R. v. R-M.
Ontario Court of Justice
Brampton, Ontario
Blacklock J.
Oral judgment: January 30, 2001.
Sometimes an accused is charged with exactly something he did do and the police conduct was not worse than the offence committed. In these rare instances, pleading guilty is the best option to avoid jail–but it has to be done right.
Sentencing hearing of the accused Robart-Morgan. Morgan and his accomplice Steer disguised themselves with masks and gloves. Morgan entered the back seat of a taxicab while Steer sat in the front. Morgan was armed with a knife. He grabbed the victim and held the knife to his throat. Steer attempted to obtain the driver’s wallet and funds. A struggle ensued and Steer pushed the driver out of the cab. The driver became caught in the seat-belt and was dragged for 100 feet. Steer drove the cab and crashed it into a tree. The driver filed a victim impact statement. He had to take off work to recover from his physical and emotional injuries. The driver had to buy a new vehicle because the cab was a write-off. His financial losses were $15,000. Morgan entered a guilty plea to robbery. He was also prepared to testify against Steer who had been involved in a previous unsolved taxi robbery. Morgan was 23 at the time of the offence and was employed. He lived with his mother and stepfather. They were prepared to closely supervise him. Morgan had a substance abuse problem. In the week before this offence he had consumed a significant amount of ecstacy. He attended group counselling for substance abuse. He was prepared to continue the counselling. Morgan did not have a prior record for violence.
HELD: Morgan received a conditional sentence of two years less one day. This sentence would be followed by 18 months probation. For the first 18 months he was to remain at home with certain exceptions. He was permitted to leave only for work, counselling or medical emergencies. After that period he could leave for any purpose authorized in advance by his sentencing supervisor. Morgan was required to make restitution to the driver of $15,000. He was to initially pay $1,000 followed by monthly payments of $550. The conditional sentence was appropriate because Morgan did not represent a danger to the community. He would be subject to close supervision. The conditions of the sentence satisfied the objectives of general deterrence and denunciation. It also accomplished the restorative aspects of sentencing.
Statutes, Regulations and Rules Cited:
Controlled Drugs and Substances Act.
Criminal Code, ss. 109, 110.
Food and Drug Act.
Counsel:
T. O’Fiara, for the Crown.
S. Sabharwal, for Russell Robart-Morgan and agent for Reid Rusonik.
1 BLACKLOCK J. (orally):– I have before me, Mr. Russell Robart-Morgan. He has entered a plea of guilty in relation to a robbery of a taxi-cab which was driven by Mr. Satinderjit Singh Brar. This offence occurred in this jurisdiction on February the 11th of 2000. The matter also allegedly involved, apart from Mr. Robart-Morgan, a co-participant named Ryan Steer.
2 Mr. Robart-Morgan and Mr. Steer, on the admitted facts, acquired masks and gloves to disguise their identity and at about 2:00 a.m. in the morning, the victim was pulling into the cab station at Meadowvale Town Centre. Mr. Robart-Morgan got into the back seat and Mr. Steer got into the front seat of the cab. Mr. Robart-Morgan was armed with a knife. He grabbed the victim and put the knife to the area of his throat. Mr. Steer apparently attempted to disable Mr. Brar’s radio and he attempted to obtain the victim’s wallet and monies. The victim struggled during the course of this and attempted to remove the knife from the area of his neck and during the course of this, his right ring finger was cut. The co-accused, Mr. Steer, on the facts before me, attempted to push Mr. Brar out of the cab and did so. The victim however became caught up in a seat-belt and Mr. Steer then moved himself into the driver’s seat of the cab and drove off. The victim was dragged some 75 to a 100 feet within the confines of the parking area. After he became loose, it appears that Mr. Steer continued to drive the car for some short period. It hit a curb and ultimately crashed into a tree.
3 The incident was witnessed by another cab driver who rendered assistance to the victim. The police were contacted. Both Mr. Robart-Morgan and Mr. Steer fled on foot and they were subsequently arrested a short distance away from the scene of the offence. I’m advised that on his arrest, Mr. Robart-Morgan admitted his involvement in this offence and he has now entered a plea of guilty before me through the pretrial process without setting a date for any form of proceeding in this Court.
4 There was a victim impact statement filed with respect to this matter. The victim’s injuries appear to include bruises to his side and back. As I indicated, his right ring finger was cut and it appears to have taken him a period of time to recover in an emotional way as well. He was away from work for a period of about two to three months. The proceeds of the offence were modest in the extreme. It appears approximately $12. in coins were taken from the front of the cab. The victim impact statement however, shows that the readily ascertainable financial loss, occasioned to Mr. Brar through the commission of this offence was significant. Mr. Brar has had to buy a new cab as a result of his former cab being a write-off following the collision with the tree. He’s also suffered loss of income as a result of being off work and it would appear that the total of these sums is approximately $15,000. I have no doubt that these events were terrifying.
5 Mr. Robart-Morgan is 24 years of age currently. He was 23 years of age at the time of the offence. A presentence report was prepared in this matter and is before me and gives me some background with respect to him. His biological parents were divorced and his relationship with his father appears to not have been a particularly good one since. The report suggests that his father, was emotionally and physically abusive, although there were no indications of any agency involvement with his family at the time that that family unit was together. The accused’s relationship with his mother and stepfather appears to be currently a good one. The accused’s mother was said to be shocked by her son’s involvement in this offence and the investigating officer offers the opinion that the accused’s chances of rehabilitation are good.
6 It appears that the accused did have a substance abuse problem at the time of these events. He began smoking marihuana and hashish at the age of 14. His consumption gradually escalated into his twenties and during that time period, at times it was accurately described as involving daily use. In addition it appears that relatively shortly before the time of this robbery, he began to experiment with other drugs. The presentence report indicates that during the week in advance of this offence he was on a binge consuming significant quantities of ecstasy. In addition it’s suggested by the presentence report and his comments to me during the sentencing hearing that he was under the influence of drugs at the time of this incident.
7 He indicated to me during the course of the sentencing submissions that he was not fully aware of the extent to which they had injured the cab driver. He also took the position that he was not aware that the cab driver was caught up in the seat belt as Mr. Steer began, initially to drive away.
8 While all that may be true, there’s no getting around and there’s no suggestion that he did not appreciate the fact that he was participating in a planned and deliberate robbery during the course of which he was armed with and produced a dangerous weapon, putting it in the throat area of the victim.
9 He has attended for some group counselling with respect to substance abuse since the time that these matters have come before the Court and did so for a period of months from March 2000 to July 2000. He’s indicated as part of the sentencing submissions before me, a willingness to continue counselling in the future with respect to substance abuse. He appears to be relatively intelligent, having completed his OAC’s with an average of about 70 percent. He currently is employed, earning a wage of about $7.00 per hour. He’s described by his employer as a trustworthy and responsible employee. I’m satisfied that he is highly remorseful for his conduct. That’s reflected in the presentence report and his comments to me about his desire to make good the financial loss suffered by the victim in this case. His pretrial custody is extremely limited, being confined to about four days pretrial custody.
10 To this point, the sentencing in this case would have, in my view, been a relatively straight forward matter and I would have imposed a sentence on that factual scenario, something in the area of 16 to 18 months, actual incarceration. There is however a further feature to this case which complicates, the issue of what is the appropriate sentence in this case.
11 Mr. Robart-Morgan has now provided a KGB statement to the police, with respect to the incident in which he was personally involved, being the cab robbery of February the 11th, 2000. He has indicated a willingness to testify against his co-accused with respect to this matter. He has also provided information to the police that has led, or will lead, according to a written material submitted to me by the investigating officer, to other charges against his co-accused, Ryan Steer, with respect to an earlier and previously unsolved taxi-cab robbery in which Mr. Steer appears to have participated with another first offender.
12 This robbery was alleged to have occurred shortly before the incident before me. The accused provided information to the police that indeed, Mr. Steer and a third party visited him shortly before the robbery of February the 11th and told him about some of the details surrounding the first cab robbery and showed him the property that had been taken. As a result of this information and photo-lineups involving Mr. Steer, I’m advised on the written material from the investigating officer that it’s his intention to charge Steer. I’m advised that the named third party continues to be under investigation by Peel Regional Police at this time.
13 The Crown’s position before me with respect to this matter was that this case would be a matter which would ordinarily call for a sentence in the range of three years. The Crown recognizes the accused has provided information to the police as an informant and they accept the guideline articulated by Justice Hill of the Superior Court in this province, in Regina and John Doe, [1999] O.J. No. 5089. In that case, relying upon certain English and Australian authorities, Justice Hill held that an informer should receive a substantial discount in return for his co-operation with the authorities. He noted that these authorities suggest that something in the area of a half to two thirds off of what would normally be imposed, would not be inappropriate. The Crown consequently takes the position before me that the sentence I ought to impose in this case is one of a year to 18 months. They take the position that it would be inappropriate however to impose a sentence conditionally. They submit this in essence, for two reasons. Namely:
(1) Ongoing danger to the community.
(2) Inconsistency with general sentencing principle.
14 The position of the defence is that the appropriate sentence for this robbery is somewhere in the range of 18 months given the accused’s plea of guilt, his age, lack of record and other background. They submit that the accused is thus a potential candidate for a conditional sentence on that basis alone. They point out, however, that the tool of the conditional sentence in this case is particularly appropriate in that it provides a vehicle for significant restitution, ongoing rehabilitation regarding substance abuse and is also warranted by the particular circumstance of the accused becoming a non-confidential informant. They submit that given the degree of co-operation, evidence by the accused and his willingness to actually testify, a sentence in the range as low as six months of immediate actual incarceration would be open to the Court. They go on to submit however, that given all the sentencing principles that ought to apply in this case, it would be more appropriate for me to impose a much longer conditional sentence, suggesting a duration of something in the range of 18 months.
15 I have examined the authorities put to me by counsel with respect to this case as well as some others and it seems to me the appropriate first question for me to address is, in coming to a conclusion in this case, is what would the appropriate sentence be at the end of a trial with respect to a case such as the one now before me.
16 This offence reflects a number of aggravating circumstances. There was a degree of planning involved in the robbery. There was joint action. There was the presence of weapons. It involved the robbery of a taxi-cab driver which is a class of victim calling for particular protection from the Court. Weapons were not only present but were produced in a menacing way. The victim was exposed to a risk of very significant injury, not only during the commission of the offence but also during the efforts of the parties to escape. And the financial loss is significant. On the other hand the accused has no history of any criminal record whatsoever. He has a supportive family and is still relatively young.
17 In all the circumstances, at the end of a trial, given the accused’s age, lack of record, criminal antecedents and his role in the offence, I would have thought that the appropriate range of sentence would be somewhere in the area of two to three years. I accept the notion, of course, that a plea of guilty would mitigate the sentencing range in my view, completely appropriately into something in the upper reformatory range.
18 I pause to note that I do not accept the notion that the appropriate approach would be to mitigate the accused’s sentence downward by half to two thirds from the point he would otherwise obtain by virtue of the added mitigating circumstance of his plea of guilt. In my view the discount that Justice Hill talks about as the general guideline applies, as I’ve tried to point out to the sentence that would be imposed at the end of a trial. On that approach, it seems to me that the potential range open to me with respect to this matter of an immediate incarcerate sentence would be something ranging at the low end, from eight months to something at the high end of about 18.
19 In light of those conclusions, I am fully satisfied that the initial question about whether or not a conditional sentence is appropriate has been met in this case. This is not a case for a non-custodial disposition. It’s equally not a case for a penitentiary term.
20 The next question for me to address according to Regina and Proulx [2000] 1 S.C.R. 61, is whether or not a conditional sentence is inappropriate as the accused represents a danger to the community. I accept the Crown’s submission that in some cases, notwithstanding the fact that the accused represents a minimal danger to the community, there may be circumstances that any risk of repetition is so unacceptable that a conditional sentence is an inappropriate tool to utilize. Having considered the Crown’s submissions in this regard however, I do not think that this is a case which I ought to permit to be governed by that principle. The central reason is, I view the risk that the accused represents of repeating this offence in the unusual circumstances before me as being so remote as to being nonexistent.
21 He has no record for violence whatsoever. He has no breaches of any court order. He is now living under the supervision of his parents. They can offer him, being fully aware of the difficulties that have now arisen, a great deal of supervision in the course of his reintegration into the community and a tight conditional sentence can undoubtedly facilitate that supervision. He has already commenced substance abuse counselling and is prepared to continue it. And as recognized by some of the informant cases, he has, by openly informing on a criminal confederate, not only alienated him, but to some degree limited his ability of function in any kind of a criminal environment in the future.
22 The real question for me is, “Is a conditional sentence inconsistent with general sentencing principle in this particular case?” Clearly in some cases, the need for general deterrence and denunciation demand an incarcerate sentence, notwithstanding that the accused may otherwise be a candidate for a conditional sentence. Given the unique circumstances of this case and this offender and I might add, not without very real hesitation, I’ve come to the conclusion that this is not a case falling into this principle either.
23 The Supreme Court of Canada in Proulx, makes it’s and Parliament’s views clear. It suggests that the trial courts have used jail to too great of an extent. It suggests that the new sentencing provisions of The Criminal Code represent a new departure intended to breath real life into the sentencing principle, that actual incarceration is a matter of last resort. It is also emphasized that conditional sentences can indeed be fashioned in a way and in some circumstances that they do indeed serve the needs of general deterrence and denunciation. In my view this is such a case.
24 From a practical point of view, when I consider the issues of general deterrence, were I to conclude that an immediate actual period of incarceration was appropriate, given his status as a non-confidential informer, I would not have imposed a sentence beyond a sentence of eight months. Given his status as informer, he would undoubtedly be a candidate for parole and in all probability be released at a point significantly short of the eight month sentence. It is not apparent to me such a sentence will operate in a significantly greater general deterrent fashion than a much lengthier and strict conditional sentence. Nor is it clear to me that it more effectively denounces the accused’s conduct.
25 Furthermore, by imposing a conditional sentence, I can more effectively structure a sentence that furthers the restorative principles of sentencing. A sentence of immediate incarceration will put the accused in a position of losing his job and it will put me in a position as a sentencing court, that I will lose the ability to impose a restitution order which operates in a way that maximizes the victim’s chances of effectively recovering a significant loss. The accused has put himself in a position of being in funds to the extent immediately of $1000. In addition, he has indicated that it is reasonable that he can pay $550. a month towards restoring the $15,000. loss I’ve heard about in this case. He is prepared that I make that form of order fully applicable to him.
26 I have also borne in mind in coming to what I concede is a highly unusual sentencing result with respect to this case that no matter how short a period of actual custody I impose in this case, given the accused’s status of a non-confidential informant, I do expose him to potential consequences which are disproportionate to the matter before the Court. This includes the possibility of serious personal injury or worse.
27 I want to make it perfectly clear that I view this sentence as an exceptional one. Were it not for the coming together of all the circumstances that I’ve attempted to reflect in these reasons, I would not have imposed a sentence on a conditional basis, but I have come to the conclusion that it would be appropriate for me to do so and I will.
28 Can I see a conditional sentencing order, Madam Clerk?
29 The length of the conditional sentence will be one of two years less one day. The terms of his conditional sentence will be the statutory ones, that he keep the peace and be of good behaviour. That he appear before the Court when required to do so. That he report forthwith to a sentencing supervisor and thereafter as required. He will remain within the Province of Ontario unless he has written permission to go outside the province. He will notify his sentencing supervisor in advance of any change in his name, address or employment or occupation.
30 In addition, he will abstain from the purchase, possession and consumption of any non-medically prescribed drug as defined by The Controlled Drugs and Substances Act or The Food and Drug Act.
31 He will abstain from owning or possessing or carrying any weapon, defensive weapon, ammunition, explosive substance or weapon as defined by The Criminal Code.
32 He will, for the first 18 months of this sentence, remain within his home, 24 hours a day, seven days a week with the following exceptions. He may be out to attend counselling. He may be out to go directly from his home to any counselling for the purposes of counselling and he will return directly to his home following the completion of counselling. Equally, he may be out of his home for the purpose of going directly to his place of employment. While at his place of employment, engaged in his employment duties and he will then directly return to his home. He may also be out of his residence for the purpose of doing directly to any court attendances, attending for the purposes necessary in relation to those court appearances and then he will return directly home. In addition, he may be out of the home for the purposes of medical emergency. After 18 months he may also be out of his home for any purpose authorized in advance in writing by his sentencing supervisor. This permission will be carried on his person and displayed to any peace officer who asks to see it.
33 It will also be a term of his conditional sentence that he will, within 30 days, make a payment of restitution. Let me put it this way, there will be a restitution order in this case in the amount of $15,000. paid in favour of Satinderjit Singh Brar. It will be a term of his conditional sentence that he will make payments in the following way towards the discharge of that restitution order. He will, within 30 days, make a payment of $1000. He will thereafter make payments of not less than $550. a month in consecutive months until completion, the first one being due not less than 60 days from today’s date.
34 He will not associate or communicate directly or indirectly with any person known to him to have a criminal record except as is necessarily incidental to his attendance at work. He will have no communication directly or indirectly with Mr. Satinderjit Singh Brar, Mr. Ryan Steer, nor Mr. John Lessem, and Lessem is spelled, L-E-S-S-E-M. Mr. O’Fiara, I’ve been considering the imposition of a term as part of his conditional sentence, that he attend at any court proceedings with respect to Mr. Ryan Steer and Mr. Lessem. That was put to me by Mr. Rusonik as part of his submissions. On the other hand he’s going to be under house arrest for 18 months, so I would think that his availability, as long as he complies with the conditional sentencing order as I have framed it, his availability as any witness would be secured without any difficulty.