



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v.
    Desir, 2021 ONCA 486

DATE: 20210705

DOCKET: C68738

Rouleau, Pepall and Roberts
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Romy Desir

Appellant

Marianne Salih, for the appellant

Gerald Brienza, for the respondent

Heard: in writing

On appeal from the sentence imposed on August
    14, 2019 by Justice Laura A. Bird of the Superior Court of Justice.

Pepall J.A.:

[1]

This is a sentence appeal by the appellant, Romy Desir, who was 16 years
    old at the time of the offences. He was given an adult sentence.

[2]

He committed serious crimes. He and others robbed three jewelry stores.
    On one occasion, he repeatedly struck an employee with his pellet gun. He pled guilty
    to ten counts: three counts of robbery using a restricted firearm; four counts
    of disguise with intent to commit an indictable offence; attempted robbery;
    aggravated assault; and failure to comply with a recognizance. At the time of
    the offences, he had no criminal record or youth court record, but he was on
    bail on account of charges of possession of a loaded firearm and assault with a
    weapon and was supposed to be abiding by a house arrest condition.

[3]

The sentencing judge imposed a global sentence of seven years less 31.6
    months on account of pre-sentence custody. The sentencing judge arrived at this
    global sentence by imposing concurrent sentences of five years less credit for
    pre-sentence custody on the robbery counts, a consecutive sentence of two years
    on the aggravated assault count, and concurrent sentences on the remaining
    counts.

[4]

The appellant submits that the sentence should be reduced. He makes two
    submissions. First, he states that the sentencing judge erred in imposing an
    adult sentence because the Crown had failed to rebut the presumption of
    diminished moral blameworthiness and because a youth sentence would be
    sufficient to hold the appellant accountable. Second, he states that the
    sentencing judge failed to give effect to the principle of restraint and that a
    first penitentiary sentence for a youthful offender should be as short as
    possible. He submits a six-year custodial sentence is fit in all the
    circumstances.

[5]

For the following reasons, I agree with the appellants second submission
    and would reduce the sentence to six years less credit of 31.6 months.

(1)

The Crimes

[6]

The appellant committed three robberies in quick succession. The
    sentencing judge found them all to be well-planned and executed.

[7]

On March 3, 2017, in under four minutes, the appellant and two others
    robbed a jewelry store in Stouffville. They all wore masks, smashed display
    cases and stole jewelry. One brandished a handgun.

[8]

On March 13, 2017, after unsuccessfully attempting to gain access to a
    jewelry store in Ajax, the appellant and four others robbed another jewelry
    store in Ajax in under three minutes. They were disguised and brandished two pellet
    guns. The appellant pointed his gun at an employee and forcefully pulled her to
    the back of the store and demanded that she open the safe. When she fumbled
    with the code, he put the gun to her head and told her he wasnt fooling. The
    gun was pointed at her for a significant period of time. Meanwhile, one of the
    others used a hammer to smash the display cases while another scooped up the
    jewelry. The appellant later assisted in smashing cases and gathering up
    jewelry.

[9]

On March 14, 2017, the appellant and others entered another jewelry
    store. Again, they wore disguises and the appellant was armed with a pellet
    gun. The appellant repeatedly struck an employee in the head with his pellet
    gun. The sentencing judge found the violence inflicted upon him to be
    completely unnecessary and troubling. The employee was alone in the store,
    outnumbered four to one, and significantly older than his assailants. At the hospital,
    he was treated for cuts to his head that required staples.

[10]

The
    appellant and the others were arrested later that day. As mentioned, at the
    time, the appellant was on a recognizance of bail as a result of firearm charges
    he was facing in Toronto. He had been arrested on February 12, 2017, just one
    month before the robberies, and had been subsequently released on bail with
    conditions including one of house arrest with limited exceptions and another
    prohibiting him from possessing weapons. As evident from the crimes that are
    the subject matter of this sentence appeal, the conditions proved to be
    meaningless. On November 21, 2017, he was sentenced for possession of a loaded
    firearm and assault with a weapon. He received a sentence of time served and
    probation of 18 months.

(2)

The Circumstances of the Appellant

[11]

The
    appellant is a black youth who grew up in poverty in the Jane and Finch area of
    Toronto. Prior to his arrest, he lived with his mother on Driftwood Avenue,
    which as the sentencing judge noted, is a high crime area in the city. His
    mother struggled to provide financially for her family. His father lives in
    Florida. The appellant experienced instability in his childhood. Growing up, he
    attended five different elementary schools. He does not appear to have had much
    family guidance. Neither his mother nor his father participated in the
    preparation of the pre-sentence report or the s. 34 report.

[12]

The
    sentencing judge found that his motivation to commit these crimes was
    financial. The appellant reported having some acquaintances who were members of
    a street gang although he denied membership himself. He began regularly using
    marijuana between the ages of 12 and 14. He is an American citizen and never
    had an Ontario health card or a Canadian social insurance number. As such, he
    did not believe he was eligible for employment.

[13]

When
    he was arrested, he was attending high school and had completed 18 high school
    credits. The sentencing judge reviewed the progress he had made:

Between the date of his arrest and August of 2018, he earned an
    additional 14 credits and obtained his O.S.S.D. His grades in the high school
    courses he completed in custody are generally very good and demonstrate a
    strong academic ability. Two of the courses R.D. took were dual credit courses
    meaning that he got both high school and college credits. After finishing his
    O.S.S.D., R.D. participated in a further online learning program for several
    months. According to the Section 34 report, R.D.s grades in this program were
    exceptional and he demonstrated full participation and commitment. R.D. wants
    to pursue post-secondary education in the field of auto mechanics. Based on his
    academic achievement while in custody, he clearly has the ability to do so.

In addition to the high school and college
    classes he completed, R.D. has participated in many group programs related to
    employment, gang involvement, substance use and pro-social thinking. He has
    obtained certificates in WHMIS, first aid and forklift operation. R.D. has
    regularly engaged in Brooksides Spiritual Care Program. At the time the
    pre-sentence report was written, R.D. had committed to working with a
    psychometrist for at least six individual sessions to examine the attitudes
    that led him to offend. The unit manager at Brookside told the author of the
    pre-sentence report that she meets with R.D. on a weekly basis and is of the
    opinion that he has made huge strides in how he approaches things. In her
    view, R.D. has become a leader who has demonstrated an increased ability to
    resolve conflict in a mature and respectful manner.

[14]

That
    said, while institutionalized, the appellant was involved in five altercations
    with other youth and staff and found in possession of contraband including
    marijuana on four occasions. His behavior was described as threatening and
    bullying.

[15]

The
    appellant expressed remorse and feels a great deal of guilt. He advised the
    sentencing judge that he is committed to bettering himself by pursuing further
    education and lawful employment. The sentencing judge noted that he appeared to
    be sincere and this boded well for his rehabilitation.




(3)

Pre-Sentence, s. 34 and s. 76 Reports

[16]

The
    sentencing judge described the appellants pre-sentence report as very
    positive. His strengths include being academically capable with strong
    vocational interests. As for areas of need, he can be strongly influenced by
    his peers and thus there were concerns about contact with gangs.

[17]

The
    s. 34 report was in part prepared by Dr. Szanto, a registered psychologist. She
    opined that the appellant presents a moderately high risk and was not ready to
    re-enter the community. She was of the view that it was important for him to
    engage in offence-based counselling and to deal with his past gang affiliation.

[18]

Following
    the sentencing, it was jointly proposed that the appellant serve the remainder
    of his sentence in the adult penitentiary system. This was suggested by the
    appellants counsel. The appellant had availed himself of all programming
    available in the youth facility and new programming would be available in an
    adult facility. As a result, no s. 76 placement report was filed for the
    purposes of the placement hearing.

(4)

Discussion

(a)

Standard of Review

[19]

Recently,
    in
R. v. Friesen
, 2020 SCC 9, 444 D.L.R. (4th) 1, the Supreme Court
    again emphasized the deference generally afforded to sentencing judges
    decisions. The sentencing judge sees and hears all the evidence and
    submissions, has regular front-line experience, and, in the absence of good
    reason to interfere, deference avoids delay and misuse of judicial resources:
    at para. 25.

[20]

An
    appellate court can only intervene if the sentence is demonstrably unfit or the
    sentencing judge made an error in principle that had an impact on the sentence.
    As stated in
Friesen
, at para. 26:

Errors in principle include an error of law, a failure to consider
    a relevant factor, or erroneous consideration of an aggravating or mitigating
    factor. The weighing or balancing of factors can form an error in principle
    [o]nly if by emphasizing one factor or by not giving enough weight to another,
    the trial judge exercises his or her discretion unreasonably. Not every error
    in principle is material: an appellate court can only intervene if it is
    apparent from the trial judges reasons that the error had an impact on the
    sentence. If an error in principle had no impact on the sentence, that is the
    end of the error in principle analysis and appellate intervention is justified
    only if the sentence is demonstrably unfit. [Citations omitted.]

(b)

Presumption of Diminished Moral Blameworthiness

[21]

The
    appellant argues that the sentencing judge erred in imposing an adult sentence
    and in finding under s. 72(1)(a) of the
Youth Criminal Justice Act
, S.C.
    2002, c. 1 (
YCJA
)
that
    the presumption of diminished moral blameworthiness had been rebutted. In this
    regard, he submits that she relied on improper factors. Although he concedes
    that the sentencing judge considered the correct factors under the second prong
    of the test found in s.72(1)(b), the appellant argues that in concluding that
    an adult sentence was necessary to hold the appellant accountable, the
    sentencing judge did not sufficiently account for the appellants strong
    rehabilitative prospects.

[22]

Section
    72 of the
YCJA
gives direction to sentencing judges on the question of
    whether the presumption of diminished moral blameworthiness has been rebutted.
    It provides:

72 (1) The youth justice court shall order that an
    adult sentence be imposed if it is satisfied that

(a) the presumption of diminished moral
    blameworthiness or culpability of the young person is rebutted; and

(b) a youth sentence imposed in accordance with
    the purpose and principles set out in subparagraph 3(1)(b)(ii) and section 38
    would not be of sufficient length to hold the young person accountable for his
    or her offending behaviour.

(1.1) If the youth justice court is not satisfied
    that an order should be made under subsection (1), it shall order that the
    young person is not liable to an adult sentence and that a youth sentence must
    be imposed.

(2) The onus of satisfying the youth justice court as
    to the matters referred to in subsection (1) is on the Attorney General.

[23]

The
    trial judge commenced her analysis by recognizing that the Crown had to rebut
    the presumption of diminished moral blameworthiness or culpability. Citing
R.
    v. M.W.
, 2017 ONCA 22, 134 O.R. (3d) 1, leave to appeal refused, [2017]
    S.C.C.A. No. 109, she stated that to do so, the evidence had to support a
    finding that the young person demonstrated the level of maturity, moral
    sophistication and capacity for independent judgment of an adult. She proceeded
    to enumerate the factors she took into account in assessing the appellants
    level of maturity at the time of the offences. This included: he was three
    months past his 16th birthday; while having a mild learning disability, was of
    at least average intelligence; he did not suffer from any mental illnesses; and
    he was not under the influence of substances at the time of the offences.

[24]

As
    the Crown concedes, standing alone, the appellants age, average intelligence,
    lack of mental illness and substance use at the time of the offences were incapable
    of rebutting the presumption of diminished moral blameworthiness. While these
    factors do not all serve to rebut the presumption, they are all properly
    considered as part of the context of the sentencing judges assessment of the
    appellants maturity.

[25]

Having
    considered these factors and the appellants decision to participate in the
    robberies because he wanted money, the trial judge turned to the offences
    themselves. Importantly, they provided compelling evidence of the appellants
    level of maturity at the time. She wrote at para. 40(f):

[T]he offences provide compelling evidence of R.D.s level of
    maturity at the time. These were not impulsive or unsophisticated offences. To
    the contrary, the evidence establishes that they were very well planned and
    executed. Based on the videos, the participants were fully prepared to carry
    out the robberies and they each seemed to have roles that were understood. R.D.
    and his accomplices were armed with weapons, gloves, masks and bags. They
    ransacked each store in a fairly brief period of time which is evidence of a
    high level of preparation and sophistication. The fact that the robberies
    occurred on three different days is further evidence that R.D.s involvement in
    them was considered and not spontaneous. Each day he had to meet up with his
    accomplices and drive to the stores. He needed to arm himself and make sure he
    had the necessary tools to commit the offences. Each day, R.D. made a
    deliberate choice to engage in a terrifying take-over style robbery of a
    targeted location. These offences are the antithesis of impulsivity and
    immaturity.

[26]

The
    sentencing judge also considered the appellants tremendous progress while in
    custody but was not prepared to find that this meant he had a diminished level
    of moral blameworthiness or culpability when he committed the offences. That
    finding was open to her. The sentencing judge conducted a full and balanced
    assessment of the presumption of diminished moral blameworthiness or
    culpability. I see no basis on which to interfere with her conclusion.

[27]

As
    for the sentencing judges treatment of the second step found in s. 72(1)(b),
    the appellant concedes that the sentencing judge considered the correct factors
    but argues that insufficient weight was given to the appellants rehabilitative
    prospects.

[28]

The
    sentencing judge properly instructed herself on the seriousness of imposing an
    adult sentence stating:

An adult sentence must be imposed if I am satisfied that a
    youth sentence would not be sufficient to hold R.D. accountable for his
    offending behavior. As noted in
R. v. A.O.
[2007] O.J. No. 800 (C.A.), the decision to impose an adult sentence is a very
    serious one and should only occur after a careful consideration of all of the
    relevant factors. The Court explained that accountability is achieved through
    the imposition of meaningful consequences for the offender and sanctions that
    promote his rehabilitation and reintegration into the community. As with all
    sentences, the principle of proportionality applies. Any sentence imposed must
    be proportionate to the seriousness of the offences and the degree of
    responsibility of the offender.

[29]

She
    considered relevant factors, as conceded by the appellant, and concluded that
    the maximum youth sentence, even taking into account the appellants
    pre-sentence custody, was insufficient to hold him accountable for his
    offending behavior. As a result, she decided that he was to be sentenced as an
    adult.

[30]

Absent
    reviewable error, it is not for this court to reweigh the evidence. The
    conclusions reached by the sentencing judge were available to her. I see no
    error in her reasons relating to the rebuttal of the presumption of diminished
    moral blameworthiness or whether a youth sentence would be sufficient to hold
    the appellant accountable and would dismiss this ground of appeal.

(c)

Principle of Restraint

[31]

The
    appellants second ground of appeal is that the sentencing judge failed to
    consider the principle of restraint and that a first penitentiary sentence
    should be as short as possible as set out in
R. v. Borde
(2003), 63
    O.R. (3d) 417 (C.A.) and other decisions of this court. In
Borde
,
    Rosenberg J.A. articulated this principle as follows, at para. 36:

The length of a first penitentiary sentence
    for a youthful offender should rarely be determined solely by the objectives of
    denunciation and general deterrence. Where, as here, the offender has not
    previously been to penitentiary or served a long adult sentence, the courts
    ought to proceed on the basis that the shortest possible sentence will achieve
    the relevant objectives.

[32]

The
    appellant submits that the seven-year sentence given by the sentencing judge was
    crushing. It removes the appellant from the community for several formative
    years and places him in the company of negative peers. This will only serve to
    harden him.

[33]

The
    Crown responds that the sentencing judge dealt with the principle of
    proportionality and that the sentencing judge necessarily considered the
    concept of restraint. Moreover, the Crown had sought eight years and the
    imposition of seven years was a form of restraint.

[34]

In
    addressing an appropriate sentence, the sentencing judge observed that the
    sentence had to be proportionate to the gravity of the offence and the degree
    of responsibility of the offender. Citing
R. v. Lacasse
, 2015 SCC 64,
    [2015] 3 S.C.R. 1089, she stated that the gravity of the offence, the
    offenders degree of responsibility, the specific circumstances of the case and
    the circumstances of the offender should be considered. In this regard, she noted
    the seriousness of the offences and the high level of the appellants
    blameworthiness.

[35]

The
    sentencing judge then stated that she had to balance the aggravating and
    mitigating factors and take into consideration the principles of sentencing set
    out in s. 718 of the
Criminal Code
,

R.S.C. 1985, c. C-46
. She
    accordingly identified the appellants pleas of guilty and accepted as genuine
    his expression of remorse and his commitment to change. Further, she identified
    his youth and excellent prospects for rehabilitation as significant mitigating
    factors. She also treated his insight into his wrongdoing as a mitigating
    factor.

[36]

The
    aggravating factors she identified included the degree of planning and
    sophistication involved in the robberies, the use of disguises and weapons, the
    harm done to the victims, the violence inflicted on one of the victims, and the
    fact that he was on release for firearms offences at the time of the robberies
    and was in violation of his bail conditions.

[37]

She
    closed her analysis by stating:

I have taken into account the principles of sentencing as
    outlined in Sections 718, 718.1 and 718.2 of the
Criminal
    Code
. I have attempted to strike the appropriate balance between
    the mitigating and aggravating factors that are present in this case paying
    particular attention to the fact that R.D. was a youth at the time of the
    offences.

[38]

The
    restraint principle is reflected in ss. 718.2(d) and (e). Section 718.2(d)
    provides that an offender should not be deprived of liberty, if less
    restrictive sanctions may be appropriate in the circumstances. Section 718.2(e)
    states that all available sanctions, other than imprisonment, that are
    reasonable in the circumstances and consistent with the harm done to victims or
    to the community should be considered for all offenders, with particular
    attention to the circumstances of Aboriginal offenders.

[39]

Other
    than the passing reference to the relevant sections of the
Criminal Code
,
    the sentencing judge did not mention the principle of restraint nor ss. 718.2(d)
    and (e) in particular, nor did she mention the principle reflected in
Borde
.
    While it is well settled that the sentencing judge was not required to state
    the restraint principle explicitly, her reasons do not reflect that she applied
    the concept.

[40]

Borde

involved an 18-year-old appellant convicted of aggravated assault and
    various firearms offences. In two of the incidents, he used handguns, and he
    was also in breach of his probation at the time of the offences. He had a
    substantial youth record that included crimes of violence. Aside from the
    gravity of his offences, the overwhelming factor in the sentencing was his
    youth. Rosenberg J.A. wrote that the trial judge did not give proper
    consideration to both his youth and that a first penitentiary sentence should
    be as short as possible. The appellants sentence was accordingly reduced from
    five years and two months to four years and two months.

[41]

The
    principle of restraint serves to minimize a youthful first offenders sentence
    in that it requires a sentencing judge to consider all sanctions apart from
    incarceration and where incarceration is required, make the sentence as short
    as possible and tailor it to the individual circumstances of the offender:
R.
    v. Batisse
, 2009 ONCA 114, 93 O.R. (3d) 643, at para. 32;
R. v. Priest

(1996), 110 C.C.C. (3d) 289 (Ont. C.A.). The principle also requires the
    sentencing judge to consider rehabilitation in determining the appropriate
    length, recognizing that in very serious cases and cases involving violence,
    rehabilitation alone is not the determinative factor and general deterrence and
    denunciation must also be considered:
Batisse
, at paras. 33 and 34. As
    stated in
Priest
, the primary objectives in sentencing first offenders
    and youthful offenders are individual deterrence and rehabilitation, except in cases
    involving very serious offences and offences of violence: at pp. 294, 296.

[42]

I
    agree with the sentencing judge that a meaningful period of incarceration was
    required due to the serious nature of the offences. However, as in
R. v. Rocchetta
,
    2016 ONCA 577, 352 O.A.C. 130, at para. 35, the restraint principle should have
    been one of the primary considerations in fixing the appropriate period of
    incarceration, but the sentencing judge failed to apply the principle. In
Rocchetta
,
    at para. 35, this court determined that the failure to apply the principle
    necessarily impacted materially on the length of the jail term imposed by the
    trial judge. Appellate intervention is justified: see
R. v. Lacasse
,
    2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 43-44, 83. The sentence should be
    varied downward.

[43]

At
    the time of the robberies, the appellant did not have a criminal record or a
    youth court record. Although this is mentioned early in the sentencing judges
    reasons, it played no role in her assessment of an appropriate sentence. At the
    time of the robberies, he had never been sentenced to time in custody before,
    let alone in the penitentiary. In fairness to the sentencing judge, when she
    delivered her reasons for sentence, she had not yet determined the placement
    for the appellant. She ordered a placement hearing pursuant to s. 76 of the
YCJA
and a placement report for that purpose. In light of his failure to avoid an
    adult sentence and having exhausted the available programming in the youth
    facility, it was jointly proposed by the Crown and the appellant that he serve
    the remainder of his sentence in the penitentiary. That said, this served to
    exacerbate the failure to apply the principle of restraint.

[44]

The
    failure of the sentencing judge to consider the relevant factor of restraint affected
    the sentence imposed and requires this court to perform its own sentencing
    analysis. We must determine a fit sentence, applying the principles of
    sentencing afresh to the facts, without deference to the existing sentence,
    even if that sentence falls within the applicable range, although deference
    should be shown to the sentencing judges findings of fact or identification of
    aggravating and mitigating factors, to the extent that they are not affected by
    an error in principle:
Friesen
, at paras. 27-28.

[45]

The
    gravity of the appellants crimes, the use of a firearm, the breach of his
    recognizance, and the harm to his victims all merit a lengthy sentence.
    However, these factors must be balanced against his age and his very difficult
    personal circumstances. Moreover, he has made tremendous progress while in
    custody and was described as having excellent prospects for rehabilitation.

[46]

Applying
    the restraint and other sentencing principles to the circumstances of the
    offence and the offender as described by the sentencing judge, I conclude that
    a global sentence of six years less credit for pre-sentence custody would be a
    fit sentence. This is a very significant jail term for this first-time offender
    and does not fail to adequately denounce his behavior.

[47]

In
    reaching this determination, I am mindful of the standard of review and the
    deference generally afforded to a sentencing judges decisions. That said, in
    this case, the sentencing judges failure to apply the principle of restraint and
    the principle that a first penitentiary sentence for a youthful offender should
    be as short as possible justifies appellate review. The sentence imposed was
    crushing and for this young man in his particular circumstances, a reduction in
    his sentence from seven to six years is merited.

[48]

For
    these reasons, I would grant leave to appeal sentence, allow the sentence
    appeal and reduce the appellants sentence by one year so that the global
    sentence is six years less credit on account of pre-sentence custody. To arrive
    at this global sentence, I would reduce the appellants concurrent sentences of
    five years less credit for pre-sentence custody on the robbery counts (Counts
    1, 6, and 9) to four years, concurrent, less credit for pre-sentence custody.
    The sentence in all other respects remains as imposed by the sentencing judge.

Released: July 5, 2021 P.R.

S.E. Pepall
    J.A.

I agree. Paul
    Rouleau J.A.

I agree. L.B.
    Roberts J.A.


