and his volunteer assistance as a math tutor in this program also bodes well. His plan of going back to work full-time as a “reach” truck operator to regain some financial stability and save money for college in Business Marketing and Fashion Design can be achieved if he continues to abide the law as he has done while out on bail. [ 107 ] Mr.

Elvie cannot be penalized for insisting on his right to a trial, but he does not get the benefit of a reduced sentence because of a guilty plea. This is a neutral factor. He did however take the opportunity to make a statement to the court. Although he said that he had remorse he did not really express any remorse for the harm suffered by the complainants. He did however describe his conduct as a “shameful act” and that he could not blame it on “bad associations” and he spoke about the hardship his actions had caused his family and his future plans.

[108] Although Mr. Elvie’s sentence should arguably be greater than the sentence imposed on Mr. Wynn because of his priorconviction for a serious offence, that offence is somewhat dated and Mr. Elvie is entitled to receive some credit for the fact that he wasreleased on these charges in September 2011 and has been subject to house arrest, subject to certain exceptions since then, pursuant to R.v. Downes (1992), (ON CA), 79 O.R. (3d) 321. I note that Ms. Carbonneau submitted that Mr. Wynn and Mr. Elvieshould receive the same sentence. I agree. [109] Like Mr.

Wynn, although I must be mindful of the principles of denunciation and deterrence, both general and specific, he wasyoung and has good prospects for rehabilitation. The principles considered in Panchan apply. I conclude that like Mr. Wynn, theappropriate sentence for Mr. Elvie is 90 days. [110] Mr. Cedro has asked that Mr. Elvie serve a conditional sentence and in fact suggested one as long as 18 months. In my view asentence of that length is not appropriate even if it is served as a conditional sentence. Mr. Elvie is a suitable candidate for a conditionalsentence to be followed by a period of probation.

It is true that he has committed a serious offence after previously being granted aconditional sentence but that conviction is somewhat dated and he has been on strict terms of recognizance for 27 months without anybreach. He is clearly now amenable to court supervision. [111] Having concluded that I have the jurisdiction in this case to impose a conditional sentence I have concluded that Mr. Elvieshould serve a sentence of four months in the community to be followed by two years’ probation.

Ancillary Orders [112] The ancillary orders sought by the Crown were not opposed and so they will be imposed with respect to each defendant. Ms.Carbonneau did not ask that the new victim surcharge be imposed which is now mandatory pursuant to s. 737(5) of the IncreasingOffenders’ Accountability for Victims Act. I presume this was because these offences were committed before this statute came into force. Final Disposition – Brown [113] Mr.

Brown would you please stand. [114] With respect to your two convictions for robbery I sentence you to 20 months for each conviction, each sentence to beconcurrent to the other. [115] With respect to your convictions for possession of cocaine and breach of a term of probation I sentence you to six months foreach conviction, each sentence to be concurrent to the other. These sentences are to be served consecutively to your sentence on therobbery convictions. [116] As such your global sentence for all three convictions is 26 months.

After giving you credit for 27 months for pre-sentencecustody, which will be applied to all sentences, your sentence is time served plus one day. I must impose one additional day so that youcan be processed for your release. [117] Once you are released from custody you will be subject to a period of probation for three years. In addition to the compulsoryconditions of this probation order, provided for by

section 732.1(2) of the Criminal Code, the additional conditions of the order pursuantto s. 732.1(3) of the Code are as follows:

a) Report within 2 working days of your release, in person, to a probation officer and thereafter when required by the probationofficer;

b) Remain within the province of Ontario unless written permission to go outside the Province is obtained from the court or theprobation officer;

c) Reside with Jennifer Craig or at an address approved of by the probation officer and contribute to the cost of maintaining thehousehold as you are able;

d) Do not change your address without the prior approval of the probation officer;

e) Abstain from the purchase, possession or consumption of any drugs, or other substances prohibited by law, except inaccordance with a medical prescription;

f) Attend and actively participate in counseling program(

s) or treatment program(

s) for drug addiction or other issues asrecommended by your probation officer and sign releases to monitor compliance as needed;

g) Make reasonable efforts to complete your high school diploma and further your education or vocational training and/or find andmaintain suitable employment either as an employee or business owner and provide progress reports to your probation officer as directed;

h) Abstain from owning, possessing or carrying any weapon as defined in the Criminal Code;

i) Do not apply for nor possess a firearms acquisition certificate or any other form of gun license;

j) Do not have any contact directly or indirectly with Patrick Drakes or Kwame Pemberton;

k) Do not attend at the Eaton Chelsea Hotel;

l) Do not have any contact with, or be in the company of, or associate with anyone known by you to have a criminal record or

who is the subject of criminal charges except for members of your family or persons you come into contact with because of your employment or school. [ 118 ] Mr. Brown, a copy of the Probation Order will be given to you by the court officials who will ensure that the substance of sections 732.2(3), 732.2(5) and 733.1 are explained to you regarding the probation order. Please pay very careful attention to all of these conditions. I must tell you that breach of any of these conditions will be taken very seriously by this Court.

You must appreciate that incarceration will likely result if any of the conditions of your probation are breached. I hope that the terms that I have imposed will bring home to you the seriousness of your conduct, and assist you in remaining a productive and law-abiding member of our community once you are released from custody. [ 119 ] In addition there will be a weapons prohibition order pursuant to subsections 109(1) (

a) and 109(2) of the Criminal Code for life. [ 120 ] In addition, there will be a DNA order pursuant to

section 487.051(3) authorizing the taking of a DNA sample. The order shall apply to your robbery convictions which are primary designated offences. Final Disposition – Wynn [ 121 ] Mr. Wynn would you please stand. [ 122 ] With respect to your two convictions for robbery I sentence you to 90 days, each sentence to be concurrent to the other. These sentences shall be served consecutively to the sentence you are currently serving for the Montreal Convictions. [ 123 ] In addition there will be a weapons prohibition order pursuant to subsections 109(1) (

a) and 109(2) of the Criminal Code for ten years. [ 124 ] In addition, there will be a DNA order pursuant to

section 487.051(3) authorizing the taking of a DNA sample. The order shall apply to your robbery convictions which are primary designated offences. Final Disposition – Elvie [ 125 ] Mr. Elvie would you please stand. [ 126 ] With respect to the two convictions for robbery I sentence you to four months, to be served concurrently to each other, in the community. In addition to the compulsory conditions of this order, provided for by

section 742.3(1) of the Criminal Code , the additional conditions of the order pursuant to s. 732.3(2) of the Code are as follows:

a) Report to a supervisor within two working days of today and thereafter when required by the supervisor and in the manner directed by the supervisor;

b) Reside with your spouse or at an address approved of by your supervisor and contribute to the cost of maintaining the household as you are able;

c) Do not change your address without the prior approval of your supervisor;

d) Abstain from the purchase, possession or consumption of any drugs, or other substances prohibited by law, except in accordance with a medical prescription;

e) Attend and actively participate in counseling programs as recommended by your probation officer and sign releases to monitor compliance as needed;

f) Make reasonable efforts to further your education or vocational training and/or find and maintain suitable employment either as an employee or business owner and provide progress reports to your probation officer as directed;

g) Abstain from owning, possessing or carrying any weapon as defined in the Criminal Code ;

h) Do not apply for nor possess a firearms acquisition certificate or any other form of gun license;

i) Do not have any contact directly or indirectly with Patrick Drakes or Kwame Pemberton;

j) Do not attend at the Eaton Chelsea Hotel.

k) Do not have any contact with, or be in the company of, or associate with anyone known by you to have a criminal record or who is the subject of criminal charges except for members of your family or persons you come into contact with because of your employment or school;

l) For the duration of this order, you shall remain in your home, under house arrest 24 hours per day, seven days per week, and not leave your home at any time except for the following reasons: (

i) in the company of your spouse; Renetta Duke-Inniss for any reason; (ii) court attendances and reporting to your supervisor;

(iii) attendance at your place of education and/or employment; (iv) attendance at scheduled medical or dental appointments for yourself or your children; (

v) dealing with any medical emergency affecting you or a member of your immediate family; (vi) attendance at a religious institution for the purpose of worship not more than once per week; (vii) a four hour period weekly, the precise time to be agreed upon by your supervisor during which time you may attend to personal matters such as banking, purchase of groceries and running household errands; (viii) travel directly to or from any of these activities; and (ix) at any other time with the prior written permission of the supervisor. [ 127 ] Once you have completed your conditional sentence you will be subject to a period of probation for two years on the same terms save that you will no longer be subject to house arrest as set out in paragraph 125 (

l) and you will report to a probation officer and not a supervisor. [ 128 ] Mr. Elvie, a copy of the Conditional Sentence Order and the Probation Order will be given to you by the court officials who will ensure that you understand the terms of these orders. Please pay very careful attention to all of these conditions. I must tell you that breach of any of these conditions will be taken very seriously by this Court. You must appreciate

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