R. v. Uribe
Between
Her Majesty the Queen, and
Lilia Maria Uribe
Her Majesty the Queen, and
Lilia Maria Uribe
[2013] O.J. No. 5248
2013 ONSC 6830
Court File No. 11-03779
Ontario Superior Court of Justice
Newmarket, Ontario
R.C. Boswell J.
Oral judgment: October 1, 2013.
Court File No. 11-03779
Ontario Superior Court of Justice
Newmarket, Ontario
R.C. Boswell J.
Oral judgment: October 1, 2013.
(62 paras.)
REASONS FOR SENTENCE
R.C. BOSWELL J. (orally):--
Introduction
1 On
July 4, 2013 I convicted Ms. Uribe of robbery and possession of stolen property
with a value greater than $5,000. Sentencing submissions were received on
September 6, 2013. The following are my reasons for the sentence I impose
today.
The Circumstances of the Offence
2 Cheong
But and Lygech Ngo are a middle-aged couple who reside in Maple, Ontario. On
weekends they operate a booth in the 400 Market, just south of Barrie, selling
jewellery.
3 On
Sunday, May 23, 2010, Mr. But and Ms. Ngo closed up shop and departed the 400
Market at about 6:00 p.m. They were unaware, as they drove home, that they were
being followed by a group of bandits intent on robbing them of their inventory
of jewellery. This was no spur of the moment "smash and grab". This
was a well-planned and orchestrated robbery. The perpetrators were known to the
police and had been under surveillance for some time, though unfortunately that
was not the case on the day of the robbery. Tracking devices installed on one
of the suspect's vehicles offered evidence that there had been a practice run
of the robbery on May 22nd. The real deal occurred the following day.
4 Mr.
But pulled the family car into the garage of their home on a quiet residential
street at around 8:00 p.m. By the time Ms. Ngo stepped out of the car, four
masked males were upon her and Mr. But. She was approached by a knife-wielding
male. He was dressed in black and had a dark bandana covering most of his face.
He pricked her in the hand with the knife and ordered her to get down on the
floor of the garage. She complied, injuring her knees in the process. In the
meantime, another similarly attired and disguised male pinned Mr. But in the
car.
5 Within
a few minutes the assailants were gone, along with five black bags and a black
knapsack full of jewellery, valued, in total, at about $250,000. They fled the
scene in a Jeep Cherokee. The jewellery has never been recovered. The Cherokee
was found the next day, abandoned on a nearby street.
6 Following
the heist, the jewellery was delivered to an apartment building located on
Islington Avenue in Etobicoke. It was conveyed into the building by five
individuals, none of whom resided at the building. Ms. Uribe did reside at the
building, together with her common law spouse, Luis Enrique Soto-Cortes. Mr.
Soto-Cortes was one of the masked males who committed the robbery. Ms. Uribe
facilitated entry into the building by the five bag-toting individuals. The
jewellery was not taken to Ms. Uribe's unit, which was on the 8th floor, but to
another location, which the police believe was an apartment on the 10th floor,
though that has never been confirmed.
7 Ms.
Uribe was charged as an aider to the robbery. On May 21, 2010, she and Mr.
Soto-Cortes rented a white Dodge Caliber from Avis Car Rentals. The Dodge
Caliber was used as a scout and getaway car during the robbery. I found as a
fact, in my reasons for judgment, that Ms. Uribe knew that the car was to be
utilized in a robbery and that she rented the car with the intention of aiding
in that purpose.
The Circumstances of the Offender
8 Ms.
Uribe is, at age 32, a somewhat youthful, first-time offender. A Pre-Sentence
Report was prepared which offers some very basic information about her
background. That information was supplemented by submissions from her counsel.
Crown counsel did not object to the information provided by counsel and I
suspect that none of it is controversial.
9 Ms.
Uribe was born in Colombia and spent the first 26 years of her life there. Her
parents separated when she was quite young. She lived with her mother until her
mother's death when Ms. Uribe was 11 years old. She spent a year living with
her grandmother, but at age 12 moved in with her boyfriend and his family. She
became pregnant at age 15 and had a son, who is now 17 years old.
10 Ms.
Uribe experienced considerable tragedy in Colombia. In addition to the
separation of her parents and the death of her mother, a number of her
relatives have either disappeared or been killed by paramilitary groups
operating in that country. Her brother was killed in 2001. Her boyfriend, the
father of her son, was killed in 2004, as was her father. Shortly after the
death of her father, she began the process of immigrating to Canada.
11 Ms.
Uribe came to Canada in 2007 as a refugee, but in October 2007 she was granted
permanent resident status. She has survived on social assistance benefits since
arriving in Canada. She has a grade five education and apparently very limited
work experience. She has done some volunteer work through two different
organizations, "Doorsteps", which is described as a "community
development organization", and "The Stop Community Food Centre",
which provides meals to needy patrons. In addition, she attends an ESL program
offered through the Toronto District School Board. She speaks little English at
present and was assisted by a translator throughout the trial proceedings.
12 There
are family members in Canada who offer support to Ms. Uribe, that include her
step-mother, grandmother, an aunt and a cousin.
13 When
Ms. Uribe first arrived in Canada she stayed in a shelter with her son. It was
there that she met Mr. Soto-Cortes, also a Colombian expatriate, who would come
by to visit and befriend other Spanish-speaking Colombians at the shelter. Ms.
Uribe left the shelter and moved in with her cousin where she stayed for about
a year. Mr. Soto-Cortes dated her cousin at first, then her. She eventually
moved in with him.
14 Ms.
Uribe lives now with her son and other family members. Mr. Soto-Cortes is in
prison.
The Impact on the Victims of the Offence
15 The
impact of a crime of this nature on Mr. But and Ms. Ngo is predictable and
understandable. Each filed a victim impact statement. Ms. Ngo suffered for some
time from physical injuries sustained in the robbery. But the damage to her and
her family goes well beyond that. She valued their jewellery inventory at
between $300,000 and $500,000. It was uninsured. The family business and their
financial security have been lost. She and Mr. But have both suffered psychological
harm. She still experiences frequent nightmares and sleepless nights. She feels
fearful for her safety and the safety of her family. She no longer feels safe
in her own home and will not spend any time outside in her yard. She is afraid
to leave her home and when she does, she frequently checks her shoulder because
she is afraid of being followed. Her social life has been destroyed.
16 Mr.
But expressed the guilt that he feels because he was unable to defend his wife
and the defenselessness he felt trapped inside his car while his wife was
attacked. He too has frequent nightmares and flashbacks of the robbery. He is
left constantly feeling fearful and anxious for his own safety and that of his
family. His life's work, over 30 years in the making, was stolen from them in
the course of a few terrifying minutes. His life has been ruined.
Legal Parameters
17 Ms.
Uribe was convicted of robbery and possession of property obtained by crime,
with a value over $5,000. The Crown submitted that the conviction for
possession should be stayed in accordance with the principles of R. v. Kienapple, [1975] 1 S.C.R. 729. There
being no objection to the stay by defence counsel, I accept the Crown's
submissions and conditionally stay count 6. Ms. Uribe is to be sentenced only
for her part in the robbery, which is count 4 on the Indictment.
18 Pursuant
to s. 344(1)(c) of the Criminal Code of Canada, a person convicted of robbery is liable to imprisonment for life.
Sentencing Principles
19 Section
718 of the Criminal Code codifies
the fundamental purposes of sentencing, long recognized by the common law.
Those purposes include the denunciation of unlawful conduct, deterrence both
general and specific, the separation of the offender from society where necessary,
rehabilitation, reparation for harm done to the victims and the community, and
promotion of a sense of responsibility in offenders and acknowledgment of the
harm done.
20 Section
718.1 provides the fundamental principle of sentencing: a sentence must be
proportionate to the gravity of the offence and the degree of responsibility of
the offender.
21 Section
718.2 provides that a sentence should be increased or decreased to account for
any aggravating and mitigating circumstances. It also requires that a sentence
be similar to those imposed on similar offenders in similar circumstances, that
the combined duration of consecutive sentences not be unduly long, that an
offender not be deprived of liberty if less restrictive sanctions may be
appropriate, and that all available sanctions other than imprisonment that are
reasonable in the circumstances be considered.
22 No
one sentencing principle or purpose trumps the others. In each case, the weight
to be put on the individual objectives varies depending on the facts and
circumstances of the offence and of the offender. In this instance, there is no
dispute that deterrence and denunciation are of particular importance. This was
a planned and orchestrated robbery that ultimately occurred in the home of the
victims. As the Court of Appeal noted in R. v. Wright, [2006] O.J. No. 4870, quoting the trial judge in part, "home
invasion offences ... "must be recognized by the courts as serious and
denounced as totally unacceptable in a civilized society."" They
confirmed that priority must be given to the sentencing objectives of
deterrence and denunciation. These are not the only considerations of course.
The somewhat youthful age of Ms. Uribe and the fact that she is a first time
offender heightens the importance of restorative justice principles as well.
23 The
fact that a number of other individuals were involved in the robbery and have
been charged, convicted and sentenced brings into play the principle of parity
and its counterpart, disparity. The various players engaged in the course of
the robbery and its immediate aftermath were involved in varying degrees. There
are disparate levels of culpability and those must be recognized when assessing
Ms. Uribe's particular role.
Positions of Crown and Defence Counsel
24 The
Crown seeks a custodial sentence of two years less a day, based on the gravity
of the offence, its impact on the victims and in view of the established
sentencing range for home invasion robberies.
25 Defence
counsel urges the court to consider a conditional sentence. If the court is not
inclined to accept that submission, counsel asked that the court impose a jail
term of less than six months, having regard to the mitigating circumstances
present.
Discussion
26 In
the process of determining an appropriate sentence, I intend to first review
the aggravating and mitigating circumstances of the offence and the offender. I
will then review the sentences imposed on other parties to this offence. I will
consider the defence request for a conditional sentence and determine whether
the option of a conditional sentence is available in the circumstances. I will
then briefly review the case law in terms of the established range for offences
of this nature and ultimately reach a conclusion about the appropriate sentence
to be imposed here.
27 I
begin with a review of aggravating and mitigating circumstances.
Aggravating and Mitigating Circumstances
28 The
aggravating circumstances of the offence include the following:
The robbery, as I have
mentioned, was well-planned, organized and orchestrated by a large group of
individuals acting in concert;
There is a home invasion
element. The robbery took place in the garage of the victims' home. It has left
them feeling unsafe in the one place in the world where it is most important
that they feel safe and secure;
There was a weapon
utilized and indeed Ms. Ngo was stabbed in the hand with a sharp object. She
was forced to her knees in the garage and suffered physical injuries to her
legs; and,
The sheer size of the
loss and its devastating impact on the financial security and future of the
victims.
29 There
are also a number of mitigating circumstances which include the following:
Ms. Uribe has no prior
criminal record. She is a young, single mother of a 17 year old son. She has
extended family in Ontario and has their support;
She was an aider and not
a principal to the offence. There has never been any suggestion that she
actively participated in the commission of the robbery;
There is no evidence
that Ms. Uribe knew how the robbery was to be executed, who the targets were,
that a home invasion was to be a part of the plan, or that a weapon would be
used;
There is no evidence
that Ms. Uribe financially benefitted from the proceeds of the robbery;
Ms. Uribe was arrested
on June 17, 2010 and spent the next two months in custody, until being released
on bail on August 11, 2010. She then spent almost three years on bail, pending
trial, under fairly restrictive conditions, including a house arrest provision
where she was to remain in the home of her surety unless in the presence of her
surety;
Ms. Uribe's status in
Canada is as a permanent resident. Section 36(1)(a) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 ("IRPA"), provides that a permanent resident is
inadmissible on grounds of serious criminality for having been convicted in
Canada of an offence punishable by a maximum term of imprisonment of at least
10 years, or of an offence for which a term of imprisonment of more than six
months has been imposed. Ms. Uribe is now in jeopardy of being interviewed by
an immigration officer who may report to the Minister of Citizenship and Immigration
regarding her inadmissibility. Should such a report be made, Ms. Uribe may very
well become the subject of a removal order. She has a right to appeal a removal
order pursuant to s. 64(1) unless a sentence of greater than six months is
imposed, in which case she will have no right of appeal. The appeal provisions
of the IRPA were amended as of June 18, 2013. Prior to that time, a right of
appeal would only have been lost if the sentence imposed was greater than two
years.
Parity
30 There
were a number of individuals charged and convicted in relation to the robbery
of Ms. Ngo and Mr. But. As Justice Watt aptly noted in R.
v. Jacko, 2010 ONCA 452,
· "Degrees of responsibility vary. Some are principals. Others are
aiders, abettors, counsellors or parties to a common unlawful purpose. And even
within each mode of participation some bear greater responsibility than others.
Although all are parties in law and equally guilty of the offence, greater
punishment is the usual consequence of greater responsibility."
31 It
is important to examine what sentences have been meted out to other
participants and to examine their varying degrees of participation. The Crown
helpfully provided the court with the dispositions with respect to a
significant list of other participants, including:
Mr. Antonio Gomez-Duarte
entered a guilty plea to robbery and having his face masked, following the
preliminary inquiry, and received a sentence of seven years imprisonment;
Mr. Luis Enrique
Soto-Cortes and Mr. Aldo Alfonso Mancipe-Aguirre also entered guilty pleas to
robbery and wearing a mask following the preliminary hearing and each was
sentenced to six years imprisonment. Each has been ordered deported once their
sentences are served;
Mr. Jose Morales entered
a guilty plea to being an accessory after the fact, for his role in carrying
the stolen property. He entered an early guilty plea and received a one year
jail sentence, following a joint submission from Crown and defence counsel. He
has been ordered deported;
Ms. Nidia Gomez also
entered an early guilty plea to being an accessory after the fact. She was
sentenced to one year in jail, but on a time-served basis. She has been
deported;
Mr. Hector Nova
similarly was sentenced to one year in jail for being an accessory and he too
has been deported;
Ms. Maria Diaz was
convicted of possession of stolen goods and sentenced to something less than
one year. She too has been deported;
32 There
are outstanding arrest warrants for several other participants, but the
foregoing list provides an ample basis on which to consider the principle of
parity.
33 Mr.
Gomez-Duarte, Mr. Soto-Cortes and Mr. Mancipe-Aguirre were all directly
involved as principals in the actual commission of the robbery. They participated
in its planning and execution and were present in the victims' garage, masked
and armed. Their sentences reflect their significant involvement and
culpability.
34 Most
of the others who have been sentenced, Mr. Morales, Mr. Nova and Ms. Diaz, were
all involved in transporting the stolen jewellery from an unknown initial
location to an apartment on Islington Avenue in Toronto. Whether any of them
participated in the planning and execution of the robbery is not known, but
their pleas and sentences suggest they played a limited role in the offence.
35 Ms.
Nidia Gomez was not a transporter. It appears, however, from the evidence
adduced at trial, that she was likely a lookout or driver during the course of
the offence. I am not sure what essential facts she agreed to when her plea was
entered.
The Conditional Sentence Option
36 Defence
counsel urged the Court to consider the imposition of a conditional sentence.
Though the provision has since been amended, at the time of the index offence,
the availability of conditional sentences was governed by s. 742.1 of the Criminal Code, which provided, at the relevant
time, as follows:
· "742.1 If a person
is convicted of an offence, other than a serious personal injury offence as
defined in section 752 ... the court may, for the purpose of supervising the
offender's behaviour in the community, order that the offender serve the
sentence in the community, subject to the offender's compliance with the
conditions imposed under section 742.3."
37 Counsel
debated whether the robbery in this instance was "a serious personal
injury offence as defined in section 752." Section 752 defines a
"serious personal injury offence" as follows:
· "(a) an indictable offence, other than high treason, treason,
first degree murder or second degree murder, involving,
the use or attempted
use of violence against another person, or
conduct endangering or
likely to endanger the life or safety of another person or inflicting or likely
to inflict severe psychological damage on another person,
· and for which the offender may be sentenced to imprisonment for ten
years or more,"
38 The
controlling decision in Ontario regarding the definition of a serious personal
injury offence is R. v. Lebar,
2010 ONCA 220, [2010] O.J. No. 1133, 260 O.A.C. 169, 101 O.R. (3d) 263, 252
C.C.C. (3d) 411 (C.A.). There, Justice Epstein held that a contextual analysis
of the phrase "serious personal injury offence" leads to the
conclusion that Parliament intended a broad definition of the term
"violence". She said, specifically, at paras. 47-49,
· "47 ... I conclude
that the object and scheme of the relevant provisions of the Code, as well as
Parliament's intention in enacting them, was to reduce judicial sentencing discretion
by eliminating the availability of conditional sentences for crimes of violence
within a certain set of criteria. This is significant in the light of the trial
judge's conclusion that the reduction of judicial discretion was an
"undesired result".
· 48 To be true to Parliament's intention, the
concept of violence must be given a broad interpretation.
· 49 In my view, the meaning of
"violence" in this definition must be informed by the entirety of the
definition of a serious personal injury offence. A serious personal injury
offence is defined, in part, either as an offence involving the use or
attempted use of violence against another person, or "conduct endangering
or likely to endanger the life or safety of another person or inflicting or
likely to inflict severe psychological damage upon another person." Taken
together, and especially taking into account the far-reaching meaning of the
word "safety", these two clauses point to the legislature's intention
to cover a very expansive range of dangerous behaviour with the term
"serious personal injury offence"."
39 The
index offence involved four masked men accosting a helpless middle-aged couple
in their own garage. At least one of the men was armed. Ms. Ngo was stabbed in
the hand and forced to the ground, injuring her legs. Mr. But was forcibly
confined in his car, helpless to assist his wife. Their life's work was taken
from them. Both suffered and continue to suffer significant psychological harm
and neither feels safe in their own home. There is no doubt in my mind,
particularly in light of the direction from Lebar, that the index offence is just exactly the type of offence that
Parliament sought to exclude from the conditional sentencing regime.
40 Defence
counsel argued that, even if the court concludes that the offence is a serious
personal injury offence, the accused before the court did not participate in
the violence, or, for that matter, the actual robbery at all. In other words,
the court was urged to consider Ms. Uribe's actual role in the offence.
41 Section
742.1 does not distinguish between principals, aiders or abettors. It says that
a person convicted of a serious personal injury offence is ineligible for a
conditional sentence. This was a serious personal injury offence. Ms. Uribe was
convicted of it. In my view, the conditional sentence option is not available.
The Range
42 Crown
counsel focussed her argument on the fact that this was a home invasion/robbery
and provided the court with a number of decisions in an effort to establish an
appropriate sentencing range.
43 "Home
invasion" is not a defined term in the Criminal
Code. It is mentioned as an aggravating factor in s.
348.1 of the Code. Its essential nature was discussed by the Court of Appeal in
R. v. J.S. (2006), 210 C.C.C.
(3d) 296, [2010] O.J. No. 2654. Blair J.A. described its main features as
including breaking and entering a dwelling place for purposes of committing a
theft or robbery, knowing that, or being reckless as to whether the home is
being occupied, and using or threatening to use violence. The presence of
weapons is often a factor, as is the confinement of the occupants of the home
in some fashion. Such a definition is in keeping with the specific provisions
of s. 348.1. He expressed caution however, noting that "the label
"home invasion" is elastic and can cover a broad range of offences.
Judges have warned against generalizing across all home invasions when
determining an appropriate sentence. One size does not fit all."
44 Justice
Blair repeated this theme in R. v. Wright, which was a case arising out of Barrie, Ontario. Five suspects
entered the home of a local business owner and corralled him and his family in
their living room. They were armed with handguns and wore disguises. The objective
was to rob the business premises of the home owner. They kept the family
confined for 45 minutes, forced the business owner to hand over the keys to his
business and to provide them with the combination to his safe. They fled when
police arrived at the home. The accused, Mr. Wright, was one of the armed
intruders. He was sentenced by the trial judge to eight years imprisonment,
following a guilty plea, a sentence that was upheld by the Court of Appeal. The
argument at appeal was that the trial judge had imposed a sentence above the
usual range.
45 Blair
J.A. made a number of comments about sentencing ranges. He noted that they are
"nothing more than guidelines and are certainly not conclusive of the
appropriate sentence in any given case. Each case must be conducted as an
individualized exercise." (See para. 16). He went on to make the following
observations about home invasion cases in particular,
· "Indeed, it is the elastic nature of the home invasion offence,
and the myriad of circumstances to which the label may apply, that make it
difficult to define a range of sentence for such a crime. In my view, however,
the trial judge was correct to observe that this court, and other appellate
courts, have imposed sentences that exceed the five-to-eight-year range the
appellant contends govern such cases ... (See para. 18)."
· "In my view, however, home invasion cases call for a
particularly nuanced approach to sentencing. They require a careful examination
of the circumstances of the particular case in question, of the nature and
severity of the criminal acts perpetrated in the course of the home invasion,
and of the situation of the individual offender. Whether a case falls within
the existing guidelines or range, or indeed, whether it may be one of those
exceptional cases that falls outside the range and results in a moving of the
yardsticks, will depend upon the result of such an examination. I agree with the
British Columbia Court of Appeal in [R. v. A.J.C. (2004), 186 C.C.C. (3d) 227) at para. 29], however, that in cases of
this nature the objectives of protection of the public, general deterrence and
denunciation should be given priority, although of course the prospects of the
offender's rehabilitation and the other factors pertaining to sentencing must
also be considered. Certainly, a stiff penitentiary sentence is generally
called for. (See para. 24)"
46 Blair
J.A. approved of a sentencing range in home invasion cases of four to five
years at the low end and up to 11 to 13 years at the high end.
47 The
Crown placed great reliance on the sentencing decision of Baltman J. in R. v. J.B., 2011 ONSC 1150, [2011] O.J. No.
875, on the assertion that its facts were not dissimilar to the ones of the
case at Bar.
48 In
J.B., the accused was convicted
of robbery involving a home invasion. In October 2008, two masked men entered
the apartment of two women, a mother and daughter, and demanded money and drugs.
They were armed with guns. The women denied having either money or drugs and
were beaten. The apartment was ransacked and the intruders fled with a laptop
and a purse.
49 The
accused was ostensibly a long-time friend of one of the victims. The trial
judge found that she orchestrated the robbery and let the two masked and armed
men into the apartment building where the victims resided. She knew, or was
wilfully blind, to the fact that the robbers were going to use force against
the victims and/or that a robbery of this nature would inflict severe
psychological harm. The trial judge determined that she was instrumental in the
crime. She was, however, a first-time offender and the primary parent to a four
year old. Nevertheless, given the vital role she played in the offence, she was
sentenced to four years in prison.
50 The
Crown provided a number of other cases for comparative purposes, all of which
serve to underscore the individualized nature of the sentencing process.
51 Two
of the four principals to the robbery in the case at Bar received sentences of
six years following guilty pleas. One, Mr. Gomez-Duarte, arguably the worst
offender, received seven years. These sentences are in keeping with the roles
they played, the sentencing range discussed in R. v.
Wright, and the seriousness of the offence.
52 Ms.
Uribe's role was far less significant. She was not a principal, but a party to
the offence. Her role consisted of assisting in the rental of a car. It is
significantly less vital or integral a role than that played by the accused in J.B., a fact the Crown is not overlooking. In this instance she says
that an appropriate sentence, by comparison, is two years less one day.
53 It
must be noted that in this case, unlike J.B., I have not concluded, nor can I
conclude, that Ms. Uribe knew the details of the robbery to be committed. I
have found that she knew the vehicle was being rented for use in a robbery. I
am not able to conclude that she knew who the targets were, that it was intended
to be a home invasion, that masks were to be worn, that weapons were to be
brandished, or that violence was to be used. I do not conclude that she was
wilfully blind to such facts because I am entirely without evidence as to what
particulars of the offence were discussed between her and Mr. Soto-Cortes.
54 Having
said that, I am not of the view that the Crown's suggested sentence is
inappropriate. It certainly reflects a disparity in sentence between Ms. Uribe
and the principals to the offence. At the same time, this was a very serious
offence with serious consequences. The case law is clear that denunciation and
deterrence are paramount factors. Violating the sanctity of someone's home,
rendering them helpless and afraid is something that must be very seriously
denounced in our society. This was a cowardly crime, motivated entirely by
greed and committed by people too lazy, too corrupt, or otherwise disinclined
to earn an honest wage for an honest day's work. Ms. Uribe knowingly
participated in it, even if she didn't know all of the details. Ms. Uribe's
sentence must reflect the gravity of the offence, as well as her role in it.
55 At
the same time, I must consider the principle of parity. I cannot say that Ms.
Uribe's role was materially more significant than the roles played by the
carriers of the stolen goods at the tail end of the offence. Mr. Morales, Mr.
Nova and Ms. Diaz all received sentences of one year. Ms. Gomez received a one
year sentence as well and arguably played a more active role in the offence
than did Ms. Uribe. All four of these offenders entered guilty pleas, which
distinguishes them from Ms. Uribe. Not pleading guilty is, of course, not an
aggravating factor, but it does mean that the offender is not entitled to rely
on the mitigating effect of a guilty plea.
56 I
must also take into account the mitigating effect or credit that Ms. Uribe is
entitled to for her pre-trial custody. She spent two months in pre-trial
custody and, in addition, spent three years subject to restrictive bail
conditions.
57 Finally,
there is the issue of her immigration status. Under the IRPA, Ms. Uribe, a permanent resident, will lose her right to appeal a
removal order against her, should she be sentenced to a term of imprisonment
greater than six months. The impact of the sentence on Ms. Uribe's appeal
rights under the IRPA is a collateral consequence to the sentence that is
appropriate for the court to consider. I referred to the immigration issue
earlier as a mitigating circumstance. Technically it is not a mitigating
circumstance at all, since it is a collateral consequence and not a factor that
goes to the gravity of the offence or to the degree of responsibility of the
offender.
58 While
it is appropriate for the court to consider collateral consequences, including
deportation issues, those consequences must not be permitted to dominate the
exercise. The tail must not wag the dog so to speak. As Wagner J. recently
wrote in R. v. Pham, 2013 SCC 15,
[2013] S.C.J. No. 100, 293 C.C.C. (3d) 530,
· "The general rule continues to be that a sentence must be fit
having regard to the particular crime and the particular offender. In other
words, a sentencing judge may exercise his or her discretion to take collateral
immigration consequences into account, provided that the sentence that is
ultimately imposed proportionate to the gravity of the offence and the degree
of responsibility of the offender. (See para. 14)."
· "It follows that where a sentence is varied to avoid collateral
consequences, the further the varied sentence is from the range of otherwise
appropriate sentences, the less likely it is that it will remain proportionate
to the gravity of the offence and the responsibility of the offender.
Conversely, the closer the varied sentence is to the range of otherwise
appropriate sentences, the more probable it is that the reduced sentence will
remain proportionate and thus reasonable and appropriate. (See para.
18)."
59 Denunciation
and deterrence remain the primary sentencing objectives in this case because of
the nature of the offence. A masked and armed attack of helpless and terrified
victims in their own home is conduct deserving of the strongest denunciation.
Individuals prepared to orchestrate and perpetrate such an offence demonstrate
a level of criminality and moral insolvency that is greatly disturbing. Crimes
of this nature present a substantial threat to the sense of safety and
orderliness that we depend upon in our community. This was a very grave offence
indeed.
60 Despite
the mitigating factors present here and despite Ms. Uribe's role as an aider,
my view is that her participation in this very grave offence is deserving of
serious condemnation. In my view the sentence proposed by the Crown is entirely
reasonable in the circumstances.
61 I
am prepared to credit Ms. Uribe with three months for her pre-trial time served
on a 1.5:1 basis. I am also prepared to give her three months credit in
recognition for the three years she spent subject to restrictive bail
conditions. Her net sentence is therefore 18 months in custody.
62 I
am not prepared to reduce that sentence to less than 6 months as requested by
the accused, given the deportation issues that are in play. I really am very
sympathetic to Ms. Uribe's history in Colombia and I am similarly sympathetic
to the fact that she has a 17 year old son in Canada. But a sentence of six
months or less is entirely inappropriate given the gravity of the offence. It
is too far from the appropriate range to justify it. In my view it would be
demonstrably unfit.
In addition to the custodial term I have imposed,
there will be an order that Ms. Uribe provide a sample of her DNA and there
will be a 10 year weapons prohibition pursuant to s. 109 of the Criminal Code.
R.C. BOSWELL J.
No comments:
Post a Comment